IN THE

SUPREME COURT OF VIRGINIA

AT RICHMOND

____________________________________

RECORD NOS. 992934 and 992935

____________________________________

HCA HEALTH SERVICES OF VIRGINIA, INC., et al.

Appellants
v.
STEPHEN M. LEVIN, M.D., et al.,
Appellees.

INOVA HEALTH SYSTEM,
Appellant,
v.
STEPHEN M. LEVIN, M.D., et al.
Appellees.

_________________________________________________________

BRIEF AMICUS CURIAE OF THE
VIRGINIA HOSPITAL AND HEALTHCARE ASSOCIATION,
MEDICAL SOCIETY OF VIRGINIA,AMERICAN MEDICAL ASSOCIATION
and
AMERICAN HOSPITAL ASSOCIATION
In Support of Appellants

__________________

Julia Krebs-Markrich, Va. Bar. No. 17698 Virginia Hackney, Va. Bar No. 05516
John E. Coffey, Va. Bar No. 19086 Marie Elena Graham, Va. Bar No. 42275
Heather L. Gunas, Va. Bar No. 42282 HUNTON & WILLIAMS


REED SMITH HAZEL & THOMAS LLP Riverfront Plaza, East Tower
3110 Fairview Park Drive, Suite 1400 451 East Byrd Street
Falls Church, Virginia 22042 Richmond, Virginia 23219
(703) 641-4200 (804) 788-8200

Counsel for all Amici Counsel for the Medical Society of Virginia

 

subject index

Page

IDENTIFICATION AND INTEREST OF AMICI CURIAE 1

A. Identification Of Amici 1

B. Interest Of Amici 3

ASSIGNMENT OF ERROR 6

QUESTIONS PRESENTED 6

STATEMENT OF THE CASE 7

STATEMENT OF THE FACTS 7

SUMMARY OF ARGUMENT 7

ARGUMENT 8

I. THE PEER REVIEW PRIVILEGE EXTENDS TO ALL LEGAL

DISCOVERY PROCEEDINGS AND IS NOT LIMITED TO MEDICAL

MALPRACTICE ACTIONS 8

A. The Peer Review Process Is Essential To Providing Quality Health Care Services To Citizens Of The Commonwealth 8

B. The Purpose Of Virginia Code ' 8.01-581.17 Is To Ensure The Confidentiality Of The Peer Review Process 9

C. The Legislative History Of Virginia Code ' 8.01-581.17 Demonstrates

That The Peer Review Privilege Applies In All Contexts, Not Just

Medical Malpractice Cases 13

D. The Scope Of The Privilege 15

II. DR. LEVIN CANNOT WAIVE THE PRIVILEGE UNDER ' 8.01-581.17 18

III. IN THIS CASE THERE HAS BEEN NO SHOWING OF GOOD CAUSE

ARISING FROM EXTRAORDINARY CIRCUMSTANCES JUSTIFYING

DISCOVERY OF OTHERWISE PRIVILEGED INFORMATION 19

CONCLUSION 21

CERTIFICATE OF SERVICE 24

 

 

TABLE OF AUTHORITIES

Page(s)

Cases

Bradburn v. Rockingham Mem. Hosp., 45 Va. Cir. 356 (Rockingham Co. 1998) 5, 11

Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249 (D.D.C. 1970), aff'd w/o op., 479 F.2d 920 (D.C. Cir. 1973) 11

Etienne v. Mitre Corp., 146 F.R.D. 145 (E.D. Va. 1993) 11

Francis v. McEntee, 10 Va. Cir. 126 (Henrico Co. 1987) 5, 11, 13

Houchens v. Rector of the Univ. of Virginia, 23 Va. Cir. 202 (City of Charlottesville 1991) 18

Johnson v. Roanoke Mem. Hosps., Inc., 9 Va. Cir. 196 (City of Roanoke 1987) 5, 10, 11, 13

Klarfeld v. Salsbury, 233 Va. 277, 355 S.E.2d 319 (1987) 7

Mangano v. Kavanaugh, 30 Va. Cir. 66 (Loudoun Co. 1993) 5, 10, 11, 12, 13

Owens v. Children's Hospital, 45 Va. Cir. 97 (City of Norfolk 1997) 5

Rakes v. Fulcher, 210 Va. 542, 172 S.E.2d 751 (1970) 18

Stevens v. Lemmie, 40 Va. Cir. 499 (City of Petersburg 1996) 4, 5, 13-14

United States v. Mettatal, Crim. Action No. 96-0034-H, 1997 U.S. Dist. LEXIS 13974 (W.D. Va. Aug. 20, 1997) 17-18

White v. Cassady, 29 Va. Cir. 45 (Fairfax Co. 1992) 16

York v. Fairfax Hosp. Sys. Inc., 28 Va. Cir. 211 (Fairfax Co. 1992) 18

 

Statutes

42 U.S.C. '' 11101 - 11152 3

42 U.S.C. § 11111 3

Va. Code ' 8.01-581.16 passim

Va. Code ' 8.01-581.17 passim

Va. Code ' 32.1-25 15

Va. Code § 37.1-84.1B 15

Va. Code ' 54.1-2906(A) 15

Va. Code ' 8-654.10 (1976 Cum. Supp.) 12, 14

Va. Code ' 8-911 - 8-922 (1976 Cum. Supp.) 12

Ala. Code § 22-21-8(b) (1999) 10

Alaska Stat. § 18.23.030 (1999) 10

Ariz. Rev. Stat. § 36-445.01 (1999) 10

Ark. Stat. Ann. § 20-9-503 (1999) 10

Cal. Evid. Code § 1157 (1999) 10

Col. Rev. Stat. § 13-21-110(1) (1998) 10

Conn. Gen. Stat. § 19a-17b (1999) 10

24 Del. Code Ann. § 1768 (1998) 10

D.C. Code Ann. § 32-505 (1999) 10

Fla. Stat. § 766.101 (1999) 10

Ga. Code Ann. § 31-7-143 (1999) 10

Hawaii Rev. Stat. Ann. § 624-25.5 (1999) 10

Idaho Code § 39-1392b (1999) 10

735 Ill. Comp. Stat. Ann. 5/8-2101 and 5/8-2102 (1999) 10

Ind. Code Ann. § 16-39-6-3 (1999) 10

Iowa Code § 147.135 (1997) 10

Kan. Stat. Ann. § 65-4915 (1998) 10

Ky. Rev. Stat. §  311.377(2) (1998) 10

La. Rev. Stat. § 13:3715.3 (1999) 10

32 Maine Rev. Stat. § 3296 (1998) 10

Md. Health Occ. Code Ann. § 14-501(d) (1999) 10

Mass. Ann. Laws ch. 111, § 204 (1999) 10

Mich. Comp. Laws § 333.21515 (1999) 10

Minn. Stat. Ann. § 145.64 (1999) 10

Miss. Code Ann. § 41-63-9 (1999) 10

Mo. Rev. Stat. § 537.035 (1999) 10

Mont. Code Ann.§ 50-16-203, 50-16-205 (1999) 10

Neb. Rev. Stat. Ann. § 71-2048 (1999) 10

Nev. Rev. Stat. § 49.265 (1999) 10

N.H. Rev. Stat. Ann § 151:13-a (1999) 10

N.M. Stat. Ann § 41-9-5 (1999) 10

N.Y. Educ. Law § 6527(3) (1999) 10

N.C. Gen. Stat. § 131E-95 (1999) 10

N.D. Cent. Code § 23-34-02 (1999) 10

Ohio Rev. Code Ann. § 2305.251 (Anderson 1999) 10

63 Okla. Stat. § 1-709 (199) 10

Or. Rev. Stat. § 41.675 (1997) 10

63 Pa. Stat. Ann. § 425.4 (1999) 10

R.I. Gen. Laws § 5-37.3-7 (1999) 10

S.C. Code Ann. § 40-71-20 (1998) 10

S.D. Codified Laws Ann. ' 36-4-26.1 (1999) 10

Tenn. Code Ann. § 63-6-219 (1999) 10

Tex. Rev. Civ. Stat. art. 4495b (1999) 10

26 Vt. Stat. Ann. § 1443 (1999) 10

Ann. Rev. Code Wash. § 4.24.250 (1999) 10

W. Va. Code Ann. § 30-3C-3 (1999) 10

Wis. Stat. § 146.38 (1998) 10

Wyo. Stat. § 33-26-408 (1999) 10

 

Legislative

Acts of Assembly, Vol. 1, 1976 12

Report of the Virginia Code Commission, House Document No. 14, House and Senate

Documents, Vol. 1, 1977 12

 

Other

Gosfield, Medical Peer Review Protection in the Health Care Industry,

52 Temple L.Q. 552 (1989) 4

Southwick & Slee, Quality Assurance in Health Care: Confidentiality of Information and

Immunity for Participants, 5 J. Legal Med. 343 (1984) 8

 

IDENTIFICATION AND INTEREST OF AMICI CURIAE

A. IDENTIFICATION OF AMICI

The Virginia Hospital and Healthcare Association, the Medical Society of Virginia, the American Medical Association, and the American Hospital Association submit this brief in support of the appellant hospitals Reston Hospital Center, Pentagon City Hospital, and Inova Health System (referred to collectively hereafter as "Hospitals"). This brief accompanies a Motion for Leave to File Brief Amicus Curiae.

The Virginia Hospital and Healthcare Association ("VHHA") is a private, nonprofit membership organization comprising over 90 percent of all hospital systems, acute care hospitals, psychiatric, rehabilitation and other specialty hospitals operating in the Commonwealth of Virginia. VHHA members include not-for-profit and for-profit hospitals, public and private hospitals, and rural and urban hospitals. Virginia hospitals care for over 690,000 patients of all ages each year on an inpatient basis. VHHA's principal purpose is to support the ability of Virginia hospitals to deliver comprehensive, high-quality and cost-efficient care to patients and to encourage access to necessary medical service.

The Medical Society of Virginia ("MSV") is the largest physician organization in Virginia and represents over 6,500 licensed doctors of medicine and osteopathy throughout the Commonwealth. MSV represents the concerns of Virginia physicians irrespective of specialty, employment arrangement, or practice setting. Through the efforts of MSV, physician views on health care issues are brought to the attention of Virginia and federal legislators, other governmental decision makers, as well as insurance companies, resulting in the advancement of individual and community health throughout the Commonwealth.

The American Medical Association ("AMA"), an Illinois non-profit corporation, represents approximately 300,000 physicians who practice throughout the United States, including Virginia. The AMA was founded in 1847 to promote the science and art of medicine and the betterment of public health, and these still remain its core purposes. AMA members practice in all fields of medical specialization, and it is the largest medical society in the United States.

The American Hospital Association ("AHA@) is the primary national membership organization for hospitals in the United States. The AHA=s mission is to promote high quality health care and health services through leadership and assistance to hospitals in meeting the health care needs of their communities. AHA's membership includes approximately 5,000 hospitals, health systems, networks and other providers of care.

B. INTEREST OF AMICI

Through their participation as Amici in this case, the VHHA, MSV, AMA and AHA seek to reinforce the Aoverriding national need to provide incentive and protection" for professional peer review expressed by Congress in the Health Care Quality Improvement Act of 1986, 42 U.S.C. '' 11101-11152 ("HCQIA@) and recognized by the Virginia General Assembly in its enactment of Virginia's peer review privilege statute, Virginia Code ' 8.01-581.17. Because their members depend upon peer review to assess and maintain the adequacy and quality of patient care they deliver, the Amici are among the organizations best qualified to speak on the importance of laws that encourage and protect peer review.

Peer review is a process by which professional medical activity is reviewed by other professionals with comparable education who have the skill and judgment necessary to evaluate the quality of medical services provided to patients and to identify the steps needed to improve patient outcomes. Effective peer review is vital to the ability of hospitals and medical staffs to protect patients from physicians who are incompetent or who engage in unprofessional behavior. It is also crucial to the ability of hospitals to engage in critical self-assessment of their functions. The importance of effective professional peer review to patients cannot be overstated: the process identifies problems and mistakes, and reduces or eliminates the potential for recurrence of harm. As a consequence, peer review improves patient outcomes and benefits the public health.

Immunity and confidentiality are the primary "incentive and protection" for effective peer review. The 1986-enacted HCQIA, for example, provides immunity from liability under almost all state and federal laws, including the antitrust laws, for peer review action taken in accordance with its standards. 42 U.S.C. § 11111. Virginia, like most other states, has long extended civil immunity to peer review participants and provides confidentiality for the peer review process, protecting from disclosure all communications, both oral and written, that originate in or are provided to peer review entities. Va. Code §§ 8.01-581.16, 581.17.

The confidentiality Virginia law accords peer review information is not intended to permit hospitals and physicians to act in secret, or to evade accountability for professional misjudgment. Rather, the purpose is to promote Afree-wheeling exchanges where criticisms are actually encouraged and mistakes or deficiencies aggressively exposed@ in furtherance of the overall goal of improvement of the system. See Stevens v. Lemmie, 40 Va. Cir. 499, 507 (City of Petersburg 1996). For example, confidentiality encourages a hospital department chair at one hospital to report the limitations of a physician to another hospital in which the physician seeks privileges; makes it easier for a physician to criticize a fellow physician; and emboldens a hospital to make systemic changes to its procedures that will improve patient outcomes.

There are powerful disincentives to effective peer review, the most significant of which may be the fear of retaliatory action. As one legal commentator has noted, Adoctors seem to be reluctant to engage in strict peer review due to a number of apprehensions: loss of referrals, respect, and friends, possible retaliations, vulnerability to torts, and fear of malpractice actions in which the records of peer review proceedings might be used.@ Gosfield, Medical Peer Review Protection in the Health Care Industry, 52 Temple L.Q. 552, 558 (1989). If peer review information were not confidential, there would be little incentive to participate in the process. For example, a physician who criticizes the performance or conduct of another physician will consider the time and expense of defending against possible defamation or antitrust claims (even if immunity were to prevent a judgment), as well as the potential for uncollegial conduct from colleagues. Or, in the case of a nurse speaking out against a physician, disclosure of the information given to a peer review committee may pose a threat of losing a job. Similarly, a hospital engaged in critical self-assessment may consider how the information it generates could constitute an admission against interest in a lawsuit or be otherwise misinterpreted.

While as yet no appellate cases in Virginia clearly articulate the metes and bounds of the privilege set forth in ' 8.01-581.17, the circuit courts, while arriving at various conclusions as to whether particular documents are within the purview of the privilege, have generally agreed that the purpose of Virginia Code ' 8.01-581.17 is to promote open and frank discussion without concern that remarks will be made public. See, e.g., Bradburn v. Rockingham Mem. Hosp., 45 Va. Cir. 356, 360 (Rockingham Co. 1998); Owens v. Children's Hospital, 45 Va. Cir. 97, 99-100 (City of Norfolk 1997); Stevens v. Lemmie, 40 Va. Cir. at 507; Mangano v. Kavanaugh, 30 Va. Cir. 66, 68 (Loudoun Co. 1993); Francis v. McEntee, 10 Va. Cir. 126, 128 (Henrico Co. 1987); Johnson v. Roanoke Mem. Hosps., Inc., 9 Va. Cir. 196, 198 (City of Roanoke 1987).

In this case, the Fairfax County Circuit Court has ordered the non-party Hospitals to produce records pursuant to a subpoena duces tecum. The Hospitals assert that the records requested are confidential peer review records and, thus, subject to protection from disclosure under § 8.01-581.17 of the Code of Virginia. The Circuit Court's ruling in this case compromises an important protection for those who participate in the peer review process. The precedent will gravely impair the ability of Virginia hospitals and physicians to evaluate and correct medical errors.

As the two largest healthcare organizations in Virginia, the largest medical society in the country, and the primary hospital organization in the United States, the VHHA, MSV, AMA and AHA are best qualified to speak for hospitals on this issue. The VHHA and MSV were instrumental in persuading the General Assembly to adopt laws that protect and encourage the peer review process, just as the AMA and AHA played a critical role in the enactment of the HCQIA. The members of the VHHA, MSV, AMA and AHA share a keen interest in seeing that judicial construction does not weaken such laws by interpretations that fail to take into account the overarching importance to the public of protecting the peer review process.

ASSIGNMENT OF ERROR

The Circuit Court erred in ordering the disclosure of hospital peer review records that are privileged pursuant to Virginia Code ' 8.01-581.17.

QUESTIONS PRESENTED

1. Whether the privilege accorded by Virginia Code ' 8.01-581.17 to hospital peer review records is applicable only in medical malpractice actions?

2. Whether the privilege accorded by Virginia Code ' 8.01-581.17 to hospital peer review records may be waived unilaterally by an individual physician who is the subject of peer review proceedings?

3. Whether WJLA-TV has demonstrated good cause arising from extraordinary circumstances, as required by Virginia Code ' 8.01-581.17, to justify the disclosure of confidential peer review records?

STATEMENT OF THE CASE

The Amici adopt the Statement of the Case as stated by the Appellants.

STATEMENT OF THE FACTS

The Amici adopt the Statement of the Facts as stated by the Appellants.

SUMMARY OF ARGUMENT

Virginia law encourages and protects peer review through two important mechanisms: 1) granting immunity to those who participate in the peer review process; and 2) restricting access to peer review information. Section 8.01-581.16 of the Code of Virginia, among other sections, extends immunity to those who participate in the peer review process. This Code section states in pertinent part that members of peer review committees "shall be immune from civil liability for any act, decision, omission, or utterance done or made in performance of [their] duties . . . ." Va. Code § 8.01-581.16. This prong of the Virginia statutory scheme protects peer review participants from, inter alia, retaliatory lawsuits by health care providers who are the subjects of the peer review process.

Section 8.01-581.17 of the Code of Virginia provides a "privilege in plain language." See Klarfeld v. Salsbury, 233 Va. 277, 284, 355 S.E.2d 319, 323 (1987). This privilege protects the proceedings and all communications to and from peer review committees, as defined in Virginia Code '  8.01-581.16, from disclosure or discovery. Such proceedings and communications expressly include documents related to the adequacy or quality of a physician's performance and whether such physician has been disciplined. See Va. Code '' 8.01-581.17 and 581.16(iv), (v). The plain language and legislative history of the statute extend the privilege to all disclosures and to all legal discovery proceedings. The statute does not limit the privilege to discovery in medical malpractice proceedings.

Section 8.01-581.17 of the Code of Virginia encourages candid and critical assessment. The statute does not provide that the privilege can be waived. Permitting the subject of a peer review proceeding to Awaive@ the protection afforded peer review records and communications is contrary to the plain language of the statute and severely compromises the protection the Virginia legislature saw fit to afford the peer review process. In the end, such disruption of the peer review process would negatively affect the public health and welfare.

The broad privilege set forth in Virginia Code ' 8.01-581.17 is not absolute; however, a circuit court may order disclosure of peer review documents only after a hearing for good cause arising from extraordinary circumstances being shown. The Virginia courts have interpreted the "good cause" escape clause restrictively; there must be a demonstration of exceptional circumstances. In this case, WJLA-TV has not demonstrated sufficient facts to establish good cause arising from extraordinary circumstances.

ARGUMENT

I. THE PEER REVIEW PRIVILEGE EXTENDS TO ALL LEGAL DISCOVERY PROCEEDINGS AND IS NOT LIMITED TO MEDICAL MALPRACTICE ACTIONS

The circuit court in this case wrongly determined that the peer review privilege embodied in Virginia Code ' 8.01-581.17 is limited to medical malpractice actions. Such a conclusion ignores the plain words of the statute as well as the statute's legislative history. Moreover, such a conclusion violates the intent of the General Assembly that the peer review process be subject to confidentiality so as to promote and encourage participation in the peer review process. Finally, the Virginia General Assembly has, in other sections of the Virginia Code, recognized that ' 8.01-581.17 applies in situations outside of the medical malpractice arena.

A. The Peer Review Process Is Essential To Providing Quality Health Care Services To Citizens Of The Commonwealth.

Peer review is the process by which professional practice is assessed and measured by other professionals of similar training. It involves Asetting standards of care, reviewing cases to determine whether the standards are being met, recommending and implementing methods to improve substandard care, and subsequent reviews of care to determine whether goals have been achieved.@ Southwick & Slee, Quality Assurance in Health Care: Confidentiality of Information and Immunity for Participants, 5 J. Legal Med. 343, 346 (1984).

Hospitals use peer review to determine whether physician applicants for clinical privileges have the necessary credentials and training to obtain clinical privileges. For example, in assessing the competence of a physician applicant, hospitals ask the physicians who trained or recently observed the clinical practice of the applicant to make recommendations as to the competency of the physician applicant. Hospitals also use peer review on an ongoing basis to review the competency of medical care provided by a physician after clinical privileges have been awarded. In such cases hospitals seek evaluations from physicians also practicing in the hospital and, on occasion, from outside sources such as independent quality assurance consultants. In addition, hospitals use peer review to evaluate complaints brought against the hospital or hospital physicians from any source, including other physicians, nurses and patients. Finally, hospitals use peer review to evaluate their own procedures and to determine whether improvements can or should be make to reduce errors and complications.

For obvious reasons, peer review is only as good as the candor the "peer reviewer" exercises in making his/her evaluation. If peer review evaluations are easily subject to disclosure, peer reviewers will be reluctant to speak their minds for fear of subjecting themselves not only to retaliatory action but also to the expenditure of time and effort necessary to defend their evaluations. Within a short time, peer review will have little meaning or substance and the process will become degraded. The result will be harm to the public. It is through the constant scrutiny of the peer review process that patients are protected from substandard care, through the imposition of monitoring and consultation requirements or, ultimately, through formal disciplinary actions, such as reduction, suspension or termination of clinical privileges or staff membership.

B. The Purpose Of Virginia Code ' 8.01-581.17 Is To Ensure The Confidentiality Of The Peer Review Process.

Section 8.01-581.17 of the Code of Virginia provides in pertinent part that

[t]he proceedings, minutes, records, and reports of any . . . medical staff committee, utilization review committee, or committee as specified in ' 8.01-581.16 . . . together with all communications, both oral and written, originating in or provided to such committees . . . are privileged communications which may not be disclosed or obtained by legal discovery proceedings unless a circuit court, after a hearing and for good cause arising from extraordinary circumstances being shown, orders the disclosure of such proceedings, minutes, records, reports, or communications.

This privilege extends to all communications originating from or provided to the specified medical committees. See Mangano v. Kavanaugh, 30 Va. Cir. 66, 68 (Loudoun Co. 1993). The objective of the privilege is to protect peer review by encouraging open discussion and vigorous debate within the hospital without the concern that remarks may be made public. See Johnson v. Roanoke Mem. Hosps. Inc., 9 Va. Cir. 196, 198 (Roanoke 1987). At least forty-eight states and the District of Columbia have adopted laws that protect the confidentiality of peer review information, demonstrating a national consensus that such confidentiality serves an important public policy.

Confidentiality is essential to the integrity of the hospital peer review process. As the court noted in Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249 (D.D.C. 1970), aff'd w/o op., 479 F.2d 920 (D.C. Cir. 1973), one of the first federal cases dealing with the issue,

[c]andid and conscientious evaluation of clinical practices is a sine qua non of adequate hospital care. To subject these discussions and deliberations to the discovery process, without a showing of exceptional necessity, would result in terminating such deliberations.

Id. at 250. In Virginia, one circuit court has been more blunt, observing that "[t]he whole procedure of peer review, if it is to have meaning and substance, must be totally uninhibited from the fear of disclosure." See Johnson v. Roanoke Mem. Hosps., 9 Va. Cir. at 198. See also Bradburn v. Rockingham Memorial Hospital, 45 Va. Cir. 356, 360 (Rockingham Co. 1998) (stating that "[i]t is certainly clear that the legislature has determined as a matter of public policy in Virginia that many of the documents utilized in, by, and with [peer review committees] are to be exempt from discovery . . . in order to facilitate the free flow of information between staff personnel and [the committees]"); Mangano v. Kavanaugh, 30 Va. Cir. at 68 (noting that the "legislature recognized the need for privacy in order to promote the type of vigorous debate where such open exchanges could be made without fear of public disclosure. Indeed, without protection from disclosure such discussions would probably be meaningless and without substance"); Francis v. McEntee, 10 Va. Cir. 126, 128 (Henrico Co. 1987) (explaining that the legislature "clearly made a public policy decision that it is in the best interests of the public to foster unrestrained dialogue among boards, staffs and committees of health care providers.") See also Etienne v. Mitre Corp., 146 F.R.D. 145, 147 (E.D. Va. 1993), citing Bredice v. Doctors Hospital, 50. F.R.D. 249, 251 (D.D.C. 1970) (describing under the "self-critical analysis privilege," a precursor to the statutory peer review privilege, the court's recognition that the "long-term public benefits of improved health care outweighed the needs of the litigant seeking discovery"). The statute thus should be read broadly, effecting the legislature's intent to "afford the utmost protection" to peer review records and communications. Mangano v. Kavanaugh, 30 Va. Cir. at 68.

C. The Legislative History Of Virginia Code ' 8.01-581.17 Demonstrates That The Peer Review Privilege Applies In All Contexts, Not Just Medical Malpractice Cases.

The legislative history of Virginia Code ' 8.01-581.17 demonstrates that that section was intended to operate as a general privilege and not a privilege applicable only in medical malpractice cases. Prior to 1977, the privilege contained in now ' 8.01-581.17 was found in the "miscellaneous actions" section of Chapter 29 of Title 8 and was not part of the Virginia statutes dealing with malpractice actions. See ' 8-654.10 of the Code of Virginia (1976 Cum. Supp.). The medical malpractice provisions were contained separately in Chapter 39 of Title 8. See '' 8-911 through 8-922 of the Code of Virginia (1976 Cum. Supp.). It is important to note that the statutes were in separate sections of the Code even though they were enacted at the same time. See Acts of Assembly, Vol. 1, 1976 at 784.

In 1977, the General Assembly recodified the Virginia Code, repealing Title 8 and enacting Title 8.01 in lieu thereof. In moving ' 8-654.10 into ' 8.01-581.17 of the Code of Virginia, the Reviser's Note made clear that the substance of the original statute was preserved. Report of the Virginia Code Commission, House Document No. 14, at 330, House and Senate Documents, Vol. 1, 1977.

The Virginia Code Commission noted that the objective of recodification was to devise the "best procedural system conceivable without doing violence to that portion of the existing system which had proved, on the basis of experience, to be of value in Virginia." See Report of the Virginia Code Commission, House Document No. 14 at 3, House and Senate Documents, Vol. 1, 1977. Accordingly, one cannot infer from the movement of ' 8-654.10 from Chapter 29 into the successor to Chapter 39, any indication that the generally applicable privilege set forth in the original ' 8-654.10 was henceforth to apply solely to malpractice claims.

D. The Scope Of The Privilege.

In enacting ' 8.01-581.17 and its predecessor, the General Assembly fully considered the interest of plaintiffs in civil actions in obtaining full disclosure, and the interest of the public at large in being able to benefit from "open and frank discussion >where criticisms are actually encouraged and mistakes or deficiencies aggressively exposed . . . .=" See Mangano v. Kavanaugh, 30 Va. Cir. at 68, citing Johnson v. Roanoke Mem. Hosps., 9 Va. Cir. at 198. In the end, the General Assembly determined that it was more in the interest of the public to foster unrestrained dialogue among boards, staffs and committees of health care providers. Francis v. McEntee, 10 Va. Cir. at 128 ("By enactment of [' 8.01-581.17], the Virginia General Assembly has clearly made a public policy decision that it is in the best interests of the public to foster unrestrained dialogue among boards, staffs and committees of health providers. Health care providers should be encouraged to adopt policies and procedures which will provide the public with the highest degree of care recognized by the medical and scientific communities at any given time.").

With the Virginia General Assembly having tipped the scale in favor of promoting self-critical analysis, there would be no purpose in applying the prohibition on discovery only to plaintiffs in medical malpractice cases. In fact, except for the decision under appeal in this case, no court has ever determined that the privilege embodied in ' 8.01-581.17 is limited to a particular context, let alone medical malpractice.

For example, in Stevens v. Lemmie, the Circuit Court of the City of Petersburg examined the application of the peer review privilege to a Freedom of Information Act ("FOIA") request made in a wrongful death case. 40 Va. Cir. 499 (City of Petersburg 1996). In interpreting the language of Section 8.01-581.17, the Court noted that

[I]t has been suggested that the term "legal discovery proceedings"

should apply only to discovery pursuant to the Rule of Court incident

to a pending legal proceeding. But the literal language of the statute

and the public policy advanced by the statute do not support such a

narrow interpretation. A FOIA action is certainly a "legal proceeding"

and its purpose is to "discover" information.

Id. At 505. The court further stated that "it is inconceivable that the legislature meant to compromise the medical care rendered at public hospitals by allowing such communications to be discovered by FOIA requests . . . the literal reading of the statute and the public policy supporting it require that '  8.01-581.17 provide an exception to disclosure under FOIA actions." Id. at 506. By dismissing the idea that the privilege would protect peer review information only when sought in connection with formal "discovery" in legal action, ostensibly any legal action, the Stevens holding invalidates the Circuit Court's even narrower interpretation rendering the privilege applicable only in medical malpractice actions.

The conclusion that the privilege embodied in Virginia Code ' 8.01-581.17 extends to all legal discovery is consistent with the plain language of the statute. Virginia Code ' 8.01-581.17 and its predecessor, ' 8-654.10, protect expressly the proceedings of certain hospital committees from "disclosure," or in the alternative, from "legal discovery proceedings." The words of the statute are plain and unambiguous: the privilege encompasses "disclosure" and "legal discovery" generally; the privilege is not limited expressly to discovery in medical malpractice cases.

The Circuit Court's error in limiting Virginia Code § 8.01-581.17 to medical malpractice actions is further demonstrated by examining the companion statute affording immunity to participants in the peer review process. Virginia Code ' 8.01-581.16 provides a general immunity from Acivil liability for any act, decision, omission, or utterance done or made in performance of his duties." Va. Code ' 8.01-581.16. This code section, as is the case with ' 8.01-581.17, appears in the Amedical malpractice@ section of the Virginia Code. No serious argument can be made, however, that this broad grant of immunity applies only in Amedical malpractice cases.@ To so construe this statute would eviscerate the very protection the General Assembly intended to confer. The same rationale applies in construing the provisions of Virginia Code ' 8.01-581.17.

The conclusion that the privilege contained in Virginia Code ' 8.01-581.17 extends beyond medical malpractice is also demonstrated by Virginia statutes governing other types of legal proceedings. For example, the State Health Commissioner has vast jurisdiction over the public health and the environment. Despite the extensive inquisitive authority the Commissioner enjoys, she does not have access to peer review documents. Section ' 32.1-25 of the Code expressly exempts from the reach of the State Health Commissioner Aprivileged communications pursuant to ' 8.01-581.17." Accordingly, the General Assembly has recognized that the privilege embodied in ' 8.01-581.17 applies outside of the medical malpractice context.

Other agencies have similar broad investigatory authority and peer review communication is similarly protected. See, e.g., Va. Code ' 54.1-2906(A) (Section 8.01-581.17 does not bar hospitals from reporting certain information to the Board of Medicine); Va. Code § 37.1-84.1B (excludes peer review records from the reach of the Department of Mental Health, Mental Retardation and Substances Abuse Services in their investigation of abuse, neglect, and human rights violations). These sections also demonstrate how carefully the General Assembly has guarded the confidentiality of the peer review process. Accordingly, the Circuit Court's finding that Virginia Code ' 8.01-581.17 Ais not applicable outside of the context of medical malpractice actions@ is incompatible with the language, history and purpose of the statute, and with other parts of the Code of Virginia.

II. DR. LEVIN CANNOT WAIVE THE PRIVILEGE UNDER ' 8.01-581.17

The reliance of the Circuit Court on any waiver of privilege by Dr. Levin was misplaced. Indeed, allowing Dr. Levin to waive the protections of ' 8.01-581.17 is counter to the purpose and language of the peer review statute. The privilege granted in '   8.01-581.17 is not akin to other evidential privileges.

First, the law was enacted to ensure confidentiality for the discussion and deliberation of physicians participating in the review of their peers. To place the ability to waive this privilege in the hands of the subject of the peer review activities jeopardizes the vital protection surrounding the process.

Secondly, the plain language of ' 8.01-581.17 does not permit a waiver of the peer review privilege. The statute states categorically that communications Aoriginating in or provided to [peer review committees] are privileged communications which may not be disclosed or obtained by legal discovery proceedings . . . .@ Va. Code § 8.01-581.17 (emphasis added). The General Assembly has clearly determined that the privilege is so important that it is not waivable by any hospital or physician and generally overrides the public need for discovery in legal proceedings. Only a court may order disclosure and then only after a hearing for good cause arising from extraordinary circumstances. Were a physician's or hospital=s waiver sufficient for the court to order disclosure, there would be no purpose in requiring a hearing to defeat the privilege.

Even assuming that the privilege contained in Virginia Code ' 8.07-581.17 can be waived, it cannot be waived by Dr. Levin. In this regard, a circuit court case deciding a similar issue determined that the privilege belongs to those conducting the peer review and not to the subject of the peer review. In White v. Cassady, 29 Va. Cir. 45 (Fairfax Co. 1992), Dr. White, the subject of peer review communications, asserted that he should be allowed to waive the privilege against disclosure and discovery in order to further his defamation action against Dr. Cassady, a physician consultant retained by a medical center to undertake a peer review study of Dr. White. The Circuit Court of Fairfax found that Dr. Cassady=s report regarding Dr. White was privileged and protected from disclosure and discovery, and, that Dr. Cassady was entitled to assert the

' 8.01-581.17 privilege, not Dr. White. Id. Applying the same rationale to this case, Dr. Levin would be unable to waive the privilege under ' 8.01-581.17, even if he desired to do so.

Allowing the subject of a peer review proceeding to Awaive@ the protections of Virginia Code '  8.01-581.17 is counterintuitive to the purpose of the statute. The legislature enacted § 8.01-581.17 to ensure confidentiality of the discussions and deliberations of physicians participating in the review of their peers for the greater good of the public. To place the ability to waive this privilege in the hands of the subject of the peer review activities compromises the protection afforded the process, and potentially exposes the public to a greater risk of treatment by incompetent physicians. The reliance of the Circuit Court on any waiver of privilege by Dr. Levin was misplaced.

III. IN THIS CASE THERE HAS BEEN NO SHOWING OF GOOD CAUSE ARISING FROM EXTRAORDINARY CIRCUMSTANCES JUSTIFYING DISCOVERY OF OTHERWISE PRIVILEGED INFORMATION

Virginia has long protected peer review records from disclosure or legal discovery except when there has been a demonstration of good cause arising from extraordinary circumstances. Va. Code ' 8.01-581.17. As noted by the U.S. District Court for the Western District of Virginia, "[n]o Virginia case law specifically addresses what might serve as >good cause= to overcome [' 8.01-581.17's] privilege, but, self-evidently, the burden is quite high." United States v. Mettatal, Crim. Action No. 96-0034-H, 1997 U.S. Dist. LEXIS 13974, at *5 (W.D. Va. Aug. 20, 1997) (emphasis added).

The test for good cause was explained in Rakes v. Fulcher, 210 Va. 542, 172 S.E.2d 751 (1970). In that case, the court held that the moving party must establish good cause by something more than relevancy. Moreover, the party seeking discovery must show a "bona fide effort to obtain the information by independent investigation." 210 Va. at 456, 172 S.E.2d at 755.

In this regard, circuit courts have held that good cause does not exist where the plaintiff in a medical malpractice case has the opportunity to depose individuals to ascertain the facts that are at issue. Id. See also York v. Fairfax Hosp. Sys. Inc., 28 Va. Cir. 211, 212 (Fairfax Co. 1992) (no good cause exists where the defendant was able to identify persons having personal knowledge of the relevant facts underlying the disputed documents); Houchens v. Rector of the Univ. of Virginia, 23 Va. Cir. 202, 204 (City of Charlottesville 1991) (the fact that the plaintiff was unconscious at the time of the alleged injury was insufficient to demonstrate extraordinary circumstances since the plaintiff had the opportunity to depose individuals who had personal knowledge of the events at issue).

Finally, the word "extraordinary" must be construed according to its plain meaning. See Houchens, 23 Vir. Cir. at 204 . The need for WJLA-TV to establish a defense against Dr. Levin is not "extraordinary," since a defense, which must be made in all legal proceedings, is the essence of usual and ordinary. Deeming the need to establish a defense as "extraordinary" would allow any defendant to overcome quite easily the protections of Virginia Code ' 8.01-581.17 -- a result that would undermine the purpose of the statute.

CONCLUSION

For the reasons set forth herein, the VHHA, MSV, AMA and AHA respectfully request the Court to overturn the prior rulings of the Fairfax Circuit Court and find the Hospitals not in contempt of Court.

Respectfully submitted,

VIRGINIA HOSPITAL AND

HEALTHCARE ASSOCIATION

MEDICAL SOCIETY OF VIRGINIA

AMERICAN MEDICAL ASSOCIATION

AMERICAN HOSPITAL ASSOCIATION

By Counsel

 

 

REED SMITH HAZEL & THOMAS LLP

 

 

By:

Julia Krebs-Markrich, Va. Bar. No. 17698

John E. Coffey, Va. Bar No. 19086

Heather L. Gunas, Va. Bar No. 42282

3110 Fairview Park Drive

Suite 1400

Falls Church, VA 22042

(703) 641-4200

Counsel for all Amici

 

 

Virginia Hackney, Va. Bar No. 05516

Marie Elena Graham, Va. Bar No. 42275

HUNTON & WILLIAMS

Riverfront Plaza, East Tower

451 East Byrd Street

Richmond, Virginia 23219

(804) 788-8200

Counsel for the Medical Society of Virginia

 

Of Counsel:

Michael L. Ile, Esq.

Anne M. Murphy, Esq.

Leonard Nelson, Esq.

AMERICAN MEDICAL ASSOCIATION

515 N. State Street

Chicago, Illinois 60610

(312) 464-5532

Maureen Mudron, Esq.

Washington Counsel

AMERICAN HOSPITAL ASSOCIATION

325 Seventh Street, N.W.

Washington, DC 20004

(202) 626-2301

 

 

CERTIFICATE OF SERVICE

I hereby certify that I have complied with Rule 5:26(d), Rules of the Supreme Court of Virginia, by causing to be filed on the 1st day of February, 2000 twenty (20) copies of the foregoing BRIEF AMICUS CURIAE OF THE VIRGINIA HOSPITAL AND HEALTHCARE ASSOCIATION, MEDICAL SOCIETY OF VIRGINIA, AMERICAN MEDICAL ASSOCIATION and AMERICAN HOSPITAL ASSOCIATION with the Supreme Court of Virginia, and causing on this same date to be mailed, first class, postage prepaid, three (3) copies of the foregoing to the following:

Robert T. Adams, Esq.

E. Duncan Getchell, Jr., Esq.

Sean F. Murphy, Esq.

McGUIRE WOODS BATTLE & BOOTHE LLP

One James Center

Richmond, Virginia 23219

Counsel for Appellants HCA Health Services of Virginia, Inc., et al.

William L. Carey, Esq.

McCANDLISH & LILLARD, P.C.

11350 Random Hills Rd., Suite 500

Fairfax, Virginia 22030

Counsel for Appellant Inova Health System

John B. Williams, Esq.

Kerrie L. Hook, Esq.

Thomas W. Mitchell, Esq.

COLLIER, SHANNON, RILL & SCOTT PLLC

3050 K Street, N.W., Suite 400

Washington, D.C. 20007

Counsel for Stephen M. Levin, M.D.

David J. Branson, Esq.

Steven C. Dubuc, Esq.

Paula J. McGill, Esq.

WALLACE KING MARRARO & BRANSON PLLC

1050 Thomas Jefferson Street, N.W.

Washington, DC 20007

Counsel for Appellees WJLA-TV, Candace Mays, Archie Kelly, Albritton Communications Company, Albritton Group, Inc., and Perpetual Corporation

 

Mark L. Early, Esquire

Attorney General

900 East Main Street

Richmond, Virginia 23219

 

Julia Krebs-Markrich

 

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