The opinion of the court was delivered by: Roberts, Justice
DATE OF JUDGMENT: 02/07/96
TRIAL JUDGE: HON. L. BRELAND HILBURN, JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: REVERSED AND REMANDED - 12/10/98
¶1. Elizabeth and Michael D. Claypool bring this interlocutory appeal before this Court from a medical malpractice case filed in the Circuit Court of the First Judicial District of Hinds County, Mississippi. Due to injuries suffered as a result of surgery, the Claypools have sued Dr. John P. Mladineo for medical malpractice and River Oaks Hospital, Inc. for negligently granting Mladineo hospital privileges and failing thereafter to revoke those privileges.
¶2. During discovery the Claypools requested certain documents from both Mladineo and River Oaks. Both defendants objected claiming the documents were confidential and privileged according to § 41-63-9 and § 41-63-23. Similar objections were made at the depositions of Mladineo and River Oaks' 30(b)(6) representative.
¶3. Motions for Protective Order were filed by Mladineo and River Oaks. The Claypools responded by requesting the documents be produced to the court for an in camera inspection. After a hearing, the lower court entered an Order, ruling that all the documents submitted for the in camera inspection were protected because they constituted either proceedings or records of medical review committees or accreditation and quality assurance materials that were deemed to be confidential and not subject to discovery or introduction into evidence pursuant to Miss. Code Ann. § 41-63-9 and § 41-63-23.
¶4. Aggrieved by the lower court's ruling, the Claypools filed their Motion for an Order Allowing Certification for Interlocutory Appeal. After conducting a hearing on the Claypools' Motion, the lower court declined to certify the interlocutory appeal. The Claypools petitioned this Court to grant an interlocutory appeal and to stay the proceedings in the lower court. This Court granted the appeal and stayed the lower court proceedings pending the Disposition of the interlocutory appeal.
The Claypools raise the following issues:
I. WHETHER MISS. CODE ANN. § 41-63-9 AND § 41-63-23 ARE PERMISSIBLE LEGISLATIVE ACTS.
II. WHETHER THE PRIVILEGES CREATED UNDER MISS. CODE ANN. § 41-63-9 AND § 41-63-23 WERE CORRECTLY INTERPRETED BY THE TRIAL JUDGE.
¶5. After reviewing the statutory language, along with prior holdings of this Court, we find that the Legislature clearly had the authority to enact Miss. Code Ann. § 41-63-9 and § 41-63-23, but the trial Judge erred in granting such a broad interpretation to the statutes. We reverse the trial Judge's decision to prevent certain documents from being discovered, and remand the case for further proceedings. Any further application of Miss. Code Ann. § 41-63-9 and § 41-63-23 should be consistent with the findings and interpretations of this Court.
¶6. Elizabeth Claypool was diagnosed by Dr. Brooks Griffin as having cervical cancer in 1993. She was referred to Mladineo, a specialist in gynecologic oncology. Mladineo informed Mrs. Claypool that she could either undergo radiation therapy, which he did not recommend, or a radical hysterectomy, which he did recommend. Mladineo recommended the surgery be performed at River Oaks Hospital, where he was a member of the medical staff.
¶7. On April 6, 1993, Mladineo performed a radical hysterectomy on Mrs. Claypool at River Oaks Hospital. After the surgery, Mrs. Claypool developed a fistula that caused various complications throughout the summer of 1993. The Claypools felt Mrs. Claypool was receiving improper treatment and as a result sought treatment from another doctor. Mrs. Claypool's fistula was repaired, but due to continued complications she ultimately lost a kidney.
¶8. The Claypools filed suit against Mladineo claiming that he should not have performed the radical hysterectomy once he realized the extent to which Mrs. Claypool's cancer had progressed. Further, the Claypools allege that River Oaks Hospital should not have allowed Mladineo to practice medicine at its hospital.
¶9. During the course of discovery, the Claypools propounded three sets of document requests, three sets of interrogatories, and multiple requests for admissions upon River Oaks. River Oaks has filed multiple responses and supplemental responses to the Claypools' discovery requests. The Claypools propounded one set of interrogatories and one set of request for production of documents to Mladineo. The Claypools took the depositions of Mladineo and the 30(b)(6) representative of River Oaks Hospital.
¶10. It is these discovery requests which have led to this interlocutory appeal. The Claypools sought discovery of materials River Oaks and Mladineo claimed were medical or peer review records maintained by the hospital on Mladineo as well as quality assurance records kept by the hospital. The Claypools also requested information from Mladineo concerning the status of his hospital privileges for the last ten years. Both River Oaks and Mladineo objected to the requested information and documents based upon Miss. Code Ann. § 41-63-9 and § 41-63-23. Similar objections were made at the depositions of Mladineo and the 30(b)(6) representative of River Oaks.
¶11. The Claypools filed a Motion to Compel River Oaks to provide the requested information. Alternatively, they requested the court to require River Oaks to produce all documents requested for an in camera inspection in order to determine whether the requested documents could be discovered. River Oaks and Mladineo filed a Motion for Protective Order asserting that the documents and information requested consisted of medical and peer review committee proceedings and quality assurance records which were classified as confidential and non-discoverable according to Miss. Code Ann. § 41-63-9 and § 41-63-23, state public policy, and the common law. River Oaks and Mladineo submitted the documents in question to the court for an in camera inspection.
¶12. Following a hearing the lower court entered an Order sustaining the objections of River Oaks and Mladineo to the discovery of the peer review proceedings and records and denying the Claypools' Motion to Compel. Specifically the court found that
all of the documents submitted in camera by the Defendant Hospital and Defendant John P. Mladineo, M.D. constitute either proceedings and medical records of medical review committees or accreditation and quality assurance materials and are, therefore, confidential and not subject to discovery or introduction into evidence pursuant to Miss. Code Ann. §§ 41-63-9, 41-63-23 and shall not be produced to the Plaintiffs.
¶13. The Claypools then sought to have an interlocutory appeal on this issue certified by the lower court, which was denied. Subsequently, they petitioned this Court for, and received, an interlocutory appeal on the issue.
I. WHETHER MISS. CODE ANN. § 41-63-9 AND § 41-63-23 ARE PERMISSIBLE LEGISLATIVE ACTS.
¶14. At issue in this case is whether the Legislature may enact statutes which create certain privileges which first appear to impede both the discovery portions of the Mississippi Rules of Civil Procedure and the privileges enumerated in the Mississippi Rules of Evidence. The Court finds that the statutes do not impede either of the judicially created rules of procedure or evidence.
¶15. The Legislature enacted Miss. Code Ann. § 41-63-9 and § 41-63-23 as part of the substantive law of this state for the "express legislative purpose of promoting quality patient care through accreditation and quality assurance functions." Miss. Code Ann. § 41-63-29 (Supp. 1997). Mrs. Joanne Iacaboni, Director of Health Information and Medical Staff Services at River Oaks, stated in her affidavit:
Maintaining the confidentiality of these records is necessary in order to promote effective peer review and quality assurance programs at the Hospital. In my opinion, if the confidentiality of these documents is breached, then physicians and other practitioners will be reluctant to participate on medical staff committees or to come forward with complaints about medical staff members. This would have a detrimental effect on the hospital's and the medical staff's ability to self-police the quality of care provided at the hospital. The people who have participated on these medical review committees and who have provided information to these committees have done so with the expectation that such information would remain confidential.
¶16. The Legislature wanted to promote self-policing among the medical profession. In order to foster such a process the Legislature enacted Miss. Code Ann. § 41-63-9 and § 41-63-23. The language of each is set forth below.
Miss. Code Ann. § 41-63-9. Discovery and admissibility into evidence of proceedings and records of review committees.
(1) Notwithstanding any conflicting statute, court rule or other law, in order to encourage medical and dental review activity, the proceedings and records of any medical or dental review committee shall be confidential and shall not be subject to discovery or introduction into evidence in any civil action arising out of the matters which are the subject of evaluation and review by such committee. No person who was in attendance at a meeting of such committee shall be permitted or required to testify in any civil action regarding any evidence or other matters produced or presented during the proceedings of the committee or as to any findings, recommendations, evaluations, opinions or other actions of the committee or its members. However, information, documents or records otherwise discoverable or admissible from original sources are not to be construed as immune from discovery or use in any civil action merely because they were presented during the proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to other matters within his knowledge. Provided, however, a witness shall not be questioned concerning his participation on or testimony before such committee or opinions formed by him as a result of such committee hearings or proceedings.
(2) The provisions of subsection (1) of this section which limit the discovery of medical or dental review committee records and proceedings shall not apply in any legal action brought by a medical or dental review committee to restrict or revoke a physician's license to practice medicine or hospital staff privileges, or in any legal action brought by an aggrieved physician against any member of the committee or the legal entity which formed such committee for actions alleged to have been malicious.
(3) The provisions of this statute, including the confidentiality provided in this subsection, shall be deemed part of the substantive law of this state enacted for the expressed legislative purpose of promoting quality patient care through medical and dental peer review activities. Miss. Code Ann. § 41-63-9 (Supp. 1997).
Miss. Code Ann. § 41-63-23. Accreditation and quality assurance materials of health care organizations; discovery or introduction into evidence in civil actions; admissibility of testimony relating to preparation, evaluation or review of materials; admissibility of documents from original sources.
"Accreditation and quality assurance materials, as defined in Sections 41- 63-21 through 41-63-29, shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against the health care professional or institution. No person involved in preparation, evaluation or review of accreditation or quality assurance materials shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the course of preparation, evaluation or review of such materials or as to any finding, recommendation, evaluation, opinion, or other action of such accreditation or quality assurance or other person involved therein. Information, documents or records otherwise available from original sources are not to be construed as being unavailable for discovery or for use in any civil action merely because they were presented or used in preparation of accreditation or quality assurance materials, nor should any person involved in preparation, evaluation or review of such materials be prohibited from testifying as to matters within his knowledge, but the witness testifying should not be asked about any opinions or data given by him in preparation, evaluation or review of accreditation or quality assurance materials." Miss. Code Ann. § 41-63-23 (Supp. 1997).
¶17. It is settled that the Legislatures of the states have the power to enact proper laws to regulate and provide for the safety, the health, the morals, and the general welfare of the public. State v. J.J. Newman Lumber, Co., 102 Miss. 802, 821, 59 So. 923, 925 (1912). "The legislature, by virtue of the police power of the state, may enact all needful laws for the purpose of preserving the health, preventing the spread of disease, and protecting the lives of the citizens." Hawkins v. Hoye, 108 Miss. 282, 288, 66 So. 741, 743 (1914). "The legislature conferred upon the state board of health the power to make reasonable rules and regulations for the prevention of diseases and the protection of the health of the people." Id. The State under its police power "has very large authority and discretion as to the recognition of public needs, and may provide for them by suitable legislation." Tatum v. Wheeless, 180 Miss. 800, 824, 178 So. 95, 101 (1938). "This state has often exercised this power in the regulation or management of business affecting public welfare, and has enacted laws in restraint of acts deemed inimical to the public welfare or not promotive of the public good." Id.
¶18. Pursuant to Miss. Code Ann. § 41- 9-11 (1993), the licensing of state hospitals is performed by the Mississippi Department of Health. Pursuant to Miss. Code Ann. § 41-9-17 (1993), the Department of Health promulgates rules and regulations governing the licensing and standards for the operation of hospitals in Mississippi. These regulations, known as the Minimum Standards of Operation for Mississippi Hospitals (M.S.O.M.H.), require each hospital to establish a medical staff which has the overall responsibility for the quality of medical care provided to patients in the hospital. M.S.O.M.H. § 501. Hospital governing boards are required to delegate to their medical staffs the responsibility for evaluation of the professional competence of their fellow medical staff members. M.S.O.M.H. § 405.
¶19. The minimum standards do not require the medical staff to be employees of the hospital. Normally, they are private practitioners with permission to provide specified services in the hospital. This permission comes in the form of specified ...