Krusac v. Covenant Med. Ctr., Inc., Docket No. 149270.

497 Mich. 251

865 N.W.2d 908

KRUSAC

v.COVENANT MEDICAL CENTER, INC.

Docket No. 149270.

Calendar No. 4.

Supreme Court of Michigan.

Argued Jan. 13, 2015.

Decided April 21, 2015.

Mark Granzotto, PC, Royal Oak (by Mark Granzotto) and Law Office of Cy Weiner PLC (by Carlene J. Reynolds), for plaintiff.

Hall Matson, PLC, (by Thomas R. Hall, East Lansing and Samuel B. Oberman), for defendant.

Foster, Swift, Collins & Smith, PC, Lansing (by Richard C. Kraus ), for the Regents of the University of Michigan, for Amici Curiae.

Chris E. Davis, for the Michigan Protection & Advocacy Service, Inc.

Miller, Canfield, Paddock and Stone, PLC, Detroit (by Irene Bruce Hathaway ), for Michigan Defense Trial Counsel.

Kerr, Russell and Weber, PLC, Detroit (by Daniel J. Schulte and Joanne Geha Swanson ), for the Michigan State Medical Society and the American Medical Association.

Smith Haughey Rice & Roegge, Grand Rapids (by Stephanie C. Hoffer ) for the Michigan Society of Healthcare Risk Management.

Fraser Trebilcock Davis & Dunlap, PC, Lansing (by Graham K. Crabtree ), for Munson Healthcare, Inc.

Kitch Drutchas Wagner Valitutti & Sherbrook, Detroit (by Christina A. Ginter ) for the Michigan Health and Hospital Association.

Charfoos & Christensen, PC, Detroit (by David R. Parker ), for the Michigan Association for Justice.

Thomas C. Miller, Grand Rapids, for Jeanne Harrison.

Olsman Mueller Wallace & MacKenzie, PC (by Jules B. Olsman, Berkley), for Michigan's State Long Term Care Ombudsman Program.

Reiter & Walsh, PC, Pleasant Ridge (by Emily G. Thomas), for Health Care Administrator Brenda Keeling, R.N.

Opinion

PER CURIAM.

In this interlocutory appeal, we are once again asked to consider the scope of the peer review privilege found in MCL 333.20175(8) and MCL 333.21515 of the Public Health Code, MCL 333.1101 et seq. Specifically, we must decide whether the trial court erred by ordering production of the objective facts contained in an incident report authored by an employee of defendant Covenant Healthcare. The trial court's decision was based on Harrison v. Munson Healthcare, Inc., 304 Mich.App. 1, 851 N.W.2d 549 (2014), which held, in part, that the peer review privilege does not protect objective facts gathered contemporaneously with an event.

We hold that §§ 20175(8) and 21515 do not contain an exception to the peer review privilege for objective facts. As a result, this portion of Harrison was wrongly decided. In this case, the trial court erred by relying on Harrison to order production of the objective-facts portion of the incident report. Therefore, we vacate the trial court's May 8, 2014 order and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

In September 2008, Pramod K. Sanghi, M.D., performed a cardiac catheterization on 80–year–old decedent Dorothy Krusac, successfully placing stents in Krusac's heart. Immediately following the procedure, however, Krusac began moving her legs around and rolled off the operating table. Three medical personnel were present when this happened: Deborah Colvin, R.N., Heather Gengler, R.N., and Rogers Gomez, the lab technician. According to the deposition testimony of Colvin and Gomez, they were able to catch Krusac and cradle her gently to the floor, where she came to rest on her left side. At that time, Krusac denied hitting her head, but later complained of neck and back pain from the fall. The CT scan performed later that day showed no evidence of injury from the fall. Shortly after the surgery and fall, Krusac died.

Plaintiff John Krusac, as personal representative of the estate of Dorothy Krusac, filed a medical malpractice complaint in the Saginaw Circuit Court against defendant, alleging that Krusac died as a result of injuries sustained from the fall. During discovery, it became known that Colvin had filled out an incident report shortly after the event and submitted it to her supervisor. Plaintiff filed a motion in limine on the eve of trial, asking the court to conduct an in camera inspection of the incident report and provide plaintiff with the facts contained in it. Relying on Harrison, plaintiff argued that the facts were necessary to cross-examine the hospital staff and that it would be unethical for defendant to offer a defense inconsistent with the facts contained in the report. Defendant responded that the peer review privilege under §§ 20175(8) and 21515 protected the report from discovery. After hearing oral arguments, the trial court denied plaintiff's motion. Plaintiff thereafter sought reconsideration, which the court granted. The court ordered defendant to produce a copy of the report for in camera review. After reviewing the report, on May 8, 2014, the trial court issued an order requiring defendant to provide plaintiff with the first page of the incident report, which contained only objective facts. The court based its decision on the Court of Appeals' recent holding in Harrison that the peer review privilege does not apply to objective facts contained in an incident report.

Defendant sought leave to appeal in the Court of Appeals, and moved for immediate consideration and a stay of the proceedings. The Court of Appeals granted immediate consideration, but denied defendant's application for leave to appeal for failure to persuade the Court of the need for immediate appellate review. The Court also denied the motion to stay the proceedings. Defendant then sought review by this Court. After granting defendant's motion to stay the trial court proceedings, we granted leave to appeal and directed the parties to address

(1) whether Harrison v. Munson Healthcare, Inc., 304 Mich.App. 1 [851 N.W.2d 549] (2014), erred in its analysis of the scope of the peer review privilege, MCL 333.21515 ; and (2) whether the Saginaw Circuit Court erred when it ordered the defendant to produce the first page of the improvement report based on its conclusion that “objective facts gathered contemporaneously with an event do not fall within the definition of peer review privilege.” [Krusac v. Covenant Med. Ctr., Inc., 496 Mich. 855–856, 847 N.W.2d 499 (2014).]

II. STANDARD OF REVIEW

This case involves a question of statutory interpretation, which we review de novo. Madugula v. Taub, 496 Mich. 685, 695, 853 N.W.2d 75 (2014). As with any statutory interpretation, our goal is to give effect to the Legislature's intent, focusing first on the statute's plain language. Id. at 696, 853 N.W.2d 75. When the language of a statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted. Id. (citation and quotation marks omitted).

III. ANALYSIS

The peer review privilege is a creature of statute, not the common law. See Scheutzow & Gillis, Confidentiality and Privilege of Peer Review Information:

More Imagined Than Real,

7 JL & Health 169, 181 (1992–1993) (“It is generally accepted that the privilege ascribed to peer review proceedings does not arise from any recognized common law principle, but is rather a legislative creation....”). Therefore, in assessing whether the peer review privilege applies to objective facts contained in an incident report, we must turn first to the language of the relevant statutes. See Dorris v. Detroit Osteopathic Hosp. Corp., 460 Mich. 26, 33, 594 N.W.2d 455 (1999).

MCL 333.21513(d) imposes a duty on hospitals to create peer review committees “for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients.” Essential to the peer review process is the candid and conscientious assessment of hospital practices. Feyz v. Mercy Mem. Hosp., 475 Mich. 663, 680, 719 N.W.2d 1 (2006). To encourage such an assessment by hospital staff, the Legislature has protected from disclosure the records, data, and knowledge collected for or by peer review committees. Id. at 680–681, 719 N.W.2d 1. To this end, MCL 333.20175(8) reads:

The records, data, and knowledge collected for or by individuals or committees assigned a professional review function in a health facility or agency, or an institution of higher education in this state that has colleges of osteopathic and human medicine, are confidential, shall be used only for the purposes provided in this article, are not public records, and are not subject to court subpoena.

Similarly, MCL 333.21515 provides:

The records, data, and knowledge collected for or by individuals or committees assigned a review function described in this article are confidential and shall be used only for the purposes provided in this article, shall not be public records, and shall not be available for court subpoena.^[ [[[^{1 ]}

These statutes, and their predecessors,² have been interpreted as “fully protect[ing] quality assurance/peer review records from discovery....” Dorris, 460 Mich. at 40, 594 N.W.2d 455. For example, in Attorney General v. Bruce, 422 Mich. 157, 164–165, 369 N.W.2d 826 (1985), we rejected the Attorney General's argument that the privilege “was intended only to protect the confidentiality of peer review proceedings from discovery in circuit court proceedings (i.e., malpractice actions)....” Instead, we held that the privilege protects from disclosure records sought by the Board of Medicine and the Department of Licensing and Regulation and ordered by investigative subpoena to be produced. Id. at 173, 369 N.W.2d 826. Similarly, in In re Investigation of Lieberman, 250 Mich.App. 381, 389, 646 N.W.2d 199 (2002), the Court of Appeals held that the privilege protects from disclosure records sought pursuant to a search warrant in a criminal investigation. Indeed, after reviewing the language of § 21515, the court concluded that “the Legislature has imposed a comprehensive ban on the disclosure of [peer review materials.]” Id. at 387, 646 N.W.2d 199 (emphasis added).

The Court of Appeals took a more constricted view of the peer review privilege in Harrison. In that case, the plaintiff sued a surgeon...