Toler v. Cornerstone Hosp. of Huntington, LLC

248 W.Va. 537

889 S.E.2d 259

Robert D. TOLER, Plaintiff Below, Petitioner, v. CORNERSTONE HOSPITAL OF HUNTINGTON, LLC, Defendant Below, Respondent.

No. 21-0830

Supreme Court of Appeals of West Virginia.

Submitted: March 21, 2023

Filed: June 15, 2023

Steven S. Wolfe, Esq., Wolfe, White & Associates, Logan, West Virginia, Attorney for Petitioner

Richard D. Jones, Esq., Amy Humphreys, Esq., Jason A. Proctor, Esq., Flaherty Sensabaugh Bonasso PLLC, Charleston, West Virginia, Attorneys for Respondent

BUNN, Justice:

Petitioner Robert D. Toler appeals from orders entered September 15, 2021, and March 20, 2020, by the Circuit Court of Cabell County. In the 2021 order, the circuit court entered judgment on a jury verdict in favor of the Respondent, Cornerstone Hospital of Huntington, LLC ("Cornerstone"). The verdict was rendered in Mr. Toler's lawsuit seeking damages for injuries he sustained while visiting a patient at Cornerstone. The circuit court's 2020 order protected from discovery an incident report in which a Cornerstone employee allegedly described the condition of the patient's room immediately following Mr. Toler's injury. In that order, the circuit court applied the protections afforded by the peer review privilege to the incident report. This ruling also precluded the parties from disclosing the incident report during the trial of this case.

On appeal to this Court, Mr. Toler argues that the circuit court erred by finding that Cornerstone's incident report is protected by the peer review privilege set forth in West Virginia Code §§ 30-3C-1 to - 5. Cornerstone contends that its incident report is protected by the peer review privilege because its employee prepared the report exclusively for its own use in its internal quality assurance and facility maintenance review process.

We conclude that the circuit court did not err in ruling that the peer review privilege protects Cornerstone's incident report from discovery. Further, the circuit court did not err by entering judgment on the jury's verdict in favor of Cornerstone because Mr. Toler failed to rebut Cornerstone's assertion of the peer review privilege. Therefore, we affirm the circuit court's March 20, 2020 and September 15, 2021 orders.

I.FACTUAL AND PROCEDURAL HISTORY

On January 7, 2019, Mr. Toler was visiting his girlfriend, who was a patient at Cornerstone. Mr. Toler spent the night in a recliner chair in her room to help take care of her. While getting up from the chair in her room, Mr. Toler fell and broke his femur. ¹ When various medical personnel, both at Cornerstone and the emergency room at St. Mary's Medical Center where Mr. Toler was transported for treatment, asked him what had caused the fall, Mr. Toler claimed that his leg gave way and that he thought it was a charley horse. Two Cornerstone nurses heard Mr. Toler fall, and, after checking on him, one of the nurses reported the incident to the house supervisor, Nurse Jeff Hall.

Nurse Hall went to the patient's room to check on Mr. Toler and then prepared an incident report documenting his fall. Mr. Toler seems to believe that the incident report supports his later description of the circumstances of his fall as being caused by a roll of tape left on the floor of the patient's room and that Nurse Hall may have reported finding a roll of tape on the floor while investigating Mr. Toler's fall. ² While Mr. Toler subsequently testified at trial that he stepped on a roll of tape and that the roll of tape had caused him to fall and break his femur, none of the medical professionals who treated Mr. Toler immediately following his fall reported in their notes of Mr. Toler's examinations anything about a roll of tape. Rather, the contemporaneous medical records all indicate that Mr. Toler reported that his leg had given out and caused him to fall. The Cornerstone nurses who responded to the patient's room immediately after Mr. Toler's fall also stated that Mr. Toler claimed that his leg had given out, that he thought he had a charley horse, and that he did not mention a roll of tape in describing the circumstances of his fall.

Mr. Toler then sued Cornerstone ³ and sought discovery of the incident report, which Cornerstone claimed is protected by the peer review privilege. See generally W. Va. Code §§ 30-3C-1 to - 5. Mr. Toler filed a motion to compel disclosure of the incident report, and the circuit court held a hearing on the motion. By order entered March 20, 2020, the circuit court agreed with Cornerstone's claim of peer review privilege and precluded disclosure of the document to Mr. Toler.

During the trial of Mr. Toler's case against Cornerstone, the court permitted Nurse Hall, who had prepared the incident report, to testify about his personal knowledge of the circumstances surrounding Mr. Toler's fall, as the original source of the contents of the incident report. Nurse Hall's trial testimony did not reference a roll of tape on the floor. Mr. Toler testified that he fell when his leg went out from under him, and he stepped "on a piece of tape." However, no other testimony or evidence adduced at trial mentioned the roll of tape that Mr. Toler alleges caused him to fall and break his femur in the course of treatment for his injuries. The jury, on its verdict form, answered the first question as follows:

1. Do you find by a preponderance of the evidence that Robert Toler stepped on a roll of tape causing him to fall on the morning of January 7, 2019?

Yes _____ No X

The circuit court entered a final order of judgment on the jury's verdict in favor of Cornerstone on September 15, 2021. Mr. Toler then appealed to this Court.

II.STANDARD OF REVIEW

The issue before the Court is whether the circuit court properly excluded Cornerstone's incident report based on its rulings that the report is protected by the peer review privilege and that the report was not subject to disclosure at trial. In assessing the circuit court's rulings, we must consider both of the circuit court's orders from which Mr. Toler has appealed. We first review the circuit court's March 20, 2020 order that denied Mr. Toler's motion to compel discovery responses by Cornerstone and found that the peer review privilege applies to Cornerstone's incident report. Our prior cases recognize that a circuit court's rulings regarding the application of the peer review privilege involve multiple standards of review. We review the circuit court's interpretation and application of the peer review privilege statutes de novo as that determination requires the resolution of a question of law:

[A]t issue in the case sub judice is the correctness of the circuit court's interpretation and application of the applicable statutory law concerning privileges relating to health care peer review proceedings. As this contention involves a question of law, we apply a plenary review to the circuit court's decision in this regard. "Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Syl. pt. 1, Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995).

State ex rel. Charles Town Gen. Hosp. v. Sanders , 210 W. Va. 118, 123, 556 S.E.2d 85, 90 (2001). We then consider whether the circuit court abused its discretion when determining if the privilege applies to a particular document because that ruling involves a question of fact: "The determination of which materials are privileged under W. Va. Code , 30-3C-1 ... et seq. is essentially a factual question and the party asserting the privilege has the burden of demonstrating that the privilege applies." Syl. pt. 2, in part, State ex rel. Shroades v. Henry , 187 W. Va. 723, 421 S.E.2d 264 (1992).

Next, we review the circuit court's September 15, 2021 order that entered judgment on the jury's verdict in favor of Cornerstone, which includes the court's pre-trial rulings on Cornerstone's motions in limine to exclude reference to and testimony about its incident report at trial as well as the court's rulings on the admissibility of evidence during trial. As to a circuit court's evidentiary rulings, we have held that

[t]he West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence ... are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard.

Syl. pt. 1, in part, McDougal v. McCammon , 193 W. Va. 229, 455 S.E.2d 788 (1995). Accord State v. Marple , 197 W. Va. 47, 51, 475 S.E.2d 47, 51 (1996) ("The evidentiary rulings of a circuit court ... are reviewed under an abuse of discretion standard."). We will consider Mr. Toler's assignments of error in accordance with these standards.

III.DISCUSSION

On appeal, Mr. Toler asserts two assignments of error: the circuit court erred (1) by ruling that Cornerstone's incident report is protected by the peer review privilege and (2) by continuing to exclude the report when, according to Mr. Toler, Cornerstone opened the door to the document's disclosure during the trial of this case. We consider both assigned errors in turn.

A. Peer Review Privilege

To determine whether the peer review privilege applies, it is necessary to consider the scope of the privilege. We previously have recognized that, "[t]hrough the enactment of West Virginia Code § 30-3C-3 in 1980, ^{[4 ]} the Legislature imposed confidentiality on all information, documents, and records subjected to review by a medical peer review organization." Young v. Saldanha , 189 W. Va. 330, 332, 431 S.E.2d 669, 671 (1993). The Legislature's enactment of this statutory privilege also "clearly evinces a public policy encouraging health care professionals to monitor the competency and professional conduct of their...