Opinion
FBTCV166059942S
07-13-2017
Iovino Ortiz v. Timothy D. Ehrlich, M.D
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
Defendant St. Vincent Medical Center (" St. Vincent") has moved for a protective order to preclude disclosure of certain documents described in its privilege log as protected from disclosure pursuant to the peer review statute C.G.S. § 19a-17b. Defendant has submitted copies of the withheld documents for in camera review. For the reasons stated below, the motion is granted in part and denied in part.
At the outset it should be noted that the scope of disclosure under Practice Book § 13-2 is broader than the relevance standard urged by St. Vincent, which argued that disclosure should not be granted because " plaintiff does not assert a claim for negligent hiring or negligent credentialing in the Complaint." (Emphasis in original). The documents sought are " material to the subject matter involved in the pending action, " relates to claims and defenses in the action, are within the knowledge, possession and control of St. Vincent, would be of assistance in the prosecution of the action, and can be provided by St. Vincent " with substantially greater facility than [they] . . . could otherwise be obtained" by plaintiff. P.B. § 13-2. That such documents and information may provide a basis for amending the complaint to allow for expert review and later assertion of claims of negligent hiring or credentialing does not detract from their discoverability now.
The issue is whether the documents listed in the privilege log are privileged from disclosure under the peer review statute. Section 19a-17b(d) describes the protection from production of peer review documents in a civil action:
(d) The proceedings of a medical review committee conducting a peer review shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider arising out of the matters which are subject to evaluation and review by such committee . . .; provided the provisions of this subsection shall not preclude (1) in any civil action, the use of any writing which was recorded independently of such proceedings . . .
Section 19a-17b(a)(2) defines " peer review" as follows:
(2) " Peer review" means the procedure for evaluation by health care professionals of the quality and efficiency of services ordered or performed by other health care professionals, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review and claims review.
Section 19a-17b(a)(4) defines " medical committee" as follows:
(4) " Medical review committee" includes any committee . . . of any health care institution established pursuant to written bylaws . . . engaging in peer review, to gather and review information relating to the care and treatment of patients for the purposes of (A) evaluating and improving the quality of health care rendered; (B) reducing morbidity or mortality; or (C) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. " Medical review committee" also means any hospital board or committee reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto.
St. Vincent has claimed peer review privilege for documents from two different committees, those relating to proceedings of the hospital's Credentialing Committee, and those relating to proceedings of the hospital's Medical Review Committee. Both hospital committees would be a " medical review committee" under the definition of C.G.S. § 19a-17b(a)(4). Compare, Whittington v. Altmann, 2012 WL 3104607 *4 (Conn.Super. 2012) (Mottolese, J.) [54 Conn.L.Rptr. 296, ]. At least part of the business of the committees was " peer review" as defined by section 19a-17b(a)(2).
That being said, St. Vincent takes an expansive view of what sort of documents may be protected under peer review to include those documents " either created by, or solicited by, St. Vincent's Medical Center for the express purpose of reviewing, considering, and approving/rejecting Dr. Ehrlich's application for hospital privileges." The Court does not agree that documents obtained from independent sources or public documents are protected by peer review privilege merely because they were solicited or obtained from those independent or public sources.
The leading authority on peer review privilege is the Supreme Court's decision in Babcock v. Bridgeport Hospital, 251 Conn. 790, 742 A.2d 322 (1999). In Babcock the Supreme Court upheld denial of a protective order that had asserted privilege concerning documents procured by the hospital's infection control committee. Id. at 851. The Supreme Court noted that privileges are to be carefully applied because they withhold relevant information: " although a statutory privilege must be applied so as to effectuate its purpose, it is to be applied cautiously and with circumspection because it impedes the truth-seeking function of the adjudicative process." Id. at 819. " Confidentiality properly attaches to peer review documents only when the moving party has provided 'sufficient information to enable the court to determine that each element of the privilege is satisfied . . . A failure of proof as to any element of the privilege causes the claim of privilege to fail.'" Id. at 828-29.
The Babcock Court also set forth the burden of proving a document or information is privileged: " with respect to privilege claims generally, we have held that where the confidential status of otherwise discoverable information is apparent, a claim of privilege may be disposed of without further inquiry . . . Where the nature of a document is not patently discernible from the face of the discovery request, however, the burden of establishing immunity from discovery rests with the party asserting the privilege . . . That burden is discharged by the presentation of evidence in the form of testimony or affidavit concerning the document's content and use." Id. at 848 (citations omitted). " [A]pplication of the privilege to the proceedings of the . . . committee depends on the nature of the documents in question and whether they relate to peer review. In turn, the nature of a particular document can be discerned only pursuant to an evaluation of the purpose for which the document was created and the use to which it was put . . . In the absence of evidence to that effect, the trial court reasonably could not have concluded that the defendants had established that the documents in question relate to peer review." Id. at 832.
Ultimately, the defendants in Babcock failed to meet the requisite burden of proof: " a document is not immune from discovery simply by virtue of having been generated by a medical review committee charged, in part, with conducting peer review. The defendants produced no evidence to demonstrate that the documents were produced primarily for the purpose of peer review, and therefore warranted protection under § 19a-17b." Id. at 836.
The Babcock Court also interpreted the peer review statute to protect the committee records of " proceedings" of a peer review not to underlying facts or documents that exist independently:
Simply because a hospital committee is a medical review committee does not suggest that all of its activities are considered peer review proceedings. The scope of § 19a-17b is specifically defined, not by the nature of the committee, but by whether the committee was engaged in " peer review." See General Statutes § 19a-17b(d). That qualifier has been defined separately and, we presume, intentionally . . . Furthermore, the privilege applies only to those documents that reflect the " proceedings" of a peer review, or that were created primarily for the purpose of being utilized during the course of peer review. In addition, the privilege does not apply to those documents that were independently " recorded" or " acquired." See General Statutes § 19a-17b(d)(1) and (2).
We conclude that by using the word " proceedings, " the legislature intended to restrict the privilege to the substantive discourse that takes place at the actual meetings during which " matters which are subject to evaluation and review by such committee, " are discussed and deliberated. General Statutes § 19a-17b(d) . . . Although the statute does not define " proceedings, " that term, as construed in accordance with its common usage . . . refers to " an official record of things said or done." Meriam-Webster's Collegiate Dictionary (10th Ed.1995). In the context of § 19a-17b, therefore, we read proceedings as encompassing the sequence of events or the course of action undertaken by a committee engaged in peer review, such as the dialogues, debates and discussions that transpire at a peer review meeting, as well as opinions and conclusions reached by committee members.
The legislative history surrounding the statute further indicates that the privilege applies to the peer review committee's self-generated analysis, but not to the underlying facts that provide the basis for that analysis when such facts have been collected by an independent source. Id. at 822-23.
Reviewing the legislative history the Supreme Court observed: " the privilege applies to the peer review committee's self-generated analysis, but not to the underlying facts that provide the basis for that analysis when such facts have been collected by an independent source." Id. at 822. As to documents relating to the proceedings, the Court clearly limited peer review privilege to those documents that are confidential and " created principally for the purpose of peer review."
In light of the statute's language and legislative history, we conclude that the privilege afforded by § 19a-17b applies to the substantive exchanges that transpire during the course of a peer review meeting, and that confidentiality is provided for such exchanges, but not for any knowledge gained by a committee member independent of that meeting. Thus, for example, the minutes of a meeting reflecting such exchanges would be privileged under the statute. We note that often such exchanges may be based upon documents that were submitted to the members of the committee engaging in peer review, but which were generated for more than one purpose. We conclude that the peer review privilege applies to those documents provided they were created principally for the purpose of peer reviewId. at 825 (emphasis added).
The Babcock Court summed up its analysis with the observation that " evidence of a practitioner's negligence is immune from discovery only to the extent that it is disclosed solely during the course of peer review." Id. at 825.
Thus, documents " solicited by" St. Vincent's would only be privileged if they were " created principally for the purpose of peer review." Babcock, 251 Conn. at 825. To the extent the committees solicited existing documents or documents generated from independent data bases they would not become privileged merely because they were " solicited by" the committees or were reviewed or considered during the peer review proceedings. Nor would the privilege apply to preclude production of peer review materials from other hospitals. See Brackett v. St. Mary's Hospital, 2002 WL 241375 *7 (Conn.Super. 2002) (Hodgson, J.) [31 Conn.L.Rptr. 429, ]. Nor is there a blanket privilege for the " credentialing file; just because non-privileged documents are placed in a committee file does not cloak them with privilege. See Ghen v. Glassman, CV 03-0348848 S p. 2 (Sup.Ct. Danbury 2005) (Downey, J.). The limited protections afforded peer review documents were not intended to shield hospitals or healthcare providers from discovery in medical malpractice cases beyond what is needed to carry out the objectives of the statute, to protect confidential proceedings of the peer review committee. Id. at 819. A finding a document is privileged does not protect against disclosure of " the underlying facts that provide the basis for that analysis when such facts have been collected by an independent source." See Babcock, 251 Conn. at 823. A privileged document can be used to refresh a deponent, for example, as to underlying facts obtained from an independent source considered or reviewed by the committee. Moreover, it appears the underlying facts relating to the treatment of Dr. Ehrlich's patients included within the privileged documents could be generated independently from the hospital's records, to that extent they would not be privileged from disclosure requests concerning such records. The analysis below does not purport to extract unprivileged underlying facts from the documents generated in the peer review proceedings.
C.G.S. § 19a-17b(d) excludes from peer review privilege " the use of a writing which was recorded independently of such proceedings . . ." When dealing with information kept in independent data bases printing out data to create a document for review by the committee is the functional equivalent of a record kept independently of the peer review proceeding.
The Court conducted an in camera review of the documents listed in the privilege log, guided by Judge Jennings' decision in DeFrancesco v. Stamford Health Centers, Inc., 2013 WL 1189380 *5 (Conn. Super. 2013) (Jennings, J.) " Neither the title of a document nor the source from which it emanates is necessarily determinative of its protected status under the peer review privilege . . . Rather, the burden is on the party claiming the privilege to show by affidavit or testimony and/or by submitting the document for in camera review, that the document meets the criteria for the claimed privilege." Id. (citation omitted).
In Camera Review
3. Results Medical Staff Reappointment Profile
This document was prepared in connection with the peer review proceeding and is privileged.
4. Dr. Ehrlich Application for Reappointment
This document was prepared in connection with the peer review proceeding and is privileged.
7. General Surgery Clinical Privileges
This document was prepared in connection with the peer review proceeding and is privileged.
9. FPPE Review Form
This document was prepared in connection with the peer review proceeding and is privileged.
10. Letter from SVMC to Dr. Ehrlich 9/18/13
This document was prepared in connection with the peer review proceeding and is privileged.
11. Dr. Ehrlich's Application for Reappointment
This is a list of surgeries by Dr. Ehrlich at Griffin Hospital and is not privileged as a document from an independent source.
21. Clearance Report
This is a clearance report about board action from the Federation of State Medical Boards and is not privileged as a document from an independent source.
26. Malpractice Case Review
This document was prepared in connection with the peer review proceeding and is privileged.
27. Claims Suit Report
This document was prepared in connection with the peer review proceeding and is privileged.
28. Letter CMIC to Dr. Ehrlich 9/5/13
This is a letter from CMIC about insurance claims relating to Dr. Ehrlich and is not privileged as a document from an independent source.
29. CT Judicial Branch Case Detail
This is a public document and is not privileged.
30. Malpractice Case Review
This document was prepared in connection with the peer review proceeding and is privileged.
31. Claims/Suit Report
This document was prepared in connection with the peer review proceeding and is privileged.
32. Letter from CMIC to DR. Ehrlich 9/5/13
This is a letter from CMIC about insurance claims relating to Dr. Ehrlich and is not privileged as a document from an independent source.
33. CT Judicial Branch Case Detail
This is a public document and is not privileged.
34. Malpractice Case Review
This document was prepared in connection with the peer review proceeding and is privileged.
35. Claims/Suit Report
This document was prepared in connection with the peer review proceeding and is privileged.
36. Letter from CMIC to Dr. Ehrlich 9/30/13
This is a letter from CMIC about insurance claims relating to Dr. Ehrlich and is not privileged as a document from an independent source.
37. Letter from CMIC to Dr. Ehrlich 9/5/13
This is a letter from CMIC about insurance claims relating to Dr. Ehrlich and is not privileged as a document from an independent source.
38. Nat'l Practitioners Data Bank (" NPDB") Disclosure Form
This relates to information to be provided from NPDB, an independent source, and is not privileged.
39. Databank Payment Report
This relates to information to be provided from CMIC, an independent source, and is not privileged.
40. Email Consiglio to Ross
There is no evidence these emails relating to a case settlement involving Dr. Ehrlich were generated as part of a peer review proceeding and thus defendant has not shown they are privileged.
42. CT Judicial Name Search
This is a public document and is not privileged.
43. Recredentialing Worksheet
This document was prepared in connection with the peer review proceeding and is privileged.
46. Reappointment Profile
This document was prepared in connection with the peer review proceeding and is privileged.
47. Application for Reappointment
This document was prepared in connection with the peer review proceeding and is privileged.
49. Memorandum from Dr. Demestihas to Erhlich 10/16/15
This document was prepared in connection with the peer review proceeding and is privileged.
50. Practice Evaluation Form 10/15/15
This document was prepared in connection with the peer review proceeding and is privileged.
51. Surgery/Clinical Privileges
This document was prepared in connection with the peer review proceeding and is privileged.
52. Practice Evaluation Form 10/15/15
This document was prepared in connection with the peer review proceeding and is privileged.
53. List of Dr. Erlich EGD procedures
There is no evidence this list relating to EGD procedures involving Dr. Ehrlich was generated as part of a peer review proceeding and thus defendant has not shown it is privileged.
54. Privilege Delineation Report
There is no evidence the description of the privileges granted Dr. Ehrlich was part of a peer review proceeding as opposed to the product of such review and thus defendant has not shown it is privileged.
55. Application for Reappointment
This document was prepared in connection with the peer review proceeding and is privileged.
56. Patient Safety Examination
This document was prepared in connection with the peer review proceeding and is privileged.
66. Google search--Dr. Erlich
This relates to information provided by Google, an independent source, and is not privileged.
67. CT Judicial Name Search
This is a public document and is not privileged.
68. Application Reappointment
This document was prepared in connection with the peer review proceeding and is privileged.
69. Claims/Suit Report
This relates to information to be provided from NPDB, an independent source, and is not privileged.
70. CT Judicial Case Detail
This is a public document and is not privileged.
71. National Data Bank Med. Mal. Report
This relates to information provided from NPDB, an independent source, and is not privileged.
72. National Data Bank Med. Mal. Report
This relates to information provided from NPDB, an independent source, and is not privileged.
73. National Data Bank Med. Mal. Report
This relates to information provided from NPDB, an independent source, and is not privileged.
74. National Data Bank Med. Mal. Report
This relates to information provided from NPDB, an independent source, and is not privileged.
75. National Data Bank Med. Mal. Report
This relates to information provided from NPDB, an independent source, and is not privileged.
76. Recredentialing worksheet
This document was prepared in connection with the peer review proceeding and is privileged.
77. Claims/suit report
This document was prepared in connection with the peer review proceeding and is privileged.
78. CT Judiciary Case Detail
This is a public record and is not privileged.
79. Query service form NPDP
This document was prepared in connection with the peer review proceeding and is privileged.
80. NPDP mal. payment report
This relates to information provided from NPDB, an independent source, and is not privileged.
81. NPDP mal. payment report
This relates to information provided from NPDB, an independent source, and is not privileged.
82. Staff mal. case review
This document was prepared in connection with the peer review proceeding and is privileged.
83. Staff mal. case review
This document was prepared in connection with the peer review proceeding and is privileged.
84. Claims/suit report
This document was prepared in connection with the peer review proceeding and is privileged.
85. CT Judiciary Case detail
This is a public document and is not privileged.
86. NPDB query
This document was prepared in connection with the peer review proceeding and is privileged.
87. NPDP mal. payment report
This relates to information provided from NPDB, an independent source, and is not privileged.
88. Staff mal. case review
This document was prepared in connection with the peer review proceeding and is privileged.
89. Staff mal. case review
This document was prepared in connection with the peer review proceeding and is privileged.
90. Practice Eval. review form
This document was prepared in connection with the peer review proceeding and is privileged.
91. Practice Eval. review form
This document was prepared in connection with the peer review proceeding and is privileged.
92. Ongoing Practice Eval. review form
This document was prepared in connection with the peer review proceeding and is privileged.
93. Ongoing Practice Eval. review form
This document was prepared in connection with the peer review proceeding and is privileged.
94. mal. case review
This document was prepared in connection with the peer review proceeding and is privileged.
95 mal. case review
This document was prepared in connection with the peer review proceeding and is privileged.
96. claims/suit report
This document was prepared in connection with the peer review proceeding and is privileged.
97. Ct. Judiciary Case Detail
This is a public document and is not privileged.
98. mal. case review
This document was prepared in connection with the peer review proceeding and is privileged.
99. mal. case review
This document was prepared in connection with the peer review proceeding and is privileged.
100. claims/suit report
This document was prepared in connection with the peer review proceeding and is privileged.
101. Ct. Judicial case detail
This is a public document and is not privileged.
102. mal. case review
This document was prepared in connection with the peer review proceeding and is privileged.
103. claims/suit report
This document was prepared in connection with the peer review proceeding and is privileged.
104. Ct Judicial case detail
This is a public document and is not privileged.
105. Clinical outcomes/improvement info.
This document was prepared in connection with the peer review proceeding and is privileged.