Mat-Su Valley Medical Center, LLC v. Bolinder , 427 P.3d 754 ( 2018 )


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    are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street,
    Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
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    THE SUPREME COURT OF THE STATE OF ALASKA
    MAT-SU VALLEY MEDICAL                  )
    CENTER, LLC, d/b/a MAT-SU              )                     Supreme Court Nos. S-15920/15969
    REGIONAL MEDICAL CENTER,               )                     (Consolidated)
    )
    Petitioner,       )                     Superior Court No. 3PA-11-00963 CI
    )
    v.                               )                     OPINION
    )
    DENISE BOLINDER, as personal           )                     No. 7293 – September 14, 2018
    representative of the estate of ROBERT )
    BOLINDER, and JOHN W. ZWIACHER, )
    M.D.,                                  )
    )
    Respondents.      )
    )
    )
    MAT-SU VALLEY MEDICAL                  )                     Supreme Court No. S-16440
    CENTER, LLC, d/b/a MAT-SU              )
    REGIONAL MEDICAL CENTER, and )                               Superior Court No. 3AN-14-09235 CI
    JOHN W. ZWIACHER, M.D.,                )
    )
    Petitioners,      )
    )
    v.                               )
    )
    JON PAUL BRANDT,                       )
    )
    Respondent.       )
    __________________________________ )
    Original Applications in File Nos. S-15920/15969 from the
    Superior Court of the State of Alaska, Third Judicial District,
    Palmer, Kari Kristiansen, Judge. Petition for Review in File
    No. S-16440 from the Superior Court of the State of Alaska,
    Third Judicial District, Anchorage, Gregory Miller, Judge.
    Appearances: Robert J. Dickson, Atkinson, Conway &
    Gagnon, and Roger F. Holmes, Biss & Holmes, Anchorage,
    for Petitioner Mat-Su Regional Medical Center. Christian N.
    Bataille, Flanigan & Bataille, Anchorage, for Respondents
    Bolinder and Brandt. Scott Leuning, Leuning & Renner,
    LLC, Sioux Falls, South Dakota, and Whitney L. Traeger and
    Howard A. Lazar, Delaney Wiles, Inc., Anchorage, for
    Respondent and Petitioner Dr. Zwiacher. Stephen D. Rose,
    Garvey Schubert Barer, Anchorage, for Amicus Curiae
    Alaska State Hospital and Nursing Home Association.
    Chester D. Gilmore, Cashion Gilmore LLC, Anchorage, for
    Amicus Curiae Providence Health & Services – Washington
    d/b/a Providence Alaska Medical Center.          Margaret
    Simonian, Dillon & Findley, P.C., Anchorage, and
    William S. Cummings, Friedman Rubin, Bremerton,
    Washington, for Amicus Curiae Alaska Association for
    Justice.
    Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
    and Carney, Justices.
    BOLGER, Justice.
    I.    INTRODUCTION
    Alaska’s medical peer review privilege statute, AS 18.23.030, protects
    discovery of data, information, proceedings, and records of medical peer review
    organizations, but it does not protect a witness’s personal knowledge and observations
    or materials originating outside the medical peer review process. A hospital invoked the
    privilege in two separate actions, one involving a wrongful death suit against a physician
    at the hospital and the other involving both a medical malpractice claim against the same
    physician and a negligent credentialing claim against the hospital. In each case the
    -2-                                      7293
    superior court compelled the hospital to disclose materials related to complaints
    submitted about the physician and to the hospital’s decision to grant the physician
    medical staff membership. The hospital and the doctor sought our review of the
    discovery orders. Because we conclude that these discovery orders compel the hospital
    to disclose information protected by the peer review privilege, we reverse the discovery
    orders in part. We further hold that the false information exception to the privilege
    provided in AS 18.23.030(b) applies to actions for which the submission of false
    information is an element of the claim and thus does not apply here.
    II.    FACTS AND PROCEEDINGS
    We address these two interlocutory appeals in this consolidated opinion due
    to the similarity of the facts, legal issues, and parties. In the first case, Denise Bolinder,
    in her capacity as the personal representative of the estate of Robert Bolinder, filed a
    claim for wrongful death against Dr. John Zwiacher, alleging that Dr. Zwiacher was
    negligent in treating Robert Bolinder when he was a patient at Mat-Su Regional Medical
    Center (Mat-Su) in 2009. In the second, Jon Brandt brought a claim for medical
    malpractice against Dr. Zwiacher and a negligent credentialing claim against Mat-Su
    after Brandt allegedly suffered complications from a September 2012 surgery
    Dr. Zwiacher performed at Mat-Su. In each case, Mat-Su refused to respond to
    discovery requests for materials related to (1) Mat-Su’s decisions to renew
    Dr. Zwiacher’s medical staff membership at Mat-Su; and (2) complaints that Mat-Su had
    received regarding Dr. Zwiacher. Mat-Su asserted that, because all the requested
    materials were acquired or generated by Mat-Su’s peer review committees, they were
    privileged under the medical peer review statute and not subject to disclosure.
    -3-                                        7293
    A.	    The Medical Peer Review Privilege Statute And Mat-Su’s Peer Review
    Committees
    Some background on medical peer review generally, and the peer review
    committees at Mat-Su specifically, is necessary. Medical peer review “refers to the
    process hospitals use to oversee medical staff to improve patient care, reduce hospital
    liability, and lower rates for malpractice insurance.”1 Generally, the purpose of affording
    an evidentiary privilege to peer review materials is to promote candor in peer review
    proceedings, with the aim of more rigorous oversight of medical care and lower
    malpractice premiums.2 Nearly all hospitals employ peer review procedures.3 And
    almost all 50 states have adopted laws promoting the effectiveness of peer review by:
    (1) providing immunity from liability for persons serving on or providing information
    in good faith to peer review committees, and (2) creating an evidentiary privilege for
    certain materials related to the peer review process.4
    Alaska’s medical peer review privilege statute, AS 18.23.030, was enacted
    in 1976 as part of a broad, comprehensive bill intended to address the lack of malpractice
    insurance available to Alaska doctors.5 The statute restricts discovery of information and
    1
    Grandstaff v. State, 
    171 P.3d 1176
    , 1193 (Alaska App. 2007).
    2
    
    Id. 3 Charles
    David Creech, Comment, The Medical Review Committee
    Privilege: A Jurisdictional Survey, 
    67 N.C. L
    . REV. 179, 179 (1988).
    4
    
    Id. at 179-180;
    see also Eric Scott Bell, Comment, Make Way: Why
    Arkansas and the States Should Narrow Health Care Peer Review Privileges for the
    Patient Safety and Quality Improvement Act of 2005, 
    62 Ark. L
    . REV. 745, 751-52
    (2009).
    5
    STATE OF ALASKA, REPORT OF THE GOVERNOR’S MEDICAL MALPRACTICE
    INSURANCE COMMISSION 52-53 (Oct. 1,                         1975),
    (continued...)
    -4-	                                     7293
    data acquired by medical peer review organizations, along with the proceedings and
    records of those organizations. The privilege is subject to certain exceptions, including
    materials “otherwise available from original sources” or information within an
    individual’s personal knowledge, and materials provided to a peer review organization
    that are alleged to contain knowingly false information.           Disclosing privileged
    information is a misdemeanor.6
    Mat-Su has two committees that it argues are protected by the peer review
    privilege. The first committee is the Medical Staff Peer Review Committee (Peer
    Review Committee), which is charged with reviewing all care provided by Mat-Su
    physicians and maintaining quality patient care within Mat-Su. The Peer Review
    Committee conducts professional practice evaluations of physicians, as is required for
    hospital accreditation. It consists of various Mat-Su personnel: the chairs of each
    clinical section, physicians from various specialities, a nursing representative, and an
    administrative representative.    The second committee is the Medical Executive
    Committee (Executive Committee), which reviews reports and recommendations from
    the Peer Review Committee regarding any corrective action. The Executive Committee
    consists of physician representatives from each specialty group at Mat-Su. The
    Executive Committee makes decisions regarding both initial credentialing of health care
    providers and renewal of credentials, with the Board of Trustees making the final
    decision on any matter involving privileges or the loss thereof.
    5
    (...continued)
    http://archives2.legis.state.ak.us/PublicImageServer.cgi?lib/7500360REPORT%20OF
    %20THE%20GOVERNOR%27S%20MEDICAL%20MALPRACTICE%20INSURA
    NCE%20COMMISSION.pdf [hereinafter MALPRACTICE COMMISSION REPORT].
    6
    AS 18.23.040.
    -5-                                     7293
    B.     First Petition In Bolinder v. Zwiacher
    In January 2009 Dr. Zwiacher performed a diagnostic surgery on Robert
    Bolinder to examine an unidentified mass in his lungs and collect tissue samples. Three
    days after the surgery, Robert began experiencing pain in his left leg, and his wife,
    Denise, called Dr. Zwiacher. Dr. Zwiacher asked to speak with Robert, but there is a
    dispute regarding what Dr. Zwiacher then said. According to Dr. Zwiacher, he told
    Robert to go to the emergency room. But Denise claims that Robert told her that
    Dr. Zwiacher said a pinched nerve likely was causing his pain and advised Robert to rest
    at home. Later that same day, Robert died at home. An autopsy showed that his death
    was caused by multiple pulmonary emboli — blood clots lodging in and blocking
    arteries in the lungs — that likely came from the leg in which he was experiencing pain.
    In 2011 Denise, as the personal representative of Robert’s estate (the
    Estate), filed a wrongful death claim against Dr. Zwiacher alleging that he negligently
    treated Robert.     The Estate conducted discovery to elicit information about
    Dr. Zwiacher’s background preceding his position at Mat-Su, when he practiced
    medicine in Wisconsin. This information apparently suggested that Dr. Zwiacher
    misrepresented his work and disciplinary history on his 2005 application for an Alaska
    medical license and his 2006 application for medical staff membership at Mat-Su. To
    confirm this indication, the Estate moved to compel Dr. Zwiacher to consent to Mat-Su
    (a non-party) releasing his application for medical staff membership.7 After the superior
    court denied the motion in April 2012, the Estate petitioned this court for interlocutory
    review.
    7
    In addition to medical staff membership, Dr. Zwiacher also applied for (and
    was granted) clinical privileges. To avoid confusion between his clinical privileges and
    the evidentiary privilege at issue here, we refer to Dr. Zwiacher’s application as being
    only for medical staff membership.
    -6-                                     7293
    In 2013 we granted the petition and reversed the denial of the motion to
    compel.8 We held for the purposes of “this case” that one of the exceptions to the peer
    review privilege, excluding certain material alleged to contain false information,9
    applied. We concluded that the application was not privileged because the Estate had
    submitted evidence showing Dr. Zwiacher had lied on his application for an Alaska
    medical license, which suggested he also provided this false information in applying to
    Mat-Su.10 However, “we d[id] not decide” how this exception to the privilege “should
    be interpreted or how it may apply in future cases” given the parties’ cursory briefing
    and lack of argument on the scope of the exception.11 We thus ordered Mat-Su to
    provide Dr. Zwiacher’s application to the Estate.
    C.     The Estate’s Discovery Requests To Mat-Su
    Following our order, Mat-Su provided the Estate with Dr. Zwiacher’s initial
    application for medical staff membership. Mat-Su also produced documents revealing
    that Dr. Zwiacher’s medical staff membership at Mat-Su had been revoked in April 2014
    and detailing the disciplinary steps that preceded the revocation. The Estate amended
    its complaint to allege that Dr. Zwiacher obtained the privileges necessary to treat Robert
    by lying about his work history on his application to Mat-Su.
    The Estate then made several discovery requests of Mat-Su. First the Estate
    requested “[a]ll documents related in any way to the evaluation and granting of
    [Dr. Zwiacher’s] [medical staff membership] at Mat-Su Regional” and asked to depose
    8
    Bolinder v. Zwiacher, No. S-14710 (Alaska Supreme Court Order, Dec. 4,
    2013) [hereinafter Bolinder Order].
    9
    AS 18.23.030(b).
    10
    Bolinder Order, supra note 8.
    11
    
    Id. -7- 7293
    people knowledgeable about Mat-Su’s decision to grant him membership. Mat-Su
    objected, citing the peer review privilege. The Estate also sought to depose Mat-Su
    personnel with knowledge of the identity of individuals “likely to possess personal
    knowledge regarding [Dr. Zwiacher’s] professional credibility, behavior, and/or
    conduct” including knowledge of any limitation or revocation of Dr. Zwiacher’s medical
    staff membership imposed by Mat-Su. Mat-Su again objected on the basis of the peer
    review privilege to the extent the request asked for more than the designation of
    individuals with personal knowledge of Dr. Zwiacher’s credibility. Mat-Su then
    designated Joan Brodie, the assistant director of quality risk management and provider
    services, to testify on these topics.     Brodie’s job duties include overseeing the
    credentialing process, addressing regulatory compliance issues, and participating in the
    peer review process.
    At the deposition Brodie provided the names of several general surgeons,
    anesthesiologists, and hospitalists who might have information about Dr. Zwiacher’s
    credibility. She also advised the Estate to contact the heads of the nursing and operating
    room staffs to obtain information about others who had worked with him. But, citing the
    peer review privilege, Mat-Su objected to many of the Estate’s inquiries, including those
    asking whether any complaints had been raised about Dr. Zwiacher and the nature of
    Brodie’s interactions with him. Brodie explained that “every contact [she] had with
    [Dr. Zwiacher] was within . . . the course of what [she] do[es]”; therefore she could not
    answer such questions because the information was privileged.
    The Estate additionally sought to depose Drs. John Naylor and Bruce Hess.
    Dr. Hess served as the president of the medical staff before Dr. Naylor assumed the
    position. Dr. Naylor served as the president of the medical staff, chaired the Executive
    Committee, and worked at Mat-Su as an anesthesiologist. In early January 2015, when
    the deposition was taken, Dr. Naylor had served as president of the medical staff for
    -8-                                      7293
    about nine months. Though the Estate did ultimately depose Dr. Naylor, it did not
    depose Dr. Hess.
    Dr. Naylor testified that, as president of the medical staff, he serves as the
    chair of the Executive Committee. He had also previously served as the chair of the Peer
    Review Committee. Dr. Naylor explained that the peer review process is initiated by
    concerns and complaints from Mat-Su staff. Dr. Naylor confirmed that outside the peer
    review process “nothing ever happened with [him] and Dr. Zwiacher that in any way
    gave [him] concern or raised an issue regarding [Dr. Zwiacher’s] patient care with [him]
    personally.” And because his familiarity with Dr. Zwiacher’s competency and surgical
    care derived from the peer review process, he could not answer questions about these
    topics. Mat-Su objected to questions asking Dr. Naylor to identify people with
    information related to concerns or complaints about Dr. Zwiacher and asking for
    “original sources . . . [with] information regarding Dr. Zwiacher’s behavior and conduct
    . . . at the hospital.” Dr. Naylor contended he could not divulge such information
    because he had acquired it through his role in the peer review process. He explained that
    “[a]ny complaint or issue . . . that enters the peer review or quality review system . . .
    falls under the [privilege’s] protection” and that this applied to all complaints about
    Dr. Zwiacher.
    Following its unsuccessful attempts to elicit information at the depositions,
    the Estate filed two motions to compel disclosure from Mat-Su related to: (1) its decision
    to grant Dr. Zwiacher medical staff membership and (2) complaints related to
    Dr. Zwiacher’s competency and credibility, including the identity of people possessing
    personal knowledge of such information.
    The superior court granted both motions in two separate discovery orders.
    The first discovery order, issued on April 27, 2015, granted the Estate’s request to
    discover materials related to the decision to grant Dr. Zwiacher’s application for medical
    -9-                                       7293
    staff membership. The superior court concluded that Mat-Su must disclose such
    materials because the Estate alleged that Dr. Zwiacher knowingly included false
    information in his application, and thus the materials fell within an exception to the peer
    review privilege. The first order further permitted the Estate to obtain all materials
    provided to a peer review committee that were alleged to contain knowingly false
    information, specifically:
    testimony, documents, proceedings, records, and other
    evidence adduced before a review organization that are
    otherwise inaccessible under [the peer review privilege] if
    [the Estate] claims that information provided to a review
    organization was false and claims that the person providing
    the information knew or had reason to know the information
    was false.
    The second discovery order, issued on June 10, 2015, granted the Estate’s
    request to obtain complaints that Mat-Su had received about Dr. Zwiacher. The superior
    court concluded that such complaints did not fall within the peer review privilege;
    though they may initiate the peer review process and later become evidence in a peer
    review proceeding, they are not part of such a proceeding. Thus, subject to requests for
    in camera review, the court instructed employees and members of the medical staff at
    Mat-Su with “personal knowledge” of such complaints to provide this information to the
    Estate “without regard to whether [they] presented such information to a peer review
    committee.” It also instructed Mat-Su and Dr. Zwiacher to “produce all documents or
    records . . . regarding complaints or concerns regarding Dr. Zwiacher’s conduct that were
    not generated by or did not originate with a peer review committee.”
    Mat-Su filed an original application for review of these two discovery
    orders, which we granted. Dr. Zwiacher and three amici curiae — Alaska Association
    for Justice, Alaska State Hospital and Nursing Home Association, and Providence
    -10-                                      7293
    Alaska Medical Center — also filed briefs.12 While the appeal was pending, the petition
    for interlocutory review in Brandt was filed.
    D.     Petition In Brandt v. Zwiacher
    Jon Brandt was also a patient of Dr. Zwiacher. Dr. Zwiacher performed a
    laparoscopic small bowel resection surgery on Brandt at Mat-Su in September 2012
    (when Dr. Zwiacher still had medical staff membership). During recovery, Brandt
    complained of pain; the parties dispute how Dr. Zwiacher addressed Brandt’s pain.
    Brandt was discharged from Mat-Su four days after surgery, which Brandt alleges was
    involuntary. Brandt claims that upon discharge, his pain worsened; he returned to Mat-
    Su approximately eight hours later. A CT scan was performed, which Brandt claims
    revealed that Dr. Zwiacher had perforated the left side of his colon during the surgery,
    resulting in leaking and an infection. According to Brandt, he has undergone seven
    additional surgeries to address the issues stemming from the surgery performed by
    Dr. Zwiacher.
    In September 2014, while discovery in Bolinder was still ongoing, Brandt
    filed suit against Dr. Zwiacher and Mat-Su. Brandt brought a medical malpractice claim
    against Dr. Zwiacher, alleging that Dr. Zwiacher misrepresented his skills prior to the
    surgery, delivered substandard medical care, created false and misleading records of
    Brandt’s medical care following the surgery, and obtained both his medical license and
    his Mat-Su medical staff membership through misrepresentation and non-disclosure.
    Brandt also brought a negligent credentialing claim against Mat-Su based on the
    12
    Alaska Association for Justice argues that we should affirm the discovery
    orders; Alaska State Hospital and Nursing Home Association and Providence Alaska
    Medical Center argue that we should reverse.
    -11-                                     7293
    hospital’s decision to grant and renew Dr. Zwiacher’s staff membership.13 Brandt
    claimed that, given Dr. Zwiacher’s professional troubles in Wisconsin and the litany of
    complaints regarding his conduct and standard of care while at Mat-Su, Mat-Su failed
    to act with reasonable diligence in vetting Dr. Zwiacher’s initial application for medical
    staff membership and in subsequently renewing it.
    Discovery ensued, during which Mat-Su voluntarily disclosed, subject to
    a protective order, Dr. Zwiacher’s entire 443-page credentials file, which contains all of
    the materials Mat-Su’s credentials committee used in granting Dr. Zwiacher’s initial
    appointment to the Mat-Su medical staff and all subsequent renewals. The file includes
    Dr. Zwiacher’s initial application for medical staff membership at Mat-Su (the same
    application that had led to the first petition for review in Bolinder).14 The credentials file
    also contains confidential communications regarding Dr. Zwiacher to the Executive
    Committee written while his initial application was pending.
    13
    A negligent credentialing claim derives from the theory of corporate
    negligence, under which “a hospital owes an independent duty to its patients to use
    reasonable care to insure that physicians granted hospital privileges are competent, and
    to supervise the medical treatment provided by members of its medical staff.” Fletcher
    v. S. Peninsula Hosp., 
    71 P.3d 833
    , 842 (Alaska 2003) (quoting Jackson v. Power,
    
    743 P.2d 1376
    , 1378 n.2 (Alaska 1987)). “A corporate negligence claim requires proof
    that the hospital should have known that the physician would act negligently before the
    negligence at issue occurred.” Ward v. Lutheran Hosps. & Homes Soc’y of Am., Inc.,
    
    963 P.2d 1031
    , 1033 n.2 (Alaska 1998). Such proof generally consists of “evidence that
    the physician either lacked standard credentials or previously had been the subject of a
    malpractice suit or disciplinary proceedings.” 
    Id. 14 Mat-Su
    explains on appeal that it is not conceding that the initial credentials
    file is not privileged, but given this court’s prior order in Bolinder compelling disclosure
    of Dr. Zwiacher’s initial application and “the uncertainty surrounding the extent of the
    protection afforded [to the file] by [the peer review privilege],” Mat-Su “felt compelled
    in good faith to produce the entire credentials file.”
    -12-                                        7293
    However, the credentials file does not contain any concerns or complaints
    relayed to Mat-Su regarding Dr. Zwiacher after he was granted medical staff
    membership or regarding Mat-Su’s decision to terminate Dr. Zwiacher’s membership.
    Mat-Su explained that such materials were not part of the credentials file because the
    Mat-Su Medical Staff Bylaws delegated the decision to discipline or to terminate
    Dr. Zwiacher to the Peer Review Committee and the Executive Committee, not the
    credentials committee.      Accordingly, “[a]ll of the documents generated after
    Dr. Zwiacher’s appointment to the medical staff relating to complaints and concerns
    about him . . . are outside the credentialing process and [are instead] reported to
    the . . . [Peer Review Committee and Executive Committee].”
    After receiving the credentials file, Brandt sent six discovery requests to
    Mat-Su that form the basis of his appeal. Like the requests in Bolinder, Brandt’s requests
    can be divided into two broad groups: (1) documents related to any complaints made
    about Dr. Zwiacher, the identity of individuals making and reviewing the complaints, and
    any action taken in response; and (2) documents and statements related to Mat-Su’s
    decisions to renew or terminate Dr. Zwiacher’s medical staff membership and the
    identity of individuals involved in those decisions.
    Mat-Su objected to these discovery requests, asserting that each request
    sought information covered by the peer review privilege.15 In March 2016 Brandt moved
    15
    Brandt quibbles with Mat-Su’s purported failure to produce a privilege log
    in refusing to respond to the discovery requests. However, Brandt represents that Mat-
    Su ultimately did produce a privilege log that identified more than 1900 pages of
    privileged materials. This privilege log is not part of the appellate record because it was
    produced after the petition for review was granted. Brandt does not appear to take issue
    with the adequacy of the privilege log that was ultimately produced; accordingly, we do
    not address this issue.
    -13-                                      7293
    to compel Mat-Su’s responses to the discovery requests.16 In its opposition, with respect
    to the first group of requested information, Mat-Su argued that the identities both of
    individuals reporting complaints about Dr. Zwiacher and of individuals considering the
    complaints were privileged. It explained that such complaints initiated the peer review
    process and were directed to peer review committee members, and they were thus part
    of the committee proceedings. Regarding the second group of requested information,
    Mat-Su conceded that it had not produced “the files and meeting minutes of the [Peer
    Review Committee] and the [Executive Committee], the purpose of which was to review
    the quality of care provided by Dr. Zwiacher at the hospital subsequent to his obtaining
    privileges,” but argued these materials were privileged. Mat-Su explained that, other
    than the credentials file and this privileged material, it possessed “no other documented
    communication relating to Dr. Zwiacher’s renewal or termination.”
    In August 2016 the superior court granted Brandt’s motion to compel and
    ordered production of all the information sought in the six production requests. The
    court reasoned that the names of the individuals making complaints about Dr. Zwiacher
    and the content of those complaints were not privileged because they were based on the
    personal knowledge of individuals not acting in the capacity of peer review committee
    members. The superior court thus concluded that Mat-Su had failed to meet its burden
    of establishing that the discovery requests fell within the scope of the privilege and
    accordingly ordered Mat-Su to produce the requested materials. The superior court’s
    analysis appears to have considered only one group of discovery requests (relating to
    16
    In his motion to compel, Brandt argued that by voluntarily producing the
    credentialing file, Mat-Su had waived the protection of the peer review privilege as
    applied to any of its files. However, Brandt does not renew this argument on appeal
    (despite Mat-Su mentioning this argument in its brief ); thus we deem it forfeited and do
    not address it.
    -14-                                     7293
    complaints) and not the other (relating to Mat-Su’s credentialing decisions). However,
    it ultimately compelled disclosure of all requested information.             Mat-Su and
    Dr. Zwiacher jointly petitioned for interlocutory review of the superior court’s order, and
    we granted the petition.
    III.	 STANDARD OF REVIEW
    We generally review discovery rulings for abuse of discretion, “but whether
    a privilege applies is a question of law we review independently.”17 Here, the scope of
    the privilege is codified in a statute.18 When interpreting statutes, we apply our
    independent judgment,19 adopting the “rule of law that is most persuasive in light of
    precedent, reason, and policy.”20
    IV.	   DISCUSSION
    A.	    Alaska Statute 18.23.030 Provides Robust Protections For The Medical
    Peer Review Process.
    This case requires us to interpret the scope of the medical peer review
    privilege in the context of a wrongful death action and a medical malpractice claim
    against a surgeon, and a negligent credentialing claim against the surgeon’s hospital.
    The privilege, codified in AS 18.23.030, contains two subsections relevant to this case.
    The first, subsection (a), sets out the scope of the privilege and provides a specific
    17
    Peterson v. State, 
    280 P.3d 559
    , 561 (Alaska 2012).
    18
    See AS 18.23.030.
    19
    In their Bolinder briefs, Mat-Su and Dr. Zwiacher contend that the scope
    of the peer review privilege also presents a question of fact: when the medical peer
    review process begins at Mat-Su. This framing impermissibly invades the legislative
    province by allowing a hospital to define AS 18.23.030’s scope. The issue here — the
    scope of the peer review privilege — presents only a question of law.
    20
    State v. Ketchikan Gateway Borough, 
    366 P.3d 86
    , 90 (Alaska 2016)
    (quoting Se. Alaska Conservation Council v. State, 
    202 P.3d 1162
    , 1167 (Alaska 2009)).
    -15-	                                     7293
    limitation on it. The second, subsection (b), outlines two exceptions where the privilege
    does not apply. Aside from our 2013 limited order, we have never considered the scope
    of either subsection.21
    This case thus requires interpretation of the peer review statute.
    “Interpretation of a statute begins with its text.”22 In addition to the text, we also
    consider a statute’s legislative history and purpose.23 In construing a statute, we have
    adopted a sliding scale approach whereby “[t]he plainer the statutory language is, the
    more convincing the evidence of contrary legislative purpose or intent must be.”24
    Whenever possible “we interpret each part or section of a statute with every other part
    or section, so as to create a harmonious whole.”25 Finally, because Alaska’s “civil rules
    21
    The court of appeals considered whether AS 18.23.030 applied in criminal
    cases in Grandstaff v. State, 
    171 P.3d 1176
    , 1190-97 (Alaska App. 2007). The court of
    appeals concluded that the privilege applied only in civil cases based on the statute’s
    plain language and legislative history. 
    Id. at 1194.
    This appeal does not directly
    implicate the decision in Grandstaff.
    22
    City of Kenai v. Friends of The Recreation Ctr., Inc., 
    129 P.3d 452
    , 458-59
    (Alaska 2006).
    23
    Oels v. Anchorage Police Dep’t Emps. Ass’n, 
    279 P.3d 589
    , 595 (Alaska
    2012).
    24
    State, Dep’t of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Alyeska
    Pipeline Serv. Co., 
    262 P.3d 594
    , 597 (Alaska 2011) (quoting Gov’t Emps. Ins. Co. v.
    Graham-Gonzalez, 
    107 P.3d 279
    , 284 (Alaska 2005)).
    25
    McDonnell v. State Farm Mut. Auto. Ins. Co., 
    299 P.3d 715
    , 721 (Alaska
    2013) (quoting State, Dep’t of Commerce, Cmty., & Econ. Dev., Div. of Ins. v.
    Progressive Cas. Ins. Co., 
    165 P.3d 624
    , 629 (Alaska 2007)).
    -16-                                     7293
    favor a system of liberal pretrial discovery,”26 we generally construe an evidentiary
    privilege narrowly.27
    Subsection (a) outlines the scope of the peer review privilege in three
    sentences. The first sentence protects from discovery “all data and information acquired
    by a review organization in the exercise of its duties and functions.”28 This sentence
    appears to include a review organization’s investigative process. Such information might
    include statements made by a doctor under investigation, statements made by other
    medical staff during an investigation,29 and information acquired to assess a physician’s
    fitness to practice.30 The second sentence applies to a different step of the review
    process; it protects what transpired at a meeting of a review organization:
    26
    Noffke v. Perez, 
    178 P.3d 1141
    , 1150 (Alaska 2008) (quoting Jones v.
    Jennings, 
    788 P.2d 732
    , 735 (Alaska 1990)).
    27
    Langdon v. Champion, 
    752 P.2d 999
    , 1004 (Alaska 1988) (“Given our
    commitment to liberal pre-trial discovery, . . . the scope of the attorney-client privilege
    should be strictly construed . . . .” (quoting United Servs. Auto. Ass’n v. Werley, 
    526 P.2d 28
    , 31 (Alaska 1974))); Am. Nat’l Watermattress Corp. v. Manville, 
    642 P.2d 1330
    ,
    1333-34 (Alaska 1982) (same); see also United States v. Nixon, 
    418 U.S. 683
    , 713
    (1974) (“The generalized assertion of a privilege must yield to the demonstrated, specific
    need for evidence in a pending . . . trial.”); Gwich’in Steering Comm. v. State, Office of
    the Governor, 
    10 P.3d 572
    , 578-79 (Alaska 2000) (noting that this court “narrowly
    construe[s]” the deliberate process privilege, an exception to the Public Records Act);
    Russell v. Municipality of Anchorage, 
    706 P.2d 687
    , 693 (Alaska App. 1985)
    (“Privileges in litigation are not favored and should be narrowly construed.”).
    28
    AS 18.23.030(a).
    29
    See Grandstaff v. State, 
    171 P.3d 1176
    , 1193 (Alaska App. 2007).
    30
    Cf. John C. Lincoln Hosp. & Health Ctr. v. Superior Court, 
    768 P.2d 188
    ,
    190 (Ariz. App. 1989) (concluding application for staff privileges and “investigations
    into [physician’s] background, work, and experience before his association” with
    hospital were privileged under Arizona peer review statute).
    -17-                                       7293
    [A] [member of a review organization] may not disclose what
    transpired at a meeting of a review organization except to the
    extent necessary to carry out the purposes of a review
    organization, and the proceedings and records of a review
    organization are not subject to discovery or introduction into
    evidence in a civil action against a health care provider
    arising out of the matter that is the subject of consideration by
    the review organization.[31]
    The final sentence of AS 18.23.030(a) limits the scope of the privilege
    defined in the first two sentences; the privilege does not extend to “original sources” or
    to “matters within [a] person’s knowledge” even if the person served on a review
    organization or testified during a proceeding:
    Information, documents, or records otherwise available from
    original sources are not immune from discovery or use in a
    civil action merely because they were presented during
    proceedings of a review organization, nor may a person who
    testified before a review organization or who is a member of
    it be prevented from testifying as to matters within the
    person’s knowledge, but a witness may not be asked about
    the witness’s testimony before a review organization or
    opinions formed by the witness as a result of its hearings,
    except as provided in (b) of this section.[32]
    Subsection (a) thus sets out three conditions that a piece of evidence must
    satisfy for the privilege to apply. First, the peer review committee from which the
    evidence is sought must be a “review organization.” The parties in both cases appear to
    concede that the Peer Review Committee and the Executive Committee both fall within
    31
    AS 18.23.030(a).
    32
    
    Id. (emphases added).
    -18-                                     7293
    the statutory definition of “review organization.”33 Dr. Naylor’s deposition testimony
    regarding the Executive Committee’s role supports this concession, as do the
    descriptions of the roles of the Peer Review Committee and Executive Committee in the
    Mat-Su Medical Staff Bylaws. Second, the evidence must fall into at least one of the two
    protected categories of information: (1) “data and information acquired by a review
    organization in the exercise of its duties and functions,” or (2) “what transpired at a
    meeting of a review organization [and] . . . the proceedings and records of a review
    organization” if this category of information is sought “in a civil action against a
    healthcare provider arising out of the matter that is subject of consideration by the review
    organization.”34 Third, the evidence must not be “otherwise available from original
    sources” or within an individual’s personal knowledge.
    33
    Alaska Statute 18.23.070(5)(A) defines “review organization,” in relevant
    part, as “a hospital governing body or a committee whose membership is limited to
    health care providers and administrative staff . . . and that is established by a hospital . . .
    to gather and review information relating to the care and treatment of patients” for certain
    enumerated purposes, such as improving the quality of healthcare provided, reducing
    mortality, resolving disputes between patients and insurers, or acting on the
    recommendation of a credential review committee.
    34
    The protection for the first category of information is unqualified; it applies
    in all cases. In contrast, the second category of information is protected only in certain
    cases: “civil actions against health care providers arising out of the matter that is the
    subject of consideration by the review organization.” AS 18.23.030(a). Brandt’s and the
    Estate’s suits certainly qualify as a civil action against a healthcare provider; but it is not
    clear that either action “aris[es] out of” the matter that the review organization
    considered. The parties did not address this issue in their briefing, and we do not address
    it here because we conclude that all the material addressed in the discovery orders is
    protected under the first category. To the extent the superior court on remand considers
    whether material is protected under the second category of information, it must address
    whether the action arises out of the matter under consideration by the review
    organization.
    -19-                                         7293
    We first consider whether the privilege established in subsection
    (a) protects any of the materials compelled disclosed by the discovery orders at issue.
    We then consider whether either exception to the privilege outlined in subsection
    (b) applies.
    B.	     Materials Related To Complaints About A Physician Held In The Files
    Of A Review Organization Are Privileged Under AS 18.23.030(a) Even
    If Those Materials Originate From Outside Sources.
    Both the Estate and Brandt seek information that Mat-Su possesses
    regarding complaints about Dr. Zwiacher, including the identities of individuals with
    personal knowledge of such complaints. The superior court in each case compelled Mat-
    Su to disclose this information. In Bolinder the superior court instructed Mat-Su
    employees and medical staff members with “personal knowledge” of such complaints
    to provide this information to the Estate “without regard to whether [they] presented such
    information to a peer review committee.” It also ordered Mat-Su and Dr. Zwiacher to
    “produce all documents or records sought by the [Estate] regarding complaints or
    concerns regarding Dr. Zwiacher’s conduct that were not generated by or did not
    originate with a peer review committee.” In doing so the court effectively required
    Dr. Naylor to disclose complaints about Dr. Zwiacher that he had received from others
    in his capacity as the Executive Committee president, which counsel for the Estate had
    tried to elicit unsuccessfully during Dr. Naylor’s deposition. Similarly in Brandt, the
    superior court ordered Mat-Su to produce materials relating to complaints regarding
    Dr. Zwiacher’s competency and credibility, the identity of the individuals making and
    reviewing the complaints, and any action taken in response. In each case the superior
    court reasoned that materials regarding such complaints fell outside the privilege
    because, though they may initiate the peer review process and later become evidence in
    -20-	                                     7293
    a peer review proceeding, they are based on observations occurring in the normal course
    of rendering medical care and preceding the commencement of peer review.
    Exercising our independent judgment, we conclude that the plain language
    of AS 18.23.030(a) supports a broader construction of the privilege that protects
    complaint-related materials contained in peer review committee files, even if those
    materials were not generated by the peer review committee but rather originated outside
    the peer review process. In reaching this conclusion we are mindful that an evidentiary
    privilege should be construed narrowly, but we conclude that the text of AS 18.23.030(a)
    does not support a narrower interpretation of the peer review privilege than that which
    we reach here.
    Complaint-related materials contained in peer review committee files, the
    identities of the individuals reporting and reviewing the complaints, and any internal
    action taken in response satisfy the requirements for the privilege to apply. First, these
    materials are “acquired by a review organization in the exercise of its duties and
    functions.”35 Black’s Law Dictionary defines “acquire” as “[t]o gain possession or
    control of; to get or obtain.”36 The use of this broad term implies that all information
    contained in peer review committee files is privileged, even if it was not generated by the
    committee but rather originated from an outside source. And Mat-Su has represented
    that all of the responsive materials in its possession were initially reported to either the
    Executive Committee or the Peer Review Committee. Accordingly, all of these materials
    were acquired by a peer review committee.
    35
    Mat-Su also argues that the identities of individuals raising concerns or
    complaints are privileged because Mat-Su Medical Staff Bylaws guarantee such
    individuals confidentiality. However this guarantee of confidentiality cannot supplant
    the scope of the peer review privilege set out in the statute.
    36
    Acquire, BLACK’S LAW DICTIONARY (10th ed. 2014).
    -21-                                       7293
    Moreover, this acquisition was “in the exercise of [the committees’] duties
    and functions.” One statutorily defined duty and function of a review organization is
    “evaluating and improving the quality of health care rendered” in the hospital.37 Mat-Su
    employees are instructed to report concerns or complaints about medical staff members
    to the Executive Committee when the information implicates patient safety or patient
    care, and the Executive Committee and the Peer Review Committee are both tasked with
    maintaining the quality of patient care within Mat-Su. Thus when such complaints are
    reported to and reviewed by the Peer Review Committee and Executive Committee, it
    is at least in part for the purpose of maintaining the quality of patient care.
    Likewise, complaints and concerns directed to Dr. Naylor are also protected
    as information acquired by a review organization. Dr. Naylor is the president of the
    Executive Committee and testified in his deposition that such complaints are the initial
    step in the peer review process and initiate that process. Moreover, the Mat-Su Medical
    Staff Bylaws provide that “[a]ny person” can report to a medical staff member
    “information . . . about the conduct, performance, or competence” of a medical staff
    member, and indicate that such reports are the first step in the Executive Committee peer
    review process. The president of the Executive Committee then reviews the information
    and can elect to initiate “an investigation or action” against the medical staff member.
    Accordingly, complaints about Dr. Zwiacher that Dr. Naylor received from other Mat-Su
    employees and medical staff members are “information acquired by a review
    organization in the exercise of its duties and functions” because receipt of such
    information is the preliminary step in commencing the peer review process.38
    37
    See AS 18.23.070(5) (defining “review organization”).
    38
    The record contains sufficient information about Dr. Naylor’s role in
    relation to the peer review committees for us to reach this conclusion. However, there
    (continued...)
    -22-                                    7293
    Brandt and the Estate counter that Mat-Su must nevertheless provide the
    materials they seek because the privilege specifically excludes from protection
    “[i]nformation, documents, or records otherwise available from original sources” or
    matters within an individual’s “person[al] knowledge,” even if those materials were
    presented during or were the subject of testimony at review organization proceedings.39
    However, this argument views the limitation on the privilege in a vacuum, without regard
    for the broad privilege outlined in the plain text of the preceding two sentences.40 The
    first sentence prohibits a review organization from revealing the information and data it
    acquires; the second sentence protects a review organization’s deliberations. Reading
    the limitation in the third sentence in conjunction with the broad protection in these first
    38
    (...continued)
    is a paucity of information in the record about the role that other members of the medical
    staff may play on the peer review committees and in the peer review process. Therefore,
    based on this record, we cannot determine whether the privilege extends to complaints
    directed to other members of the medical staff or the peer review committees. There is
    also not sufficient information regarding administrator Joan Brodie’s role to allow us to
    determine whether complaints directed to her are privileged. But we note that to the
    extent Brodie has observed personally Dr. Zwiacher’s conduct, these personal
    observations are not privileged, contrary to her assertions at her deposition. We leave
    it to the superior court to determine on remand whether other individuals may be
    required to divulge information relating to complaints about Dr. Zwiacher that were
    reported to them. In making these determinations the superior court must apply the
    analytical approach and must be guided by the policy considerations that we set forth in
    this opinion.
    39
    AS 18.23.030(a).
    40
    See Alaska Airlines, Inc. v. Darrow, 
    403 P.3d 1116
    , 1127 (Alaska 2017)
    (“[W]hen construing a statute, ‘we must, whenever possible, interpret each part . . . with
    every other part . . . , so as to create a harmonious whole.’ ” (quoting State, Dep’t of
    Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Progressive Cas. Ins. Co., 
    165 P.3d 624
    ,
    629 (Alaska 2007))).
    -23-                                       7293
    two sentences suggests that the limitation permits a litigant to obtain the original
    information or personal knowledge only from outside sources. In other words, it limits
    the avenue of discovering this information to the original source or the individual with
    personal knowledge. A contrary interpretation allowing a peer review committee or a
    committee member to be compelled to disclose such original source information would
    eviscerate the peer review privilege’s protection for all data and information acquired by
    the committee and for the committee’s deliberations. It would also render meaningless
    the limitation’s requirement that the materials be “otherwise available” from other
    sources. Therefore, this limitation does not require the peer review committees or
    Dr. Naylor to divulge any materials related to concerns or complaints about
    Dr. Zwiacher, even if the materials were obtained from an original source outside the
    peer review process.
    Other jurisdictions with peer review statutes like AS 18.23.030 have
    similarly construed the privilege so that materials may be obtained only from the original
    source. For example, Minnesota’s peer review statute contains a limitation allowing
    discovery of original source materials, which is worded nearly identically to Alaska’s
    limitation.41 The Minnesota Court of Appeals rejected the argument that this limitation
    41
    The Minnesota limitation provides:
    Information, documents or records otherwise available from
    original sources shall not be immune from discovery or use
    in any civil action merely because they were presented during
    proceedings of a review organization, nor shall any person
    who testified before a review organization or who is a
    member of it be prevented from testifying as to matters
    within the person’s knowledge, but a witness cannot be asked
    about the witness’ testimony before a review organization or
    opinions formed by the witness as a result of its hearings.
    (continued...)
    -24-                                      7293
    required a review organization to divulge documents it had acquired from original
    sources.42 Instead, the Minnesota court interpreted the limitation to allow discovery only
    from the original sources, not the peer review committee.43 Similarly, the Minnesota
    Supreme Court — in concluding its peer review statute did not preclude a common law
    claim for negligent credentialing — suggested that the statute prevented a party from
    obtaining information directly from a review organization.44 The court noted that
    Minnesota’s peer review statute “preclude[d] the discovery of what evidence was
    actually obtained by the [peer review organization] in the credentialing process,”45
    indicating that the original source limitation does not require the organization to divulge
    such evidence, even if it was obtained from outside sources.
    South Carolina’s original source limitation is also worded very similarly
    to that of Alaska’s peer review statute.46 The South Carolina Supreme Court has likewise
    41
    (...continued)
    Minn. Stat. § 145.64(1) (2017).
    42
    In re Fairview-Univ. Med. Ctr., 
    590 N.W.2d 150
    , 154 (Minn. App. 1999).
    43
    
    Id. (“[D]ocuments available
    from other sources remain discoverable from
    other sources.”).
    44
    Larson v. Wasemiller, 
    738 N.W.2d 300
    , 302, 310 (Minn. 2007).
    45
    
    Id. at 310.
           46
    South Carolina’s limitation provides:
    Information, documents, or records which are otherwise
    available from original sources are not immune from
    discovery or use in a civil action merely because they were
    presented during the committee proceedings, nor shall any
    complainant or witness before the committee be prevented
    from testifying in a civil action as to matters of which he has
    (continued...)
    -25-                                      7293
    rejected a litigant’s attempt to access original source documents directly from the peer
    review committee.47 The court reasoned that the original source limitation meant that
    information “available from a source other than the committee does not become
    privileged simply by being acquired by the review committee.”48 But a plaintiff seeking
    such information “cannot obtain [it] . . . directly from the [peer review] committee” and
    instead must obtain it “from alternative sources.”49
    These cases from jurisdictions with similar peer review statutes bolster our
    interpretation of the original source limitation in Alaska’s peer review statute. We
    interpret this limitation to permit discovery of original source information only from the
    original source or the individual with personal knowledge. The limitation does not
    require a peer review committee or its members to disclose these materials. Accordingly
    it does not compel Mat-Su’s peer review committees to disclose complaints reported to
    them relating to Dr. Zwiacher, the identities of the individuals reporting or reviewing
    those complaints, or any internal actions taken in response. We note however that the
    privilege does not extend to an individual’s personal observations and knowledge
    46
    (...continued)
    knowledge apart from the committee proceedings or
    revealing such matters to third persons.
    S.C. Code Ann. § 40-71-20(A) (2018).
    47
    McGee v. Bruce Hosp. Sys., 
    439 S.E.2d 257
    , 260 (S.C. 1993).
    48
    
    Id. 49 Id.;
    see also Prince v. Beaufort Mem’l Hosp., 
    709 S.E.2d 122
    , 128 (S.C.
    App. 2011) (“To the extent the [peer review committee] obtained documents from other
    sources during the course of its investigation, [the plaintiff] may seek copies of those
    documents from the original sources but not from the [peer review committee] file.”).
    -26-	                                     7293
    derived outside the peer review process even if the individual serves on a review
    organization or the information relates to a matter under review.
    Having established the scope of the peer review privilege outlined in
    AS 18.23.030(a), we now reverse in part the superior court’s June 2015 discovery order
    in Bolinder. We affirm the portion of the order requiring Mat-Su medical staff to answer
    questions based on their personal knowledge. However, the Estate may not ask
    questions about staff knowledge of review proceedings. We reverse the portion of the
    order compelling Mat-Su to provide peer review materials about complaints or concerns
    regarding Dr. Zwiacher’s conduct. To the extent that responsive materials are contained
    in peer review committee files, the Estate may not obtain such information from Mat-Su
    even if the materials originated from outside knowledge or were generated based on
    personal knowledge.
    We also reverse the superior court’s order in Brandt compelling Mat-Su to
    respond to Brandt’s request for production 2 and interrogatories 3 and 10. Each of these
    three discovery requests similarly seek privileged information regarding complaints
    about Dr. Zwiacher, the identity of individuals reporting and reviewing the complaints,
    documents relating to those complaints, and actions taken in response to the complaints.
    To the extent all responsive materials and information are contained in peer review
    committee files, this information is privileged. Brandt may nevertheless attempt to
    obtain this information from original sources outside the peer review process or from
    individuals with personal knowledge of Dr. Zwiacher’s conduct.
    C.	    The False Information Exception In AS 18.23.030(b) Does Not Permit
    Discovery Of Information Regarding Dr. Zwiacher’s Application For
    Medical Staff Membership Because It Applies To Actions For Which
    The Submission Of False Information Is An Element.
    Alaska Statute 18.23.030(b) provides two exceptions to the peer review
    privilege outlined in subsection (a). In full, subsection (b) provides:
    -27-	                                   7293
    Testimony, documents, proceedings, records, and other
    evidence adduced before a review organization that are
    otherwise inaccessible under this section may be obtained by
    a health care provider who claims that denial is
    unreasonable or may be obtained under subpoena or
    discovery proceedings brought by a plaintiff who claims that
    information provided to a review organization was false and
    claims that the person providing the information knew or had
    reason to know the information was false.[50]
    The parties appear to agree that the first exception — which grants a “health care
    provider” access to materials otherwise privileged under subsection (a) when the
    provider “claims that denial is unreasonable”51 — does not apply. But the parties
    disagree whether the second exception, the false information exception, applies. Under
    this exception, “a plaintiff who claims that information provided to a review organization
    was false and claims that the person providing the information knew or had reason to
    know the information was false” may obtain, by subpoena or discovery proceedings,
    evidence otherwise privileged under subsection (a).52
    The Estate and Brandt argue that the false information exception applies to
    exclude from the privilege all materials related to the decision to grant, renew, suspend,
    or revoke Dr. Zwiacher’s medical staff membership at Mat-Su and the identities of the
    individuals involved in the decisions.53 They argue that the exception applies to these
    50
    AS 18.23.030(b) (emphases added).
    51
    
    Id. As relevant
    here a “health care provider” includes “a physician licensed
    under AS 08.64,” “a hospital as defined in AS 47.23.900,” and “an employee of a health
    care provider acting within the course and scope of employment.” AS 18.23.070(3).
    52
    AS 18.23.030(b).
    53
    The Estate and Brandt also contend that a contrary construction of
    AS 18.23.030(b) would conflict with our previous 2013 order in Bolinder. But we
    (continued...)
    -28-                                      7293
    materials because the Estate and Brandt each allege that Dr. Zwiacher knowingly
    included false information in his initial application for medical staff membership.54 But
    we conclude that this interpretation of the false information exception is too broad. The
    false information exception applies to plaintiffs bringing claims for which the submission
    of false information is an element. Since none of the claims at issue contain the
    submission of false information as an element, neither the Estate nor Brandt qualifies as
    a plaintiff within the meaning of the false information exception.
    We base our interpretation of the false information exception on two
    aspects of the peer review statute. First, we must read the exceptions to the peer review
    privilege in subsection (b) in pari materia with other sections of the peer review statute.
    Under the in pari materia canon of statutory construction, we construe statutory
    provisions “enacted at the same time, or deal[ing] with the same subject matter”
    together.55 The peer review privilege and its exceptions were enacted in 1976 as part of
    53
    (...continued)
    limited that order to that interlocutory appeal and explicitly refrained from deciding how
    the exception “should be interpreted or how it may apply in future cases.” Bolinder
    Order, supra note 8. And this opinion does not alter our limited 2013 order. That order
    required Mat-Su to release Dr. Zwiacher’s application for hospital privileges to the
    Estate, but nothing more. 
    Id. Mat-Su has
    complied with that order.
    54
    In addition, in its first petition for review, the Estate argued that a
    committee considering an initial credentialing decision is not a “review organization”
    within the meaning of this exception to the peer review statute because it does not serve
    one of the statutorily defined functions of such an organization. Neither the Estate nor
    Brandt renews this argument in this appeal. Because Mat-Su has already provided the
    initial credentialing file to both the Estate and Brandt, this argument is moot, and we do
    not consider whether such a committee qualifies as a review organization.
    55
    Bullock v. State, Dep’t of Cmty. & Reg’l Affairs, 
    19 P.3d 1209
    , 1214-15
    (Alaska 2001) (quoting Underwater Constr., Inc. v. Shirley, 
    884 P.2d 150
    , 155 (Alaska
    (continued...)
    -29-                                      7293
    a comprehensive medical malpractice insurance bill.56 Another provision of the statute,
    AS 18.23.010, contains similar language to that of the false information exception in
    AS 18.23.030(b). Alaska Statute 18.23.010(a) limits when an informant to a review
    organization can be held liable for defamation and similar actions: “A person providing
    information to a review organization is not subject to action for damages or other relief
    by reason of having furnished that information unless the information is false and the
    person providing the information knew or had reason to know the information was
    false.”57 This language tracks the language of the false information exception.
    Another provision, AS 18.23.020, limits liability for members of a review
    organization. It provides that members are shielded from liability arising from the action
    or recommendation of a review organization as long as they acted based on “the
    reasonable belief that the action or recommendation is warranted by facts known to the
    person or to the review organization” and took “reasonable efforts to ascertain the facts
    upon which the review organization’s action or recommendation is made.”58 Reading
    these provisions of the peer review statute together suggests that the false information
    exception was intended to permit discovery in cases where submission of false
    information is a required element.
    Second, the legislative history of the peer review statute also supports this
    limitation on the scope of the false information exception. The legislative history of the
    medical malpractice insurance bill as a whole repeatedly emphasizes the legislature’s
    55
    (...continued)
    1994)).
    56
    See Ch. 102, § 40, SLA 1976.
    57
    AS 18.23.010(a) (emphases added).
    58
    AS 18.23.020.
    -30-                                      7293
    concern with the dual goals of (1) increasing the availability of affordable medical
    malpractice insurance and (2) protecting those who furnish information to review
    organizations from defamation suits. The most detailed piece of legislative history
    comes from a 1975 report and a supplemental report issued by a committee convened by
    the governor to study the malpractice insurance crisis in Alaska.59            The report
    recommended reforms that ultimately led to the comprehensive medical malpractice
    insurance bill that included AS 18.23.
    The report recognized that the dual goals were intertwined — to decrease
    the cost and increase the availability of malpractice insurance, there needed to be a
    culture of self-policing in the medical profession.60 However, fears of defamation suits
    impeded establishing such a culture: “[M]edical practitioners [were] reluctant to divulge
    information concerning observed negligence or misconduct for fear the practitioner
    involved w[ould] bring an action for defamation,” and, as a result, “more information
    [was] available from health care providers than [was] . . . made available to the licensing
    boards.”61 To address these fears, the committee recommended that individuals who
    provided information to a peer review committee should have immunity from defamation
    59
    MALPRACTICE COMMISSION REPORT, supra note 5; See STATE OF ALASKA,
    REPORT OF THE GOVERNOR’S MEDICAL MALPRACTICE INSURANCE COMMISSION,
    SUPPLEMENT                at     cross-reference               tbl.,   (1975),
    http://archives2.legis.state.ak.us/PublicImageServer.cgi?lib/7500370REPORT%20OF
    %20THE%20GOVERNOR%27S%20MEDICAL%20MALPRACTICE%20INSURA
    NCE%20COMMISSION,%20SUPPLEMENT.pdf.
    60
    MALPRACTICE COMMISSION REPORT, supra note 5, at 48.
    61
    
    Id. at 50.
    -31-                                      7293
    actions.62 This was the committee’s only recommendation specific to what ultimately
    became AS 18.23.
    Other relevant pieces of legislative history also emphasize limiting
    defamation liability for those who participate in and provide information to review
    organizations. At the same time, these materials fail to mention any exception to the peer
    review privilege. A sectional analysis of the medical malpractice insurance bill
    performed by one of the bill’s sponsors includes a brief description of the portion of the
    bill that ultimately became AS 18.23. The description simply states that the peer review
    statute “[l]imits liability for persons providing information to a review organization and
    for members of a review organization” and “[p]rovides that records of a review
    organization are immune from discovery in a suit.”63 Similarly, a comparison of the
    House and Senate versions of the medical malpractice insurance bill prepared by the
    Legislative Affairs Agency mentions the portion that became AS 18.23 only in the
    context of limiting defamation liability.64
    The legislative history’s emphasis on limiting defamation liability and
    decreasing the cost of malpractice insurance — coupled with its silence with regard to
    any exception to the peer review privilege — counsels in favor of construing any
    exception to the privilege narrowly. Although the legislative history of the medical
    malpractice insurance bill admittedly contains little information specific to the peer
    review privilege or its exceptions, we conclude that the broad aims of the bill that we
    62
    
    Id. 63 Representative
    Ted Smith, Summary of Medical Malpractice Insurance Bill
    CSHB 574, 9th Leg., 2d Sess. at 2, Alaska Leg. (May 20, 1976).
    64
    Legislative Affairs Agency, Medical Malpractice Bills in Free Conference
    Committee, 9th Leg., 2d Sess. at 2, Alaska Leg. (undated).
    -32-                                  7293
    have just distilled should guide our interpretation of this exception. If the legislature had
    intended to establish a widely available exception to the privilege — i.e., one available
    to any plaintiff alleging the provision of false information to a review organization, as
    the Estate and Brandt urge — it is likely that the legislative history would include at least
    some discussion of this exception. But no such mention appears. Instead, the drafters
    of the medical malpractice bill focused on shielding participants in the peer review
    process from liability in order to foster a culture of self-policing and increase the
    affordability and availability of malpractice insurance. Allowing any plaintiff alleging
    the provision of false information to obtain otherwise privileged information under this
    exception would undermine these goals by facilitating malpractice suits and deterring
    candor in peer review proceedings. The legislative history and other provisions of
    AS 18.23 indicate that the false information exception is available only to plaintiffs
    bringing the actions for which provision of false information is an element of the claim.
    We therefore reverse the April 2015 discovery order in Bolinder and the
    August 2016 order in Brandt. Both orders permit discovery of materials related to Mat­
    Su’s decision to grant, renew, suspend, or terminate Dr. Zwiacher’s medical staff
    membership. The false information exception does not apply in either of these cases and
    thus does not allow discovery from Mat-Su’s peer review committees of materials related
    to the decision to grant, renew, suspend, or terminate Dr. Zwiacher’s credentials at Mat-
    Su. But we again note that the Estate and Brandt may seek discovery of such
    information and materials from alternative sources outside the peer review process.
    V.     CONCLUSION
    We REVERSE the April 27, 2015 discovery order in Bolinder and the
    August 24, 2016 order in Brandt. We AFFIRM in part and REVERSE in part the
    June 10, 2015 discovery order in Bolinder as detailed above. We REMAND for further
    proceedings consistent with this opinion.
    -33-                                       7293
    

Document Info

Docket Number: 7293 S-15920-S-15969

Citation Numbers: 427 P.3d 754

Judges: Stowers, Winfree, Maassen, Bolger, Carney

Filed Date: 9/14/2018

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (21)

American National Watermattress Corp. v. Manville , 1982 Alas. LEXIS 398 ( 1982 )

McGee Ex Rel. Estate of McGee v. Bruce Hospital System , 312 S.C. 58 ( 1993 )

In Re the Fairview-University Medical Center , 1999 Minn. App. LEXIS 249 ( 1999 )

Langdon v. Champion , 1988 Alas. LEXIS 25 ( 1988 )

Fletcher v. South Peninsula Hospital , 2003 Alas. LEXIS 51 ( 2003 )

Prince v. Beaufort Memorial Hospital , 392 S.C. 599 ( 2011 )

City of Kenai v. Friends of the Recreation Center, Inc. , 2006 Alas. LEXIS 24 ( 2006 )

State, Department of Commerce, Community & Economic ... , 2007 Alas. LEXIS 92 ( 2007 )

Grandstaff v. State , 2007 Alas. App. LEXIS 204 ( 2007 )

United States v. Nixon , 94 S. Ct. 3090 ( 1974 )

Southeast Alaska Conservation Council v. State , 2009 Alas. LEXIS 24 ( 2009 )

Government Employees Insurance Co. v. Graham-Gonzalez , 2005 Alas. LEXIS 18 ( 2005 )

Larson v. Wasemiller , 2007 Minn. LEXIS 456 ( 2007 )

John C. Lincoln Hospital & Health Center v. Superior Court , 159 Ariz. 456 ( 1989 )

Jackson v. Power , 1987 Alas. LEXIS 313 ( 1987 )

Underwater Construction, Inc. v. Shirley , 1994 Alas. LEXIS 104 ( 1994 )

Bullock v. STATE, DEPT. OF COMM. AFFAIRS , 19 P.3d 1209 ( 2001 )

Noffke v. Perez , 2008 Alas. LEXIS 37 ( 2008 )

Jones v. Jennings , 1990 Alas. LEXIS 35 ( 1990 )

United Services Automobile Association v. Werley , 1974 Alas. LEXIS 326 ( 1974 )

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