Krusac v. Covenant Medical Center, Inc ( 2015 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Syllabus Robert P. Young, Jr. Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis
KRUSAC v COVENANT MEDICAL CENTER, INC
Docket No. 149270. Argued January 13, 2015 (Calendar No. 4). Decided April 21,
2015.
John Krusac, as personal representative of the estate of Dorothy Krusac, brought a
medical malpractice action in the Saginaw Circuit Court against Covenant Medical Center, Inc.,
alleging that Dorothy Krusac died as a result of injuries she sustained when she rolled off an
operating table following a cardiac catheterization procedure. During discovery, it became
known that one of the attending medical personnel had filled out an incident report shortly after
the event and submitted it to her supervisor. Plaintiff filed a motion in limine, asking the court to
inspect the incident report in camera and provide plaintiff with the facts contained in it. The trial
court, Fred L. Borchard, J., denied plaintiff’s motion on the ground that the peer-review privilege
set forth in MCL 333.20175(8) and MCL 333.21515 protected the report from discovery. On
plaintiff’s motion for reconsideration, however, the court reviewed the report in camera and
subsequently ordered defendant to provide plaintiff with a portion of the incident report that
contained only objective facts in light of Harrison v Munson Healthcare, Inc, 304 Mich. App. 1
(2014), which held that the peer-review privilege does not apply to objective facts contained in
an incident report. Defendant sought leave to appeal the order in the Court of Appeals and
moved to stay the proceedings, both of which motions the Court of Appeals denied. Defendant
then sought leave to appeal in the Supreme Court and again moved to stay the proceedings. The
Supreme Court granted both motions. 496 Mich. 855 (2014).
In an opinion per curiam signed by Chief Justice YOUNG and Justices MARKMAN, KELLY,
ZAHRA, MCCORMACK, and VIVIANO, the Supreme Court held:
MCL 333.20175(8) and MCL 333.21515 do not contain an exception to the peer-review
privilege for objective facts. To the extent that Harrison held otherwise, it was wrongly decided
and was overruled. MCL 333.20175(8) and MCL 333.21515 make privileged all records, data,
and knowledge collected for or by a peer-review committee in furtherance of its statutorily
mandated purpose of reducing morbidity and mortality and improving patient care. This
includes objective facts gathered contemporaneously with an event contained in an otherwise
privileged incident report. The trial court’s order for defendant to produce the objective facts,
which was based on Harrison’s holding, was vacated, and the case was remanded for further
proceedings.
Trial court order vacated; case remanded for further proceedings.
Justice BERNSTEIN took no part in the decision of this case.
©2015 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
OPINION Robert P. Young, Jr. Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
FILED April 21, 2015
STATE OF MICHIGAN
SUPREME COURT
JOHN KRUSAC, Personal Representative of
the ESTATE OF DOROTHY KRUSAC,
Plaintiff-Appellee,
v No. 149270
COVENANT MEDICAL CENTER, INC.,
d/b/a COVENANT MEDICAL CENTER-
HARRISON, d/b/a COVENANT
HEALTHCARE,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH (except BERNSTEIN, J.)
PER CURIAM.
In this interlocutory appeal, we are once again asked to consider the scope of the
peer review privilege found in MCL 333.20175(8) and MCL 333.21515 of the Public
Health Code, MCL 333.1101 et seq. Specifically, we must decide whether the trial court
erred by ordering production of the objective facts contained in an incident report
authored by an employee of defendant Covenant Healthcare. The trial court’s decision
was based on Harrison v Munson Healthcare, Inc, 304 Mich. App. 1; 851 NW2d 549
(2014), which held, in part, that the peer review privilege does not protect objective facts
gathered contemporaneously with an event.
We hold that §§ 20175(8) and 21515 do not contain an exception to the peer
review privilege for objective facts. As a result, this portion of Harrison was wrongly
decided. In this case, the trial court erred by relying on Harrison to order production of
the objective-facts portion of the incident report. Therefore, we vacate the trial court’s
May 8, 2014 order and remand for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
In September 2008, Pramod K. Sanghi, M.D., performed a cardiac catheterization
on 80-year-old decedent Dorothy Krusac, successfully placing stents in Krusac’s heart.
Immediately following the procedure, however, Krusac began moving her legs around
and rolled off the operating table. Three medical personnel were present when this
happened: Deborah Colvin, R.N., Heather Gengler, R.N., and Rogers Gomez, the lab
technician. According to the deposition testimony of Colvin and Gomez, they were able
to catch Krusac and cradle her gently to the floor, where she came to rest on her left side.
At that time, Krusac denied hitting her head, but later complained of neck and back pain
from the fall. The CT scan performed later that day showed no evidence of injury from
the fall. Shortly after the surgery and fall, Krusac died.
Plaintiff John Krusac, as personal representative of the estate of Dorothy Krusac,
filed a medical malpractice complaint in the Saginaw Circuit Court against defendant,
alleging that Krusac died as a result of injuries sustained from the fall. During discovery,
it became known that Colvin had filled out an incident report shortly after the event and
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submitted it to her supervisor. Plaintiff filed a motion in limine on the eve of trial, asking
the court to conduct an in camera inspection of the incident report and provide plaintiff
with the facts contained in it. Relying on Harrison, plaintiff argued that the facts were
necessary to cross-examine the hospital staff and that it would be unethical for defendant
to offer a defense inconsistent with the facts contained in the report. Defendant
responded that the peer review privilege under §§ 20175(8) and 21515 protected the
report from discovery. After hearing oral arguments, the trial court denied plaintiff’s
motion. Plaintiff thereafter sought reconsideration, which the court granted. The court
ordered defendant to produce a copy of the report for in camera review. After reviewing
the report, on May 8, 2014, the trial court issued an order requiring defendant to provide
plaintiff with the first page of the incident report, which contained only objective facts.
The court based its decision on the Court of Appeals’ recent holding in Harrison that the
peer review privilege does not apply to objective facts contained in an incident report.
Defendant sought leave to appeal in the Court of Appeals, and moved for
immediate consideration and a stay of the proceedings. The Court of Appeals granted
immediate consideration, but denied defendant’s application for leave to appeal for
failure to persuade the Court of the need for immediate appellate review. The Court also
denied the motion to stay the proceedings. Defendant then sought review by this Court.
After granting defendant’s motion to stay the trial court proceedings, we granted leave to
appeal and directed the parties to address
(1) whether Harrison v Munson Healthcare, Inc, 304 Mich. App. 1 (2014),
erred in its analysis of the scope of the peer review privilege,
MCL 333.21515; and (2) whether the Saginaw Circuit Court erred when it
ordered the defendant to produce the first page of the improvement report
based on its conclusion that “objective facts gathered contemporaneously
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with an event do not fall within the definition of peer review privilege.”
[Krusac v Covenant Med Ctr, Inc, 496 Mich. 855-856 (2014).]
II. STANDARD OF REVIEW
This case involves a question of statutory interpretation, which we review de novo.
Madugula v Taub, 496 Mich. 685, 695; 853 NW2d 75 (2014). As with any statutory
interpretation, our goal is to give effect to the Legislature’s intent, focusing first on the
statute’s plain language. Id. at 696. When the language of a statute is unambiguous, the
Legislature must have intended the meaning clearly expressed, and the statute must be
enforced as written. No further judicial construction is required or permitted. Id.
(citation and quotation marks omitted).
III. ANALYSIS
The peer review privilege is a creature of statute, not the common law. See
Scheutzow & Gillis, Confidentiality and Privilege of Peer Review Information: More
Imagined Than Real, 7 JL & Health 169, 181 (1992-1993) (“It is generally accepted that
the privilege ascribed to peer review proceedings does not arise from any recognized
common law principle, but is rather a legislative creation . . . .”). Therefore, in assessing
whether the peer review privilege applies to objective facts contained in an incident
report, we must turn first to the language of the relevant statutes. See Dorris v Detroit
Osteopathic Hosp Corp, 460 Mich. 26, 33; 594 NW2d 455 (1999).
MCL 333.21513(d) imposes a duty on hospitals to create peer review committees
“for the purpose of reducing morbidity and mortality and improving the care provided in
the hospital for patients.” Essential to the peer review process is the candid and
conscientious assessment of hospital practices. Feyz v Mercy Mem Hosp, 475 Mich. 663,
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680; 719 NW2d 1 (2006). To encourage such an assessment by hospital staff, the
Legislature has protected from disclosure the records, data, and knowledge collected for
or by peer review committees. Id. at 680-681. To this end, MCL 333.20175(8) reads:
The records, data, and knowledge collected for or by individuals or
committees assigned a professional review function in a health facility or
agency, or an institution of higher education in this state that has colleges of
osteopathic and human medicine, are confidential, shall be used only for
the purposes provided in this article, are not public records, and are not
subject to court subpoena.
Similarly, MCL 333.21515 provides:
The records, data, and knowledge collected for or by individuals or
committees assigned a review function described in this article are
confidential and shall be used only for the purposes provided in this article,
shall not be public records, and shall not be available for court subpoena.[1]
These statutes, and their predecessors, 2 have been interpreted as “fully protect[ing]
quality assurance/peer review records from discovery . . . .” Dorris, 460 Mich. at 40. For
example, in Attorney General v Bruce, 422 Mich. 157, 164-165; 369 NW2d 826 (1985),
we rejected the Attorney General’s argument that the privilege “was intended only to
protect the confidentiality of peer review proceedings from discovery in circuit court
proceedings (i.e., malpractice actions) . . . .” Instead, we held that the privilege protects
from disclosure records sought by the Board of Medicine and the Department of
1
In this opinion, we use “peer review committee” to refer generally to “individuals or
committees assigned a professional review function” under MCL 333.20175(8) and
“individuals or committees assigned a review function” under MCL 333.21515.
2
The first peer review statutes were enacted by our Legislature nearly 50 years ago. See
MCL 331.422(1) and (2) of the Hospital Licensing Act, 1968 PA 17, repealed by 1978
PA 368.
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Licensing and Regulation and ordered by investigative subpoena to be produced. Id. at
173. Similarly, in In re Investigation of Lieberman, 250 Mich. App. 381, 389; 646 NW2d
199 (2002), the Court of Appeals held that the privilege protects from disclosure records
sought pursuant to a search warrant in a criminal investigation. Indeed, after reviewing
the language of § 21515, the court concluded that “the Legislature has imposed a
comprehensive ban on the disclosure of [peer review materials.]” Id. at 387 (emphasis
added).
The Court of Appeals took a more constricted view of the peer review privilege in
Harrison. In that case, the plaintiff sued a surgeon and the hospital (the defendants) after
receiving a burn from a surgical instrument during surgery. At trial, the plaintiff learned
that an operating room nurse had authored an incident report. The plaintiff sought to
introduce the report. The defendants objected, claiming that the peer review privilege
protected the report from introduction. The trial court reviewed the report at an in camera
hearing and determined that the facts in the report contradicted the operating room
nurse’s deposition testimony. The court found that the report itself was protected by the
peer review privilege but ruled that the facts contained in the report, as opposed to the
conclusions drawn, should have been documented in the plaintiff’s medical record and
made available to the plaintiff. The court declared a mistrial and imposed sanctions
totaling roughly $54,000 on the defendants and their attorney based on their presentation
of a defense inconsistent with the facts contained in the report.
In a published opinion, the Court of Appeals addressed whether the peer review
privilege applied to the incident report at issue. Relying heavily on caselaw from foreign
jurisdictions, the panel found a distinction between “factual information objectively
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reporting contemporaneous observations or findings and ‘records, data, and knowledge’
gathered to permit an effective review of professional practices.” Harrison, 304 Mich
App at 30. It held that “[o]bjective facts gathered contemporaneously with an event do
not fall within [the peer review privilege.]” Id. at 32. It reasoned that “[t]o hold
otherwise would grant risk managers the power to unilaterally insulate from discovery
firsthand observations that the risk manager would prefer remain concealed” and that
“[t]he peer-review statutes do not sweep so broadly.” Id. at 34. The panel concluded that
the facts recorded on the first page of the incident report were not privileged, but that the
remainder of the incident report was protected because it reflected a deliberative review
process. 3
However, contrary to the Harrison panel’s conclusion, the peer review statutes do
not contain an exception for objective facts contained in an otherwise privileged incident
report. Both §§ 20175(8) and 21515 protect the “records, data, and knowledge” collected
for or by a peer review committee. While the words “record,” “data,” and “knowledge”
are so common they hardly bear defining, a review of the dictionary definitions of each
demonstrates that the Harrison panel’s interpretation contradicts the plain language of the
peer review statutes. See Spectrum Health Hosp v Farm Bureau Mut Ins Co of Mich, 492
Mich. 503, 515; 821 NW2d 117 (2012) (recognizing that a court “may consult dictionary
definitions to give words their common and ordinary meaning”) (citation omitted).
“Record” is defined as “an account in writing or the like preserving the memory or
3
The panel also affirmed the trial court’s decision to sanction defendants but remanded
for redetermination of the proper apportionment of the sanctions. Harrison, 304 Mich
App at 43-45.
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knowledge of facts or events.” Random House Webster’s College Dictionary (2001)
(emphasis added). “Data” is defined as “individual facts, statistics, or items of
information.” Id. (emphasis added). “Knowledge” is defined as “acquaintance with
facts, truths, or principles” or “familiarity or conversance, as by study or experience.” Id.
(emphasis added). Because the ordinary meaning of these statutory terms plainly
encompasses objective facts, we hold that objective facts are subject to the peer review
privilege. We therefore disagree with the Harrison panel’s conclusion that the
Legislature intended to exclude from protection objective facts contained in an otherwise
peer review privileged incident report. 4
Plaintiff argues that an interpretation of §§ 20175(8) and 21515 that protects
objective facts from disclosure would conflict with MCL 333.20175(1), which requires a
hospital to “keep and maintain a record for each patient, including a full and complete
record of tests and examinations performed, observations made, treatments provided,
4
To create the objective-facts exception, the Harrison panel relied on several cases from
outside our jurisdiction. However, resort to these cases was not permitted because the
peer review statutes are unambiguous. See Madugula, 496 Mich. at 696. In any event,
the cases utilized by the Harrison panel do not support the creation of such an exception.
The panel relied upon three cases cited by this Court in Monty v Warren Hosp Corp, 422
Mich. 138, 146-147; 366 NW2d 198 (1985): Davidson v Light, 79 FRD 137 (D Colo,
1978), Bredice v Doctors Hosp, 50 FRD 249 (D DC, 1970), and Coburn v Seda, 101
Wash 2d 270; 677 P.2d 173 (Wash, 1984). However, the Monty court relied on those
cases as guidance for determining whether a hospital committee was assigned a peer
review function, not whether the content of an incident report was protected by the peer
review privilege. In addition, a reading of these cases indicates that they shed no light on
the scope of our peer review statutes as they either do not discuss a statutory privilege at
all (e.g., Bredice and Davidson), or pertain to a statutory privilege materially different
from ours (e.g., Coburn).
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and . . . the purpose of hospitalization.” 5 However, § 20175(1) does not alter the scope of
the peer review privilege. Whereas §§ 20175(8) and 21515 pertain to a hospital’s duty
under MCL 333.21513(d) to create a peer review committee that collects and reviews
information in an effort to reduce morbidity and mortality and improve patient care,
§ 20175(1) imposes on a hospital an entirely distinct and unrelated duty—to make a full
and complete medical record concerning a patient’s current care. Because these
provisions pertain to entirely distinct duties, no conflict exists, and we cannot conclude
that the Legislature intended § 20175(1) to create an exception to the peer review
privilege. See Bruce, 422 Mich. at 167-169 (rejecting an argument that disclosures
required by another subsection of § 20175 defeated the peer review privilege). 6
The Harrison panel, certain amici, and plaintiff have expressed concern that a
holding that the peer review privilege applies to objective facts in an incident report
“would grant risk managers the power to unilaterally insulate from discovery firsthand
observations that the risk manager would prefer remain concealed.” Harrison, 304 Mich.
5
Essentially, plaintiff asks us to read the statutes in pari materia—i.e., construing them
together as one law to resolve the alleged conflict. See Int’l Business Machines v Dep’t
of Treasury, 496 Mich. 642, 652; 852 NW2d 865 (2014) (opinion by VIVIANO, J.).
6
Plaintiff argues, in essence, that since a hospital is required to publish certain factual
information in the patient’s medical record, it cannot claim the same information is
protected by the peer review privilege. However, this argument misapprehends the
nature of a privilege under Michigan law. We have long ago “repudiated the theory that
once . . . confidential information ha[s] been published, the privilege of objecting to its
repetition ha[s] been waived . . . .” Polish Roman Catholic Union of America v Palen,
302 Mich. 557, 562; 5 NW2d 463 (1942) (citation omitted). Rather, even though the
information may properly be proved from another source—i.e., the medical record or
witness testimony—a hospital may still claim an exemption from disclosing materials
that are subject to the peer review privilege.
9
App at 34. However, although the terms “records,” “data,” and “knowledge” are broad
enough to include objective facts, the scope of the privilege is not without limit. Instead,
the privilege only applies to records, data, and knowledge that are collected for or by the
committee under §§ 20175(8) and 21515 “for the purpose of reducing morbidity and
mortality and improving the care provided in the hospital for patients.”
MCL 333.21513(d). See also Dorris, 460 Mich. at 40. 7 Moreover, while the peer review
privilege may make it more difficult for a party to obtain evidence, 8 the burden on a
litigant is mitigated by the fact that he or she may still obtain relevant facts through
eyewitness testimony, including from the author of a privileged incident report, and from
the patient’s medical record. 9 Finally, if a litigant remains unsatisfied with the statutory
7
In providing guidance to courts on how to engage in this statutory inquiry, we have
previously stated:
In determining whether any of the information requested is protected
by the statutory privilege, the trial court should bear in mind that mere
submission of information to a peer review committee does not satisfy the
collection requirement so as to bring the information within the protection
of the statute. Also, in deciding whether a particular committee was
assigned a review function so that information it collected is protected, the
court may wish to consider the hospital’s bylaws and internal regulations,
and whether the committee’s function is one of current patient care or
retrospective review. [Monty, 422 Mich. at 146-147 (citations omitted).]
8
Indeed, by their very nature, privileges “are not designed or intended to facilitate the
fact-finding process or to safeguard its integrity,” but “[t]heir effect instead is clearly
inhibitive; rather than facilitate the illumination of truth, they shut out the light.” People
v Warren, 462 Mich. 415, 428; 615 NW2d 691 (2000), quoting 1 McCormick, Evidence
(5th ed), § 72, pp 298-299.
9
To the extent plaintiff is arguing that defendant’s failure to comply with its statutory
duty to publish certain information in the medical record should be deemed a waiver of
the peer review privilege, we reject that claim as well. As noted earlier, hospitals have a
statutory duty to maintain a full and complete medical record for each patient, which
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balance struck between disclosing information to patients and protecting peer review
materials, any recalibration must be done by the Legislature. See Koontz v Ameritech
Servs, Inc, 466 Mich. 304, 312; 645 NW2d 34 (2012) (“Because the proper role of the
judiciary is to interpret and not write the law, courts simply lack authority to venture
beyond the unambiguous text of a statute.”).
For the reasons stated above, we reject the Harrison panel’s holding that objective
facts gathered contemporaneously with an event do not fall within the peer review
privilege. Accordingly, we overrule Harrison to the extent that it is inconsistent with our
opinion today. 10 Instead, we hold that §§ 20175(8) and 21515 make privileged all
records, data, and knowledge collected for or by a peer review committee in furtherance
of its statutorily mandated purpose of reducing morbidity and mortality and improving
patient care. This includes objective facts gathered contemporaneously with an event
contained in an otherwise privileged incident report.
includes, among other things, observations made and treatments provided to the patient.
MCL 333.20175(1). However, deeming the peer review privilege waived is not among
the sanctions provided by the Legislature for violations of § 20175(1). See, e.g.,
MCL 333.20175a, 333.20176(1); see also Fischer v WA Foote Mem Hosp, 261 Mich. App.
727, 730-731; 683 NW2d 248 (2004) (discussing the ways within the Public Health Code
to enforce its provisions).
10
The Harrison panel also found support for its decision in Centennial Healthcare Mgt
Corp v Dep’t of Consumer & Indus Servs, 254 Mich. App. 275; 657 NW2d 746 (2002).
However, Centennial is inapposite. Centennial does not address whether a private
litigant has a right to review objective facts contained in an otherwise privileged incident
report, but instead involves whether an administrative rule promulgated by the Michigan
Department of Consumer and Industry Services infringed the peer review privilege. But,
to the extent Centennial may be read as contrary to our opinion today, we limit its
reasoning and holding to its specific facts.
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IV. APPLICATION
Because Harrison was wrongly decided and the trial court relied on Harrison to
order production of a portion of the incident report, we vacate the trial court’s May 8,
2014 order in its entirety. The scope of this interlocutory appeal is limited to whether the
trial court erred by relying on Harrison to order production of the objective facts found in
the incident report. Having answered that question, we remand to the trial court for
further proceedings.
V. CONCLUSION
We conclude that Harrison was wrongly decided, and we overrule the portions of
it that are inconsistent with this opinion. Because the trial court in the instant case erred
by relying on Harrison to order production of the objective facts contained in the incident
report authored by Colvin, we vacate the trial court’s May 8, 2014 order and remand to
the trial court for further proceedings consistent with this opinion.
Robert P. Young, Jr.
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
BERNSTEIN, J., took no part in the decision of this case.
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