St. Alexius Medical Center v. Nesvig , 2022 ND 65 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 17, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 65St. Alexius Medical Center, a North Dakota
Corporation, d/b/a CHI St. Alexius Health Bismarck, Petitioner
v.
The Honorable Pam Nesvig, Judge of
the Court, South Central Judicial District;
Kevin McKibbage, Daniel Dixon M.D.; and The
Bone and Joint Center, P.C., Respondents
No. 20220005
Petition for Supervisory Writ.
PETITION FOR SUPERVISORY WRIT GRANTED.
Opinion of the Court by Crothers, Justice.
Jessie L. Sogge (argued), Paul E. Darsow (appeared) and Steven R. Schwegman
(on brief), St. Cloud, MN, for for petitioner.
Thomas J. Conlin (argued), Stacy D. Stennes (appeared) and Taylor B.
Cunningham (appeared), Minneapolis, MN, for respondent Kevin McKibbage.
Briana L. Rummel (argued) and Brenda L. Blazer (appeared), Bismarck, ND,
for respondent The Bone and Joint Center, P.C.
Tracy V. Kolb (appeared), Bismarck, ND, for respondent Daniel Dixon M.D.
St. Alexius Medical Center v. Nesvig, et al.
No. 20220005
Crothers, Justice.
[¶1] St. Alexius Medical Center, d/b/a CHI St. Alexius Health Bismarck,
requests a supervisory writ preventing enforcement of the district court’s order
compelling disclosure of privileged information. CHI argues the disclosures
violate North Dakota’s statutory peer review privilege. We grant the petition
and direct the district court to vacate its November 8, 2021 discovery order.
I
[¶2] Kevin McKibbage sued Daniel Dixon, Bone & Joint Center, and CHI for
medical malpractice relating to a surgery Dixon performed in 2017. In response
to McKibbage’s discovery requests, CHI produced some of the requested
documents and asserted privileges on others. CHI provided a privilege log
identifying undisclosed documents and the privileges claimed.
[¶3] McKibbage filed a motion to compel arguing CHI did not provide
sufficient information in the privilege log. CHI responded that it identified all
the information it could without violating the peer review law, but CHI agreed
to produce an amended privilege log containing greater descriptions. The
amended log describes the pertinent documents as “Peer Review Committee
correspondences,” “Peer Review Committee regular monthly meeting
minutes,” “Credentials Committee correspondences,” “Credentials Committee
regular monthly meeting minutes,” “Medical Executive Committee
correspondences,” “Medical Executive Committee meeting minutes,” and “Peer
Review Committee documents.”
[¶4] The district court found the law permitted the disclosure of additional
information and ordered the following to be disclosed: the dates the documents
were created, the identity of the person who created each document and their
position at the time of creation, and the identity of the person who received
each document and their position for peer review.
1
[¶5] CHI moved to stay proceedings pending its petition for supervisory writ
to this Court. The district court granted CHI’s motion.
II
[¶6] CHI requests a supervisory writ from this Court. Our authority to issue
supervisory writs derives from Article VI, Section 2 of the North Dakota
Constitution. The power to issue such a writ is discretionary and is used “only
to rectify errors and prevent injustice in extraordinary cases where no
adequate alternative remedy exits.” Trinity Med. Ctr., Inc. v. Holum, 544
N.W.2d 148, 151 (N.D. 1996).
[¶7] CHI argues a supervisory writ is appropriate and necessary because the
district court’s order to produce information about privileged documents is not
immediately appealable, leaving CHI no other recourse but to produce the
information or be held in contempt for failure to follow a court order. We agree
and conclude this case is appropriate for exercise of our supervisory
jurisdiction.
III
[¶8] CHI argues the information compelled by the district court falls under
North Dakota’s statutory peer review privilege. The Bone & Joint Center and
Dixon agree.
[¶9] A party generally may obtain discovery regarding any nonprivileged
matter relevant to the party’s claim or defense. N.D.R.Civ.P. 26(b)(1)(A). North
Dakota’s medical peer review records privilege is codified in ch. 23-34, N.D.C.C.
Recognizing that the rule and the statute work in tandem, N.D.R.Civ.P. 26
provides the procedure for assertion of the privilege. Chapter 23-34, N.D.C.C.,
provides the substance of the privilege.
[¶10] Substantively, “[p]eer review records are privileged and are not subject
to subpoena or discovery or introduction into evidence in any civil or
administrative action,” subject to three exceptions. N.D.C.C. § 23-34-03(1). The
parties do not argue the compelled information falls within the three
exceptions. “Peer review records” are:
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“(1) Data, information, reports, documents, findings,
compilations and summaries, testimony, and any other
records generated by, acquired by, or given to a peer review
organization as a part of any professional peer review,
regardless of when the record was created; and
(2) Communications relating to a professional peer review,
whether written or oral, between:
(a) Peer review organization members;
(b) Peer review organization members and the peer
review organization’s staff; or
(c) Peer review organization members and other
individuals participating in a professional peer review,
including the individual who is the subject of the
professional peer review.”
N.D.C.C. § 23-34-01(4)(a). A “professional peer review” is “all procedures a peer
review organization uses or functions it performs to monitor, evaluate, and
take action to review the medical care provided to patients[.]” N.D.C.C. § 23-
34-01(5).
[¶11] Procedurally, when a party withholds discoverable information because
it is privileged, the party must expressly make a claim of privilege and
“describe the nature of the documents, communications, or tangible things not
produced or disclosed, and do so in a manner that, without revealing
information itself privileged or protected, will enable other parties to assess
the claim.” N.D.R.Civ.P. 26(b)(5)(A).
[¶12] In this case, CHI produced an amended log identifying privileged
documents and describing them as committee correspondences and meeting
minutes. The district court ordered CHI to disclose the dates the documents
were created, the identity of the person who created it and their position, and
the identity of the person who received the document and their position. In
doing so the district court apparently followed the path taken by North
Dakota’s federal district court as argued by McKibbage. See Order Regarding
Discovery Dispute, Kraft v. Essentia Health, No. 3:20-cv-121 (D.N.D. Aug. 2,
2021), ECF No. 79; Kraft v. Essentia Health, No. 3:20-cv-121, slip copy, 2021
WL 4143941 (D.N.D. Sept. 7, 2021).
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[¶13] In Kraft, the parties disputed the level of detail required in a privilege
log invoking the peer review privilege on hospital records. 2021 WL 4143941at *4. The federal district court ordered the hospital to disclose the dates the
documents were created, the identities and respective positions of the people
who created and received the documents, a description of the subject matter of
the document, document identification numbers, and specific reference to the
privilege asserted. Id. The federal court’s analysis, particularly that of the
Magistrate Judge, focused on other federal court rulings on peer review
privilege claims, and in particular relying on Rule 26, F.R.Civ.P., instead of the
substance of the underlying state-based peer review privileges. See generally,
Order Regarding Discovery Dispute, Kraft v. Essentia Health, No. 3:20-cv-121
(D.N.D. Aug. 2, 2021), ECF No. 79. We take the opposite approach, looking first
to the words of the peer review statute, and then determining how they apply
to the procedure established by N.D.R.Civ.P. 26.
A
[¶14] CHI asserts the dates of the documents are irrelevant to the
determination of the peer review privilege and should be protected. We agree.
[¶15] The privilege protects peer review records regardless of when they were
created. In the words of the statute, a peer review record is privileged
“regardless of when the record was created.” N.D.C.C. § 23-34-01(4)(a)(1). The
purpose of a privilege log is to describe the nature of privileged information so
other parties can assess the claim of privilege. N.D.R.Civ.P. 26(b)(5)(A).
Because the peer review privilege applies regardless of record date, the
disclosure of document dates will not assist other parties in assessing a peer
review privilege claim. Thus, we reverse the district court order requiring CHI
to disclose the dates the privileged documents were created.
B
[¶16] CHI claims the identities of the authors and recipients of the documents
and their respective positions fall under the definition of “peer review records.”
CHI also argues it provided information on the committees that generated the
documents, which is sufficient to assess the claim of privilege. We agree.
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[¶17] “The party claiming the privilege and desiring to exclude the evidence
has the burden to prove the communications fall within the terms of the statute
or rule granting the privilege.” State v. Hunter, 2018 ND 173, ¶ 37, 914 N.W.2d
527. To prove information falls under the peer review privilege, a party must
demonstrate it was “generated by, acquired by, or given to a peer review
organization as part of any professional peer review” or is communication
regarding a professional peer review. N.D.C.C. § 23-34-01(4). A “peer review
organization” includes a committee of the hospital that conducts professional
peer review. N.D.C.C. § 23-34-01(3)(b)(2). A “professional peer review” is
broadly defined under North Dakota law to include all procedures an
organization uses or functions it performs to “monitor, evaluate, and take
action to review the medical care provided to patients[.]” N.D.C.C. § 23-34-
01(5).
[¶18] Here, CHI identified privileged documents as “Peer Review Committee
correspondences,” “Peer Review Committee regular monthly meeting
minutes,” “Credentials Committee correspondences,” “Credentials Committee
regular monthly meeting minutes,” “Medical Executive Committee
correspondences,” “Medical Executive Committee meeting minutes,” and “Peer
Review Committee Documents.” The descriptions of those documents fall
under “peer review records.” See N.D.C.C. § 23-34-01(4) (defining “Peer review
records” as “Data, information, reports, documents, findings, compilations and
summaries, testimony, and any other records generated by . . . a peer review
organization as part of any professional peer review”). The descriptions also
place the documents in the hands of “peer review organizations” under
N.D.C.C. § 23-34-01(3)(b).
[¶19] McKibbage argues he is entitled to the identities of the authors and
recipients of the documents and their respective positions. However, that
information does not assist McKibbage in further assessing CHI’s claim of
privilege. See N.D.R.Civ.P. 26(b)(5)(A) (stating the party withholding
information must describe the nature of the documents in a way that enables
other parties to assess the claim of privilege). Rather, it is information the
legislature has determined falls within the privilege itself.
5
[¶20] We conclude CHI adequately described the nature of the documents,
enabling McKibbage to assess CHI’s claim of privilege. The disclosure of the
authors and recipients of the documents and their respective positions would
not add to McKibbage’s assessment, and is beyond the scope of information
required by the legislature to be disclosed under the medical peer review
privilege. We therefore reverse the district court order requiring CHI to
disclose the identity of the persons who created the documents and their
positions, and the identity of the persons who received the document and their
positions.
IV
[¶21] In response to McKibbage’s motion to compel information, CHI requested
an in camera review by the district court to determine whether the peer review
privilege applied. McKibbage did not make a similar request. The court did not
address in camera review in its order, so the request is deemed denied. Alerus
Fin., N.A. v. Erwin, 2018 ND 119, ¶ 12, 911 N.W.2d 296.
[¶22] We recognize in camera review may be an appropriate recourse for a
party disputing a claim of privilege, especially when a relatively few number
of documents are involved like here. We take guidance from the Federal Rules
of Civil Procedure, because the North Dakota rules derive from the federal
rules and use the same language. See N.D.R.Civ.P. 26, Version History. The
Advisory Committee Notes to F.R.Civ.P. 26 state the district court ultimately
decides whether a claim of privilege applies if the claim is challenged.
F.R.Civ.P. 26, Advisory Committee Notes to 1993 Amendments. The Notes also
explain that the need for in camera examination can be reduced by providing
sufficient information regarding the applicability of the claimed privilege. Id.[¶23] The medical peer review statute does not address in camera review.
N.D.C.C. ch. 23-34. Other North Dakota privilege statutes specifically address
the practice. See, e.g., N.D.C.C. §§ 6-13-07 and 26.1-51-07 (statutes regarding
self-critical analysis privileges provide procedure for in camera review by
district court). Absent direction by law, district courts have discretion to review
the challenged documents and decide whether the privilege applies. See Martin
v. Trinity Hosp., 2008 ND 176, ¶ 17, 755 N.W.2d 900 (“A district court has broad
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discretion regarding the scope of discovery[.]”). Thus, the district court
normally has discretion whether to conduct an in camera review of documents
if a party challenges a claim of privilege identified in a sufficient privilege log.
V
[¶24] We grant the petition and vacate the district court’s November 8, 2021
order on motion to compel.
[¶25] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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