Allred v. Saunders , 772 Utah Adv. Rep. 5 ( 2014 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2014 UT 43
IN THE
S UPREME C OURT OF THE S TATE OF U TAH
LISA W. ALLRED and MARLIN P. ALLRED
Appellees,
v.
RONALD J. SAUNDERS, M.D.; RONALD J. SAUNDERS, M.D., PC.;
IHC HEALTH SERVICES, INC . dba AMERICAN FORK HOSPITAL,
Appellants.
No. 20120985
Filed October 21, 2014
Fourth District, American Fork
The Honorable Thomas Low
No. 100103761
Attorneys:
Robert D. Strieper, Logan, for appellees
Robert G. Wright, Brandon B. Hobbs, Zachary E. Peterson, Salt
Lake City, for appellant Ronald J. Saunders
Rodney R. Parker, Brian P. Miller, Adam M. Pace, Salt Lake City,
for appellant IHC Health Services, Inc.
David C. Gessel, Tawni J. Anderson, Mark A. Brinton,
Salt Lake City, for amici curiae Utah Hospital Association and
Utah Medical Association
JUSTICE PARRISH authored the opinion of the Court,
in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE
NEHRING , JUSTICE LEE and JUDGE RYAN M. HARRIS joined.
Having recused herself, JUSTICE DURHAM did not participate
herein; DISTRICT JUDGE RYAN M. HARRIS sat.
JUSTICE PARRISH , opinion of the Court:
INTRODUCTION
¶1 This case comes before us on petition for interlocutory
review of two discovery orders in a medical malpractice action.
Plaintiffs Lisa and Marlin Allred brought suit against American Fork
Hospital (Hospital) and Dr. Ronald J. Saunders, alleging that Dr.
ALLRED v. SAUNDERS
Opinion of the Court
Saunders committed malpractice during the course of a lithotripsy
procedure he performed on Ms. Allred. Plaintiffs sought discovery
of Dr. Saunder’s credentialing file from the Hospital, as well as the
Hospital’s internal incident file concerning the lithotripsy procedure.
The Hospital objected, asserting that the peer-review and care-
review privileges protected both the credentialing and incident files
from discovery. The district court (1) held that the credentialing file
was not privileged and ordered the Hospital to produce it and
(2) ordered the Hospital to produce the incident file for in camera
review pursuant to the reasoning of our court of appeals in Cannon
v. Salt Lake Regional Medical Center, Inc., 2005 UT App 352, 121 P.3d
74. Dr. Saunders and the Hospital petitioned for interlocutory
review of the district court’s order. We granted the petition for
interlocutory review and have jurisdiction pursuant to section 78A-
3-102(3)(j) of the Utah Code.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Dr. Saunders performed a lithotripsy procedure on
Ms. Allred, using ultrasound to destroy a kidney stone. Ms. Allred
alleges that she sustained second and third-degree burns as a result
of the procedure. During discovery, the Allreds served a subpoena
on the Hospital, seeking production of Dr. Saunders’ credentialing
file and the Hospital's incident file.1 Dr. Saunders and the Hospital
jointly moved for a protective order and to quash the subpoena,
arguing that the documents were privileged pursuant to sections 26-
25-1 and 26-25-3 of the Utah Code. The Allreds responded that the
statutes on which Dr. Saunders and the Hospital relied were not
operative because they had been adopted in violation of the Utah
Constitution, which vests the authority to adopt rules of procedure
and evidence in the Utah Supreme Court. UTAH CONST . art. VIII, § 4.
¶3 The district court agreed with the Allreds and denied the
motion for a protective order. While it recognized that the current
version of section 26-25-3, which was enacted in 1994, purported to
shield peer-review and care-review records from both discovery and
admissibility, it concluded that the 1994 version of section 26-25-3
was inoperative because it had been adopted by the Legislature in
1
The Hospital was originally named as a defendant in the
malpractice action, but it was voluntarily dismissed and is no longer
a party. As a result, the Allreds sought the documents through a
subpoena, instead of through a request for production.
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Opinion of the Court
an unconstitutional manner.2 It thus relied on the former version of
the statute, which created a privilege only for care-review records
and which did not extend the scope of that privilege to the discovery
process.
¶4 Several months later, Dr. Saunders and the Hospital filed
a motion asking that the district court reconsider its order denying
the motion for a protective order. The motion to reconsider was
based on the Legislature’s amendment to rule 26 of the Utah Rules
of Civil Procedure during the time the motion for protective order
was under advisement. Specifically, the Legislature had amended
rule 26 by a two-thirds majority vote to add a provision creating
both peer-review and care-review privileges and extending the
scope of those privileges to the discovery process. The relevant
portion of the amended rule states:
Privileged matters that are not discoverable or admis-
sible in any proceeding of any kind or character
include all information in any form provided during
and created specifically as part of a request for an
investigation, the investigation, findings, or conclu-
sions of peer review, care review, or quality assurance
processes of any organization of health care providers
. . . for the purpose of evaluating care provided to
reduce morbidity and mortality or to improve the
quality of medical care, or for the purpose of peer
review of the ethics, competence, or professional
conduct of any health care provider.
2012 Utah Laws 2551 (codified at UTAH R. CIV . P. 26(b)(1)). The
Legislature directed that the amendment be effective as to all
“matters that are pending on or may arise after the effective date of
this amendment, without regard to when the case was filed.” Id. at
2553.
2
While the Legislature has the constitutional authority to amend
the Rules of Procedure and Evidence adopted by the Utah Supreme
Court, it may only do so by joint resolution adopted “upon a vote of
two-thirds of all members of both houses of the Legislature.” UTAH
CONST . art. VIII, § 4. That was not the method pursuant to which the
Legislature passed the current version of section 26-25-3. Although
section 26-25-3 was adopted by a two-thirds majority, it constitutes
an amendment to a statute, not an amendment to a rule of procedure
adopted by the Supreme Court.
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ALLRED v. SAUNDERS
Opinion of the Court
¶5 The district court agreed to reconsider the issue, acknowl-
edging that it had been unaware of the 2012 amendments to rule 26
at the time it ruled on the motion for a protective order. However,
after considering the amendment, it again denied the motion for a
protective order, reasoning that the amended rule 26 was “a rule of
procedure and not evidence” and thus could “not create an eviden-
tiary privilege, despite wording that could potentially be read to the
contrary.” The district court reasoned that “the statute defines the
evidence that is subject to the privilege, and the rule defines the
extent of that privilege.” In other words, the court held that the
former version of the statute determines the categories of material
that are privileged and the amended rule of civil procedure deter-
mines whether the privileged material is immune only from
admission into evidence or is also immune from discovery. It
concluded that the legislative amendment to rule 26 “extend[ed] the
scope of the care-review privilege that was created by [the former
version of] Utah Code section 26-25-3” but did not create a new
privilege for peer-review materials.
¶6 Applying its ruling to the facts of this case, the district
court ruled that Dr. Saunders’ credentialing file was not privileged
because it did not contain information covered by former section 26-
25-3. As to the material contained in the Hospital’s incident file, it
concluded that the Hospital had made a prima facie showing that
the material was privileged under the former version of section 26-
25-3, but concluded that “the proper approach for the trial court is
to review the incident reports in camera to determine whether the
privilege indeed applies to these documents.”
¶7 Dr. Saunders and the Hospital sought and obtained
interlocutory review of the district court’s ruling. They assert that
the district court erred when it determined that the amendment to
rule 26 did not create a freestanding privilege shielding both the
credentialing file and the incident file from discovery. They further
argue that the district court abused its discretion when it required
the Hospital to submit the incident file for in camera review.
¶8 Because of the interplay between sections 26-25-1 and 26-
25-3 of the Utah Code and rule 26 of the Utah Rules of Civil
Procedure, we first briefly review these sections and their history as
they relate to the 2012 amendment to rule 26. We then examine the
Hospital’s claims of privilege and conclude that the district court
erred when it held that the amended rule 26 did not create an
evidentiary privilege. Finally, we take this opportunity to clarify the
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Opinion of the Court
procedure to be followed by the district court on remand when it
considers the propriety of conducting in camera review.
I. SECTIONS 26-25-1 AND 26-25-3 OF THE UTAH CODE AND
RULE 26 OF THE UTAH RULES OF CIVIL PROCEDURE
¶9 Sections 26-25-1 and 26-25-3 of the Utah Code together
establish what are commonly referred to as the care-review and
peer-review privileges. Section 26-25-1(1) provides that certain
types of information, including interviews, reports, statements,
memoranda, and “other data relating to the condition and treatment
of any person” may be disclosed to persons and entities specified in
subsection (2). These entities include “peer review committees,”
“professional review organizations,” and “any health facility’s in-
house staff committee.” UTAH CODE § 26-25-1(2). But this informa-
tion may only be disclosed for the limited purposes of (1) “study and
advancing medical research, with the purpose of reducing the
incidence of disease, morbidity, or mortality” or (2) “the evaluation
and improvement of hospital and health care rendered by hospitals,
health facilities, or health care providers.” Id. § 26-25-1(3). And the
current version of section 26-25-3 states:
All information, interviews, reports, statements,
memoranda, or other data furnished by reason of this
chapter, and any findings or conclusions resulting
from those studies are privileged communications and
are not subject to discovery, use, or receipt in evidence in
any legal proceeding of any kind or character.
(Emphasis added). Together, these sections purport to protect
information compiled or created during the peer-review or care-
review process from both discovery and receipt into evidence.
¶10 Statutory privileges such as those contained in section 26-
25-3 are incorporated into rule 501 of the Utah Rules of Evidence.
UTAH R. EVID . 501 advisory committee’s note (“Rule 501 also accepts
all pre-existing statutory privileges, except those inconsistent with
these rules.”). However, the prior version of section 26-25-3 did not
protect peer-review materials at all and its protection of care-review
materials did not extend to protection from discovery. Rather, the
statute stated only that care-review material could “not be used or
received in evidence.” UTAH CODE § 26-25-3 (1989); see also Benson
ex rel. Benson v. I.H.C. Hosps., Inc., 866 P.2d 537, 540 (Utah 1993)
(holding that the former version of section 26-25-3 did not protect
care-review documents from discovery, merely from admission into
evidence). Protection from discovery did not come until 1994, when
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ALLRED v. SAUNDERS
Opinion of the Court
the Legislature amended section 26-25-3 to extend the privilege to
peer-review material and to protect both peer-review and care-
review materials from discovery. 1994 Utah Laws 1511.
¶11 Almost two decades later, in Jones v. University of Utah
Health Science Center, one of our district courts held that the Legisla-
ture’s 1994 amendment to section 26-25-3 was inoperative. Jones v.
Univ. of Utah Health Sci. Ctr., No. 100419242, 2012 WL 602613 (Utah
3d Dist. Ct. Jan. 13, 2012). It reasoned that the 1994 amendment did
not shield care-review or peer-review materials from discovery
because the Legislature's attempt to do so by means of a statutory
amendment violated the separation of powers between the legisla-
tive and judicial branches guaranteed by article V, section 1 of the
Utah Constitution.3 Id. at para. 27. The Jones court concluded that
the Legislature’s 1994 statutory amendment to the care-review and
peer-review privileges was an amendment to a rule of evidence.
Therefore, its adoption by the Legislature infringed on the judicial
branch’s constitutional authority to adopt such rules. See UTAH
CONST . art. VIII, § 4 (“The Supreme Court shall adopt rules of
procedure and evidence to be used in the courts of the state . . . .”).
Though the Legislature is empowered to “amend the rules of
procedure and evidence adopted by the Supreme Court upon a vote
of two-thirds of all members of both houses,” Jones, 2012 WL 602613,
para. 17, that is not the course it followed in 1994 when it amended
section 26-25-3. The Jones court reasoned that, “according to the
plain language of article VIII, section 4, when the Legislature desires
to . . . create or expand a rule of evidence it must do so by amending
the Utah Rules of Evidence.”4 Id. at para. 20.
¶12 Following the district court’s decision in Jones, the Legisla-
ture amended rule 26 of the Utah Rules of Civil Procedure by a two-
3
Article V, section 1 of the Utah Constitution provides:
The powers of the government of the State of Utah
shall be divided into three distinct departments, the
Legislative, the Executive, and the Judicial; and no
person charged with the exercise of powers properly
belonging to one of these departments, shall exercise
any functions appertaining to either of the others,
except in the cases herein expressly directed or permit-
ted.
4
The district court in this case followed the Jones court’s reason-
ing when it concluded that the Legislature’s 1994 amendment to
section 26-25-3 was unconstitutional.
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Opinion of the Court
thirds majority to create freestanding care-review and peer-review
privileges. The amended rule prohibits the discovery or admission
of any information “provided during and created specifically as
part” of the care-review or peer-review process. UTAH R. CIV . P.
26(b)(1). It is this amendment to rule 26 that forms the basis for the
Hospital’s claim of privilege, the claim to which we now turn.
II. AMENDED RULE 26 CREATES AN
EVIDENTIARY PRIVILEGE
¶13 The district court held that Dr. Saunders’ credentialing file
was not protected from discovery and that the material in the
incident file must be submitted for in camera review to determine its
discoverability. In evaluating the discoverability of this material, the
court relied solely on the former version of section 26-25-3. It did so
after concluding that the Legislature’s 2012 amendment to rule
26(b)(1) of the Utah Rules of Civil Procedure did not create a new
evidentiary privilege covering such files because such privileges
may be created only by the Utah Rules of Evidence—not by the Utah
Rules of Civil Procedure. We disagree.
¶14 We find no support for the proposition that the Rules of
Civil Procedure cannot be the source of evidentiary privileges.
Indeed, rule 501 of the Utah Rules of Evidence states:
A claim of privilege to withhold evidence is governed
by:
(a) The Constitution of the United States;
(b) The Constitution of the State of Utah;
(c) These rules of evidence;
(d) Other rules adopted by the Utah Supreme Court;
(e) Decisions of the Utah courts; and
(f) Existing statutory provisions not in conflict with
the above.
(Emphasis added). Thus, the Utah Rules of Evidence themselves
recognize privileges contained in “[o]ther rules adopted by the Utah
Supreme Court.” These other rules include our Rules of Civil
Procedure.
¶15 In fact, rule 26 of the Utah Rules of Civil Procedure creates
a number of evidentiary privileges. For example, rule 26(b)(5)
creates the attorney work-product privilege:
A party may obtain otherwise discoverable
documents . . . prepared in anticipation of litigation or
for trial by or for another party or by or for that other
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ALLRED v. SAUNDERS
Opinion of the Court
party’s representative . . . only upon a showing that
the party seeking discovery has substantial need of the
materials and that the party is unable without undue
hardship to obtain substantially equivalent materials
by other means.
We have long recognized rule 26 as the source of this privilege. See,
e.g., Salt Lake Legal Defender Ass’n v. Uno, 932 P.2d 589, 589–90 (Utah
1997).
¶16 Moreover, the plain language of amended rule 26(b)(1)
clearly states the Legislature’s intent to create an evidentiary
privilege. It provides, “Privileged matters that are not discoverable or
admissible in any proceeding of any kind or character include all
information in any form provided during and created specifically
as” part of the care-review or peer-review process. UTAH R. CIV . P.
26(b)(1) (emphases added).
¶17 Plaintiffs argue that the Legislature's intent in amending
rule 26 was not to create a new privilege, but only to maintain the
status quo that existed at the time of its enactment. In support of
this position, they rely on the legislative note to the amendment,
which states:
The amended language in paragraph (b)(1) is intended
to incorporate long-standing protections against
discovery and admission into evidence of privileged
matters connected to medical care review and peer
review into the Utah Rules of Civil Procedure. These
privileges, found in both Utah common law and
statute, include Sections 26-25-3, 58-13-4, and 58-13-5,
UCA, 1953.
2012 Utah Laws 2553. Plaintiffs seize upon this language in arguing
that the Legislature did not intend to expand the scope of any
privilege beyond that found in the former version of sections 26-25-1
and 26-25-3.
¶18 Plaintiffs’ reading of the legislative note is inconsistent
with the plain language of the enacted amendment. Though it is
sometimes appropriate to consider legislative history when inter-
preting statutes, we will not do so when a statute is, as here,
unambiguous. See State v. Watkins, 2013 UT 28, ¶ 24, 309 P.3d 209.
And in no event will we look to unenacted legislative statements
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Opinion of the Court
that contradict the plain text of the enactment.5 See Torrie v. Weber
Cnty., 2013 UT 48, ¶ 12, 309 P.3d 216 (“[I]t is elementary that we do
not seek guidance from legislative history and relevant policy
considerations when the [rule] is clear and unambiguous.” (first
alteration in original) (internal quotation marks omitted)).
¶19 We hold that rule 26 is a valid source of evidentiary
privileges and that the district court erred when it relied solely on
the former version of sections 26-25-1 and 26-25-3 to determine the
discoverability of Dr. Saunders’ credentialing file and the incident
file relating to the procedure performed on Ms. Allred. We therefore
vacate the district court’s rulings denying the motions for a protec-
tive order as to Dr. Saunders’ credentialing file and its order that the
incident file be submitted for in camera review. We remand both
matters to the district court with instructions to consider their
discoverability in light of the privilege in rule 26(b)(1) of the Utah
Rules of Civil Procedure, as amended by the Legislature in 2012.
III. THE PROPRIETY OF IN CAMERA REVIEW
¶20 Dr. Saunders and the Hospital's second claim of error
concerns the propriety of the district court’s decision to undertake
in camera review of the Hospital’s incident file. Because we have
vacated the district court’s order requiring that the Hospital submit
the subpoenaed material for in camera review, this claim is moot.
Nevertheless, because the parties disagree as to the circumstances
under which in camera review is appropriate and because the
district court will be required to confront this issue on remand, we
give guidance to the district court on this issue.
¶21 The Allreds subpoenaed “[t]he complete and cumulative
records and files or case investigation records related directly to the
care rendered to Lisa Allred at American Fork Hospital through the
month of July 2007.” In response, the Hospital offered the affidavit
of Karie Minaga-Miya, the Regional Director of Risk Manage-
ment/Patient Relations for the Hospital. Ms. Minaga-Miya de-
scribed the electronic event reporting system used by the Hospital
5
In fact, the language of the legislative note does not necessarily
contradict the rule. While the note could be read to support the
notion that the Legislature did not intend to create a new eviden-
tiary privilege, an equally plausible interpretation is that the
Legislature had considered care-review and peer-review documents
privileged from discovery since its 1994 amendment to sections 26-
25-1 and 26-25-3 of the Utah Code.
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Opinion of the Court
in response to an incident. She detailed the process by which
information is entered into the system, the individuals allowed
access to the system, and the types of information collected in the
event reporting system. She also testified that an incident report
was prepared after Dr. Saunders’ treatment of Ms. Allred, following
the same process. Finally, she testified that the purpose of the
Hospital’s event reporting system was to “assess, evaluate and
improve the quality of health care rendered to patients at American
Fork Hospital.”
¶22 In ruling on the motion for a protective order, the district
court applied the former statute and concluded that “if Ms. Minaga-
Miya’s representations are correct . . . the records—and ‘any findings
or conclusions resulting’ from them—will be privileged from
disclosure.” Nevertheless, the district court ordered that they be
submitted for in camera review. Relying on the court of appeals’
decision in Cannon v. Salt Lake Regional Medical Center, Inc., 2005 UT
App 352, 121 P.3d 74, it held that Ms. Minaga-Miya’s affidavit was
too “vague” to allow the court to identify “exactly what information
is contained in the records she identifies.”
¶23 Dr. Saunders and the Hospital argue that Plaintiffs’
subpoena sought information squarely within the ambit of the
privilege, rendering in camera review unnecessary. They assert that
the court of appeals’ opinion in Cannon improperly encourages in
camera review as the “default approach” and ask that we overrule it
in favor of the approach taken by the Massachusetts Supreme Court
in Carr v. Howard, 689 N.E.2d 1304, 1313 (Mass. 1998), under which in
camera review may only be undertaken as a last resort.6
6
We disagree with the Hospital’s assertion that the holding in
Cannon defines in camera review “as the default approach.” Before
ordering that the material at issue be submitted for in camera
review, the Cannon court analyzed whether the particular evidence
submitted in that case was sufficient to establish an evidentiary basis
for the claimed privilege. Cannon v. Salt Lake Reg’l Med. Ctr., Inc.,
2005 UT App 353, ¶¶ 19–20, 121 P.3d 74. It was only after conclud-
ing that the affidavit submitted by the hospital failed to sufficiently
identify the nature of the reports at issue that the court ordered in
camera review. Id. at ¶ 21. To the extent that the dicta in Cannon can
be read to require in camera review as a matter of course, we
disavow it and emphasize the duty of the district court to evaluate
each claim of privilege after considering the specific foundational
(continued...)
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Opinion of the Court
¶24 Though we agree with Dr. Saunders and the Hospital that
in camera review is not appropriate in every case, we do not agree
that it should be available only as a last resort. Rather, the determi-
nation of whether in camera review is necessary lies in the sound
discretion of the district court after it considers foundational material
provided by the party seeking to assert the privilege.
¶25 Our rules of civil procedure begin with the presumption
that “[p]arties may discover any matter, not privileged, which is
relevant to the claim or defense of any party.” UTAH R. CIV . P.
26(b)(1). This places the burden on the party asserting a privilege to
establish that the material sought is protected from discovery. See
Benson ex rel. Benson v. I.H.C. Hosps., Inc., 866 P.2d 537, 540 (Utah
1993). And our rules set forth the procedure by which parties can
meet this burden. Rule 26(b)(8)(A) states:
If a party withholds discoverable information by
claiming that it is privileged[,] . . . the party shall make
the claim expressly and shall describe the nature of the
documents, communications, or things not produced in
a manner that, without revealing the information itself,
will enable other parties to evaluate the claim.
¶26 Parties routinely provide privilege logs when asserting that
particular documents are privileged from discovery. Such logs allow
the party seeking discovery to assess the claim of privilege and object
when appropriate. Accordingly, rather than requiring in camera
review in every instance, our rules contemplate that a party seeking
to withhold relevant, but arguably privileged, material from
discovery will prepare and produce a privilege log sufficient to allow
the opposing party to evaluate the claim of privilege. The opposing
party may then raise any objections to the asserted privilege and the
district court may undertake in camera review when, in its sound
discretion, it deems such a review necessary to properly evaluate
whether the documents or items withheld from discovery qualify for
the privilege.
¶27 We emphasize that a proper privilege log must provide
sufficient foundational information for each withheld document or
item to allow an individualized assessment as to the applicability of
the claimed privilege. For example, in this case, the Allreds subpoe-
naed “complete and cumulative records and files or case investiga-
6
(...continued)
material provided by the parties.
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ALLRED v. SAUNDERS
Opinion of the Court
tion records related directly to the care rendered to Lisa Allred at
American Fork Hospital through the month of July 2007.” Given the
breadth of this request and the likelihood that not all of the Hospital’s
records regarding Ms. Allred will qualify for the privilege, it would
be insufficient for the Hospital to simply assert a blanket claim of
privilege for all documents sought by the subpoena. Rather, the
Hospital would need to identify each document or item withheld
from discovery and provide sufficient foundational material to
establish that each withheld document or item was “created specifi-
cally as part of a request for an investigation . . . for the purpose of
evaluating care provided to reduce morbidity and mortality or to
improve the quality of medical care.” UTAH R. CIV . P. 26(b)(1). In
short, a sufficient privilege log must contain sufficient individualized
information on all withheld documents or items in order to ensure
that any non-privileged documents or items (such as patient medical
records) that have made their way into a care-review or peer-review
file are not shielded from discovery.
CONCLUSION
¶28 We hold that rule 26 of the Utah Rules of Civil Procedure
creates an evidentiary privilege and remand this matter to the district
court to consider whether the items contained in Dr. Saunders’
credentialing file and the Hospital’s incident file are privileged from
discovery under the amended rule 26 of the Utah Rules of Civil
Procedure. We also clarify that in camera review is not required in
all cases. Rather, parties seeking to withhold arguably privileged
material from discovery must create a privilege log identifying each
document or item withheld from production and provide sufficient
foundational information to allow the court and opposing parties to
evaluate the validity of the claimed privilege. The district court may,
in its sound discretion, then undertake in camera review of any
questionably-withheld material.
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