Robert D. Toler v. Cornerstone Hospital of Hungintgon, LLC

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2023 Term FILED
_______________ June 15, 2023
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 21-0830 SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
ROBERT D. TOLER,
Plaintiff Below, Petitioner,
V.
CORNERSTONE HOSPITAL OF HUNTINGTON, LLC,
Defendant Below, Respondent.
_____________________________________________
Appeal from the Circuit Court of Cabell County
The Honorable Gregory L. Howard, Judge
Civil Action No. 19-C-196
AFFIRMED
_____________________________________________
Submitted: March 21, 2023
Filed: June 15, 2023
Steven S. Wolfe, Esq. Richard D. Jones, Esq.
Wolfe, White & Associates Amy Humphreys, Esq.
Logan, West Virginia Jason A. Proctor, Esq.
Attorney for Petitioner Flaherty Sensabaugh Bonasso PLLC
Charleston, West Virginia
Attorneys for Respondent
JUSTICE BUNN delivered the Opinion of the Court.
CHIEF JUSTICE WALKER AND JUSTICE WOOTON dissent and reserve the right to
file dissenting opinions.
SYLLABUS BY THE COURT
1. “The party seeking the protections of the peer review privilege bears
the burden of establishing its applicability by more than a mere assertion of privilege.”
Syllabus point 3, State ex rel. Wheeling Hospital, Inc. v. Wilson, 236 W. Va. 560, 782
S.E.2d 622 (2016).
2. “To determine whether a particular document is protected by the peer
review privilege codified at W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 2015), a reviewing
court must ascertain both the exact origin and the specific use of the document in question.
Documents that have been created exclusively by or for a review organization, or that
originate therein, and that are used solely by that entity in the peer review process are
privileged. However, documents that either (1) are not created exclusively by or for a
review organization, (2) originate outside the peer review process, or (3) are used outside
the peer review process are not privileged.” Syllabus point 1, State ex rel. Wheeling
Hospital, Inc. v. Wilson, 236 W. Va. 560, 782 S.E.2d 622 (2016).
3. “The curative admissibility rule allows a party to present otherwise
inadmissible evidence on an evidentiary point where an opponent has ‘opened the door’ by
introducing similarly inadmissible evidence on the same point. Under this rule, in order to
be entitled as a matter of right to present rebutting evidence on an evidentiary fact: (a) The
original evidence must be inadmissible and prejudicial, (b) the rebuttal evidence must be
i
similarly inadmissible, and (c) the rebuttal evidence must be limited to the same
evidentiary fact as the original inadmissible evidence.” Syllabus point 10, State v. Guthrie,
194 W. Va. 657, 461 S.E.2d 163 (1995).
ii
BUNN, Justice:
Petitioner Robert D. Toler appeals from orders entered September 15, 2021,
and March 20, 2020, by the Circuit Court of Cabell County. In the 2021 order, the circuit
court entered judgment on a jury verdict in favor of the Respondent, Cornerstone Hospital
of Huntington, LLC (“Cornerstone”). The verdict was rendered in Mr. Toler’s lawsuit
seeking damages for injuries he sustained while visiting a patient at Cornerstone. The
circuit court’s 2020 order protected from discovery an incident report in which a
Cornerstone employee allegedly described the condition of the patient’s room immediately
following Mr. Toler’s injury. In that order, the circuit court applied the protections afforded
by the peer review privilege to the incident report. This ruling also precluded the parties
from disclosing the incident report during the trial of this case.
On appeal to this Court, Mr. Toler argues that the circuit court erred by
finding that Cornerstone’s incident report is protected by the peer review privilege set forth
in West Virginia Code §§ 30-3C-1 to -5. Cornerstone contends that its incident report is
protected by the peer review privilege because its employee prepared the report exclusively
for its own use in its internal quality assurance and facility maintenance review process.
We conclude that the circuit court did not err in ruling that the peer review
privilege protects Cornerstone’s incident report from discovery. Further, the circuit court
did not err by entering judgment on the jury’s verdict in favor of Cornerstone because Mr.
1
Toler failed to rebut Cornerstone’s assertion of the peer review privilege. Therefore, we
affirm the circuit court’s March 20, 2020 and September 15, 2021 orders.
I.
FACTUAL AND PROCEDURAL HISTORY
On January 7, 2019, Mr. Toler was visiting his girlfriend, who was a patient
at Cornerstone. Mr. Toler spent the night in a recliner chair in her room to help take care
of her. While getting up from the chair in her room, Mr. Toler fell and broke his femur.1
When various medical personnel, both at Cornerstone and the emergency room at St.
Mary’s Medical Center where Mr. Toler was transported for treatment, asked him what
had caused the fall, Mr. Toler claimed that his leg gave way and that he thought it was a
charley horse. Two Cornerstone nurses heard Mr. Toler fall and, after checking on him,
one of the nurses reported the incident to the house supervisor, Nurse Jeff Hall.
Nurse Hall went to the patient’s room to check on Mr. Toler and then
prepared an incident report documenting his fall. Mr. Toler seems to believe that the
incident report supports his later description of the circumstances of his fall as being caused
by a roll of tape left on the floor of the patient’s room and that Nurse Hall may have reported
1
Although Mr. Toler appears to have broken his femur, which is a leg bone,
the record also indicates that Mr. Toler broke his hip, which, it appears, could refer to a
break of the top of his femur. See Femur, Mosby’s Medical Dictionary (9th ed. 2013)
(defining “femur” as “the thigh bone, which extends from the pelvis to the knee”).
2
finding a roll of tape on the floor while investigating Mr. Toler’s fall.2 While Mr. Toler
subsequently testified at trial that he stepped on a roll of tape and that the roll of tape had
caused him to fall and break his femur, none of the medical professionals who treated Mr.
Toler immediately following his fall reported in their notes of Mr. Toler’s examinations
anything about a roll of tape. Rather, the contemporaneous medical records all indicate that
Mr. Toler reported that his leg had given out and caused him to fall. The Cornerstone nurses
who responded to the patient’s room immediately after Mr. Toler’s fall also stated that Mr.
Toler claimed that his leg had given out, that he thought he had a charley horse, and that
he did not mention a roll of tape in describing the circumstances of his fall.
Mr. Toler then sued Cornerstone3 and sought discovery of the incident report,
which Cornerstone claimed is protected by the peer review privilege. See generally W. Va.
Code §§ 30-3C-1 to -5. Mr. Toler filed a motion to compel disclosure of the incident report,
and the circuit court held a hearing on the motion. By order entered March 20, 2020, the
circuit court agreed with Cornerstone’s claim of peer review privilege and precluded
disclosure of the document to Mr. Toler.
2
The record is unclear as to how Mr. Toler deduced the alleged contents of
Cornerstone’s incident report because Cornerstone claims that this document is privileged,
was prepared exclusively for its own internal use, and has not been disclosed to anyone
outside of its peer review process. While Cornerstone provided a copy of its incident report
under seal for our consideration on appeal, and the circuit court reviewed this document in
camera, it does not appear that Mr. Toler has been permitted to view the incident report.
3
Mr. Toler’s complaint is not part of the Appendix Record in this case.
3
During the trial of Mr. Toler’s case against Cornerstone, the court permitted
Nurse Hall, who had prepared the incident report, to testify about his personal knowledge
of the circumstances surrounding Mr. Toler’s fall, as the original source of the contents of
the incident report. Nurse Hall’s trial testimony did not reference a roll of tape on the floor.
Mr. Toler testified that he fell when his leg went out from under him, and he stepped “on
a piece of tape.” However, no other testimony or evidence adduced at trial mentioned the
roll of tape that Mr. Toler alleges caused him to fall and break his femur in the course of
treatment for his injuries. The jury, on its verdict form, answered the first question as
follows:
1. Do you find by a preponderance of the evidence
that Robert Toler stepped on a roll of tape causing him to fall
on the morning of January 7, 2019?
Yes _____ No __X__
The circuit court entered a final order of judgment on the jury’s verdict in favor of
Cornerstone on September 15, 2021. Mr. Toler then appealed to this Court.
II.
STANDARD OF REVIEW
The issue before the Court is whether the circuit court properly excluded
Cornerstone’s incident report based on its rulings that the report is protected by the peer
review privilege and that the report was not subject to disclosure at trial. In assessing the
circuit court’s rulings, we must consider both of the circuit court’s orders from which Mr.
4
Toler has appealed. We first review the circuit court’s March 20, 2020 order that denied
Mr. Toler’s motion to compel discovery responses by Cornerstone and found that the peer
review privilege applies to Cornerstone’s incident report. Our prior cases recognize that a
circuit court’s rulings regarding the application of the peer review privilege involve
multiple standards of review. We review the circuit court’s interpretation and application
of the peer review privilege statutes de novo as that determination requires the resolution
of a question of law:
[A]t issue in the case sub judice is the correctness of the circuit
court’s interpretation and application of the applicable
statutory law concerning privileges relating to health care peer
review proceedings. As this contention involves a question of
law, we apply a plenary review to the circuit court’s decision
in this regard. “Interpreting a statute or an administrative rule
or regulation presents a purely legal question subject to de novo
review.” Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t
of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995).
State ex rel. Charles Town Gen. Hosp. v. Sanders, 210 W. Va. 118, 123, 556 S.E.2d 85, 90
(2001). We then consider whether the circuit court abused its discretion when determining
if the privilege applies to a particular document because that ruling involves a question of
fact: “The determination of which materials are privileged under W. Va. Code, 30-3C-1 . . .
et seq. is essentially a factual question and the party asserting the privilege has the burden
of demonstrating that the privilege applies.” Syl. pt. 2, in part, State ex rel. Shroades v.
Henry, 187 W. Va. 723, 421 S.E.2d 264 (1992).
Next, we review the circuit court’s September 15, 2021 order that entered
judgment on the jury’s verdict in favor of Cornerstone, which includes the court’s pre-trial
5
rulings on Cornerstone’s motions in limine to exclude reference to and testimony about its
incident report at trial as well as the court’s rulings on the admissibility of evidence during
trial. As to a circuit court’s evidentiary rulings, we have held that
[t]he West Virginia Rules of Evidence and the West
Virginia Rules of Civil Procedure allocate significant
discretion to the trial court in making evidentiary and
procedural rulings. Thus, rulings on the admissibility of
evidence . . . are committed to the discretion of the trial court.
Absent a few exceptions, this Court will review evidentiary
and procedural rulings of the circuit court under an abuse of
discretion standard.
Syl. pt. 1, in part, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995).
Accord State v. Marple, 197 W. Va. 47, 51, 475 S.E.2d 47, 51 (1996) (“The evidentiary
rulings of a circuit court . . . are reviewed under an abuse of discretion standard.”). We will
consider Mr. Toler’s assignments of error in accordance with these standards.
III.
DISCUSSION
On appeal, Mr. Toler asserts two assignments of error: the circuit court erred
(1) by ruling that Cornerstone’s incident report is protected by the peer review privilege
and (2) by continuing to exclude the report when, according to Mr. Toler, Cornerstone
opened the door to the document’s disclosure during the trial of this case. We consider both
assigned errors in turn.
6
A. Peer Review Privilege
To determine whether the peer review privilege applies, it is necessary to
consider the scope of the privilege. We previously have recognized that, “[t]hrough the
enactment of West Virginia Code § 30-3C-3 in 1980,[4] the Legislature imposed
confidentiality on all information, documents, and records subjected to review by a medical
peer review organization.” Young v. Saldanha, 189 W. Va. 330, 332, 431 S.E.2d 669, 671
(1993). The Legislature’s enactment of this statutory privilege also “clearly evinces a
public policy encouraging health care professionals to monitor the competency and
professional conduct of their peers in order to safeguard and improve the quality of patient
care.” Syl. pt. 2, in part, id.In establishing the parameters of the privilege, the Legislature has defined
the terms “peer review” and “review organization.”
“Peer review” means the procedure for evaluation by
health care professionals of the quality and efficiency of
services ordered or performed by other health care
professionals, including practice analysis, inpatient hospital
and extended care facility utilization review, medical audit,
4
We note that, during the course of the events giving rise to this appeal, the
Legislature amended the peer review privilege statutes, which revised some previously
enacted provisions and adopted other new provisions. See generally W. Va. Code § 30-3C-
1 (eff. Apr. 29, 2019) (revising existing section); W. Va. Code § 30-3C-3 (eff. Apr. 29,
2019) (revising existing section); W. Va. Code § 30-3C-5 (eff. Apr. 29, 2019) (adopting
new provision establishing criteria for waiver of peer review privilege). Our consideration
of this case is guided by the version of the peer review privilege that was in effect at the
time of Mr. Toler’s fall in January 2019, and we will refer to those statutory provisions that
were effective at that time throughout this opinion.
7
ambulatory care review, claims review and patient safety
review.
W. Va. Code § 30-3C-1 (eff. 2004). “Review organization” is defined, in pertinent part, as
any committee or organization engaging in peer review,
including a hospital utilization review committee, . . . a
medical audit committee, . . . a physicians’ advisory
committee, . . . any entity established pursuant to state or
federal law for peer review purposes, and any committee
established by one or more state or local professional societies
or institutes, to gather and review information relating to the
care and treatment of patients for the purposes of:
(i) Evaluating and improving the quality of health care
rendered; (ii) reducing morbidity or mortality; or
(iii) establishing and enforcing guidelines designed to keep
within reasonable bounds the cost of health care. It shall also
mean any hospital board committee or organization reviewing
the professional qualifications or activities of its medical staff
. . ., and any professional standards review organizations
established or required under state or federal statutes or
regulations.
Id.The peer review privilege itself is set forth in West Virginia Code § 30-3C-
3 (eff. 1980):
W. Va. Code, 30-3C-3 [1980] provides that “[t]he
proceedings and records of a review organization shall be
confidential . . . Provided, That information, documents or
records otherwise available from original sources are not to be
construed as immune from discovery or use in any civil action
merely because they were presented during proceedings of
such [a review] organization. . . .” The language of the statute
grants a privilege to all the records and proceedings of a review
organization, but no privilege attaches to information,
documents or records considered by a review organization if
the material is “otherwise available from original sources.”
8
Syl. pt. 3, Shroades, 187 W. Va. 723, 421 S.E.2d 264. See generally W. Va. Code § 30-
3C-3 (eff. 1980). Furthermore,
[p]ursuant to the plain language of W. Va. Code § 30-
3C-3 (1980) (Repl. Vol. 1998), information, documents, and
records ordinarily protected by the peer review privilege lose
their specter of confidentiality and may be accessed by third
parties when (1) said materials are “otherwise available from
original sources” or (2) “an individual [has] execute[d] a valid
waiver authorizing the release of the contents of his file
pertaining to his own acts or omissions.”
Syl. pt. 4, State ex rel. Brooks v. Zakaib, 214 W. Va. 253, 588 S.E.2d 418 (2003).5
To protect a document from disclosure based upon the protections afforded
by the peer review privilege, the party seeking the privilege’s protections must request
recognition of the privilege and demonstrate its applicability to the document for which
protection is sought. “The party seeking the protections of the peer review privilege bears
the burden of establishing its applicability by more than a mere assertion of privilege.” Syl.
pt. 3, State ex rel. Wheeling Hosp., Inc. v. Wilson, 236 W. Va. 560, 782 S.E.2d 622 (2016).
A party wishing to establish the applicability of the peer
review privilege, set forth at W. Va. Code § 30-3C-3 (1980)
5
Accord Syl. pt. 2, State ex rel. Wheeling Hosp., Inc. v. Wilson, 236 W. Va.
560, 782 S.E.2d 622 (2016) (“Where documents sought to be discovered are used in the
peer review process but either the document, itself, or the information contained therein, is
available from an original source extraneous to the peer review process, such material is
discoverable from the original source, itself, but not from the review organization that has
used it in its deliberations.” (emphasis added)); Syl. pt. 3, Young v. Saldanha, 189 W. Va.
330, 431 S.E.2d 669 (1993) (“To effect a waiver of the privilege of confidentiality which
attends information and records properly the subject of health care peer review under West
Virginia Code §§ 30-3C-1 to -3 (1993), the Legislature has required that an individual must
formally indicate his intent to waive this confidentiality by executing a valid waiver.”
(emphasis added)).
9
(Repl. Vol. 2015), should submit a privilege log which
identifies each document for which the privilege is claimed by
name, date, and custodian. The privilege log also should
contain specific information regarding (1) the origin of each
document, and whether it was created solely for or by a review
committee, and (2) the use of each document, with disclosures
as to whether or not the document was used exclusively by
such committee. Finally, the privilege log should provide a
description of each document and a recitation of the law
supporting the claim of privilege.
Syl. pt. 4, Wheeling Hosp., 236 W. Va. 560, 782 S.E.2d 622.
Once the party seeking the protections of the peer review privilege has
requested its application and submitted the requisite privilege log, the circuit court is then
tasked with determining whether the privilege should be applied to preclude disclosure of
the document at issue.
To determine whether a particular document is
protected by the peer review privilege codified at W. Va. Code
§ 30-3C-3 (1980) (Repl. Vol. 2015), a reviewing court must
ascertain both the exact origin and the specific use of the
document in question. Documents that have been created
exclusively by or for a review organization, or that originate
therein, and that are used solely by that entity in the peer review
process are privileged. However, documents that either (1) are
not created exclusively by or for a review organization,
(2) originate outside the peer review process, or (3) are used
outside the peer review process are not privileged.
Syl. pt. 1, Wheeling Hosp., 236 W. Va. 560, 782 S.E.2d 622.
Mr. Toler contends on appeal that the circuit court erred by ruling that the
peer review privilege applies to shield Cornerstone’s incident report from disclosure. He
10
does not contend that Cornerstone failed to properly request the peer review privilege
protection or that Cornerstone’s privilege log listing the incident report and describing why
it should be protected was inadequate. Neither does Mr. Toler claim, under his first
assignment of error, that Cornerstone waived the privilege. Rather, Mr. Toler contends that
the circuit court erred in applying the peer review privilege to the facts of this case, which
he contends is in the nature of a premises liability case to which the privilege should not
apply.
We disagree with Mr. Toler’s assertion that the peer review privilege should
not apply to this case because of the nature of his claims against Cornerstone, i.e., premises
liability claims by a non-patient.6 The statutes setting forth the peer review privilege do not
limit its application to any particular type of case. Neither do the statutes limit the
application of the privilege based upon the identity of the person seeking a purportedly
protected document’s discovery. Rather, the limits of the peer review privilege pertain to
the document sought to be protected by its provisions, the manner in which that document
has been prepared, and the way in which that document has been used. “Documents that
have been created exclusively by or for a review organization, or that originate therein, and
that are used solely by that entity in the peer review process are privileged.” Syl. pt. 1, in
part, Wheeling Hosp., 236 W. Va. 560, 782 S.E.2d 622.
6
Again, Mr. Toler’s complaint is not included in the appellate record. See
supra note 3. However, the nature of Mr. Toler’s claims do not appear to be in dispute.
11
Upon Cornerstone’s invocation of the peer review privilege and submission
of a privilege log detailing why the privilege should apply to its incident report, the circuit
court was charged with considering the applicability of the peer review privilege statutes
and vested with the discretion to determine whether the privilege should apply to the
incident report at issue in this case. See Charles Town Gen. Hosp., 210 W. Va. at 123, 556
S.E.2d at 90; Syl. pt. 2, in part, Shroades, 187 W. Va. 723, 421 S.E.2d 264. In its order
denying Mr. Toler’s motion to compel disclosure of Cornerstone’s incident report, the
circuit court reached the following conclusions of law in support of its ruling:
In the instant case, the [c]ourt agrees with the
Defendant’s [Cornerstone’s] assertion that the
Occurrence/Incident Report which was prepared by a nurse
and reviewed by the Director of Quality Management falls
squarely within the statutory requirements [of the peer review
privilege statutes] enumerated above.
The [c]ourt finds that the Occurrence/Incident Report at
issue was prepared to report a non-routine event that had some
potential for injury to a patient or visitor and was intended to
help ensure that quality health care is rendered at the hospital
by identifying and correcting any problems related to non-
routine occurrences.
The [c]ourt also finds that the Plaintiff’s [Mr. Toler’s]
status of a non-patient is irrelevant with regard to the
applicability of the peer review privilege in this instance.
Therefore, based upon the evidence presented in this matter,
and applying the above [peer review privilege] statutes, the
[c]ourt finds that the Occurrence/Incident Report in question is
not subject to subpoena or discovery proceedings and is
precluded from admissibility in evidence pursuant to the Peer
Review [Privilege] Statute.
12
All of these findings are consistent with the Legislature’s recognition of a
peer review privilege in West Virginia Code § 30-3C-3 and this Court’s further
clarification of the scope of that privilege. See, e.g., Syl. pt. 1, Wheeling Hosp., 236 W. Va.
560, 782 S.E.2d 622; Syl. pt. 3, Shroades, 187 W. Va. 723, 421 S.E.2d 264. We do not find
that the circuit court erred or abused its discretion in finding that the peer review privilege
applies to protect Cornerstone’s incident report from disclosure. The circuit court properly
ruled that the peer review privilege does not except certain types of cases from its
application. The court further found that the incident report had been prepared exclusively
for Cornerstone’s internal review process and that the report had been used solely in that
review process and not disclosed or disseminated outside of Cornerstone’s internal review.
Therefore, we affirm the circuit court’s March 20, 2020 order ruling that the peer review
privilege precludes the disclosure of Cornerstone’s incident report.7
7
This result is also consistent with the amendments to West Virginia Code
§ 30-3C-3 that were enacted shortly after the incident at issue in this case. In West Virginia
Code § 30-3C-3(a)(1) (eff. 2019), the Legislature adopted a narrow exception to allow the
disclosure of “[n]ursing home . . . incident or event reports . . . pertaining to the plaintiff of
that civil action, or reports of same or similar incidents within a reasonable time frame of
the events at issue in the civil action[.]” Nursing home incident reports, in general, remain
subject to the peer review privilege except as directed by § 30-3C-3(a)(1), and there is no
other exception to permit the disclosure of other types of incident reports that otherwise
would be protected by the peer review privilege. If we were to adopt Mr. Toler’s position
regarding the peer review privilege’s inapplicability to Cornerstone’s incident report in this
case because he is a non-patient asserting a premises liability claim, we would effectively
be allowing the disclosure of an incident report that otherwise would be protected by the
peer review privilege without a statutory exception that permits its disclosure. This result
would essentially require that we read into the peer review privilege legislation additional
terms that the Legislature did not include. We cannot rewrite legislation to include
provisions that the Legislature chose not to adopt. See Syl. pt. 11, Brooke B. v. Ray C., 230
W. Va. 355, 738 S.E.2d 21 (2013) (“It is not for this Court arbitrarily to read into a statute
13
B. Effect of Cornerstone Witness Testimony on
Continued Assertion of Peer Review Privilege
In his second assignment of error, Mr. Toler argues that the circuit court erred
by allowing two Cornerstone employees to testify at trial and that, by virtue of their
testimony, the incident report should have been disclosed to Mr. Toler for his use during
the trial. Cornerstone denies that the witnesses it called defeated its assertion of the peer
review privilege protection for the incident report.
After the circuit court entered its order in 2020 ruling that Cornerstone’s
incident report is protected by the peer review privilege, the court considered Cornerstone’s
motions in limine prior to the jury trial. By order entered August 24, 2021, the circuit court
ruled that privileged material, which would include Cornerstone’s incident report, could
not be referenced during the trial, and Mr. Toler did not object to this ruling:
MOTION IN LIMINE TO EXCLUDE TESTIMONY
AND REFERENCES TO PRIVILEGED MATERIAL
As to Defendant’s [Cornerstone’s] “Motion In Limine to
Exclude Testimony And References To Privileged Material,”
Plaintiff [Mr. Toler] did not object to this Motion. This [c]ourt
FINDS the motion well taken, and, for the reasons set forth in
the Motion, it is hereby GRANTED.
that which it does not say. Just as courts are not to eliminate through judicial interpretation
words that were purposely included, we are obliged not to add to statutes something the
Legislature purposely omitted.”).
14
By virtue of Mr. Toler’s failure to object to the exclusion of testimony about and references
to privileged material, including Cornerstone’s incident report, from the trial, Mr. Toler
has waived his objection to the circuit court’s exclusion of testimony about and references
to the incident report at trial. See Syl. pt. 2, State ex rel. Cooper v. Caperton, 196 W. Va.
208, 470 S.E.2d 162 (1996) (“To preserve an issue for appellate review, a party must
articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the
claimed defect.”).
Mr. Toler further contends that, because Nurse Hall was permitted to testify
at trial, the contents of Cornerstone’s incident report should have been disclosed at trial as
Nurse Hall’s contemporaneous notes of his conversation with Mr. Toler. However, the peer
review privilege permits the disclosure of original source information without defeating
the assertion of the privilege. See generally W. Va. Code § 30-3C-3; Syl. pt. 2, Wheeling
Hosp., 236 W. Va. 560, 782 S.E.2d 622; Syl. pt. 4, Brooks, 214 W. Va. 253, 588 S.E.2d
418; Syl. pt. 3, Shroades, 187 W. Va. 723, 421 S.E.2d 264. Here, Nurse Hall testified
regarding the original source of the incident report he prepared: his conversation with Mr.
Toler about the circumstances of the fall and his observations about the patient’s room in
which Mr. Toler’s fall occurred. During his testimony, Nurse Hall did not reference the
incident report he prepared for Cornerstone. Nurse Hall’s testimony was consistent with
the original source exception to the peer review privilege and the circuit court’s rulings
finding that the incident report is protected by the peer review privilege and excluding any
15
references to or testimony about privileged materials at trial. Therefore, Mr. Toler is not
entitled to relief on this basis.
Mr. Toler additionally contends that the testimony of Cornerstone’s
corporate representative, Nurse Brandon Gagnon, chief nursing officer, “opened the door”
to the incident report’s admissibility at trial. Nurse Gagnon testified as a witness called by
Mr. Toler. During Nurse Gagnon’s direct testimony, counsel for Mr. Toler proposed a
hypothetical situation of water causing a fall and asked the following question, which
Nurse Gagnon answered:
Q. [by Mr. Toler’s counsel]: . . . Where would you
document that the fall had occurred due to water or some other
obstruction on the floor?
A. [by Nurse Gagnon]: It would be documented through
an incident reporting process.
(Emphasis omitted). When Mr. Toler’s counsel then asked, “And was that done in this
case?,” Cornerstone’s counsel immediately objected based on the court’s earlier rulings
excluding references to or testimony about materials the court had ruled were privileged
and, thus, not subject to disclosure. The court sustained Cornerstone’s objection, and Nurse
Gagnon continued his testimony without referencing Cornerstone’s incident report that
Nurse Hall prepared after Mr. Toler’s fall. On appeal, Mr. Toler contends that the circuit
court’s continued exclusion of the incident report after Nurse Gagnon had alluded to
Cornerstone’s incident reporting process constituted error because, Mr. Toler avers, Nurse
Gagnon’s testimony “opened the door” to the incident report’s disclosure. This argument
16
misconstrues the concept of “opening the door” to the admission of otherwise inadmissible
evidence.
In support of his argument, Mr. Toler cites State v. Baker, 230 W. Va. 407,
738 S.E.2d 909 (2013), which discusses the “opening the door” doctrine in the context of
criminal cases. See id., 230 W. Va. at 412, 738 S.E.2d at 914 (“The opening the door
‘doctrine operates to prevent a defendant from successfully excluding from the
prosecution’s case-in-chief inadmissible evidence and then selectively introducing pieces
of this evidence for the defendant’s own advantage, without allowing the prosecution to
place the evidence in its proper context.’ State v. James, 144 N.J. 538[, 554], 677 A.2d 734,
742 (1996).”). We have also discussed this principle in the civil law context, and explained
its operation as follows:
First, we note that the phrase “‘[o]pening the door’ is also
referred to as the doctrine of ‘curative admissibility.’” United
States v. Rucker, 188 Fed. Appx. 772, 778 (10th Cir. 2006). See
also 1 Louis J. Palmer, Jr., Robin Jean Davis, and Franklin D.
Cleckley, Handbook on Evidence for West Virginia Lawyers
§ 106.04 at 158 (6th ed. 2015) (“The phrase ‘opening the door’
is used by most courts to refer to the curative admissibility
rule.”).
Miller v. Allman, 240 W. Va. 438, 450, 813 S.E.2d 91, 103 (2018). We further have
explained how a party may invoke the curative admissibility rule:
The curative admissibility rule allows a party to present
otherwise inadmissible evidence on an evidentiary point where
an opponent has “opened the door” by introducing similarly
inadmissible evidence on the same point. Under this rule, in
order to be entitled as a matter of right to present rebutting
evidence on an evidentiary fact: (a) The original evidence must
17
be inadmissible and prejudicial, (b) the rebuttal evidence must
be similarly inadmissible, and (c) the rebuttal evidence must be
limited to the same evidentiary fact as the original inadmissible
evidence.
Syl. pt. 10, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). In other words, “[t]he
doctrine of opening the door allows a party to elicit otherwise inadmissible evidence when
the opposing party has made unfair prejudicial use of related evidence.” James, 677 A.2d
at 742.
This explanation of “opening the door” makes clear that when a party’s
opponent introduces inadmissible, prejudicial evidence, the party aggrieved by the
admission of that evidence is permitted to introduce otherwise inadmissible evidence to
rebut the opponent’s improper evidence. Here, Mr. Toler’s opponent, Cornerstone, did not
elicit the reference to Cornerstone’s incident reporting process from Nurse Gagnon. Mr.
Toler elicited that information during his counsel’s direct examination of Nurse Gagnon.
As the party who prompted Nurse Gagnon’s disclosure of the incident reporting process,
Mr. Toler is not entitled to benefit from the purportedly improper reference to the incident
18
report he occasioned.8 Therefore, we find that Mr. Toler is not entitled to relief on this
basis.9
8
Rather, this scenario is more reminiscent of the “invited error” doctrine than
the “opening the door” doctrine upon which Mr. Toler relies. See State v. Crabtree, 198
W. Va. 620, 627, 482 S.E.2d 605, 612 (1996) (“‘Invited error’ is a cardinal rule of appellate
review applied to a wide range of conduct. It is a branch of the doctrine of waiver which
prevents a party from inducing an inappropriate or erroneous response and then later
seeking to profit from that error. The idea of invited error is not to make the evidence
admissible but to protect principles underlying notions of judicial economy and integrity
by allocating appropriate responsibility for the inducement of error. Having induced an
error, a party in a normal case may not at a later stage of the trial use the error to set aside
its immediate and adverse consequences.”). See also Syl. pt. 2, State v. Bowman, 155
W. Va. 562, 184 S.E.2d 314 (1971) (“An appellant or plaintiff in error will not be permitted
to complain of error in the admission of evidence which he offered or elicited, and this is
true even of a defendant in a criminal case.”).
9
Though not assigned as error by Mr. Toler, we would be remiss if we did
not acknowledge that Nurse Hall, during his direct testimony by Cornerstone’s counsel,
also briefly referenced the incident reporting process.
Q. [by Cornerstone’s counsel]: Had Mr. Toler told you
on the morning of January 7th that when he stood up that he
stepped on a roll of tape and it caused him to fall, what would
you have done?
A. [by Nurse Hall]: For one thing, I would have looked
for a roll of tape. Right? I would obtain that object or whatever
the tape – in this instance, I would have got that and I would
have used it for a foundation to do a report and find out what
ways we could better this process and prevent this from going
on any further and happening to the next patient.
(Emphasis omitted). This inquiry posed a hypothetical question to Nurse Hall, much like
the hypothetical water question Mr. Toler’s counsel asked Nurse Gagnon, because Nurse
Hall had earlier testified that Mr. Toler had not mentioned a roll of tape as causing or
contributing to his fall when Nurse Hall spoke with Mr. Toler shortly after he fell.
Immediately after the quoted exchange, Cornerstone’s counsel concluded her direct
examination of Nurse Hall. Mr. Toler’s counsel replied, “No cross, your Honor”; then
asked Nurse Hall four questions, none of which pertained to the reporting process Nurse
Hall had mentioned in his testimony; and allowed Nurse Hall to be excused as a witness.
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Finally, Mr. Toler suggests that the jury’s questions to the court during its
deliberations necessitated the disclosure of Cornerstone’s incident report. During the jury’s
deliberations, it sent the following questions to the circuit court: “Is there an initial incident
report? Was it filed? Who filed it? Can we have a copy of said incident report?” After
meeting with counsel in chambers, determining that the peer review privilege continued to
protect the incident report from disclosure, and that the granted motion in limine precluded
reference to the incident report, the circuit court gave this answer to the jury:
I can simply tell you that everything that was admissible
evidence in this case has been discussed prior to the jury ever
being here. We’ve had legal arguments on things, and there are
things that are allowed to be in front of the jury and things that
are not. Everything that you-all have to deliberate on and
consider has been entered into evidence, and so you’re not to
speculate as to what other pieces of evidence might be out there
or might not be out there. You’re only to consider things that
have been put in front of you . . . . And we’ve made sure that
you have all of the evidence that you’re supposed to have
legally to make this decision and reach your verdict; so don’t
speculate on any other things that may be missing at this point.
You just work with what you have and reach your verdict based
on that information.
We find that these questions from the jury clearly indicate that it was not aware that an
incident report had been prepared in this case given that the first question was whether the
For the same reason we find that Mr. Toler has waived any objection to the exclusion of
testimony about or reference to Cornerstone’s incident report because he failed to object to
the circuit court’s decision to grant Cornerstone’s motion in limine, we similarly find that
Mr. Toler has waived any objection he may have had to Nurse Hall’s hypothetical reference
to the incident reporting process because he failed to object to Nurse Hall’s reference to
Cornerstone’s reporting process or elicit further testimony regarding this procedure on
cross-examination of this witness. See Syl. pt. 2, State ex rel. Cooper v. Caperton, 196
W. Va. 208, 470 S.E.2d 162 (1996).
20
incident report existed. The circuit court’s answers to the jury’s questions were consistent
with its prior rulings finding that the peer review privilege shielded Cornerstone’s incident
report from disclosure and that the parties were not permitted to reference or elicit
testimony about the incident report at trial, which we have found were proper. We likewise
find that the circuit court did not abuse its discretion in answering the jury’s questions in
this manner and continuing to apply the peer review privilege to protect Cornerstone’s
incident report. Accordingly, we affirm the circuit court’s September 15, 2021 order
entering judgment in favor of Cornerstone on the jury’s verdict.
IV.
CONCLUSION
We conclude that the circuit court did not err by ruling that the peer review
privilege applies to preclude the disclosure of Cornerstone’s incident report. Therefore, we
affirm the circuit court’s March 20, 2020 order that ruled that the incident report is
protected by the peer review privilege and the court’s September 15, 2021 order entering
judgment on the jury’s verdict in favor of Cornerstone.
Affirmed.
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