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Joseph M. Verska, M.D., and the Spine Institute of Idaho v. Saint Alphonsus Regional Medical Center; Christian G. Zimmerman

November 9, 2011

JOSEPH M. VERSKA, M.D., AND THE SPINE INSTITUTE OF IDAHO,
PLAINTIFFS-APPELLANTS,
v.
SAINT ALPHONSUS REGIONAL MEDICAL CENTER; CHRISTIAN G. ZIMMERMAN, M.D.; AND DONALD FOX, M.D., DEFENDANTS-RESPONDENTS.



Appeal from the District Court of the Fourth Judicial District of the State of Idaho, in and for Ada County. The Hon. Deborah A. Bail, District Judge.

The opinion of the court was delivered by: Eismann, Justice.

2011 Opinion No. 115

Stephen W. Kenyon, Clerk

The order of the district court is affirmed.

This is a permissive appeal from an order of the district court holding that the statute making peer review records privileged applies, by its terms, to a lawsuit brought against a hospital claiming that the hospital acted in bad faith in refusing to renew a physician's privileges. We affirm the order of the district court.

I.

Factual Background

Joseph Verska, M.D., (Physician) is an orthopedic spine surgeon licensed in the State of Idaho. On January 22, 1996, he was appointed to the medical staff of Saint Alphonsus Regional Medical Center (Hospital) located in Boise. Thereafter, he was continually reappointed through June 30, 2008.

As required by Idaho law, Hospital caused its medical staff to organize in-hospital medical staff committees to review the professional practices of members of the Hospital's medical staff for the purpose of reducing morbidity and mortality and for the improvement of the care of patients in the hospital. After a series of reviews of Physician's practice initiated in 2004 by Hospital and in 2006 and 2007 by its Medical Executive Committee, on July 9, 2008, Physician requested a hearing before a Fair Hearing Panel. After an evidentiary hearing in late October 2008, the panel made recommendations, which were rejected by Hospital. Since July 1, 2008, Physician has not had privileges at Hospital.

On July 23, 2009, Physician and The Spine Institute of Idaho, a professional corporation created by Physician, (Plaintiffs) filed this action against Hospital and physicians Christian G. Zimmerman and Donald Fox (herein collectively called "Defendants"). Plaintiffs alleged that Defendants conspired to wrongfully harm them, intentionally and/or negligently interfered with their economic advantage, interfered with Physician's prospective contractual relations and business expectations, defamed them, and intentionally and/or negligently inflicted emotional distress upon Physician. Plaintiffs also alleged that Hospital and Dr. Fox breached the implied covenant of good faith and fair dealing and that Hospital denied Physician fair procedure rights, breached its fiduciary duties, and violated his due process rights. In addition to damages, Plaintiffs sought an injunction requiring Hospital to restore Physician's privileges.

During this litigation, Plaintiffs initiated discovery related to the process, activities, and decisions that led to Hospital's decision to deny Physician's application to be reappointed to the medical staff and to have his privileges renewed. Hospital objected on the ground that such information was protected by the peer review privilege. Plaintiffs filed a motion seeking to compel discovery, and Defendants sought a motion for a protective order. On February 5, 2010, the district court entered an order denying the motion to compel and granting the protective order. The court determined, "I.C. § 39-1392b unambiguously protects all peer review records from discovery of any type and bars any testimony about those peer review records." This Court granted Plaintiffs' request for a permissive appeal of that order pursuant to Idaho Appellate Rule 12.

We grant such appeals only in the most exceptional cases. Aardema v. U.S. Dairy Systems, Inc., 147 Idaho 785, 789, 215 P.3d 505, 509 (2009). The factors we consider are as follows:

In accepting or rejecting an appeal by certification under I.A.R. 12, this Court considers a number of factors in addition to the threshold questions of whether there is a controlling question of law and whether an immediate appeal would advance the orderly resolution of the litigation. It was the intent of I.A.R. 12 to provide an immediate appeal from an interlocutory order if substantial legal issues of great public interest or legal questions of first impression are involved. The Court also considers such factors as the impact of an immediate appeal upon the parties, the effect of the delay of the proceedings in the district court pending the appeal, the likelihood or possibility of a second appeal after judgment is finally entered by the district court, and the case workload of the appellate courts. No single factor is controlling in the Court's decision of acceptance or rejection of an appeal by certification, but the Court intends by Rule 12 to create an appeal in the exceptional case and does not intend by the rule to broaden the appeals which may be taken as a matter of right under I.A.R. 11.

Budell v. Todd, 105 Idaho 2, 4, 655 P.2d 701, 703 (1983). In this case, the order of the district court involved a matter of first impression, the issues raised were controlling questions of law, an immediate appeal would advance the orderly resolution of the litigation, and it would decrease the likelihood of a second appeal. Because of the nature of an interlocutory appeal, we address only the precise question that was presented to and decided by the trial court. Winn v. Frasher, 116 Idaho 500, 501, 777 P.2d 722, 723 (1989).

II.

Does Idaho Code Section 39-1392b Apply to This Case?

A peer review privilege is created by Idaho Code section 39-1392b, which provides: Except as provided in section 39-1392e, Idaho Code, all peer review records shall be confidential and privileged, and shall not be directly or indirectly subject to subpoena or discovery proceedings or be admitted as evidence, nor shall testimony relating thereto be admitted in evidence, or in any action of any kind in any court or before any administrative body, agency or person for any purpose whatsoever. . .

It is undisputed that the records sought by Plaintiffs are peer review records. The statute states that "all peer review records shall be confidential and privileged." It further provides that such records "shall not be directly or indirectly subject to subpoena or discovery proceedings or be admitted as evidence, nor shall testimony relating thereto be admitted in evidence." The privilege applies "in any action of any kind in any court." Thus, by its terms, the statute applies to this litigation.

Plaintiffs contend that Hospital is a business; that it developed an in-house entity named the "Spine Medicine Institute of Idaho," which competes with Plaintiffs; that Hospital's actions in denying Physician privileges were motivated by the desire to remove him as a competitor; and that for public policy reasons the statute therefore should not apply. The statute does not create an exception for this type of litigation, and we cannot create such an exception under the rubric of public policy. The creation of such an exception is an issue within the province of the legislature.

The act creating the peer review privilege, I.C. §§ 39-1392 through 39-1392e, was enacted in 1973. Plaintiffs contend that the statement of purpose accompanying that legislation indicates that it was intended to apply only to medical malpractice actions. The statement of purpose was not enacted into law. The statutes were. There is no wording in section 39-1392b that limits its scope to peer review records sought in a medical malpractice action. In that respect, the legislation is unambiguous.

"The asserted purpose for enacting the legislation cannot modify its plain meaning. The scope of the legislation can be broader than the primary purpose for enacting it." Viking Constr., Inc. v. Hayden Lake Irr. Dist., 149 Idaho 187, 191-92, 233 P.3d 118, 122-23 (2010). "If the statute as written is socially or otherwise unsound, the power to correct it is legislative, not judicial." In re Estate of Miller, 143 Idaho 565, 567, 149 P.3d 840, 842 (2006). The interpretation of a statute "must begin with the literal words of the statute; those words must be given their plain, usual, and ordinary meaning; and the statute must be construed as a whole. If the statute is not ambiguous, this Court does not construe it, but simply follows the law as written." State v. Schwartz, 139 Idaho 360, 362, 79 P.3d 719, 721 (2003) (citations omitted). "We have consistently held that where statutory language is unambiguous, legislative history and other extrinsic evidence should not be consulted for the purpose of altering the clearly expressed intent of the legislature." City of Sun Valley v. Sun Valley Co., 123 Idaho 665, 667, 851 P.2d 961, 963 (1993).

Plaintiffs also contend that wording in subsections (a) through (e) of Idaho Code section 39-1392e indicate that the peer review statutes were intended only to apply to medical malpractice actions. Those subsections specifically apply in medical malpractice actions.*fn1 Subsection (f) clearly is not limited to medical malpractice actions. For example, it applies to "any physician . . . whose conduct . . . is the subject of investigation . . . in the course of . . . disciplinary proceeding or investigation of the sort contemplated by this act, [who] makes claim or brings suit on account of such health care organization activity." I.C. § 39-1392e(f).

Likewise, section 39-1392b, which creates the peer review privilege, is not, by its terms, limited to medical malpractice actions. The fact that a portion of a statute has a restricted application does not similarly restrict the entire act of which that portion was a part.

III.

Does This Court Have the Authority To Modify an Unambiguous Statute If the Result of Applying It As ...


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