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Paul J. Montalbano, M.D v. Saint Alphonsus Regional Medical Center; Sherry Parks; Christian G.

November 18, 2011


Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Deborah Ann Bail, District Judge.

The opinion of the court was delivered by: Burdick, Chief Justice

2011 Opinion No. 119

Stephen W. Kenyon, Clerk

District court interlocutory entry of protective order, affirmed.

This case concerns a permissive appeal from the district court's interlocutory entry of a protective order, holding that certain documents related to the suspension of Appellant Paul J. Montalbano's privileges at Saint Alphonsus Regional Medical Center (SARMC) are not discoverable by Montalbano. The interlocutory order comes from Dr. Montalbano's lawsuit

filed against SARMC in district court with ten causes of action including breach of fiduciary duties and defamation; this appeal deals solely with the protective order.


Saint Alphonsus Regional Medical Center is a medical center based in Boise. Dr. Paul J. Montalbano (Montalbano) is a neurosurgeon specializing in spine surgery, practicing in Boise. Montalbano had medical staff membership and clinical privileges at SARMC. This case arises from a suspension of Montalbano's staff privileges.

According to Montalbano's pleadings, SARMC created the Spine Medicine Institute in 2006, operating in direct competition with Montalbano. On April 1, 2008, an employee of SARMC, filed a report by means of SARMC's Qstatim reporting system, alleging disruptive behavior by Montalbano in an incident with a patient. The report went to a triage committee for initial evaluation; it was then referred to the Physician Professional Practice Committee (PPPC) for evaluation. The PPPC then recommended that the Medical Executive Committee (MEC) appoint an ad hoc committee to investigate further. In the ensuing investigations, Montalbano alleges, the ad hoc committee learned that the report was not credible and contained falsehoods yet continued to rely upon the report.

In 2008, Dr. Donald Fox, as President of the Medical Staff, allegedly disclosed confidential information about the investigation to Dr. Christian Zimmerman. Zimmerman further disseminated the information, allegedly damaging Montalbano's reputation. Montalbano notified SARMC of this alleged breach of confidentiality. SARMC did not address the substantive concerns raised by Montalbano.

In August 2008, the ad hoc committee concluded that Montalbano violated the conduct policy and recommended a 90-day suspension. The MEC voted to approve this recommendation. Zimmerman was informed of this decision, again in an alleged breach of confidentiality, and again, the information was allegedly disseminated by Zimmerman. Montalbano sought a hearing and also filed formal reports against Fox and Zimmerman regarding breaches of confidentiality and disparaging remarks. The PPPC issued a precautionary suspension of privileges while the MEC investigated the reports Montalbano had filed. Five days later, the MEC reinstated Montalbano's privileges. The same ad hoc committee that was investigating Montalbano was appointed to investigate Montalbano's complaints regarding Fox and Zimmerman. On January 14, 2009, the ad hoc committee concluded that Montalbano's reports were not legitimate but retaliatory, and recommended that Montalbano's precautionary suspension be reinstated, which it was.

A hearing on the original report was held before the Fair Hearing Panel on February 16 and 17, 2009. The panel upheld the 90-day suspension recommended by the MEC. It also commented on the reports filed by Montalbano, a comment that Montalbano contends was a policy violation since the investigations should have been kept separate. An appellate review panel affirmed.

On August 4, 2009, Montalbano filed suit alleging civil conspiracy, defamation, violation of civil due process rights, and a variety of other causes of action. After filing suit, Montalbano sought to discover an extensive list of documents "related to the processes, activities, and decisions that ultimately led to the suspension of his privileges." When SARMC asserted a peer review privilege pursuant to I.C. § 39-1392b to not disclose, Montalbano filed a motion to compel. SARMC moved for a protective order.

Before a ruling was made, the parties stipulated to the terms of a protective order, which was approved by the district court on February 5, 2010. Under the terms of the order, the parties could release to each other confidential information, and by marking it as "confidential" receive assurances that the information would not be shared with anyone other than specifically designated persons.

On February 10, 2010, defendants SARMC, Fox, and Parks filed another memorandum in opposition to the motion to compel release of the peer review records. A hearing was held on February 17, 2010.

On February 25, 2010, the court issued a decision, granting in part and denying in part the motion to compel. The district court concluded that the materials related to the peer review process were protected, reasoning that "I.C. § 39-1392b . . . unambiguously protects all peer review records from discovery of any type and bars any testimony about those peer review records. Credentialing and privileging decisions are expressly defined as peer review activities.

I.C. § 39-1392a(11)." The district court concluded, "There can be no discovery of the peer review records nor can any witness be questioned about any information provided to the peer review committees nor the interpretation nor analysis of any evidence submitted as part of this process." Other matters of discovery were not protected:

[T]he alleged improper disclosure of confidential information to unrelated parties is not part of a peer review activity and is not privileged conduct under Idaho law. Also, the policies and procedures and Bylaws of St. Alphonsus do not fall within the peer review privilege and may be discovered. The policies which relate to the peer review process, how complaints are handled, how they are referred etc., do not fall within peer review activities and are subject to discovery. The policies themselves are not "the collection, interpretation and analysis of data" and the claim of privilege with respect to those policies is overruled. The plaintiff may engage in discovery on all of the allegations of his complaint unless the inquiry or request for documents directly or indirectly involves a peer review record as defined by the statute.

Montalbano thereafter moved for leave to file a permissive appeal of the court's interlocutory order. On March 24, 2010, the district court granted leave for Montalbano to file a permissive appeal pursuant to Idaho Appellate Rule 12. After carefully reviewing the potential impact on the district court proceedings, we granted the permissive appeal to review the applicability of I.C. § 39-1392b in physician disciplinary proceedings, a question of first impression, to advance trial litigation, and avoid a second appeal.*fn1 Verska v. St. Alphonsus Reg'l Med. Ctr., No. 37574-2010, 2011 WL 5375192, at *2 (Idaho Nov. 9, 2011). II. STANDARD OF REVIEW

"The control of discovery is within the discretion of the trial court." Jacobson v. State Farm Mut. Auto. Ins. Co., 136 Idaho 171, 173, 30 P.3d 949, 951 (2001). "A trial court's decision to grant or deny a motion to compel will not be disturbed by this Court unless there has been a clear abuse of discretion." Villa Highlands, LLC v. Western Community Ins. Co., 148 Idaho 598, 609, 226 P.3d 540, 551 (2010) (quoting Sirius LC v. Erickson, 144 Idaho 38, 43, 156 P.3d 539, 544 (2007)). "The sequence of inquiry as to whether the trial court abused its discretion is: (1) whether the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether the trial court reached its decision by an exercise of reason." Eagle Water Co., v. Roundy Pole Fence Co., 134 Idaho 626, 629, 7 P.3d 1103, 1106 (2000); see also Sirius LC, 144 Idaho at 43, 156 P.3d at 544.

"The interpretation of a statute is a question of law over which this Court exercises free review." Doe v. Boy Scouts of America, 148 Idaho 427, 430, 224 P.3d 494, 497 (2009). "When construing a statute, the words used must be given their plain, usual, and ordinary meaning, and the statute must be construed as a whole." City of Huetter v. Keene, 150 Idaho 13, __, 244 P.3d 157, 159 (2010) (quoting Athay v. Stacey, 142 Idaho 360, 365, 128 P.3d 897, 902 (2005)). "If the statute is not ambiguous, this Court does not construe it, but simply follows the law as written." Harrison v. Binnion, 147 Idaho 645, 649, 214 P.3d 631, 635 (2009) (quoting McLean v. Maverik Country Stores, Inc., 142 Idaho 810, 813, 135 P.3d 756, 759 (2006)).


A. Did the District Court err in holding that Idaho Code § 39-1392b precluded

Montalbano from discovering information related to SARMC's peer review of Montalbano?

The peer review privilege at question in this case is provided for in Idaho Code section 39-1392b ...

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