Opinion
No. X10 NNH CV 04 4017092 S CLD
January 19, 2006
MEMORANDUM OF DECISION RE PLAINTIFFS' MOTION FOR ORDER IN LIMINE OR TO COMPEL DISCOVERY
The issue before the court is twofold: 1) in a medical malpractice case where there are also counts of negligent credentialing and negligent supervision, can a hospital or professional employer introduce into evidence the fact that a peer review committee found that a doctor did not breach the standard of care in a particular case and did not take any action restricting or terminating a doctor's license, and if so, 2) can the plaintiff then have discovery of the members of the peer review committee and the substantive content of their work?
The short answer to the first question is no; therefore, the court need not reach the second issue.
This matter involves a claim for medical malpractice brought by the conservators of the estate of Mia House, who entered the operating room at Norwalk Hospital for the Caesarian delivery of a baby and was removed from the operating room after suffering severe injuries while on the operating table. The plaintiffs claim that the injuries to Ms. House were the result of professional negligence of the defendant, Dr. Angeluzzi, the anesthesiologist attending the surgery. Dr. Angeluzzi left the practice of medicine after the House occurrence suffering from a neurological or psychiatric condition. The plaintiffs further claim that the defendant, Norwalk Hospital and Dr. Angeluzzi's professional corporation, Norwalk Anesthesiologists, P.C. ("the P.C."), were negligent in their credentialing and supervision of Dr. Angeluzzi; part of those claims arise from the plaintiffs' assertion that these defendants knew or should have known that Dr. Angeluzzi was not fit because of his care for a patient named Cole, approximately five years before the House incident.
In the Cole case there also was an adverse occurrence which raised concerns regarding the quality of anesthesiology services provided by Dr. Angeluzzi while attending Ms. Cole's surgery. Thereafter, a peer review proceeding concerning Dr. Angeluzzi was held regarding the Cole matter. The results apparently did not include any termination or restrictions of the doctor's privileges at the hospital. The defendant hospital and the P.C. seek to put that evidence before a jury, asserting that it is relevant to the negligent supervision and credentialing claims against them, and that a jury could find that they reasonably relied on those results in their respective positions with regard to Dr. Angeluzzi.
The plaintiffs argue that if this evidence is admissible, they should be entitled to full discovery of the peer review process so that the jury can determine if that reliance was reasonable. The plaintiffs contend, in the alternative, that evidence of the ostensibly favorable peer review result should be precluded pursuant to General Statutes § 19a-17b(d). The defendants resist this both on the principles of the importance of maintaining the privilege of the peer review proceedings, and, arguing that they themselves did not inquire into the process: rather, they argue, the law provided a process, it was followed, and no adverse result ensued for Dr. Angeluzzi, and it is only those facts that they relied on, so no discovery is necessary. The defendants further contend that it would be patently unfair for them to be precluded from introducing evidence regarding the results of the peer review as a defense to the negligence claims against them.
This issue is governed by General Statutes 19a-17b(d), which provides,
The proceedings of a medical review committee conducting a peer review shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider arising out of the matters which are subject to evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to the content of such proceedings; provided the provisions of this subsection shall not preclude (1) in any civil action, the use of any writing which was recorded independently of such proceedings; (2) in any civil action, the testimony of any person concerning the facts which formed the basis for the institution of such proceedings of which he had personal knowledge acquired independently of such proceedings; (3) in any health care provider proceedings concerning the termination or restriction of staff privileges, other than peer review, the use of data discussed or developed during peer review proceedings; or (4) in any civil action, disclosure of the fact that staff privileges were terminated or restricted, including the specific restrictions imposed, if any.
(Emphasis added.)
The issue before tine court (which apparently is one of first impression, at least in the State of Connecticut) is whether the highlighted language permits the disclosure of the fact that staff privileges were not terminated as a result of peer review proceedings and the conclusion of a peer review committee that the standard of care was not violated in a particular case. In examining the statute, the court must follow the so-called plain meaning rule, which is codified at General Statutes § 1-2z:
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
The defendants urge the court to conclude that the language of subsection (4), by negative inference, allows disclosure of the fact that Dr. Angeluzzi's staff privileges were not terminated or restricted in any way by the peer review process. The defendant hospital also seeks to introduce into evidence the conclusion of the peer review committee that Dr. Angeluzzi did not breach the standard of care in the Cole case. Specifically, the defendants argue that, because subsection (4) permits disclosure of the fact that staff privileges were terminated in a civil action, it is reasonable to infer that the statute also permits disclosure of the fact that staff privileges were not terminated and that the standard of care was not breached. The court disagrees.
The arguments of the defendant hospital assume that the peer review committee found that Dr. Angeluzzi did not breach the standard of care in the Cole case.
The language of the statute is plain and unambiguous; the statute clearly and unequivocally states that there may be disclosure of the fact that staff privileges were terminated or restricted as a result of peer review proceedings. The statute does not, by express language or reasonable inference, permit disclosure of the fact that privileges were not terminated or restricted. Moreover, the statute nowhere addresses disclosure of the peer review committee's substantive conclusions regarding whether the standard of care was breached in a particular case. Accordingly, the court concludes that these items are covered by the general prohibition of disclosure prescribed by the statute. The legislature, had it so intended, could have used language in the statute to embrace the result that the defendants seek, but did not do so. See Morse v. Gerity, 520 F.Sup. 470, 472 (D.Conn. 1981) (construing predecessor to General Statutes § 19a-17b). The statute, being plain, clear, and unambiguous, leaves no room for construction and no basis for importing an additional exception therein. See Connecticut State Board of Labor Relations v. Board of Education, 117 Conn. 68, 73, 411 A.2d 28 (1979).
This result is further supported by well-established principles of statutory construction. The Connecticut Supreme Court has long held that "[w]here express exceptions are made, the legal presumption is that the legislature did not intend to save other cases from the operation of the statute." Marrocco v. Giardino, 255 Conn. 617, 637, 767 A.2d 720 (2001). This presumption is a manifestation of the classic hermeneutical maxim expressio unis est exclusio alterius, which translates to "the expression of one thing is the exclusion of the other." See id. The Supreme Court has consistently applied this maxim to foreclose arguments, like the one presently advanced by the defendants, that seek to create additional or further exceptions to a statute beyond those explicitly delineated by the legislature. See id; see also Gay Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 453, 476, 673 A.2d 484 (1996); 184 Windsor Ave., LLC v. State, 274 Conn. 302, 312-13, 875 A.2d 498 (2005).
Although not necessary to the court's decision, a review of the legislative history of the peer review statute confirms that the "plain meaning" reading reached by the court is sensible and follows from the legislative purpose, and is consistent with the public policy behind the peer review statutory provisions. The statutory provisions of the early peer review statute, contained in Public Act no. 76-413, contained no exceptions to the privileged nature of the work: "The opinions of a medical review committee shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider arising out of the matters which are subject to evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any opinions of said committee presented during the proceedings." It is notable that the privilege precluded the use of peer review opinions both in civil actions instituted by the health care provider as well those brought against it. The statute in 1976 referred to the "opinions" of the review committee as being subject to the privilege.
In response to a judicial decision that construed the word "opinions" narrowly, the legislature, in amending the statute in 1980, substituted the word "proceedings" for "opinions," intending to be far more comprehensive in the scope of materials covered by the nondisclosure provisions. It was at that same time that the present exceptions were carved out. The proponent of the bill's present language, senator Depiano, when presenting the bill on the floor of the senate, stated "The bill clarifies the role of the medical review committee in regard to peer review in the hospital and the role that that peer review will play in subsequent proceedings in court action. I believe the bill is very clear on its face." (Emphasis added. Legislative History, S.B. 245, April 29, 1980, p. 134.) On the floor of the house, the stated purpose of the bill was to "allow for some confidentiality in peer review proceedings with regard to any hospitals and medical facilities, but at the same time, it does allow that should there be a civil action with regard to any possible malpractice, that while protecting that peer review confidentiality, anything gained, any knowledge gained really independent of that peer review proceeding, would be allowable in a civil action." (Legislative History, S.B. 245, May 3, 1980, p. 7097.) This reiterated the purpose of the 1976 statute, namely, not to allow medical providers to wash evidence through a peer review proceeding, thereby rendering it unavailable for a civil trial because it was deemed privileged.
Nowhere in the legislative history of the 1976 act or the 1980 amendments did the legislature evince any intent to permit a broad reading of the statutorily carved out exceptions to the mandated nondisclosure of peer review proceedings. Instead, the opposite inference is appropriate; the four subsections of exceptions to nondisclosure were crafted at the same time, and were drawn upon what previously was a blanket prohibition of disclosure. This demonstrates that the legislature intended to be comprehensive, including all of the instances in which disclosure would be allowed, with the knowledge that any items not specifically excluded from the operation of the statute would be subject to the general prohibition of disclosure.
The defendant hospital and P.C. contend that it would be unfair for them to be precluded from introducing into evidence the peer review results stemming from the Cole case in defending the plaintiff's negligent supervision and credentialing claims in the present case. While the court appreciates the perceived unfairness of the operation of the statute, the legislature has made a conscious policy decision in favor of protecting the sanctity of the peer review process. "Should a conflict between access to such evidence and peer review confidentiality arise, it was the legislature's judgment in enacting the peer review privilege that the strong public policy favoring open peer review would outweigh any incidental burden on discovery." Babcock v. Bridgeport Hospital, 251 Conn. 790, 826, 742 A.2d 322 (1999). Although Babcock dealt with a discovery issue, the statute (and, concomitantly, the reasoning of Babcock) explicitly applies to both discovery and the introduction into evidence of peer review proceedings, and makes no distinction with regard to whether it is a plaintiff or defendant that seeks privileged material.
The defendant hospital and P.C. seek to introduce only the results of the peer review proceedings in the Cole case. This would result in a jury being left without any context within which to evaluate the reasonableness of the defendants' reliance on said results in considering the plaintiffs' negligent supervision and credentialing claims. On the other hand, permitting full discovery of the peer review proceedings in the Cole case likely would cause the kind of chilling effect on participation in the peer review process that the legislature intended to prevent in enacting the peer review privilege statute. See Babcock v. Bridgeport Hospital, supra, 251 Conn. 825-26.
In light of these findings, the court need not reach the additional questions raised in argument. The court grants the motion in limine as follows. The defendants Norwalk Anesthesiology, P.C. and Norwalk Hospital are not permitted to introduce evidence before the jury as to the results of the peer review process in the Cole case, including the peer review committee's lack of action regarding Dr. Angeluzzi's staff privileges. The balance of the plaintiff's motion to compel discovery is denied.