Opinion
No. CV07 401 34 08S
March 13, 2008
MEMORANDUM OF DECISION
This matter is an administrative appeal from a decision of the defendant, Freedom of Information Commission ("FOIC"), regarding the request by Louis Russo for the credentialing file of Jacob Zamstein, M.D. who maintained privileges at the John Dempsey Hospital, a state agency and constituent unit of the University of Connecticut Health Care.
Plaintiff claims that findings have prejudiced its substantial rights and contain errors of law. It also claims the findings contained in a final decision of FOIC are clearly erroneous and are arbitrary, capricious and characterized by an abuse of discretion.
A. Freedom of Information Statutes
The John Dempsey Hospital is a state agency and subject to the provisions of the Freedom of Information Act ("FOIA"). Under section 1-210(a) of FOIA:
Except as otherwise provided by any federal law or state law, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 212 . . .
However, in accordance with section 1-210(b), "[n]othing in the Freedom of Information Act shall be construed to require disclosure of:
. . .
(10) Records, tax returns, reports and statements exempted by federal or state statutes or communications privileged by the attorney-client relationship . . ."
Finally, section 1-214 provides:
(b) Whenever a public agency receives a request to inspect or copy records contained in any of its employees' personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned . . .
(c) . . . Upon the filing of an objection [by the employee] as provided in this subsection, the agency shall not disclose the requested records unless ordered to do so by the freedom of Information Commission pursuant to section 1-206 . . .
B. Peer Review Statutes
Connecticut maintains a peer review statutory scheme that protects against the disclosure of peer review materials. Peer review material is considered confidential and shall not be disclosed in certain circumstances.
"Peer review" is defined by Conn. Gen. Stat. § 19a-17b(a)(2) as 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, ambulatory care review and claims review.
Pursuant to this scheme, under Conn. Gen. Stat. § 19a-17b(d):
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 . . .
"Medical review committee" is defined by Conn. Gen. Stat. § 19a-17b(a)(4) as follows:
"Medical review committee" shall include any committee of a state or local professional society or a committee of any health care institution established pursuant to written bylaws . . . engaging in peer review, to gather and review information relating to the care and treatment of patients for the purposes of (A) evaluating and improving the quality of health care rendered; (B) reducing morbidity or mortality; or (c) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. It shall also mean any hospital board or committee reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto.
C. National Practitioner Data Bank Act
The National Practitioner Data Bank Act, 45 C.F.R. § 60.1 et seq., provides a mechanism for the collection and release of certain information relating to the professional competence and conduct of physicians and other health care practitioners. Hospitals, such as John Dempsey, are required by section 60.10(a) to query the Data Bank at the time a practitioner applies for a position on its medical staff or for clinical privileges, and every two years thereafter.
Listed in 45 C.F.R. § 60.11(a)(5) among those who may also query the Data Bank is:
An attorney, or individual representing himself or herself, who has filed a medical malpractice action or claim in a State or Federal Court or other adjudicative body against a hospital, and who requests information regarding a specific physician, dentist, or other health care practitioner who is also named in the action or claim. Provided that his information will be disclosed only upon the submission of evidence that the hospital failed to request information from the Data Bank as required by § 60.10(a), and may be used solely with respect to litigation resulting from the action or claim against the hospital.
Under 45 C.F.R. § 60.13(a), "Limitations on disclosure:"
Information reported to the Data Bank is considered confidential and shall not be disclosed outside the Department of Health and Human Services, except as specified in § 60.10, § 60.11 and § 60.14. Persons and entities which receive information from the Data Bank either directly or from another party must use it solely with respect to the purpose for which it was provided. Nothing in this paragraph shall prevent the disclosure of information by a party which is authorized under applicable State law to make such disclosure.
A comprehensive federal act, the Health Care Quality Improvement Act, was passed by Congress in 1986, 42 U.S.C. §§ 11101-52. Among other things, the Act not only encourages hospitals considering a physician's initial application for staff privileges to consult this national data bank created under the Act, but also requires the hospital to do so. 42 U.S.C. § 11135(a)(1).
The Act provides for a penalty for violation of its provisions under 45 C.F.R. § 60-13(b):
Any person who violates paragraph (a) shall be subject to a civil money penalty of up to $10,000 for each violation . . .
THE FACTS
On November 9, 2005, Mr. Louis Russo requested of John Dempsey Hospital information regarding Dr. Jacob Zamstein, specifically "all information pertaining to" disciplinary action noted on the Connecticut Department of Public Health physician profile. Record at 4-5. Receipt of this request was acknowledged November 14, 2005. Dr. Zamstein objected to the release of the requested information. Record at 123-24.
On December 12, 2005, Dr. Wetstone informed Mr. Russo of Dr. Zamstein's response and provided minutes of public meetings not covered by Dr. Zamstein's imposed exclusions. Record at 116-27.
On March 3, 2006, Mr. Russo filed a complaint with the FOIC which was rejected. Record at 1-3, 17-18. On that same date, Mr. Russo sent another request to John Dempsey Hospital, identical to that of November 9, 2005 and March 3, 2006, again seeking the same records of Dr. Zamstein regarding the suspension of his hospital privileges. Record at 21-22. On March 24, 2006, Mr. Russo sent another request to John Dempsey Hospital, identical that of November 9, 2005 and March 3, 2006, seeking "any and all records regarding the suspension on Dr. Jacob Zamstein regarding his suspension of his hospital privileges." Record at 150.
On June 22, 2006, Mr. Russo sent another request to the hospital identical to that of March 24, 2006 and the other prior requests. Record at 20, 149.
On June 27, 2006, Dr. Scott Wetstone wrote again to Mr. Russo indicating this was "the fourth or fifth request for the same information counting letters and phone calls." Record at 115. Dr. Wetstone indicated that the hospital's response to the request had not altered. Id. Dr. Wetstone provided the same documents previously provided December 2, 2005. As part of its appeal plaintiff raises the issue of timeliness. The Court has not addressed same in view of its other rulings.
On June 30, 2006, Mr. Russo filed a complaint with the FOIC, stating "I have a medical malpractice suit against Dr. Zamstein and this information is critical for me to have." Record at 19.
A hearing was noticed and held on September 28, 2006 and November 2, 2006 before a Hearing Officer. Record at 35, 37-111, 230-68
On January 19, 2007, the Hearing Officer issued a Proposed Final Decision. Record at 276-95. The Proposed Decision was adopted by the FOIC on February 28, 2007. Record at 321-63, 367-86.
This appeal ensued within the requisite time frames and this Court granted a stay of the FOIC's Final Decision pending the outcome of this appeal.
STANDARD OF REVIEW CT Page 4229
Connecticut General Statutes § 4-183(j) provides in relevant part:
The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
"The function of the court [is] to determine from the record before, without substituting its own discretion, whether the [administrative agency] acted illegally or in abuse of its powers." Connecticut Television, Inc. v. Public Utilities Commission, 159 Conn. 317, 324-25 (1970). An aggrieved party is entitled "only [to] a review of the proceedings before the [agency] to determine whether the action appealed from was legal." Id. at 329. On appeal, the court may not "retry the case or substitute its judgment for that of the defendant." CH Enterprises, Inc. v. Comm'r of Motor Vehicles, 176 Conn. 11, 12 (1978).
The court's ultimate duty is to determine, in light of all of the evidence, whether the agency has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. Perkins v. FOIC, 228 Conn. 158, 164 (1993). Nevertheless, where
the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts.
Although the court may not substitute its own conclusion for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion.
United Parcel Service, Inc. v. Administrator Unemployment Compensation Act, 209 Conn. 381, 385, 551 A.2d 724 (1988).
The Uniform Administrative Procedure Act, specifically Conn. Gen. Stat. § 4-183(a) provides, in pertinent part: "A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section."
The test for determining aggrievement is a two party inquiry: First, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.
Water Pollution Control Authority v. Keeney, 234 Conn. 488, 493-94, 662 A.2d 124 (1995). Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest has been adversely affected. New England Cable Television Assn., Inc. v. Department of Public Utility Control, 247 Conn. 95, 103, 717 A.2d 1976 (1998).
In this case, plaintiff claims it is aggrieved by the final decision of the FOIC that the requested "records are not exempt from mandatory disclosure pursuant to any provision of law" and that the "respondent Director violated the requirements of §§ 1-210(a) and 1-212(a), G.S., when he declined to provide the complainant with the copies of the requested records . . ." Record at 374. Plaintiff claims it is further aggrieved by the order of the FOIC that "[t]he respondent Director shall forthwith provide the complainant with a copy of the requested records, except for IC-20006-098-21, 24 and 25 and the minutes discussed at paragraph 10, above . . ." Record at 375.
The final decision correctly concluded that the requested records concern "peer review" as that matter is utilized in Conn. Gen. Stat. § 19a-17b(a)(2), and that the Clinical Affairs Subcommittee and the Credentials Committee were "established pursuant to written bylaws," are "engaging in peer review," and are "hospital . . . committee[s] reviewing the professional qualifications or activities of its medical staff . . ." See Record at 371, ¶¶ 15 and 16. It further correctly concluded that both the Clinical Affairs Subcommittee and the Credentials Committee are "[m]edical review committee[s]" as that term is utilized in Conn. Gen. Stat. § 19a-17b(a)(4). See Record at 371-72, ¶ 17. Neither party challenges these findings.
Medical peer review is the process by which physicians evaluate the quality of care delivered by other practitioners and effect disciplinary actions against medical staff members when appropriate. Peer review thus enhances "the quality of patient care through effective supervision of health care processionals [and] elimination from the health care system of those who should not practice." Peer Review Immunity Task Group, AHA, Immunity for Peer Review Participants in Hospitals: What Is It? Where Does It Come From? (1989). Every state and the District of Columbia now provides some confidentiality protections for peer review information. Julia A. Braun et al., Recent Developments in Medicine and Law, 35 Tort Ins. L.J. 487, 529-30 (Winter 2000).
Under Conn. Gen. Stat. § 19a-17b(a)(2), "peer review" is defined as:
The procedure for evaluation of health care professionals of the quality and efficiency of services ordered or performed by other health care processionals, including a) practice analysis, b) inpatient hospital and extended care facility utilization review, c) medical audit, d) ambulatory care review and e) claims review.
"Medical Review Committee" is defined under Conn. Gen. Stat. § 19a-17b(a)(4) as:
A committee of any health care institution established pursuant to written bylaws . . . engaging in peer review for the purposes of a) evaluating and improving the quality of health care rendered; b) reducing morbidity and mortality; or c) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care.
"Medical Review Committee" under § 19a-17b "shall also mean any hospital board or committee reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto." Babcock v. Bridgeport Hospital, 251 Conn. 790, 821 (1999).
The Babcock case also provides that the peer review privilege under Conn. Gen. Stat. § 19a-17b applies to those documents that reflect the proceedings of a peer review or are created primarily for the purpose of being utilized during the course of peer review. Further, the peer review privilege applies as well to the substantive exchanges that transpire during the course of a peer review meeting.
The members of the Medical Staff of the John Dempsey Hospital, UConn Health Center (JDH), are reappointed by the UConn Health Center Board of Directors Clinical Affairs Subcommittee biennially. Record at 191, ¶¶ 5-6. Reappointment, renewal, and review of clinical privileges is based on similar criteria for appointment to the medical staff, including ongoing monitoring of professional performance, judgment, clinical or technical skills, current competence, participation in continuing education, and organization performance improvement activities. Record at 191, ¶ 6. This information may be supplemented with references from peers who can attest to the member's current competence, references from other hospital affiliations or documentation of continuing medical education and/or evidence of performance improvement activities. See Record at 130, 138, 192, ¶ 8.
The process begins with the Credentials Committee of JDH examining the evidence of the applicant's licensure, character, training experience, current competence, malpractice issues and ability to perform the clinical privileges. Record at 192, ¶¶ 9-11. If the Credentials Committee is satisfied with the information received, the Committee forwards its recommendation to the JDH Medical Board. See Record at 137, 142, 192, ¶ 12. The Medical Board is the Medical Staff governing body. See Record at 139. Upon receipt of this recommendation and review, the Medical Board makes a recommendation on the applicant to the Clinical Affairs Subcommittee of the Board of Directors of the UConn Health Center. Id. The Clinical Affairs Subcommittee is the official point of contact between the Board of Directors, the Hospital Director, and the Medical Staff. See Record at 138. The Subcommittee makes the final decision on credentialing. Record at 192, ¶¶ 13-16.
The Credentials Committee, as a Medical Staff Committee, is deemed a "Medical Review Committee" conducting peer review as defined in Chapter 368a of the Connecticut General Statutes. These "Medical Review Committees" have been established for the purpose of conducting peer review which shall include evaluating the quality and efficiency of services ordered or performed by health care professionals, performing practice analyses, conducting inpatient hospital and extended care facility utilization reviews, conducting medical audits, and performing ambulatory care reviews, and claims reviews. Per the JDH Medical Staff Bylaws, it shall be intended and understood that when performing these activities, these medical review committees shall, among other things, gather and review information relating to the care and treatment of patients for the purpose of evaluating and improving the quality of health care rendered, reducing morbidity or mortality, or establishing guidelines to keep within reasonable bounds the cost of health care. It shall also be intended and understood that in order to properly and effectively carry out peer review activities, these medical review committees may from time to time require the assistance of others, including subcommittees, department chairs, service or division chiefs, committee and subcommittee chairs, officers of the Medical Staff, the Chief of Staff, and other individuals, and outside experts and consultants, and it shall be expressly intended that when such other groups and individuals are engaged by a medical review committee to assist in a peer review function, such others are part of the proceedings of such medical review committees for the purpose of performing peer review. See Record at 140.
Per the JDH Medical Staff Bylaws, the Clinical Affairs Subcommittee and the Medical Board function in some of their activities as a Medical Review Committee conducting peer review as defined in Chapter 368a of the Connecticut General Statutes, as amended from time to time. When acting as a Medical Review Committee, the Medical Board reviews and acts on recommendations from committees of the hospital or medical staff engaged in peer review and participates in the evaluation of the quality and efficiency of health services ordered and performed, including but not limited to review of the credentials, qualifications and activities of medical staff members or applicants; evaluating and improving the quality of health care services rendered; analyzing clinical practices within the hospital; reviewing studies of utilization and medical audits; reviewing studies of morbidity and mortality; and reviewing analyses of sentinel events or potential claims. When the Clinical Affairs Subcommittee, or its members, participates in these or similar studies, reviews, discussions and actions, it is a Medical Review Committee conducting peer review. In order to properly and effectively carry out peer review activities, these medical review committees may from time to time require the assistance of others, including subcommittees, department chairs, service or division chiefs, committee and subcommittee chairs, officers of the Medical Staff, the chief of staff, and other individuals, and outside experts and consultants, and it shall be expressly intended that when such other groups and individuals are engaged by a medical review committee to assist in a peer review function, such others are part of the proceedings of such medical review committees for the purpose of performing peer reviews. Proceedings of such peer review activities conducted by the Clinical Affairs Subcommittee, including data and information gathering and analyses and reporting by authorized individuals for the primary purpose of these peer review activities, as well as minutes and other documents from meetings or portions of meetings addressing peer review, shall be kept strictly confidential. See Record at 138. See also Record at 75-58.
Finally, the JDH Medical Staff Bylaws provide for procedures and appellate review in matters impacting an applicant's appointment or clinical privileges. See Record at 145-48.
The documents requested, contained in the credentialing file of Dr. Zamstein, reflect information with respect to the analysis of medical staff practices for the purposes of evaluating the performance of a health care professional for admission or reappointment to the medical staff. That process and the activities of the various committees involved are those of medical review committees engaged in peer review as established by medical staff bylaws.
The Credentials Committee, Medical Board, and Clinical Affairs Subcommittee, when acting upon Dr. Zamstein's application for reappointment, act as a medical review committee. This is further supported by St. Mary's Hospital v. Mary Jane Brackett, 28 Conn. L. Rptr. No. 8, 289, 292 (January 1, 2001), in which the court stated that the ad hoc committee in question "would be engaged in peer review, within the meaning of the statute [§ 19a-17b], because the committee consists of peers weighing the fitness of a fellow staff member." See Record at 210-13.
In Neumann v. Johnson, 2001 Conn.Super. LEXIS 2519 (2001) (Kolestsky, J.), see Record at 221-23, the court indicated that proceedings of a Credentials committee of Johnson Memorial Hospital would be protected, even if it was not willing at that time to protect the entire Credentials file. Unlike the Neumann case, in the present case, Mr. Russo sought documents regarding Dr. Zamstein as to "Hospital discipline within the last 10 years" and more specifically states: "I am requesting any and all records on the suspension of Dr. Zamstein, regarding his suspension of hospital privileges." See Record at 4-5. This request was followed with a reiteration on June 30, 2006 in which Mr. Russo stated: "I do not want anything else except the reasons for his denial of practicing at UCONN." See Record at 19. In a letter to the FOIC dated March 3, 2006, Mr. Russo lists several questions as to the information he is seeking which clearly request reasons for certain actions and concludes, "What I am looking for is the `Why' for all these actions." See Record at 3.
Three years after Neumann, in Hopkins v. Foster, 2004 Conn.Super. LEXIS 183 (2004) (Alvord, J.), see Record at 224-26, at issue were various documents contained in a credentialing file of Waterbury Hospital, to wit: physician profile, certificates from The American Board of Plastic Surgery, various letters, DRG Summary, Procedure Tallies, etc. the Court stated that "each of these documents was created by a medical review committee engaged in the process of peer review. The data contained in those documents was collected principally for the purpose of peer review and was not compiled independent of the peer review process." Therefore, the documents and the data they contain were determined to be privileged.
Subsequently, in the case of Ghent v. Glassman, 2005 Conn.Super. LEXIS 19 (2005) (Downey, J.), the court addressed the issue of the release of Dr. Glassman's credentialing file. The court indicated that certain information is releaseable such as "the subject's name, date of birth, work place and home addresses and professional schooling and licensure data" and "schooling, professional degrees, privileges authorizations, reappointment forms, continuing education, insurance coverage documents, curriculum vitae, with a listing of publications and correspondence regarding medical record suspensions [temporary and internal to the hospital] and fines and Dr. Glassman's resignation letter." However, the court also stated that there was also peer review generated material, specifically a performance evaluation and the correspondence related thereto which was the result of an evaluation of a medical peer group. The court found this peer review generated material was protected as privileged.
Most clearly, Mr. Russo is seeking the deliberations and conclusions that resulted from the credentialing proceedings engaged in by the Credentials committee, the Medical Board, and the Clinical Affairs Subcommittee of the Board of Directors at UCONN, i.e. Medical Review Committees when engaged in these proceedings. These proceedings resulted in a recommendation from the Credentials Committee which was reviewed by the Medical Board and the Clinical Affairs Subcommittee, unlike in the Neumann case. The bylaws and affidavit of Richard Simon previously cited explain the process involved during reappointment of privileges and when action is taken with regard to a practitioner's privileges at John Dempsey Hospital that could impact such privileges. The Hospital provided adequate evidence that the information sought relates to these "proceedings" and thus is protected under Babcock and Neumann. Dr. Simon's affidavit attests to the fact that the documents Mr. Russo seeks and the data therein were collected principally for the purpose of peer review and not compiled independent of the peer review process. See Record at 206-09. The privilege encompasses the substantive discussions and conclusions of a medical review committee engaged in peer review and extends to those documents created principally for the purpose of peer review. Babcock, 251 Conn. 823-24. It cannot be any clearer that Mr. Russo's request encompasses the substantive discussions and conclusions of a medical review committee and the documents created principally for the purposes of peer review relative to Dr. Zamstein's maintenance of privileges at the Hospital. Therefore, under Babcock and Foster, these documents requested are privileged.
In the present case, Mr. Russo is not seeking release of general public information of the type that would be contained in a curriculum vitae, but rather peer review generated materials related to the evaluation of Dr. Zamstein's performance as a physician by a medical peer group. This information is protected under Babcock and Glassman as peer review documents and privileged.
See also, e.g., Alexander v. Superior Court (Saheb,), 5 Cal. 4th 1218, 859 P.2d 96, 101-02 (1993) (en banc) ("applications for staff privileges do indeed pertain to [a hospital medical staff] committee's investigative and evaluative functions" and are thus protected from discovery by statutory exemption for records of a hospital medical staff committee); McGee v. Bruce Hosp. Sys., 312 S.C. 58, 439, S.E.2d 257, 260 (1993) (Statute that provides that "all data and information acquired by the committee" of a licensed hospital is confidential protects physicians' applications for staff privileges and supporting documentation submitted to Committee from discovery); Cruger v. Love, 599 So.2d 111, 114 (Fla. 1992) ("The policy of encouraging full candor in peer review proceedings is advanced only if all documents considered by the committee or board during the peer review of credentialing process are protected"); Dye v. St. John Hospital and Medical Center, 230 Mich.App. 661, 584 N.W.2d 747 (1998) (materials in credentials file relating to physician's application for staff privileges at hospital were protected credentials file relating to physician's application for staff privileges at hospital were protected from disclosure).
The FOIC correctly concluded that the documents requested concern peer review materials.
The Records Are Protected by the Peer Review Privilege of Conn. Gen. Sta. § 19a-17b(d)
The final decision contains an error of law in its conclusion that the peer review privilege does not apply to protect the documents from disclosure in this matter.
Conn. Gen. Stat. § 19a-17b(d) provides, in pertinent part:
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 ensuing out of the matters which are subject to evaluation and review by such committee.
Section 19a-17b(d)(4) does allow for the disclosure of "the fact that staff privileges were terminated or restricted, including the specific restriction imposed, if any." The minutes of the Committees were provided to Mr. Russo. These minutes indicated Dr. Zamstein's reappointment was not granted.
As Judge O'Connell stated in his dissenting opinion in Commissioner of Health Services v. Kadish, 17 Conn.App. 577, 582 (1989) (O'Connell, J., dissenting):
These proceedings, including data and information gathering, analyses, and reporting are kept strictly confidential. Peer review statutes are intended to encourage frank, uninhibited discussion, debate and criticism by the peers of a health care provider with projected goals of, inter alia continuing professional education evaluation of the quality of patient care, renewal of privileges, complaint investigation and malpractice review. The peer review committee's proceedings are designed to be free from the chilling concern that they would become public and expose its members to the involvement of court litigation and the glare of public attention.
"Indeed, if the purpose of the statute is to encourage doctors to evaluate their peers without fear of disclosure, that purpose would be hampered by public release of any proceedings." Id. Accord Morse v. Gerity, 529 F.Sup. 470, 472 (D.Conn. 1981); see also Carr v. Howard, 426 Mass. 514, 518, 689 N.E.2d 1304 (1998) (The obvious purpose of the statutory medical peer review privilege is to "promote candor and confidentiality" in the peer review process); Beth Israel Hospital Ass'n v. Board of Registration in Medicine, 401 Mass. 172, 182, 515 N.E.2d 574 (1987) ("to foster aggressive critiquing of medical care by the provider's peers"); Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 396, 822 N.E.2d 667 (2005) ("Physicians would be far less willing candidly to report, testify about and investigate concerns of patient safety if their actions would be subject to later scrutiny and possible litigation").
In Pardo v. The General Hospital Corporation, 446 Mass, 1, 15 n. 27, 841 N.E.2d 692d (2006), the Court stated:
The purpose served by the medical peer review privilege is similar in some respects to the attorney-client privilege, which is "founded on the necessity that a client be free to reveal information to an attorney without fear of its disclosure, in order to obtain informed legal advice . . ." Although the attorney-client privilege "creates an inherent tension with society's need for full and complete disclosure of all relevant evidence . . . that is the price that society must pay for availability of justice to every citizen." [Citations omitted.]
The danger of inhibiting candid professional peer review exists by the mere potential for disclosure. Any possibility that proceedings might be discoverable at a future date . . . presents a risk that a doctor will be reluctant to provide the meaningful peer review contemplated by the statute. The overriding importance of these review committees to the medical profession and the public requires that doctors have unfettered freedom to evaluate their peers in an atmosphere of complete confidentiality. No chilling effect can be tolerated in the committees are to function effectively.
Morse v. Gerity, 529 F.Supp. 470, 472 (D.Conn. 1981); accord Kadish, 17 Conn.App. at 583 (O'Connell, J., dissenting (emphasis added)).
"Much of the testimony during public hearings [on Conn. Gen. Stat. 19a-17(b) and during senate and house floor debate cites the need to protect peer review committee members against defamation actions initiated by reviewed physician as well as to ensure that peer review discussions would not form the basis of medical malpractice litigation." Commissioner of Health Services v. William W. Backus Hospital et al., 40 Conn.Sup. 188, 192 (1984). See also Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249, 250 (D.D.C. 1970), aff'd 479 F.2d 920 (D.C. Cir. 1973) (The free flow of information is outweighed by the public's interest in improved health care). The most serious disincentive to participation in peer review is therefore that participation will lead to a lawsuit against the reviewed physician. Restructuring Hospital-Physicians Relations: Patient Care Quality Depends on the Health of Hospital Peer Review, 51 U. Pitt L.Rev. 1025, `033-34 (summer 1990). Physicians may also fear that malpractice plaintiffs will obtain peer review materials, thereby making physicians unwitting witnesses in legal actions against their peers. See Charles David Creech, Comment, The Medical Review Committee Privilege: A Jurisdictional Survey, 67 N.C. L.Rev. 179 (1988). Thus, the possibility of litigation can significantly influence the behavior of physicians and other health care providers. Committee on Quality of Health Care in America, Institute of Medical, To Err Is Human: Building A Safer Health System 94 (Linda T. Kohn et al. eds. 1999).
This [physician] committee work is performed with the understanding that all communications originating therein are to be confidential. Confidentiality is essential to effective functioning of these staff meetings; and these meetings are essential to the continued improvement in the care and treatment of patients. Candid and conscientious evaluation of clinical practices is a sine qua non of adequate hospital care. To subject these discussions and deliberations to the discover process, without a showing of exceptional necessity, would result in terminating such deliberations.
Bredice, 50 F.R.D. at 250-51. See also Tucson Medical Center, Inc. v. Misevch, 113 Ariz. 34, 38, 545 P.2d 958 (1976) ("Bearing the delegated responsibility for review, the candor of the members is necessary in the consideration of their colleagues' skills towards objectively regulating privileges, and the quality of treatment so depends . . .); Mahmoodian v. United Hospital Center, Inc., 185 W.Va. 59, 65, 404 S.E.2d 750, cert denied, 502 U.S. 863 (1991) (peer review privilege "evinces 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"); Claypool v. Mladineo, 724 So.2d 373, 388 (Miss. 1998) ("Only were . . . peer review committees . . . are assured of confidentiality [will they] feel free to enter into uninhabited discussions of their peers."); Cruger v. Love, 599 So.2d 111, 114-15 (Fla. 1992) (Peer review privilege is "intended to prohibit the chilling effect of the potential public disclosure of statements made to or information prepared for and used by the committee in carrying out its peer-review function"); Trinity Medical Center, Inc., v. Holum, 544 N.W.2d 148, 155 (N.D. 1996) ("physicians . . . would not feel free to openly discuss the performance of other doctors practicing in the hospital, without assurance that their discussions in committee would be confidential and privileges"); Moretti v. Lowe, 592 A.2d 855, 857 (R.I. 1991) ("in enacting [Rhode Island's] peer review statute, the legislature recognized the need for open discussion and candid self-analysis in peer review meetings to ensure that medical care of high quality will be available to the public"); Cameron v. New Hanover Mem'l Hosp., 58 N.C.App. 414, 436, 293 S.E.2d 901, 914 (1982) ("external access to peer investigations conducted by staff committees stifles candor and inhibits objectivity"); Matchett Superior Court, 40 Cal.App.3d 623, 629, 115 Cal.Rptr. 317, 320-21 (1974) (same).
Conn. Gen. Stat. § 19a-17b(d) makes clear that peer review material "shall not be subject to discovery." If discovery via the FOI process is permitted, the flow of candid and critical information essential to compliance by the hospitals with credentialing requirements will cease, thereby nullifying the purpose of the process. See also Babcock v. Bridgeport Hospital, 251 Conn. 790, 742 A.2d 322, 344 (1999) ("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); Santa Rosa Memorial Hospital v. Superior Court, 174 Cal.App.3d 711, 720, 220 Cal.Rptr. 236 (1985) (peer review statute "embraces the goal of medical staff candor at the cost of impairing plaintiffs' access to evidence"); State ex rel. Shroades v. Henry, 187 W. Va. 723, 727, 421 S.E.2d 264 (1992) ("the peer review privilege represents a legislative choice between medical staff candor and the plaintiff's access to evidence").
A similar sentiment was expressed by the Court in McKillop v. Regents of University of California, 386 F.Sup. 1270, 1276 (N.D.Cal. 1975), in refusing to order the disclosure of tenure evaluation reports:
Plaintiff's suggestion that full disclosure encourages more thoughtful and honest tenure evaluations represents a somewhat utopian view of human relationships. It is a view which does not accord with that of University-level faculty members on record here, nor with the Court's own experience in dealing with recommendations and the like.
The communications and records which are the subject of this FOI complaint were made in reliance on the expectation they would not be disclosed. The element of confidentiality is essential to the promotion of a professional and harmonious relationship of the parties who participate in the hospital peer review system. The continuation of that relationship is one which must be fostered. In weighing the potential effects of ordering disclosure against the potential benefits of disclosure, the scales tip decidedly in favor of protecting the confidentiality of the hospital peer review system which embodies a broader societal value.
In short, disclosure of the materials invokes serious and important questions of public policy deserving careful consideration by the courts. An applicant seeking the opinions, conclusions, sources of information and investigative techniques of the agency should demonstrate a need more compelling than the agency's recognized interest in confidentiality.
McClain v. College Hospital, 99 N.J. 346, 492 A.2d 991, 998 (1985). Routine public disclosure or discovery of peer review documents and proceedings at the FOIC would have an intolerable chilling effect on the peer review process and would effectively undermine the cornerstone of confidentiality upon which the peer review statute rests.
Thus, the FOI Final Decision contains an error of law in allowing for "discovery" of the requested documents in contravention of the peer review privilege in § 19a-17b(d). Without even addressing the issue of "discovery" under § 19a-17b(d), the FOI Final Decision ignores this aspect of the statute and instead erroneously predicates its release of the documents on the finding that the peer review protection applies only to civil actions and thus does not pertain to the FOI proceeding. Record at 372 ¶ 18.
In addressing the issue of whether a purely pre-complaint administrative investigation proceeding of a health professional was a "civil action" under Conn. Gen. Stat. § 38-19a(d), now codified at Conn. Gen Stat. § 19a-17b(d), the Court in Commissioner of Health Services v. Kadish, 17 Conn.App. 577, 581, 554 A.2d 1097 (1989), cited to another case, stating:
We agree with the well reasoned decision of the Superior Court, in another case that an investigation by the commissioner of health services is not a "civil action" within the meaning of General Statutes § 38-19a(d). See Commissioner v. William W. Backus Hospital, 40 Conn.Sup. 188, 190, 485 A.2d 937 (1984) (M. Hennessey, J.).
The Backus case stated:
Numerous cases have defined the term "civil action" as it is used in various statutes. "The accepted meaning of the tern `civil action' in this State is very well illustrated by the provision of our Practice Act (General Statutes, § 607) [now § 52-91] that `there shall be but one form of civil action, and the pleadings therein shall be as follows: The first pleading on part of the plaintiff shall be known as the complaint . . .'" Hartford Electric Light Co. v. Tucker, 35 Conn.Sup. 609, 614, 401 A.2d 454 (1978) citing Slattery v. Woodin, 90 Conn. 48, 50, 96 A. 178 (1915); see also Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 653, 363 A.2d 1085 (1975); Bank Building Equipment Corporation v. Architectural Examining Board, 153 Conn. 121, 124, 214, A.2d 377 (1965); cf. Connecticut Light Power Co. v. Costle, 179 Conn. 415, 421-23, 426 A.2d 1324 (1980) (defining "civil cause"). The plaintiff investigation, which is not initiated by a complaint in the legal sense, does not fall within the above-cited definition of "civil action."
40 Conn.Sup. at 192. See also Black's Law Dictionary 311-12 (re'vd 4th ed. 1968) which defined civil action as:
[a]n action wherein an issue is presented for trial formed by averments of complaint and denials of answer or replication to new matter . . ., an adversary proceeding for declaration enforcement or protection of a right, or redress, or prevention of a wrong . . . Every action other than a criminal action [citations omitted].
Neither Kadish nor Backus support the proposition that peer review documents or proceedings may be disclosed at administrative FOI proceedings or upon request to an agency that conducts peer review. These cases hold only that medical peer review proceedings are not immune from production in a pre-complaint, confidential investigation of a health care professional conducted by the State Department of Public Health (DPH).
Further, of importance to the Backus court was the fact that the department of health services, in conducting its investigation of a health professional "must maintain the confidentiality of any investigation conducted pursuant to General Statutes § 20-13d. Such information may be released and made public only upon the happening of certain specified conditions." Id. At 193. It concluded:
As a result, the statutory scheme governing the evaluation of health care providers strikes a careful balance between the need for an unrestrained and objective review of alleged misconduct in the medical profession and the legitimate concerns of physicians and medical personnel for the maintenance of their reputations and standing in the community. See Connecticut General Assembly, Public Health Safety Committee, Public Hearing, March 9, 1984, p. 11.
Id. Such disclosure in the context of a DPH investigation does not thwart "the [peer review] statute's policy of promoting uninhibited discussion by medical personnel during peer review proceedings." Id.
Unlike Kadish and Backus, this matter is not a DPH investigatory proceeding. In the instant case, the proceeding before the Commission was initiated by a complaint in the legal sense. The FOIC is authorized by statute to decide the issues framed by the complaint. A hearing is held at which testimony is presented. As a contested case, the proceeding is governed by the kind of procedural formalities commonly associated with an action in court. And, the proceeding is public. It, therefore, does fall within the definition of "civil action." Wm. Backus Hosp., 40 Conn.Sup. At 192; Black's Law Dictionary at 311-12. The FOI proceeding is "an adversary proceeding for the declaration, enforcement or protection of a right, or redress, or prevention of a wrong," Black's at 311-12. In terms of the policies underlying the peer review statute, no meaningful distinction can be drawn between the FOI hearing and an action in court. No lesser protection should be accorded to peer review materials in this case.
Further, in the present case, there is no such maintenance of confidentiality once the records are disclosed to complainant, as there is with respect to release to DPH to conduct an investigation of a health care provider. Disclosure of the peer review records in this case does not "strike a careful balance between the need for an unrestrained an objective review" and "the legitimate concerns of physicians and medical personnel" as was struck in the Backus and Kadish cases.
Finally, the Final Decision produces an anomalous result. It permits these peer review records to become public upon a freedom of information complaint. As the dissenting opinion in Kadish stated:
At this point, the cat is out of the bag, so to speak. In a later civil action, however, § 38-19a(d) would preclude this information from being introduced into evidence and committee members would be prohibited from testifying as to the content of the committee proceedings. Statutes are not to be interpreted as to reduce a bizarre or unusual result. State v. Scott, 11 Conn.App. 102, 1198, 525 A.2d 1364, cert denied, 204 Conn. 811, 528 A.2d 1157 (1987); Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn.App. 432, 438, 489 A.2d 398 (1985), aff'd., 200 Conn. 630, 636, 513 A.2d 52 (1986). Construing the statute to affirm quashing the commissioner's subpoena avoids this bizarre result of attempting to close the barn door after the horse is stolen and plugs a hole in the confidentiality of the peer review system. Furthermore, affirmance of the trial court's decision is consistent with the policy of not construing a statute in a manner that will thwart its purpose. Sutton v. Lopes, 201 Conn. 115, 121, 513 A.2d 139, cert. denied sub nom. McCarthy v. Lopes, 479 U.S. 964, 107 S.Ct. 466, 93 L.Ed.2d 410 (1986); Breen v. Department of Liquor Control, 2 Conn.App. 628, 631, 481 A.2d 755 (1984).
Kadish, 17 Conn.App. At 585 (O'Connell, J., dissenting). The Final Decision's "narrow definition of civil action construes it in isolation from the scheme and purpose of the peer review program," Id. (Italic in original), and thwarts the purpose of the peer review statutory scheme.
The hospital claims that the peer review records are protected from disclosure under Conn. Gen. Stat § 19a-17b(d) and therefore exempt from disclosure under Conn. Gen. Stat. §§ 1-210(a) and 1-212(a), and that paragraphs 18-19 of the Final Decision contain erroneous findings. Pursuant to Conn. Gen. Stat. § 14-183(j)(4), (5), and (6) such findings are errors of law, clearly erroneous in view of the evidence on the record, and arbitrary, capricious, and an abuse of discretion.
Contrary to the findings in paragraphs 24 and 25 of the Final Decision, see Record at 373, the public interest in withholding the document clearly outweighs the public interest in disclosure. The determination is evident in the fact that every state and the District of Columbia now provide confidentiality protection for peer review information. Julia A. Braun, et al., Recent Developments in Medicine and Law, 35 Tort § Ins. L.J. 487-529-30 (Winter 2000).
Peer review statutes are intended to encourage frank, uninhibited discussion debate and criticism by the peers of a health care provider with projected goals of inter alia, continuing professional education evaluation of the quality of patient care, renewal of privileges, complaint investigation and malpractice review . . .
Commissioner of Health Services v. Kadish, 17 Conn.App. 577, 582 (1989) (O'Connell, J. dissenting). "Indeed, if the purpose of the statute is to encourage doctors to evaluate their peers without fear of disclosure, that purpose would be hampered by public release of any proceedings." Id.
The danger of inhibiting candid professional peer review exists by the mere potential for disclosure. Any possibility that proceedings might be discoverable at a future date . . . presents a risk that a doctor will be reluctant to provide the meaningful peer review contemplated by the statute. The overriding and importance of these review committees to the medical profession and the public requires that doctors have unfettered freedom to evaluate their peers in an atmosphere of complete confidentiality. No chilling effect can be tolerated if the committees are to function effectively. More v. Gerrity, 529 F.Sup. 470, 472 (1981).
Id. At 583. See also Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249, 250 (D.D.C. 1970) (The free flow of information is outweighed by the public's interest in improved health care.). See also pp. 15-18, supra.
In short, once the determination was made correctly that the requested records including IC-2006-098-7 concern "peer review" this Court must conclude that the public interest in withholding the records clearly outweighs the public interest in disclosure, contrary to the findings in paragraphs 24 and 25. The Court finds paragraphs 24 and 25 contain erroneous findings which must be overturned pursuant to Conn. Gen. Stat. § 4-183(j)(4), (5), and (6) as an error of law, clearly erroneous in view of the evidence on the record, and arbitrary, capricious, and an abuse of discretion.
John Dempsey Hospital submits that argument on this point, including the purpose of peer review and the threat to that purpose if disclosure is made of the documents, was made previously to the Hearing Officer.
The Final Decision correctly concludes in Paragraph 31 that IC-2006-098-20, 22, 23 and 33 "do `pertain to information from the National Practitioner's Data Bank,'" See Record at 374. However, it incorrectly concludes in paragraph 33 that such records are not protected from disclosure under the National Practitioner Data Bank Act.
Section 45 C.F.R. § 60-13(a) of that Act states:
Persons and entities which receive information from the Data Bank either directly or from another party must use it solely with respect to the purpose for which it was provided. Nothing in this paragraph shall prevent the disclosure of information by a party which is authorized under applicable State law to make such disclosure.
First, the information obtained by John Dempsey Hospital from the Data Bank was provided solely for the purpose of use in peer review proceedings involving the non-renewal of Dr. Zamstein's license. As Mr. Russo was not, is not now, and will not be a part of those proceedings or involved in any way with said non-renewal or credentialing process, disclosure to him of the documents cannot in any way be for use with respect to this purpose in contravention of the proscription in the above section.
Further, the mere act of disclosure to him would be a "use" by John Dempsey Hospital and its peer review committees not for the purpose for which it was provided, again in direct contravention of 45 C.F.R. § 60.13(a) and subject to penalty. Therefore, such disclosure cannot be made under federal law. As a result, the records are exempt from disclosure pursuant to Conn. Gen. Stat. §§ 1-210(a) and 1-210(b)(10), which exempt from disclosure records exempted by federal law.
Secondly, as previously discussed, said records are protected from disclosure under Conn. Gen. Stat. § 19a-17b(d) and thus disclosure is not authorized under applicable state law. Therefore, 45 C.F.R. § 60.13(a) protects said documents from disclosure.
Third, there is no provision in the federal or state statutes which authorizes John Dempsey Hospital to disclose this information.
Finally, the Final Decision fails to note 45 C.F.R. § 60.11(a)(5), regarding who may request information from the Data Bank. That section lists:
An attorney, or individual representing himself or herself, who has filed a medical malpractice action or claim in a State or Federal Court or other adjudicative body against a hospital, and who requests information regarding a specific physician, dentist, or other health care practitioner who is also named in the action or claim. Provided, that this information will be disclosed only upon the submission of evidence that the hospital failed to request information from the Data Bank as required by § 60.10(a) and may be used solely with respect to litigation resulting from the action or claim against the hospital (emphasis added).
Mr. Russo has admitted that he currently had pending against Dr. Zamstein a malpractice action and was seeking those records for utilization in that hearing. See Record at 19, 90, 93-94, 99-102, 104. However, there was no evidence submitted in this matter nor is there evidence on the record that Mr. Russo has a malpractice action or claim against any hospital, and in particular John Dempsey Hospital. Further, even if such evidence on the record existed, there is no evidence on the record that John Dempsey or any hospital failed to request information from the Data Bank.
What is clear on the record is that Mr. Russo does not have a malpractice action or claim against John Dempsey Hospital and John Dempsey Hospital did request information from the Data Bank as required by § 60.10(a).
Thus, there is no evidence to support a conclusion that Mr. Russo could receive this Data Bank information. Paragraph 33 contains an erroneous finding which is overturned under Conn. Gen. Stat. § 4-183(j)(4), (5), and (6) as an error of law, and is clearly erroneous in view of the evidence on the record, and arbitrary, capricious, and an abuse of discretion.
The findings contained in paragraphs 18-19, 24-25 and 33 of the Final Decision contain errors of law, are clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record, and are arbitrary, capricious, and characterized by an abuse of discretion. The FOIC's ultimate conclusion contained in paragraph 34 of the Final Decision is likewise in error and is overturned. The requested documents, IC-2006-098-1 through IC-2006-098-442, are exempt from mandatory disclosure and the director did not violate the requirements of Conn. Gen. Stat. § 1-210(a) and-212(a).
If Connecticut providers are to continue to have meaningful peer review as contemplated by the statutory scheme, physicians who participate in the peer review process must be assured that their evaluation of their peers will not be publicly disclosed.
The decision by the Freedom of Information Commission is reversed.