ELECTRONICALLY FILED DEC 12, 2016 CLERK OF ... General of Iowa ANNE UPDEGRAFF (AT0008026) Assistant...
Transcript of ELECTRONICALLY FILED DEC 12, 2016 CLERK OF ... General of Iowa ANNE UPDEGRAFF (AT0008026) Assistant...
IN THE IOWA SUPREME COURT
No. 16-1009
DENNIS WILLARD,
Plaintiff-Appellee,
vs.
STATE OF IOWA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OFJOHNSON COUNTY
HONORABLE MITCHELL E. TURNER
APPELLANT’S BRIEF
THOMAS J. MILLERAttorney General of Iowa
ANNE UPDEGRAFF (AT0008026)Assistant Attorney GeneralDepartment of Justice - Special LitigationHoover State Office BuildingDes Moines, Iowa 50319Phone: 515-281-6669Fax: [email protected]
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PROOF OF FILING AND SERVICE
The undersigned hereby certifies that she, or a person acting on her
behalf, electronically filed the Appellant's Brief on the 12th day of
December, 2016, and further certifies that she, or a person acting on her
behalf, served the Appellant’s Brief on all other parties to this appeal via
EDMS.
JEFFREY R. TRONVOLDMATT J. REILLYEELLS & TRONVOLD LAW OFFICES, P.L.C.1921 51st Street NECedar Rapids, IA 52402ATTORNEYS FOR PLAINTIFF-APPELLEE
PAUL DREY, JEANINE FREEMAN, ALLISON M. STEUTERMANBRICK GENTRY, P.C.6701 Westown Parkway, Suite 100West Des Moines, IA 50266ATTORNEYS FOR AMERICAN MEDICAL ASSOCIATION &IOWA MEDICAL SOCIETY
ERIKA ECKLEY100 East Grand Avenue, Suite 100Des Moines, IA 50309ATTORNEY FOR IOWA HOSPITAL ASSOCIATION
T. RANDALL WRIGHT ofBAIRD HOLM L.L.P.1700 Farnam Street, Suite 1500Omaha, NE 68102-2068ATTORNEY FOR IOWA HOSPITAL ASSOCIATION
/s/ ANNE UPDEGRAFFANNE UPDEGRAFFAssistant Attorney General
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TABLE OF CONTENTS
Proof of Filing and Service.......................................................................... ii
Table of Contents......................................................................................... iii
Table of Authorities ..................................................................................... iv
Statement of the Issues ................................................................................ viii
Routing Statement........................................................................................ 1
Statement of the Case .................................................................................. 1
Statement of the Facts.................................................................................. 3
Argument ..................................................................................................... 7
I. THE DISTRICT COURT ERRED IN FINDING THATTHE STATE FAILED TO PROVE THE MORBIDITYAND MORTALITY PRIVILEGE APPLIES TO THE PSNDOCUMENTS ....................................................................... 7
A. THE PSN AT ISSUE WAS PROVIDED TO BEUSED IN THE COURSE OF ANY STUDY FOR THEPURPOSE OF REDUCING MORBIDITY ANDMORTALITY................................................................... 10
B. THERE IS NO REQUIRMENT OF A THIRD PARTYREQUEST FOR THE MORBIDITY ANDMORTALITY PRIVILEGE TO APPLY...................... 15
II. THE DISTRICT COURT INCORRECTLY HELD THATTHE PSN MATERIAL IS DISCOVERABLE UNDERTHE MORBIDITY AND MORTALITY PRIVILEGE.... 17
Conclusion ................................................................................................... 31
Notice of Oral Argument ............................................................................. 33
iv
Certificate of Compliance............................................................................ 34
TABLE OF AUTHORITIES
Cases Page(s)
Bredice v. Doctors Hospital Inc., 50 F.D.R. 249 (D.D.C. 1970) ........... 28, 30
Burton v. University of Iowa Hospitals & Clinics, 566 N.W.2d 187(Iowa 1997)................................................................................... 8, 11, 16, 27
Cairns v. Grinnell Mutual Reinsurance Co., 398 N.W.2d 821(Iowa 1987)................................................................................................ 20
Carolan v. Hill, 553 N.W.2d 882 (Iowa 1996)................................... 8, 10, 18
Carr v. Howard, 689 N.E.2d 1304 (Mass. 1998) ...................................... 27
Cawthorn v. Catholic Health Initiatives Iowa Corp., 806 N.W.2d 282(Iowa 2011)................................................................................................ 22
Day v. The Finley Hosp., 769 N.W.2d 898 (Iowa Ct. App. 2009) ............ 22
Hardin County Drainage District 55 v. Union Pacific RailroadCompany, 826 N.W.2d 507 (Iowa 2013)..........................................8-9, 18-19
Hutchinson v. Smith Laboratories, Inc. 392 N.W.2d 139(Iowa 1986).............................................................................................. 8, 25
In Interest of G.J.A., 547 N.W.2d 3 (Iowa 1996) ...................................... 19
Iowa Comprehensive Petroleum Underground Storage Tank FundBoard v. Shell Oil Company, 606 N.W.2d 376 (Iowa 2000)..................... 20
Keefe v. Bernard, 774 N.W.2d 663 (Iowa 2009)..................................... 7, 18
Powell v. Community Health System, 312 S.W.2d 496 (Tenn. 2010)....... 27
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State ex rel. Iowa Department of Transportation v. General ElectricCredit Corp. of Delaware, 448 N.W.2d 335 (Iowa 1989) ........................ 19
Weekoty v. United States, 30 F.Supp.2d 1343 (D.N.M. 1998)............... 27, 29
Zimmer v. Vander Waal, 780 N.W.2d 730 (Iowa 2010) ............................ 8
Statutes
Iowa Code § 4.1(30)(a) (2016) ............................................................... 16, 21
Iowa Code § 4.1(30)(c) (2016) .................................................................. 16
Iowa Code § 4.4(2) (2016)......................................................................... 19
Iowa Code § 4.4(5) (2016)...................................................................... 19, 29
Iowa Code § 4.6 (2016) ........................................................................... 9, 18
Iowa Code § 4.6(5) (2016)......................................................................... 30
Iowa Code § 135.40 (2016) .......................................1, 4, 8, 10, 12-13, 21, 32
Iowa Code § 135.41 (2016) ............................1, 4, 8, 12, 15-17, 21-22, 24, 32
Iowa Code § 135.42 (2016) ............................................. 1, 4, 8, 12, 19-21, 32
Iowa Code Chapter 147 (2016).................................................................. 24
Iowa Code § 147.135 (2016) ..................................................................... 22
Iowa Code § 147.135(2) (2016)...............................................................22-23
Iowa Code § 147.135(3)(b) (2016)............................................................ 23
Iowa Rule of Appellate Procedure 6.1101(2) (2016) ................................. 1
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Iowa Rule of Civil Procedure 1.503(1) (2016).......................................... 18
Iowa Rule of Evidence 5.501 (2016)......................................................... 18
Iowa Rule of Evidence 5.1101 (2016)....................................................... 18
Other Authority
House File 803, 66th General Assembly, Chapter 239, section 15(June 30, 1975)........................................................................................... 25
House File 2518, 73rd General Assembly, Chapter 1086, section 7(March 27, 1990) ....................................................................................... 25
House File 2718, General Assembly Chapter 1128, sections 1, 2(May 24, 2006)........................................................................................... 24
Iowa Senate File 74, 82nd General Assembly, Chapter 10, section 82(March 9, 2007) ......................................................................................... 25
Iowa Senate File 85, 66th General Assembly, Chapter 1245, section138 (June 28, 1976) ................................................................................... 24
Iowa Senate File 340, 60th General Assembly, Chapter 121, sections1, 2, 3 (June 4, 1963) ................................................................................. 24
Iowa Senate File 449, 83rd General Assembly, Chapter 133, section51 (May 22, 2009) ..................................................................................... 25
Iowa Senate File 2265, 71st General Assembly, Chapter 1211,section 14 (May 22, 1986) ......................................................................... 25
Pamela L. Popp et al., The Trials and Tribulations of IncidentReports: Are They Worth the Trouble? (Mar. 2, 2000) (AmericanHealth Lawyers Association Seminar Materials, available on Westlawat AHLA-PAPERS P03020018)................................................................ 26
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Promoting Better Health Care; Policy Arguments for ConcurrentQuality Assurance and Attorney - Client Hospital Incident ReportPrivileges, 3 Health Matrix 259 (1993)..................................................... 26
The Medical Review Committee Privilege: A Jurisdictional Survey,67 N.C. L. Rev. 179 (1998) ....................................................................... 26
http://c.merriam-webster.com/medlineplus/morbidity .............................. 11
http://c.merriam-webster.com/medlineplus/mortality ............................... 11
http://www.merriam-webster.com/dictionary/study.................................. 14
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STATEMENT OF THE ISSUES
I. THE DISTRICT COURT ERRED IN FINDING THAT THESTATE FAILED TO PROVE THE MORBIDITY ANDMORTALITY PRIVILEGE APPLIES TO THE PSNDOCUMENTS
Iowa CodeIowa Code § 135.40 (2016)Iowa Code § 135.41 (2016)Iowa Code § 135.42 (2016)Iowa Code § 4.6 (2016)Iowa Code § 4.1(30)(a) (2016)Iowa Code § 4.1(30)(c) (2016)
CasesKeefe v. Bernard, 774 N.W.2d 663 (Iowa 2009)Hardin County Drainage District 55 v. Union Pacific Railroad Company,
826 N.W.2d 507 (Iowa 2013)Burton v. University of Iowa Hospitals & Clinics, 566 N.W.2d 187 (Iowa
1997)Hutchinson v. Smith Laboratories, Inc. 392 N.W.2d 139 (Iowa 1986)Carolan v. Hill, 553 N.W.2d 882 (Iowa 1996)Zimmer v. Vander Waal, 780 N.W.2d 730 (Iowa 2010)
Other Authoritieshttp://c.merriam-webster.com/medlineplus/morbidityhttp://c.merriam-webster.com/medlineplus/mortalityhttp://www.merriam-webster.com/dictionary/study
II. THE DISTRICT COURT INCORRECTLY HELD THAT THEPSN MATERIAL IS DISCOVERABLE UNDER THEMORBIDITY AND MORTALITY PRIVILEGE
Iowa CodeIowa R. Civ. P. 1.503(1) (2016)Iowa Rule of Evidence 5.501 (2016)Iowa Rule of Evidence 5.1101 (2016)Iowa Code § 4.6 (2016)
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Iowa Code § 4.4(2) (2016)Iowa Code § 4.4(5) (2016)Iowa Code § 135.42 (2016)Iowa Code § 4.1(30)(a) (2016)Iowa Code § 135.40 (2016)Iowa Code § 135.41 (2016)Iowa Code § 147.135 (2016)Iowa Code § 147.135(2) (2016)Iowa Code § 147.135(3)(b) (2016)Iowa Code Chapter 147 (2016)Iowa Code § 4.6(5) (2016)
CasesKeefe v. Bernard, 774 N.W.2d 663 (Iowa 2009)Hardin County Drainage District 55 v. Union Pacific Railroad Company,
826 N.W.2d 507 (Iowa 2013)Carolan v. Hill, 553 N.W.2d 882 (Iowa 1996)In Interest of G.J.A., 547 N.W.2d 3 (Iowa 1996)State ex rel. Iowa Department of Transportation v. General Electric Credit
Corp.of Delaware, 448 N.W.2d 335 (Iowa 1989)Iowa Comprehensive Petroleum Underground Storage Tank Fund Board v.
Shell Oil Company, 606 N.W.2d 376 (Iowa 2000)Cairns v. Grinnell Mutual Reinsurance Co., 398 N.W.2d 821 (Iowa 1987)Cawthorn v. Catholic Health Initiatives Iowa Corp., 806 N.W.2d 282 (Iowa
2011)Day v. The Finley Hosp., 769 N.W.2d 898 (Iowa Ct. App. 2009)Powell v. Community Health System, 312 S.W.2d 496 (Tenn. 2010)Carr v. Howard, 689 N.E.2d 1304 (Mass. 1998)Weekoty v. United States, 30 F. Supp.2d 1343 (D. N. M. 1998)Burton v. University of Iowa Hospitals & Clinics, 566 N.W.2d 187 (Iowa
1997)Bredice v. Doctors Hospital Inc., 50 F.D.R. 249 (D.D.C. 1970)
Other AuthoritiesIowa Senate File 340, 60th General Assembly Chapter 121, section 1, 2, 3
(June 4, 1963)Iowa Senate File 85, 66th General Assembly Chapter 1245, section 138 (June
28, 1976)House File 2718, General Assembly Chapter 1128, sections 1, 2 (May 24,
2006)
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House File 803, 66th General Assembly Chapter 239, section 15 (June 30,1975)
Senate File 2265, 71st General Assembly, Chapter 1211, section 14 (May 22,1986)
House File 2518, 73rd General Assembly, Chapter 1086, section 7 (March27, 1990)
Senate File 74, 82nd General Assembly, Chapter 10, section 82 (March 9,2007)
Senate File 449, 83rd General Assembly, Chapter 133, section 51 (May 22,2009)
Pamela L. Popp et al., The Trials and Tribulations of Incident Reports: AreThey Worth the Trouble? (Mar. 2, 2000) (American Health LawyersAssociation Seminar Materials, available on Westlaw at AHLA-PAPERS P03020018)
The Medical Review Committee Privilege: A Jurisdictional Survey, 67 N.C.L. Rev. 179 (1998)
Promoting Better Health Care; Policy Arguments for Concurrent QualityAssurance and Attorney –Client Hospital Incident Report Privileges,3 Health Matrix 259 (1993)
ROUTING STATEMENT
Appellant State of Iowa urges the Iowa Supreme Court to retain this
interlocutory appeal as it presents a fundamental and urgent issue of broad
public importance regarding the construction and application of the State of
Iowa’s Morbidity and Mortality statutes, pursuant to Iowa Rule of Appellate
Procedure 6.1101(2).
STATEMENT OF THE CASE
This case is a medical malpractice action and involves the
construction and application of the Morbidity and Mortality (M & M)
statutes found in Iowa Code §§ 135.40-135.42. The State objected to
disclosure of M & M materials on the grounds that they are protected under
legal privilege, the protection cannot be waived, and the materials are not
discoverable. (App. 4, 18, 93). On March 14, 2016, Appellee Willard
(Willard), filed a motion to compel against the State seeking discovery of the
M & M materials. (App. 4). On March 24, 2016, the State resisted the
motion to compel. (App. 18). On March 29, 2016, Willard replied. (App.
38).
On April 15, 2016, the district court held a telephone conference call
and the parties made legal argument as to the discovery of the contested M
& M materials. (App. 48). The district court permitted the State to submit
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the disputed M & M materials to the district court for in camera review.
(App. 46). The district court continued the hearing until May 18, 2016 to
allow the State to present evidence. (App. 46). An evidentiary hearing was
held on May 18, 2016, in which Deborah Thoman testified. (App. 50, 52).
On June 9, 2016, the district court entered a ruling granting Willard’s motion
to compel discovery of the M & M materials, ordering the State to produce
the materials within ten days, denying the State’s request for a stay until any
interlocutory appeal was resolved, and ordering Willard not to disclose the
M & M materials to anyone other than his expert witness(es) without further
court order. (App. 101).
On June 13, 2016, the State filed an application for interlocutory
review. (App. 103). On June 16, 2016, the Court denied the application
(App. 114). On June 17, 2016, the State sought review of the denial for
interlocutory appeal pursuant to Iowa Rule of Appellate Procedure
6.1002(5). (App. 116). That same day, the Court stayed the district court’s
order and permitted Willard to file a response. (App. 118). On June 22,
2016, Willard filed a resistance. (App. 120). On June 24, 2016, the Court
granted the State’s interlocutory appeal and stayed further district court
proceedings. (App. 128).
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STATEMENT OF THE FACTS
Willard filed this medical malpractice suit alleging “[o]n or about
November 6, 2011, while being transported for the purpose of obtaining a
CT, Dennis was negligently handled in such a way that he sustained
significant injuries to his left shoulder, and his foot was broken.” (App. 2).
Willard was transported to the University of Iowa Hospitals and Clinics
(UIHC) following a head-on motor vehicle accident during the late hours of
November 3, 2011. (App. 91). Willard arrived at the UIHC early in the
morning of November 4, 2011. (App. 91). Later that day, he had an x-ray
of his left shoulder. (App. 130). The x-ray showed his left shoulder in
apparent anatomic alignment.
On November 6, 2011, Willard underwent an abdominal CT for his
internal organ injuries. Upon return from the CT, UIHC staff requested an
orthopaedic team consult regarding Willard’s left shoulder. The orthopaedic
physician ordered more x-rays and at that point a diagnosis of “anterior-
inferior dislocation of the left shoulder” was made by Dr. Buckwalter. (App.
132). Dr. Buckwalter then relocated Willard’s shoulder. During this time
period, Willard was under heavy sedation. (App. 91).
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During written discovery and depositions, the State acknowledged
that 20 pages1 of materials were withheld pursuant to the Morbidity and
Mortality provisions found in Iowa Code §§ 135.40-135.42, and, thus,
objected to disclosing the material. (App. 93-94, 141, 143). As noted by
Willard, the State has produced 5,557 pages of discovery during litigation.
(App. 6). The 20 pages are covered by the M & M provisions in Iowa Code
§§ 135.40-135.42. Specifically, a four-page document known as a Patient
Safety Net (PSN) form and an associated eight pages of response were
withheld pursuant to those provisions. The second PSN information is also
eight pages in length. Thus, the disputed M & M materials/information is 20
pages in total. (Confidential App. 1-20).
The State submitted the disputed 20 pages of M & M materials to the
district court for in camera review. (App. 46, 48, 91, 94; Confidential App.
1-20). Additionally, the State offered evidence on the PSN process through
the UIHC compliance, accreditation, and privacy officer, Ms. Deborah
Thoman. (App. 52-53). At UIHC a PSN is an electronic document where
UIHC employees enter events that raise a safety concern for patients. (App.
60). Examples of the type of events reported in a PSN include wrong timing
1After the State responded to the follow-up discovery requests and with thesupplemental answers, a second Patient Safety Net (PSN) form regardingWillard was found. The discovery responses were supplementedaccordingly to reflect this.
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or dose of medications or incorrect routing of laboratory results. (App. 62).
UIHC employees are encouraged to submit a PSN for any event that raises a
safety concern for patients. (App. 60).
Once submitted electronically by a UIHC employee, the PSN is
initially reviewed by individuals in the UIHC Quality Department. The
review is conducted daily. (App. 63-64). The Quality Department
employees conduct a triage of the PSNs to determine where to route each
PSN. (App. 64, 77). The Safety Oversight Team, a multidisciplinary group,
reviews many of the PSNs for trends and then revises policy based on
trends. (App. 63).
If a PSN reports a serious adverse event or a sentinel event, it is
reviewed by the Safety Oversight Team to decide whether a Root Cause
Analysis (RCA) is called for or whether a policy needs to be revised. (App.
26, 30, 63). In a RCA, a group of content experts studies a serious patient
event and determines the root and contributing causes to the event. (App.
31, 56). The RCA group then provides recommendations to reduce the risk
of reoccurrence in the future. (App. 31). An action plan based on the
recommendations is then implemented. (App. 31-32). A UIHC formal
policy requires that a PSN be entered for all serious adverse events. (App.
26). PSNs can also be routed to an individual in a specific department who
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handles patient safety issues. (App. 64-65). For instance, if the PSN reports
an issue about anesthesia care, it may be sent to the individual in the
anesthesia department responsible for patient safety issues. (App. 65).
PSN materials are used to track concerning trends; for conducting
RCAs; for research purposes; for conference presentations; and for literature
reviews. (App. 56, 61). Further, PSN materials are used in quality
improvement studies, which is when UIHC internally reviews processes in
order to improve patient care. (App. 62). PSNs are a source of data and
information regularly used by UIHC in order to learn and improve on patient
safety. (App. 62). Hundreds or thousands of PSNs are entered every year.
(App. 62-63).
Although it is unknown whether the Willard PSN(s) was used for a
research purpose, RCA, quality improvement study, or conference
presentation, because the database does not track how PSNs are used, the
PSN system has resulted in significant changes and improvements in patient
care and safety at UIHC. (App. 68-74). The improvements can be as minor
as removing a line from a form that is confusing, or as major as redesigning
a process or policy to improve patient safety. (App. 68). The UIHC
constantly studies ways to improve patient outcomes and reduce the
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morbidity and mortality of patients, and PSNs are an essential part of this
process. (App. 66, 68, 74).
Most hospitals or health facilities have a system where individuals can
report patient safety concerns or events, although those other facilities may
have a different name for the process. (App. 75-76). UIHC employees are
told that PSNs are confidential and protected so that they are comfortable
reporting events or incidents. (App. 65-66). If the PSNs are subject to
disclosure in litigation, it would have a chilling effect on people reporting
events. (App. 67).
ARGUMENT
I. THE DISTRICT COURT ERRED IN FINDING THAT THESTATE FAILED TO PROVE THE MORBIDITY ANDMORTALITY PRIVILEGE APPLIES TO THE PSNDOCUMENTS
Error Preservation.
Error was preserved by the State in its resistance to the motion to
compel, evidence and argument at hearing, and by in camera review of the
documents in issue. (App. 18, 50, 91).
Standard of Review.
The standard of review on a motion to compel is for abuse of
discretion. Keefe v. Bernard, 774 N.W.2d 663, 667 (Iowa 2009) (citations
omitted). Issues of statutory construction are reviewed for corrections of
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legal error or errors at law. Id., Hardin County Drainage District 55 v.
Union Pacific Railroad Company, 826 N.W.2d 507, 510 (Iowa 2013).
Merits.
The first issue to be reviewed by this Court is whether the M & M
confidentiality privilege applies to the PSNs at issue. Iowa Code §§ 135.40-
135.42 create a confidentiality privilege for M & M information. Burton v.
University of Iowa Hospitals & Clinics, 566 N.W.2d 187-188 (Iowa 1997).2
No authority exists in Iowa for a M & M privilege under common law. See
Cf. Hutchinson v. Smith Laboratories, Inc. 392 N.W.2d 139, 141 (Iowa
1986)(no common law privilege exists for peer review records). When a
privilege is statutory, the terms of the statute “define the reach of the
privilege”. Carolan v. Hill, 553 N.W.2d 882, 886 (Iowa 1996).
In order to determine whether the PSNs are entitled to
the M & M confidentiality privilege, statutory construction must be
employed. The goal of statutory construction is to determine legislative
intent. Zimmer v. Vander Waal, 780 N.W.2d 730, 733 (Iowa 2010). When
ascertaining legislative intent, the language of the statute is examined
holistically. Hardin County Drain District 55 v. Union Pacific Railroad
Company, 826 N.W.2d 507, 512 (Iowa 2013). The statute is assessed in its
2 Neither the district court nor the Plaintiff disputed that the statutes do createa privilege. (App. 4, 38, 100).
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entirety, “not just isolated words and or phrases”, and no part is rendered
redundant or irrelevant. Id. (citations omitted). The goal is a “reasonable
interpretation that best achieves the statute’s purpose and avoids absurd
results”. Id. (citations omitted). Legislative intent is ascertained from the
subject matter, the object sought to be served, underlying policies and
consequences of the various interpretations. Id. (citations omitted); Iowa
Code § 4.6 (2016). The analysis begins with the question of what the
legislature intended to accomplish with the statutory scheme. Hardin
County Drainage District 55 v. Union Pacific Railroad Company, 826
N.W.2d at 512.
If the statutory language is plain and unambiguous, there is no need
for construction. Id. (citation omitted). Statutory construction is utilized
when the terms of the statute are ambiguous. Id. (citation omitted). “If
reasonable persons can disagree on a statute’s meaning, it is ambiguous.”
Id. (quotation and citation omitted). Words in a statute are given their
ordinary and common meaning under the context used in the absence of a
statutory definition or an established meaning in the law. Id. (citations
omitted).
The M & M privilege applies for purposes of this suit when:
1) any person or hospital;
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2) provides information, interview, reports, statements,memorandum or other data;
3) relating to the condition and treatment of any person;4) to any in-hospital staff committee; and5) to be used in the course of any study for the purpose of
reducing morbidity and mortality.
Iowa Code § 135.40 (2016).
A. THE PSN AT ISSUE WAS PROVIDED TO BE USED IN THECOURSE OF ANY STUDY FOR THE PURPOSE OFREDUCING MORBIDITY AND MORTALITY
The district court held the State failed to prove that the PSN
documents were “created for use in the course of any study”. (App. 100).
The district court used an overly restrictive construction of Iowa Code §
135.40. Similarly to the peer review privilege statute, the M & M statute
should be granted a broad and expansive scope. Carolan v. Hill, 553
N.W.2d at 886 (citations omitted). Proof of the expansive scope of the M &
M privilege is found in the language of Iowa Code § 135.40. It applies to
any persons, specific organizations or other organizations who provide
information in all formats. The information must only relate to the condition
and treatment of any person. The receiving parties are equally
encompassing. Finally, the privilege applies to any study. The legislature
enacted a statute that allows for many different types of people to provide
different types of information to an array of organizations. Furthermore, the
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statute does not dictate what types of studies satisfy the statute; but, rather
provides that any type of study satisfies the requirement.
Morbidity and mortality are statutorily undefined terms. Therefore,
their ordinary and common meaning within the context of health care should
be utilized. Morbidity is defined by the Merriam Webster /Medline Plus
medical dictionary as a diseased state or symptom, or the incident of disease;
rate of sickness. (http://c.merriam-webster.com/medlineplus/morbidity).
Mortality is defined by the same source as the number of deaths in a given
time or place or the proportion of deaths to population. (http://c.merriam-
webster.com/medlineplus/mortality). In the health care field, reducing
morbidity and mortality entails improving patient care and safety, or in other
words reducing disease and death of patients. According to common sense
this would include information about events or incidents that either result in
harm or an unexpected outcome for a patient or which could have resulted in
harm to a patient.
The legislative intent is to encourage people to report events,
incidents, or concerns about patient care to reduce sickness and death, and
then to allow whatever type of study the in-hospital committee deems is
appropriate. As noted in Burton, the objective of the peer review privilege is
equally applicable to the M & M privilege. Burton, 566 N.W.2d at 188.
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The objective is to allow critical retrospective analysis of cases to learn
better methods of treatment for the future. Id. Requiring disclosure of
documents in the course of litigation which fall under the ambit of Iowa
Code § 135.40 would frustrate the very purpose of collecting information to
reduce morbidity and mortality. Disclosure during any stage of litigation
discourages voluntary reporting. The clear legislative intent of Iowa Code
§§ 135.40 to 135.42 is to provide a confidential method of reporting
incidents or concerns about the care and treatment of patients and to allow
for critical self-analysis for improvement of the practice of medicine.
At UIHC a PSN is an electronic document where UIHC employees
enter events that raise a safety concern for patients. (App. 60). UIHC
employees are encouraged to submit a PSN for any event that raises a safety
concern for patients. (App. 60). Once submitted electronically by a UIHC
employee, the PSN is reviewed by individuals in the UIHC Quality
Department. The review is conducted daily. (App. 63-64). The Quality
Department employees conduct a triage of the PSN and determine where to
route the PSN. (App. 64). A PSN can be routed to the Safety Oversight
Team, which is a multidisciplinary group of individuals that evaluates
trends, in order to revise and improve processes or policies. (App. 63). If a
PSN reports a serious adverse event or a sentinel event it is reviewed by the
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Safety Oversight Team to decide whether a RCA is called for or whether a
policy needs to be revised. UIHC formal policy requires that a PSN be
entered for all serious adverse events. (App. 26). PSNs can also be routed
to an individual in a specific department who handles safety issues. (App.
65). PSNs have resulted in significant changes and improvements at UIHC.
(App. 68). UIHC employees are told that PSNs are confidential and
protected so they are comfortable reporting concerning events or incidents.
(App. 65-66). If the PSNs are subject to disclosure in litigation it would
have a chilling effect on people reporting events. (App. 67).
The district court incorrectly construed the phrase “in the course of
any study” narrowly.3 A PSN was submitted relating to the condition and
treatment of Willard. It was submitted by a UIHC employee with the
understanding it would be confidential and protected. The UIHC employee
could, therefore, be comfortable with being forthcoming and critical of the
care and treatment of Willard. Importantly, Iowa Code § 135.40 does not
require that the information actually be used in a study. It requires that a
person provides the information to be used in the course of any study. The
UIHC employee’s intent is the important factor. The district court erred by
finding that there is no evidence that the PSN “was created for use in the
3 The PSN in this case satisfies the other requirements of the statute that werenot specifically addressed by the district court.
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course of any study.” The primary purpose of the PSN system is to submit
concerns about the care and treatment of a patient to be reviewed and dealt
with as appropriate. The UIHC employee submits the form so that the
incident or issue can be evaluated in a systematic manner.
In any event, a study of the PSN did occur. In accordance with UIHC
policy and practice, the PSN was reviewed by the UIHC staff in the Quality
Department. Ms. Thoman does not know whether this particular PSN went
any farther than the initial review with the Quality Department staff. (App.
69-73). This should be of no consequence. This review, in and of itself
without any further action taken, constitutes a study.
The statute refers to “any study”. No particular type, level, quality or
quantity of study is required. The word “study” is undefined by the statute.
The common meaning of the noun study is “the activity or process of
learning about something by reading, memorizing facts, attending school,
etc.” (http://www.merriam-webster.com/dictionary/study). The inclusive
definition of the noun “study” includes the review of the PSN by the Quality
Department Staff. By use of the word “any”, the legislative intent was to
grant great leeway in what constitutes “study”. The UHIC Quality
Department reviews the PSN looking for trends and events that need to be
evaluated more closely. The purpose of the initial review is to improve
15
patient care and safety which is M & M. It is the first step in the process at
UIHC to reduce morbidity and mortality. The first step is as important as
additional steps that may occur based on the initial review or study of the
PSN.
B. THERE IS NO REQUIRMENT OF A THIRD PARTYREQUEST FOR THE MORBIDITY AND MORTALITYPRIVILEGE TO APPLY
It was error and an abuse of discretion for the district court to find no
privilege based on lack of a third-party request for the PSN. Iowa Code §
135.41 provides:
The department, the Iowa medical society or anyof its allied medical societies, the Iowa osteopathicmedical association, any in-hospital staffcommittee, or the Iowa healthcare collaborativeshall use or publish said material only for thepurpose of advancing medical research or medicaleducation in the interest of reducing morbidity ormortality, except that a summary of such studiesmay be released by any such group for generalpublication. In all events the identity of any personwhose condition or treatment has been studiedshall be confidential and shall not be revealedunder any circumstances. A violation of thissection shall constitute a simple misdemeanor.
Iowa Code § 135.41 (2016). The district court’s reasoning seems to have
been that the M & M privilege does not apply because Willard is the subject
of the PSN, and implies that the privilege only protects against disclosures to
parties that are strangers to the PSN.
16
Iowa Code § 135.41 governs the manner in which the entity in
possession of the M & M material, in this case an in-hospital staff committee
(UIHC Quality Department), can use and publish such materials. It contains
both a mandatory and a permissive component. The in-hospital staff
committee “shall” use or publish the M & M materials only for the purpose
of medical research or education. Iowa Code § 135.41 (2016). “Shall”
imposes a duty. Iowa Code § 4.1(30)(a) (2016). Then the section lists an
exception to the mandatory limitation stating that any group “may” release a
summary of the study for general publication. Iowa Code § 135.41 (2016).
The use of “may” confers a power. Iowa Code § 4.1(30)(c) (2016).
However, under all circumstances the identity of the person or patient
“shall” be confidential.
There is no provision for a third-party or a plaintiff in a civil lawsuit
to request M & M materials. The statute does not permit disclosure of M &
M materials to a plaintiff in a malpractice action. There is no exception to
the mandatory limitation on the use and publication of M & M materials for
disclosure to plaintiffs who may be the subject of the M & M document. As
decided in Burton, release of M & M study summaries is permissive.
Burton, 566 N.W.2d at 187-188. The entity in possession of the materials
cannot be forced to produce even summaries. Id.
17
In direct opposition to the district court’s conclusion, Iowa Code §
135.41 strongly indicates that the legislature intended M & M materials to be
confidential and privileged. It actually prohibits the production of the PSN
for use and publication in this lawsuit. Willard’s request for the PSN does
not advance medical research or medical education. The exception does not
apply because Willard is not requesting a summary of the PSN, and, in any
event, publication of a summary is completely discretionary. The legislature
felt so strongly about limiting the use and publication of M & M materials,
that disclosure not authorized by the statute is a crime. Iowa Code § 135.41
(2016). The person who produces the PSN in this lawsuit can be charged
criminally. The district court’s interpretation of Iowa Code § 135.41 is a
strange contortion which is not supported by the plain language of the
statute, the legislative intent, or the statutory scheme.
II. THE DISTRICT COURT INCORRECTLY HELD THAT THEPSN MATERIAL IS DISCOVERABLE UNDER THEMORBIDITY AND MORTALITY PRIVILEGE
Error Preservation.
Error was preserved by the State in its resistance to the motion to
compel, evidence and argument at hearing, and by in camera review of the
documents in issue. (App. 18, 50, 91).
18
Standard of Review.
The standard of review on a motion to compel is for abuse of
discretion. Keefe v. Bernard, 774 N.W.2d 663, 667 (Iowa 2009) (citations
omitted). Issues of statutory construction are reviewed for corrections of
legal error or errors at law. Id., Hardin County Drainage District 55 v.
Union Pacific Railroad Company, 826 N.W.2d 507, 510 (Iowa 2013).
Merits.
The district court erred when it held that construction of discovery
rules and the M & M statutes require production of the PSN documents.4
Discovery of privileged matters is prohibited. Iowa R. Civ. P. 1.503(1)
(2016). Privileges apply in all stages of actions, cases, and proceedings.
Iowa R. Evid. 5.501, 5.1101 (2016). The party resisting discovery due to a
privilege has the burden of showing that the privilege exists and applies.
Carolan, 553 N.W.2d at 886. The object sought to be obtained and the
consequence of particular constructions of a statute may be considered when
determining legislative intent. Iowa Code § 4.6 (2016). When construing a
4 The district court held that the PSN did not qualify as M & M materials sothat no privilege exists, but then continued to rule that the M & M privilegedid not preclude discovery of the materials. Although the district court heldthe PSN material was not privileged, he instructed the Plaintiff not todisclose the PSN material to anyone but his expert witness and that anyfurther disclosure needed court approval which is inconsistent with a findingof no privilege. (App. 101).
19
statute, no part is rendered redundant or irrelevant or superfluous. Hardin
County Drainage District 55, 826 N.W.2d at 512; In Interest of G.J.A., 547
N.W.2d 3, 6 (Iowa 1996). It is presumed that the legislature enacted each
part of the statute for a purpose and intended that each part be given effect.
In Interest of G.J.A., 547 N.W.2d at 6; Iowa Code § 4.4(2) (2016). It is
presumed that a statute favors the public interest over any private interest.
Iowa Code § 4.4(5) (2016).
The portion of Iowa Code § 135.42 in dispute is whether the language
“shall not be used or offered or received in evidence in any legal proceeding
of any kind or character” prohibits discoverability of M & M materials. The
dispute resolves around the words “used” and “in evidence”. One
interpretation is that “use(d)…in evidence” is prohibited, thus, discovery is
permitted. Another interpretation is that the word “used” stands alone
prohibiting the “use” of M & M materials “in any legal proceeding of any
kind or character” and, thus, precluding discovery of the material. The
principles of statutory construction require the conclusion that the PSN
materials are not discoverable.
The doctrine of the last preceding antecedent is instructive. State ex
rel. Iowa Department of Transportation v. General Electric Credit Corp. of
Delaware, 448 N.W.2d 335, 345 (Iowa 1989)(citations omitted). “Under the
20
doctrine of last preceding antecedent, qualifying words and phrases refer
only to the immediately preceding antecedent, unless a contrary legislative
intent appears.” Iowa Comprehensive Petroleum Underground Storage
Tank Fund Board v. Shell Oil Company, 606 N.W.2d 376, 380 (Iowa
2000)(citations omitted). A qualifying phrase applies to all antecedents
rather than only the immediate preceding one when the qualifying phrase is
separated from the antecedents by a comma. Id. Iowa courts have
consistently reasoned that qualifying words or phrases refer to the
immediately preceding antecedent. Cairns v. Grinnell Mutual Reinsurance
Co., 398 N.W.2d 821, 824 (Iowa 1987). However, Iowa courts also
recognize that punctuation is not always a highly persuasive factor in
interpreting a statute, and will not defeat otherwise clear legislative intent.
Id. (citations omitted).
Applying this doctrine to Iowa Code § 135.42, the phrase “in
evidence” only applies to “received”. Because “in evidence” is not
separated by commas from the antecedent, it does not qualify “used”.
It does not apply to the antecedent “used”. The construction concerning
“used”, therefore, is: shall not be used in any legal proceeding of any kind or
character. The prohibition on “used in any legal proceeding” includes
discovery.
21
An interpretation of “used in evidence” instead of “used in any legal
proceeding”, renders the word “used” redundant, irrelevant and superfluous.
There is no need to include the prohibition of use in evidence, because the M
& M information shall not be offered or received in evidence. The term
“used” has no meaning or utility if it does not apply to discoverability. The
correct interpretation is that the M & M materials are not to be used in any
legal proceeding. It is not discoverable, and no party is to use it. Rather, the
parties should simply proceed with the litigation as if it does not exist.
Also, the overall language employed by the legislature indicates a
broad and inclusive confidentiality privilege. The use of “shall” creates a
mandatory duty. Iowa Code § 4.1(30)(a) (2016). The prohibition is broad
by the use of the word “any” twice in the phrase “any legal proceeding of
any kind or character”. Iowa Code § 135.42 (2016) (emphasis added). In
addition, it applies to “all” M & M information. Iowa Code § 135.42 (2016)
(emphasis added). The inclusive language indicates a legislative intent to
prohibit discovery of the PSN materials.
In addition, the overall statutory scheme of the M & M division at
Iowa Code §§ 135.40-135.42 indicates a legislative intent to prohibit
discovery in this case. As previously noted, the language of Iowa Code §
135.40 is broad, providing for a wide array of materials to qualify as well as
22
a study of any nature. The substantial limitation of the use and publication
set forth in Iowa Code § 135.41 is similarly consistent with not allowing
discovery of M & M materials in legal proceedings.
Other laws on similar subjects may be examined when determining
legislative intent. The confidentiality privilege of peer-review materials is
analogous. Iowa Code § 147.135 (2016). Peer review materials are not
subject to discovery and are inadmissible. See Cawthorn v. Catholic Health
Initiatives Iowa Corp., 806 N.W.2d 282, 289 (Iowa 2011) (“Thus, Iowa's
[peer review] law not only specifies that peer review records are privileged,
it also contains a separate prohibition on their admissibility in evidence.
Even if the privilege could have been waived here, the rule against
admissibility would remain in effect.”) (emphasis in original); Day v. The
Finley Hosp., 769 N.W.2d 898, 901 (Iowa Ct. App. 2009) (“Furthermore,
the supreme court has stated that the statutory privilege in Iowa Code §
147.135(2) is ‘broad.’”) (citations omitted). The counter argument is that
the peer review statute is not analogous because it more directly prohibits
discovery, which means that the legislature knows how to prohibit
discovery, but chose not to for M & M. The fact that the peer review statute
uses different language to prohibit discovery does not indicate under these
circumstances an intent to permit discovery of M & M materials.
23
First, although the objectives of the peer review and the M & M
privileges in keeping materials confidential are identical, the purposes of the
statutes diverge. Peer review is the critical analysis of a specific person, i.e.
a doctor, a nurse, a dentist. Iowa Code § 147.135(2) (2016) (“Peer review
records means all complaint files. . . relating to licensee discipline or
professional competence…”). Whereas, M & M is analysis of patient care
and treatment. M & M does not focus on the competency of the medical
provider, but rather analyzes care and treatment of a patient or population of
patients. The focus of peer review and M & M differ.
In addition, certain peer review materials are subject to production to
the Iowa Board of Medicine. Iowa Code §§ 147.135(2) & 3(b) (2016)
(“[p]eer review records are not admissible in evidence…other than a
proceeding involving licensee discipline” and “a hospital pursuant to
subpoena shall make available” peer review “information and documents” to
the board of medicine). The peer review statute was written to carefully
delineate that peer review records are subject to a subpoena issued by the
board of medicine and are admissible in a professional licensing proceeding,
but not in other types of litigation. Iowa Code §§ 147.135(2) & (3)(b)
(2016). The peer review statute necessarily had to refer to discovery,
subpoenas, and admissibility to ensure that the board of medicine has access
24
to certain peer review materials when needed for investigation and so that
licensing boards are able to use those materials during its disciplinary or
licensing processes. Whereas, the board of medicine or other licensing
agencies have no legitimate interest in M & M materials. Furthermore, the
location of the two statutes in the Iowa Code is illustrative of this difference.
The peer review statute is contained in Iowa Code Chapter 147, entitled
Health–Related Professions. Chapter 147 regulates health-related
professions. In contrast, the M & M statute is located in the Iowa Code
Chapter entitled Department of Public Health.
Legislative history also provides an explanation for the different
language. The M & M statute was enacted in 1963 and has undergone very
little revision. Iowa Senate File 340, 60th General Assembly Chapter 121,
section 1, 2, 3 (June 4, 1963). Effective in 1978, Iowa Code § 135.41 was
amended to make a violation a simple misdemeanor rather than a
misdemeanor. Iowa Senate File 85, 66th General Assembly Chapter 1245,
section 138 (June 28, 1976). A 2006 amendment added the Iowa Healthcare
Collaborative to the list of potential recipients of M & M materials and
added a reasonable and good faith requirement for immunity for M & M
material use. House File 2718, General Assembly Chapter 1128, sections 1,
2 (May 24, 2006).
25
Comparatively, the peer review statute was originally enacted thirteen
years later in 1975 and only included the current subsection 1. House File
803, 66th General Assembly Chapter 239, section 15 (June 30, 1975). There
was no section addressing discoverability or admissibility of peer review
materials. Subsections 2 and 3(a) of the current statute were added in 1986
and the current subsection 3(b) was added in 1990. Senate File 2265, 71st
General Assembly, Chapter 1211, section 14 (May 22, 1986); House File
2518, 73rd General Assembly, Chapter 1086, section 7 (March 27, 1990).
Minor amendments, not relevant to the issues in this case, were made in
2007 and 2009. Senate File 74, 82nd General Assembly, Chapter 10, section
82 (March 9, 2007); Senate File 449, 83rd General Assembly, Chapter 133,
section 51 (May 22, 2009).
The different language used could very well be due to the length of
time between the enactment of the statutes. Also, the fact that the
prohibition on discovery and admissibility in the peer review statute was
added ten years after its original enactment may mean that it was a response
to specific issues that had arisen, perhaps the Board of Medicine’s desire to
access peer review documents. See Hutchinson v. Smith Laboratories, Inc.
392 N.W.2d 139, 141, 143 (Iowa 1986). The evolution of the two statutes
are dissimilar which negates the argument that because the legislature did
26
not draft the M & M statute identically to the peer review statute, there is a
lack of intent to prohibit discovery.
Various other jurisdictions have addressed a wide range of statutes
involving the confidentiality of health-care self-critical analysis in the
context of peer review, M & M, quality assurance and risk management.
There is a lack of consensus. Since these foreign jurisdiction decisions are
largely based on the statutes in place, which vary widely, their precedential
value is negligible. See Pamela L. Popp et al., The Trials and Tribulations
of Incident Reports: Are They Worth the Trouble? (Mar. 2, 2000) (American
Health Lawyers Association Seminar Materials, available on Westlaw at
AHLA-PAPERS P03020018); The Medical Review Committee Privilege: A
Jurisdictional Survey, 67 N.C. L. Rev. 179 (1998); Promoting Better Health
Care; Policy Arguments for Concurrent Quality Assurance and Attorney –
Client Hospital Incident Report Privileges, 3 Health Matrix 259 (1993).
However, some of these cases echo the same public policy concerns
with discoverability of self-critical analysis materials. For example, a
Tennessee court stated that the peer review privilege “reflects a legislative
judgment that the public interest in promoting candor among health care
providers requires an assurance of confidentiality and that ‘the quality of in-
hospital medical practice will be elevated by armoring staff inquiries with a
27
measure of confidentiality.’” Powell v. Community Health System, 312
S.W.2d 496, 509 (Tenn. 2010) (citation omitted). In Carr v. Howard, the
Massachusetts court held that pursuant to statute, hospital incident reports
are protected from discovery because they constitute the first step of the peer
review process. Carr v. Howard, 689 N.E.2d 1304, 1310 (Mass. 1998). A
New Mexico federal court held that M & M material was not discoverable in
a medical malpractice suit by recognizing a federal common law self–critical
analysis privilege. This Court explained “the self-critical analysis privilege
is particularly pertinent in the medical context as it promotes frank and
honest discussions which protect lives and improve patient care”. Weekoty
v. United States, 30 F.Supp.2d 1343, 1345-1346 (D. N. M. 1998)(quotations
and citations omitted). The Court concluded that the “mere possibility of
disclosure would undermine this necessarily open and unconstrained self-
examination”. Id. (quotations and citations omitted). “Thus, the public good
is multiplied far beyond an individual patient’s care, as the information
promotes more effective patient care throughout a hospital.” Id. at 1346.
The objective and purpose of the statutes are relevant when
determining legislative intent. As already noted by the Iowa Supreme Court,
the objective and purpose of the M & M statutes is similar to that of the peer
review statute and is of equal importance. Burton, 566 N.W.2d at 187-188.
28
The objective is to allow for critical retrospective analysis of cases to learn
better methods of treatment for the future. Id. Further, the objective of the
M & M statutes is to permit hospital employees to report adverse events,
sentinel events, near misses, safety issues, and any other issues or concerns
about the care and treatment of patients. The information is granted
confidentiality so that individuals are forthcoming with concerns and are
comfortable being critical of doctors and other UIHC employees, as well as
policies, practices or procedures in place. As explained by one federal court,
“[c]andid and conscientious evaluation of clinical practices is a sine qua non
of adequate hospital care” and “[c]onstructive professional criticism cannot
occur in an atmosphere of apprehension that one doctor’s suggestion will be
used as a denunciation of a colleague’s conduct in a malpractice suit.”
Bredice v. Doctors Hospital Inc., 50 F.D.R. 249, 250 (D.D.C. 1970),
superseded by statute as noted in Syposs v. United States, 179 F.R.D 406,
410 (W.D.N.Y. 1998). The purpose of the M & M statutes is to permit
evaluation and study of singular problems, problems that reoccur, or
systematic problems. Through this process, care and treatment of patients is
improved, advances in medical care are made, and morbidity and mortality
is reduced.
The district court held that public policy and fundamental fairness
29
requires production of the PSN materials. The district court hypothesized
that UIHC would hide facts of malpractice in PSN and M & M materials.
Contrary to the district court’s fear that facts will be hidden from plaintiffs,
relevant facts can be obtained through traditional discovery methods
including the production of the patient’s medical chart and records, written
discovery to identify eyewitnesses and people with knowledge about the
care and treatment, and depositions of people with knowledge. UIHC,
despite what information is contained in the PSN, must disclose the facts
known to them about the incident and produce people involved in the
incident or treatment of Willard for deposition. The M & M process and the
PSN in this case does not deprive the Plaintiff of his evidence.
The district court elevated a plaintiff’s private interest in liberal
discovery over the public interest of confidentiality of M & M materials. A
guiding principle of legislature enactments is that public interest is favored
over any private interest, i.e. a plaintiff in a civil lawsuit. Iowa Code §
4.4(5) (2016). In Weekoty the court found that the public interest served by
protection of medical peer review conference from disclosure is perhaps
more than that served by the individual based spousal, attorney-client and
psychotherapist-patient privilege. Weekoty v. United States, 30 F. Supp.2d
1343, 1346 (D.N.M. 1998). Critical analysis of care and treatment of
30
patients, multiplies the public good “far beyond an individual patient’s care,
as the information promotes more effective patient care throughout a
hospital.” Id. The Bredice court held that medical staff meetings
concerning improvement of care and treatment of patients is of
overwhelming public interest so that the flow of ideas and advice can
continue unimpeded. Bredice, 50 F.R.D at 251. The protected meetings
were not part of a patients’ current care and treatment, but were in the
“nature of a retrospective review of the effectiveness of certain medical
procedures”. Id. The Iowa Legislature determined that the public good of
encouraging M & M study by making it confidential supersedes any
individual’s need for the M & M materials in any individual’s legal
proceedings. It was error and an abuse of discretion for the district court to
substitute its opinion on public policy for the Legislature’s judgment
reflected in the M & M statutes.
The consequences of a particular construction are relevant. Iowa
Code § 4.6(5) (2016). Ms. Thoman testified that UIHC employees
understand that PSN are confidential. She further testified that PSNs have
resulted in significant changes at UIHC for patient safety. She also believes
that disclosure of PSNs in litigation would have a chilling effect on people
reporting events. Constructive analysis and criticism of an incident cannot
31
take place if the employee will be dragged into court to explain his or her
criticisms. Very few and maybe no UIHC employees will want to subject
themselves to interrogation for reporting an incident or perceived problem.
If not protected from use in lawsuits against care providers, the worst case
scenario is that M & M studies will simply cease to exist. The best case
scenario is that reports will be significantly reduced and the information
provided will not be candid or helpful. In either case, overall patient care
and treatment will suffer. The purpose of the M & M statutes is to
encourage individuals to provide information about the care and treatment of
patients in order to improve patient care and safety. This important purpose
will be substantially frustrated if materials are subject to disclosure in
malpractice actions.
CONCLUSION
The PSN system at UIHC is an essential and important part of studies
to reduce morbidity and mortality. Individuals will not submit PSNs without
protection from legal proceedings because most will be unwilling to subject
themselves to interrogation criticizing UIHC, co-workers, or supervisors. If
PSNs are not protected from discovery in lawsuits, many concerning events
which could be corrected upon review will not be reported or addressed. If
32
this particular PSN, and PSNs in general, are not protected from discovery,
patient safety and care will suffer.
The district court erroneously held that the PSN in this case was not
created for use in the course of any study. The UIHC employee submitted
the PSN for the purpose of review, evaluation, and study. Iowa Code §
135.40 should be broadly construed so that the review conducted by the
Quality Department constitutes “any study”. The PSN in this case is of the
type contemplated by the Iowa Legislature as encompassing M & M study.
Iowa Code § 135.41 makes no exception for use or publication of M
& M materials to plaintiffs in civil lawsuits regardless of whether their
condition and treatment is the subject. Use and publication in malpractice
lawsuits is not permitted and the district court erred and abused its discretion
in finding otherwise.
The prohibition of use of M & M materials in Iowa Code § 135.42
prohibits discovery of the PSN. A contrary conclusion is inconsistent with
the doctrine of last preceding antecedent and renders the word “used”
redundant, irrelevant and superfluous. The purpose and objective of the M
& M division is to encourage reporting and self-critical analysis of patient
care and treatment to improve morbidity and mortality. Allowing discovery
33
of the PSN frustrates this purpose and objective. For these reasons, the
district court’s ruling should be reversed.
NOTICE OF ORAL ARGUMENT
Notice is hereby given that upon submission of this cause, counsel for
Appellant hereby desires to be heard in oral argument.
THOMAS J. MILLERAttorney General of Iowa
/s/ ANNE UPDEGRAFFANNE E. UPDEGRAFF (AT0008026)Assistant Attorney GeneralDepartment of Justice-Special LitigationHoover State Office BuildingDes Moines, Iowa 50319PHONE: (515) 281-6669FAX: (515) [email protected] FORDEFENDANT-APPELLANT
34
CERTIFICATE OF COMPLIANCE
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/s/ Anne Updegraff 12/12/2016Signature Date