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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mat-Su Valley Medical Center, LLC v. Bolinder (9/14/2018) sp-7293
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER. Readers
are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MAT-SU VALLEY MEDICAL )
CENTER, LLC, d/b/a MAT-SU )
Supreme Court Nos. S-15920/15969
REGIONAL MEDICAL CENTER, ) (Consolidated)
)
Petitioner, )
Superior Court No. 3PA-11-00963 CI
)
v. )
O P I N I O N
)
DENISE BOLINDER, as personal
) No. 7293 - September 14, 2018
representative of the estate of ROBERT
)
BOLINDER, and JOHN W. ZWIACHER,
)
M.D., )
)
Respondents. )
)
)
)
MAT-SU VALLEY MEDICAL Supreme Court No. S-16440
CENTER, LLC, d/b/a MAT-SU )
)
REGIONAL MEDICAL CENTER, and Superior Court No. 3AN-14-09235 CI
JOHN W. ZWIACHER, M.D., )
)
Petitioners, )
)
v. )
)
JON PAUL BRANDT, )
)
Respondent. )
__________________________________ )
Original Applications in File Nos. S-15920/15969 from the
Superior Court of the State of Alaska, Third Judicial District,
Palmer, Kari Kristiansen, Judge. Petition for Review in File
----------------------- Page 2-----------------------
No. S-16440 from the Superior Court of the State of Alaska,
Third Judicial District, Anchorage, Gregory Miller, Judge.
Appearances: Robert J. Dickson, Atkinson, Conway &
Gagnon, and Roger F. Holmes, Biss & Holmes, Anchorage,
for Petitioner Mat-Su Regional Medical Center. Christian N.
Bataille, Flanigan & Bataille, Anchorage, for Respondents
Bolinder and Brandt. Scott Leuning, Leuning & Renner,
LLC, Sioux Falls, South Dakota, and Whitney L. Traeger and
Howard A. Lazar, Delaney Wiles, Inc., Anchorage, for
Respondent and Petitioner Dr. Zwiacher. Stephen D. Rose,
Garvey Schubert Barer, Anchorage, for Amicus Curiae
Alaska State Hospital and Nursing Home Association.
Chester D. Gilmore, Cashion Gilmore LLC, Anchorage, for
Amicus Curiae Providence Health & Services - Washington
d/b/a Providence Alaska Medical Center. Margaret
Simonian, Dillon & Findley, P.C., Anchorage, and
William S. Cummings, Friedman Rubin, Bremerton,
Washington, for Amicus Curiae Alaska Association for
Justice.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
BOLGER, Justice.
I. INTRODUCTION
Alaska's medical peer review privilege statute, AS 18.23.030, protects
discovery of data, information, proceedings, and records of medical peer review
organizations, but it does not protect a witness's personal knowledge and observations
or materials originating outside the medical peer review process. A hospital invoked the
privilege in two separate actions, one involving a wrongful death suit against a physician
at the hospital and the other involving both a medical malpractice claim against the same
physician and a negligent credentialing claim against the hospital. In each case the
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----------------------- Page 3-----------------------
superior court compelled the hospital to disclose materials related to complaints
submitted about the physician and to the hospital's decision to grant the physician
medical staff membership. The hospital and the doctor sought our review of the
discovery orders. Because we conclude that these discovery orders compel the hospital
to disclose information protected by the peer review privilege, we reverse the discovery
orders in part. We further hold that the false information exception to the privilege
provided in AS 18.23.030(b) applies to actions for which the submission of false
information is an element of the claim and thus does not apply here.
II. FACTS AND PROCEEDINGS
Weaddress thesetwo interlocutoryappealsin this consolidated opinion due
to the similarity of the facts, legal issues, and parties. In the first case, Denise Bolinder,
in her capacity as the personal representative of the estate of Robert Bolinder, filed a
claim for wrongful death against Dr. John Zwiacher, alleging that Dr. Zwiacher was
negligent in treating Robert Bolinder when he was a patient at Mat-Su Regional Medical
Center (Mat-Su) in 2009. In the second, Jon Brandt brought a claim for medical
malpractice against Dr. Zwiacher and a negligent credentialing claim against Mat-Su
after Brandt allegedly suffered complications from a September 2012 surgery
Dr. Zwiacher performed at Mat-Su. In each case, Mat-Su refused to respond to
discovery requests for materials related to (1) Mat-Su's decisions to renew
Dr. Zwiacher's medical staff membership at Mat-Su; and (2) complaints that Mat-Su had
received regarding Dr. Zwiacher. Mat-Su asserted that, because all the requested
materials were acquired or generated by Mat-Su's peer review committees, they were
privileged under the medical peer review statute and not subject to disclosure.
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----------------------- Page 4-----------------------
A. The Medical Peer Review PrivilegeStatuteAnd Mat-Su's Peer Review
Committees
Some background on medical peer review generally, and the peer review
committees at Mat-Su specifically, is necessary. Medical peer review "refers to the
process hospitals use to oversee medical staff to improve patient care, reduce hospital
1
liability, and lower rates for malpracticeinsurance."
Generally, the purpose of affording
an evidentiary privilege to peer review materials is to promote candor in peer review
proceedings, with the aim of more rigorous oversight of medical care and lower
2 3
malpractice premiums. Nearly all hospitals employ peer review procedures. And
almost all 50 states have adopted laws promoting the effectiveness of peer review by:
(1) providing immunity from liability for persons serving on or providing information
in good faith to peer review committees, and (2) creating an evidentiary privilege for
4
certain materials related to the peer review process.
Alaska's medical peer review privilege statute, AS 18.23.030, was enacted
in 1976 as part of a broad, comprehensive bill intended to address the lack of malpractice
5 Thestatute restricts discovery of information and
insurance available to Alaska doctors.
1 Grandstaff v. State, 171 P.3d 1176, 1193 (Alaska App. 2007).
2 Id.
3 Charles David Creech, Comment, The Medical Review Committee
EV. 179, 179 (1988).
Privilege: A Jurisdictional Survey, 67 N.C. L. R
4 Id. at 179-180; see also Eric Scott Bell, Comment, Make Way: Why
Arkansas and the States Should Narrow Health Care Peer Review Privileges for the
Patient Safety and Quality Improvement Act of 2005, 62 ARK. L. REV. 745, 751-52
(2009).
5 STATE OF ALASKA, REPORT OF THE GOVERNOR'S MEDICAL MALPRACTICE
I N S U R A N C E C O M M I S S I O N 5 2 - 5 3 ( O c t . 1 , 1 9 7 5 ) ,
(continued...)
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----------------------- Page 5-----------------------
data acquired by medical peer review organizations, along with the proceedings and
records of those organizations. The privilege is subject to certain exceptions, including
materials "otherwise available from original sources" or information within an
individual's personal knowledge, and materials provided to a peer review organization
that are alleged to contain knowingly false information. Disclosing privileged
6
information is a misdemeanor.
Mat-Su has two committees that it argues are protected by the peer review
privilege. The first committee is the Medical Staff Peer Review Committee (Peer
Review Committee), which is charged with reviewing all care provided by Mat-Su
physicians and maintaining quality patient care within Mat-Su. The Peer Review
Committee conducts professional practice evaluations of physicians, as is required for
hospital accreditation. It consists of various Mat-Su personnel: the chairs of each
clinical section, physicians from various specialities, a nursing representative, and an
administrative representative. The second committee is the Medical Executive
Committee (Executive Committee), which reviews reports and recommendations from
the Peer Review Committee regarding any corrective action. The Executive Committee
consists of physician representatives from each specialty group at Mat-Su. The
Executive Committee makes decisions regarding both initial credentialing of health care
providers and renewal of credentials, with the Board of Trustees making the final
decision on any matter involving privileges or the loss thereof.
5 (...continued)
http://archives2.legis.state.ak.us/PublicImageServer.cgi?lib/7500360REPORT%20OF
%20THE%20GOVERNOR%27S%20MEDICAL%20MALPRACTICE%20INSURA
ALPRACTICE COMMISSION REPORT].
NCE%20COMMISSION.pdf [hereinafter M
6 AS 18.23.040.
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----------------------- Page 6-----------------------
B. First Petition In Bolinder v. Zwiacher
In January 2009 Dr. Zwiacher performed a diagnostic surgery on Robert
Bolinder to examine an unidentified mass in his lungs and collect tissue samples. Three
days after the surgery, Robert began experiencing pain in his left leg, and his wife,
Denise, called Dr. Zwiacher. Dr. Zwiacher asked to speak with Robert, but there is a
dispute regarding what Dr. Zwiacher then said. According to Dr. Zwiacher, he told
Robert to go to the emergency room. But Denise claims that Robert told her that
Dr. Zwiacher said a pinched nerve likely was causing his pain and advised Robert to rest
at home. Later that same day, Robert died at home. An autopsy showed that his death
was caused by multiple pulmonary emboli - blood clots lodging in and blocking
arteries in the lungs - that likely came from the leg in which he was experiencing pain.
In 2011 Denise, as the personal representative of Robert's estate (the
Estate), filed a wrongful death claim against Dr. Zwiacher alleging that he negligently
treated Robert. The Estate conducted discovery to elicit information about
Dr. Zwiacher's background preceding his position at Mat-Su, when he practiced
medicine in Wisconsin. This information apparently suggested that Dr. Zwiacher
misrepresented his work and disciplinary history on his 2005 application for an Alaska
medical license and his 2006 application for medical staff membership at Mat-Su. To
confirm this indication, the Estate moved to compel Dr. Zwiacher to consent to Mat-Su
7 After the superior
(a non-party) releasing his application for medical staff membership.
court denied the motion in April 2012, the Estate petitioned this court for interlocutory
review.
7 In addition to medical staffmembership, Dr. Zwiacher also applied for (and
was granted) clinical privileges. To avoid confusion between his clinical privileges and
the evidentiary privilege at issue here, we refer to Dr. Zwiacher's application as being
only for medical staff membership.
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----------------------- Page 7-----------------------
In 2013 we granted the petition and reversed the denial of the motion to
8
compel.
We held for the purposes of "this case" that one of the exceptions to the peer
9
review privilege, excluding certain material alleged to contain false information,
applied. We concluded that the application was not privileged because the Estate had
submitted evidence showing Dr. Zwiacher had lied on his application for an Alaska
medical license, which suggested he also provided this false information in applying to
10 However, "we d[id] not decide" how this exception to the privilege "should
Mat-Su.
be interpreted or how it may apply in future cases" given the parties' cursory briefing
and lack of argument on the scope of the exception.11 We thus ordered Mat-Su to
provide Dr. Zwiacher's application to the Estate.
C. The Estate's Discovery Requests To Mat-Su
Following our order, Mat-SuprovidedtheEstatewithDr.Zwiacher'sinitial
application for medical staff membership. Mat-Su also produced documents revealing
that Dr. Zwiacher's medical staff membership at Mat-Su had been revoked in April 2014
and detailing the disciplinary steps that preceded the revocation. The Estate amended
its complaint to allege that Dr. Zwiacher obtained the privileges necessary to treat Robert
by lying about his work history on his application to Mat-Su.
The Estate then made several discovery requestsofMat-Su. First the Estate
requested "[a]ll documents related in any way to the evaluation and granting of
[Dr. Zwiacher's] [medical staff membership] at Mat-Su Regional" and asked to depose
8 Bolinder v. Zwiacher, No. S-14710 (Alaska Supreme Court Order, Dec. 4,
2013) [hereinafter Bolinder Order].
9 AS 18.23.030(b).
10 Bolinder Order, supra note 8.
11 Id.
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----------------------- Page 8-----------------------
people knowledgeable about Mat-Su's decision to grant him membership. Mat-Su
objected, citing the peer review privilege. The Estate also sought to depose Mat-Su
personnel with knowledge of the identity of individuals "likely to possess personal
knowledge regarding [Dr. Zwiacher's] professional credibility, behavior, and/or
conduct" including knowledge of any limitation or revocation of Dr. Zwiacher's medical
staff membership imposed by Mat-Su. Mat-Su again objected on the basis of the peer
review privilege to the extent the request asked for more than the designation of
individuals with personal knowledge of Dr. Zwiacher's credibility. Mat-Su then
designated Joan Brodie, the assistant director of quality risk management and provider
services, to testify on these topics. Brodie's job duties include overseeing the
credentialing process, addressing regulatory compliance issues, and participating in the
peer review process.
At the deposition Brodie provided the names of several general surgeons,
anesthesiologists, and hospitalists who might have information about Dr. Zwiacher's
credibility. She also advised the Estate to contact the heads of the nursing and operating
room staffs to obtain information about others who had worked with him. But, citing the
peer review privilege, Mat-Su objected to many of the Estate's inquiries, including those
asking whether any complaints had been raised about Dr. Zwiacher and the nature of
Brodie's interactions with him. Brodie explained that "every contact [she] had with
[Dr. Zwiacher] was within . . . the course of what [she] do[es]"; therefore she could not
answer such questions because the information was privileged.
The Estate additionally sought to depose Drs. John Naylor and Bruce Hess.
Dr. Hess served as the president of the medical staff before Dr. Naylor assumed the
position. Dr. Naylor served as the president of the medical staff, chaired the Executive
Committee, and worked at Mat-Su as an anesthesiologist. In early January 2015, when
the deposition was taken, Dr. Naylor had served as president of the medical staff for
-8- 7293
----------------------- Page 9-----------------------
about nine months. Though the Estate did ultimately depose Dr. Naylor, it did not
depose Dr. Hess.
Dr. Naylor testified that, as president of the medical staff, he serves as the
chair of the Executive Committee. He had also previously served as the chair of the Peer
Review Committee. Dr. Naylor explained that the peer review process is initiated by
concerns and complaints from Mat-Su staff. Dr. Naylor confirmed that outside the peer
review process "nothing ever happened with [him] and Dr. Zwiacher that in any way
gave [him] concern or raised an issue regarding [Dr. Zwiacher's] patient care with [him]
personally." And because his familiarity with Dr. Zwiacher's competency and surgical
care derived from the peer review process, he could not answer questions about these
topics. Mat-Su objected to questions asking Dr. Naylor to identify people with
information related to concerns or complaints about Dr. Zwiacher and asking for
"original sources . . . [with] information regarding Dr. Zwiacher's behavior and conduct
. . . at the hospital." Dr. Naylor contended he could not divulge such information
because he had acquired it through his role in the peer review process. He explained that
"[a]ny complaint or issue . . . that enters the peer review or quality review system . . .
falls under the [privilege's] protection" and that this applied to all complaints about
Dr. Zwiacher.
Following its unsuccessful attempts to elicit information at the depositions,
the Estate filed two motions to compel disclosure fromMat-Su related to: (1) its decision
to grant Dr. Zwiacher medical staff membership and (2) complaints related to
Dr. Zwiacher's competency and credibility, including the identity of people possessing
personal knowledge of such information.
The superior court granted both motions in two separate discovery orders.
The first discovery order, issued on April 27, 2015, granted the Estate's request to
discover materials related to the decision to grant Dr. Zwiacher's application for medical
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staff membership. The superior court concluded that Mat-Su must disclose such
materials because the Estate alleged that Dr. Zwiacher knowingly included false
information in his application, and thus the materials fell within an exception to the peer
review privilege. The first order further permitted the Estate to obtain all materials
provided to a peer review committee that were alleged to contain knowingly false
information, specifically:
testimony, documents, proceedings, records, and other
evidence adduced before a review organization that are
otherwise inaccessible under [the peer review privilege] if
[the Estate] claims that information provided to a review
organization was false and claims that the person providing
the information knew or had reason to know the information
was false.
The second discovery order, issued on June 10, 2015, granted the Estate's
request to obtain complaints that Mat-Su had received about Dr. Zwiacher. The superior
court concluded that such complaints did not fall within the peer review privilege;
though they may initiate the peer review process and later become evidence in a peer
review proceeding, they are not part of such a proceeding. Thus, subject to requests for
in camera review, the court instructed employees and members of the medical staff at
Mat-Su with "personal knowledge" of such complaints to provide this information to the
Estate "without regard to whether [they] presented such information to a peer review
committee." It also instructed Mat-Su and Dr. Zwiacher to "produce all documents or
records . . . regarding complaintsor concerns regarding Dr. Zwiacher's conduct that were
not generated by or did not originate with a peer review committee."
Mat-Su filed an original application for review of these two discovery
orders, which we granted. Dr. Zwiacher and three amici curiae - Alaska Association
for Justice, Alaska State Hospital and Nursing Home Association, and Providence
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----------------------- Page 11-----------------------
12
Alaska Medical Center - also filed briefs. While the appeal was pending, the petition
for interlocutory review in Brandt was filed.
D. Petition In Brandt v. Zwiacher
Jon Brandt was also a patient of Dr. Zwiacher. Dr. Zwiacher performed a
laparoscopic small bowel resection surgery on Brandt at Mat-Su in September 2012
(when Dr. Zwiacher still had medical staff membership). During recovery, Brandt
complained of pain; the parties dispute how Dr. Zwiacher addressed Brandt's pain.
Brandt was discharged from Mat-Su four days after surgery, which Brandt alleges was
involuntary. Brandt claims that upon discharge, his pain worsened; he returned to Mat-
Su approximately eight hours later. A CT scan was performed, which Brandt claims
revealed that Dr. Zwiacher had perforated the left side of his colon during the surgery,
resulting in leaking and an infection. According to Brandt, he has undergone seven
additional surgeries to address the issues stemming from the surgery performed by
Dr. Zwiacher.
In September 2014, while discovery in Bolinder was still ongoing, Brandt
filed suit against Dr. Zwiacher and Mat-Su. Brandt brought a medical malpractice claim
against Dr. Zwiacher, alleging that Dr. Zwiacher misrepresented his skills prior to the
surgery, delivered substandard medical care, created false and misleading records of
Brandt's medical care following the surgery, and obtained both his medical license and
his Mat-Su medical staff membership through misrepresentation and non-disclosure.
Brandt also brought a negligent credentialing claim against Mat-Su based on the
12 Alaska Association for Justice argues that we should affirm the discovery
orders; Alaska State Hospital and Nursing Home Association and Providence Alaska
Medical Center argue that we should reverse.
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13
hospital's decision to grant and renew Dr. Zwiacher's staff membership. Brandt
claimed that, given Dr. Zwiacher's professional troubles in Wisconsin and the litany of
complaints regarding his conduct and standard of care while at Mat-Su, Mat-Su failed
to act with reasonable diligence in vetting Dr. Zwiacher's initial application for medical
staff membership and in subsequently renewing it.
Discovery ensued, during which Mat-Su voluntarily disclosed, subject to
a protective order, Dr. Zwiacher's entire 443-page credentials file, which contains all of
the materials Mat-Su's credentials committee used in granting Dr. Zwiacher's initial
appointment to the Mat-Su medical staff and all subsequent renewals. The file includes
Dr. Zwiacher's initial application for medical staff membership at Mat-Su (the same
14 The credentials file
application that had led to the first petition for review in Bolinder).
also contains confidential communications regarding Dr. Zwiacher to the Executive
Committee written while his initial application was pending.
13 A negligent credentialing claim derives from the theory of corporate
negligence, under which "a hospital owes an independent duty to its patients to use
reasonable care to insure that physicians granted hospital privileges are competent, and
to supervise the medical treatment provided by members of its medical staff." Fletcher
v. S. Peninsula Hosp. , 71 P.3d 833, 842 (Alaska 2003) (quoting Jackson v. Power ,
743 P.2d 1376, 1378 n.2 (Alaska 1987)). "A corporate negligence claim requires proof
that the hospital should have known that the physician would act negligently before the
negligence at issue occurred." Ward v. Lutheran Hosps. & Homes Soc'y of Am., Inc. ,
963 P.2d 1031, 1033 n.2 (Alaska 1998). Such proof generally consists of "evidence that
the physician either lacked standard credentials or previously had been the subject of a
malpractice suit or disciplinary proceedings." Id.
14 Mat-Suexplainson appealthat it is not conceding that the initial credentials
file is not privileged, but given this court's prior order in Bolinder compelling disclosure
of Dr. Zwiacher's initial application and "the uncertainty surrounding the extent of the
protection afforded [to the file] by [the peer review privilege]," Mat-Su "felt compelled
in good faith to produce the entire credentials file."
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However, the credentials file does not contain any concerns or complaints
relayed to Mat-Su regarding Dr. Zwiacher after he was granted medical staff
membership or regarding Mat-Su's decision to terminate Dr. Zwiacher's membership.
Mat-Su explained that such materials were not part of the credentials file because the
Mat-Su Medical Staff Bylaws delegated the decision to discipline or to terminate
Dr. Zwiacher to the Peer Review Committee and the Executive Committee, not the
credentials committee. Accordingly, "[a]ll of the documents generated after
Dr. Zwiacher's appointment to the medical staff relating to complaints and concerns
about him . . . are outside the credentialing process and [are instead] reported to
the . . . [Peer Review Committee and Executive Committee]."
After receiving the credentials file, Brandt sent six discovery requests to
Mat-Su that formthe basis of his appeal. Like the requests in Bolinder, Brandt's requests
can be divided into two broad groups: (1) documents related to any complaints made
about Dr. Zwiacher, theidentityofindividualsmakingand reviewing thecomplaints, and
any action taken in response; and (2) documents and statements related to Mat-Su's
decisions to renew or terminate Dr. Zwiacher's medical staff membership and the
identity of individuals involved in those decisions.
Mat-Su objected to these discovery requests, asserting that each request
15 In March 2016 Brandt moved
sought information covered by the peer review privilege.
15 Brandt quibbles with Mat-Su's purported failure to produce a privilege log
in refusing to respond to the discovery requests. However, Brandt represents that Mat-
Su ultimately did produce a privilege log that identified more than 1900 pages of
privileged materials. This privilege log is not part of the appellate record because it was
produced after the petition for review was granted. Brandt does not appear to take issue
with the adequacy of the privilege log that was ultimately produced; accordingly, we do
not address this issue.
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----------------------- Page 14-----------------------
16
to compel Mat-Su's responses to the discovery requests. In its opposition, with respect
to the first group of requested information, Mat-Su argued that the identities both of
individuals reporting complaints about Dr. Zwiacher and of individuals considering the
complaints were privileged. It explained that such complaints initiated the peer review
process and were directed to peer review committee members, and they were thus part
of the committee proceedings. Regarding the second group of requested information,
Mat-Su conceded that it had not produced "the files and meeting minutes of the [Peer
Review Committee] and the [Executive Committee], the purpose of which was to review
the quality of care provided by Dr. Zwiacher at the hospital subsequent to his obtaining
privileges," but argued these materials were privileged. Mat-Su explained that, other
than the credentials file and this privileged material, it possessed "no other documented
communication relating to Dr. Zwiacher's renewal or termination."
In August 2016 the superior court granted Brandt's motion to compel and
ordered production of all the information sought in the six production requests. The
court reasoned that the names of the individuals making complaints about Dr. Zwiacher
and the content of those complaints were not privileged because they were based on the
personal knowledge of individuals not acting in the capacity of peer review committee
members. The superior court thus concluded that Mat-Su had failed to meet its burden
of establishing that the discovery requests fell within the scope of the privilege and
accordingly ordered Mat-Su to produce the requested materials. The superior court's
analysis appears to have considered only one group of discovery requests (relating to
16 In his motion to compel, Brandt argued that by voluntarily producing the
credentialing file, Mat-Su had waived the protection of the peer review privilege as
applied to any of its files. However, Brandt does not renew this argument on appeal
(despite Mat-Su mentioning this argument in its brief ); thus we deem it forfeited and do
not address it.
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----------------------- Page 15-----------------------
complaints) and not the other (relating to Mat-Su's credentialing decisions). However,
it ultimately compelled disclosure of all requested information. Mat-Su and
Dr. Zwiacher jointlypetitioned for interlocutory review of the superior court's order, and
we granted the petition.
III. STANDARD OF REVIEW
Wegenerallyreviewdiscoveryrulings for abuseofdiscretion,"butwhether
17
a privilege applies is a question of law we review independently."
Here, the scope of
18
the privilege is codified in a statute. When interpreting statutes, we apply our
19
independent judgment, adopting the "rule of law that is most persuasive in light of
20
precedent, reason, and policy."
IV. DISCUSSION
A. Alaska Statute18.23.030 ProvidesRobustProtectionsForTheMedical
Peer Review Process.
This case requires us to interpret the scope of the medical peer review
privilege in the context of a wrongful death action and a medical malpractice claim
against a surgeon, and a negligent credentialing claim against the surgeon's hospital.
The privilege, codified in AS 18.23.030, contains two subsections relevant to this case.
The first, subsection (a), sets out the scope of the privilege and provides a specific
17 Peterson v. State, 280 P.3d 559, 561 (Alaska 2012).
18 See AS 18.23.030.
19 In their Bolinder briefs, Mat-Su and Dr. Zwiacher contend that the scope
of the peer review privilege also presents a question of fact: when the medical peer
review process begins at Mat-Su. This framing impermissibly invades the legislative
province by allowing a hospital to define AS 18.23.030's scope. The issue here - the
scope of the peer review privilege - presents only a question of law.
20 State v. Ketchikan Gateway Borough, 366 P.3d 86, 90 (Alaska 2016)
(quoting Se. Alaska Conservation Council v. State, 202 P.3d 1162, 1167 (Alaska 2009)).
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----------------------- Page 16-----------------------
limitation on it. The second, subsection (b), outlines two exceptions where the privilege
does not apply. Aside from our 2013 limited order, we have never considered the scope
of either subsection. 21
This case thus requires interpretation of the peer review statute.
22 In addition to the text, we also
"Interpretation of a statute begins with its text."
consider a statute's legislative history and purpose.23 In construing a statute, we have
adopted a sliding scale approach whereby "[t]he plainer the statutory language is, the
more convincing the evidence of contrary legislative purpose or intent must be."24
Whenever possible "we interpret each part or section of a statute with every other part
or section, so as to create a harmonious whole."25 Finally, because Alaska's "civil rules
21 The court of appeals considered whether AS 18.23.030 applied in criminal
cases in Grandstaff v. State , 171 P.3d 1176, 1190-97 (Alaska App. 2007). The court of
appeals concluded that the privilege applied only in civil cases based on the statute's
plain language and legislative history. Id. at 1194. This appeal does not directly
implicate the decision in Grandstaff.
22 City of Kenai v. Friends of The Recreation Ctr., Inc., 129 P.3d 452, 458-59
(Alaska 2006).
23 Oels v. Anchorage Police Dep't Emps. Ass'n , 279 P.3d 589, 595 (Alaska
2012).
24 State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Alyeska
Pipeline Serv. Co., 262 P.3d 594, 597 (Alaska 2011) (quoting Gov't Emps. Ins. Co. v.
Graham-Gonzalez, 107 P.3d 279, 284 (Alaska 2005)).
25 McDonnell v. State Farm Mut. Auto. Ins. Co., 299 P.3d 715, 721 (Alaska
2013) (quoting State, Dep't of Commerce, Cmty., & Econ. Dev., Div. of Ins. v.
Progressive Cas. Ins. Co., 165 P.3d 624, 629 (Alaska 2007)).
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----------------------- Page 17-----------------------
26
favor a system of liberal pretrial discovery," we generally construe an evidentiary
privilege narrowly. 27
Subsection (a) outlines the scope of the peer review privilege in three
sentences. The first sentence protects from discovery "all data and information acquired
by a review organization in the exercise of its duties and functions."28 This sentence
appearsto includearevieworganization's investigativeprocess. Suchinformationmight
include statements made by a doctor under investigation, statements made by other
medical staff during an investigation,29 and information acquired to assess a physician's
fitness to practice.30 The second sentence applies to a different step of the review
process; it protects what transpired at a meeting of a review organization:
26 Noffke v. Perez , 178 P.3d 1141, 1150 (Alaska 2008) (quoting Jones v.
Jennings, 788 P.2d 732, 735 (Alaska 1990)).
27 Langdon v. Champion, 752 P.2d 999, 1004 (Alaska 1988) ("Given our
commitment to liberal pre-trial discovery, . . . the scope of the attorney-client privilege
should be strictly construed . . . ." (quoting United Servs. Auto. Ass'n v. Werley, 526 P.2d
28, 31 (Alaska 1974))); Am. Nat'l Watermattress Corp. v. Manville , 642 P.2d 1330,
1333-34 (Alaska 1982) (same); see also United States v. Nixon, 418 U.S. 683, 713
(1974) ("The generalized assertion of a privilege must yield to the demonstrated, specific
need for evidence in a pending . . . trial."); Gwich'in Steering Comm. v. State, Office of
the Governor, 10 P.3d 572, 578-79 (Alaska 2000) (noting that this court "narrowly
construe[s]" the deliberate process privilege, an exception to the Public Records Act);
Russell v. Municipality of Anchorage, 706 P.2d 687, 693 (Alaska App. 1985)
("Privileges in litigation are not favored and should be narrowly construed.").
28 AS 18.23.030(a).
29 See Grandstaff v. State, 171 P.3d 1176, 1193 (Alaska App. 2007).
30 Cf. John C. Lincoln Hosp. & Health Ctr. v. Superior Court, 768 P.2d 188,
190 (Ariz. App. 1989) (concluding application for staff privileges and "investigations
into [physician's] background, work, and experience before his association" with
hospital were privileged under Arizona peer review statute).
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[A] [member of a review organization] may not disclose what
transpired at a meeting of a review organization except to the
extent necessary to carry out the purposes of a review
organization, and the proceedings and records of a review
organization are not subject to discovery or introduction into
evidence in a civil action against a health care provider
arising out of the matter that is the subject of consideration by
the review organization. [31]
The final sentence of AS 18.23.030(a) limits the scope of the privilege
defined in the first two sentences; the privilege does not extend to "original sources" or
to "matters within [a] person's knowledge" even if the person served on a review
organization or testified during a proceeding:
Information, documents, orrecords otherwiseavailable from
original sources are not immune from discovery or use in a
civil action merely because they were presented during
proceedings of a review organization , nor may a person who
testified before a review organization or who is a member of
it be prevented from testifying as to matters within the
person's knowledge , but a witness may not be asked about
the witness's testimony before a review organization or
opinions formed by the witness as a result of its hearings,
except as provided in (b) of this section.[32]
Subsection (a) thus sets out three conditions that a piece of evidence must
satisfy for the privilege to apply. First, the peer review committee from which the
evidence is sought must be a "review organization." The parties in both cases appear to
concede that the Peer Review Committee and the Executive Committee both fall within
31 AS 18.23.030(a).
32
Id. (emphases added).
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the statutory definition of "review organization." 33 Dr. Naylor's deposition testimony
regarding the Executive Committee's role supports this concession, as do the
descriptions of the roles of the Peer Review Committee and Executive Committee in the
Mat-Su Medical Staff Bylaws. Second, the evidence must fall into at least one of the two
protected categories of information: (1) "data and information acquired by a review
organization in the exercise of its duties and functions," or (2) "what transpired at a
meeting of a review organization [and] . . . the proceedings and records of a review
organization" if this category of information is sought "in a civil action against a
healthcare provider arising out of the matter that is subject of consideration by the review
34 Third, the evidence must not be "otherwise available from original
organization."
sources" or within an individual's personal knowledge.
33 Alaska Statute 18.23.070(5)(A) defines "review organization," in relevant
part, as "a hospital governing body or a committee whose membership is limited to
health care providers and administrative staff . . . and that is established by a hospital . . .
to gather and review information relating to the care and treatment of patients" for certain
enumerated purposes, such as improving the quality of healthcare provided, reducing
mortality, resolving disputes between patients and insurers, or acting on the
recommendation of a credential review committee.
34 The protection for the first category of information is unqualified; it applies
in all cases. In contrast, the second category of information is protected only in certain
cases: "civil actions against health care providers arising out of the matter that is the
subject of consideration by the review organization." AS 18.23.030(a). Brandt's and the
Estate's suits certainly qualify as a civil action against a healthcare provider; but it is not
clear that either action "aris[es] out of" the matter that the review organization
considered. The parties did not address this issue in their briefing, and we do not address
it here because we conclude that all the material addressed in the discovery orders is
protected under the first category. To the extent the superior court on remand considers
whether material is protected under the second category of information, it must address
whether the action arises out of the matter under consideration by the review
organization.
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We first consider whether the privilege established in subsection
(a) protects any of the materials compelled disclosed by the discovery orders at issue.
We then consider whether either exception to the privilege outlined in subsection
(b) applies.
B. Materials Related To Complaints About A PhysicianHeld In The Files
OfAReviewOrganizationArePrivilegedUnderAS18.23.030(a) Even
If Those Materials Originate From Outside Sources.
Both the Estate and Brandt seek information that Mat-Su possesses
regarding complaints about Dr. Zwiacher, including the identities of individuals with
personal knowledge of such complaints. The superior court in each case compelled Mat-
Su to disclose this information. In Bolinder the superior court instructed Mat-Su
employees and medical staff members with "personal knowledge" of such complaints
to provide this information to the Estate"without regard to whether [they] presented such
information to a peer review committee." It also ordered Mat-Su and Dr. Zwiacher to
"produce all documents or records sought by the [Estate] regarding complaints or
concerns regarding Dr. Zwiacher's conduct that were not generated by or did not
originate with a peer review committee." In doing so the court effectively required
Dr. Naylor to disclose complaints about Dr. Zwiacher that he had received from others
in his capacity as the Executive Committee president, which counsel for the Estate had
tried to elicit unsuccessfully during Dr. Naylor's deposition. Similarly in Brandt, the
superior court ordered Mat-Su to produce materials relating to complaints regarding
Dr. Zwiacher's competency and credibility, the identity of the individuals making and
reviewing the complaints, and any action taken in response. In each case the superior
court reasoned that materials regarding such complaints fell outside the privilege
because, though they may initiate the peer review process and later become evidence in
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----------------------- Page 21-----------------------
a peer review proceeding, they are based on observations occurring in the normal course
of rendering medical care and preceding the commencement of peer review.
Exercising our independent judgment, we conclude that the plain language
of AS 18.23.030(a) supports a broader construction of the privilege that protects
complaint-related materials contained in peer review committee files, even if those
materials were not generated by the peer review committee but rather originated outside
the peer review process. In reaching this conclusion we are mindful that an evidentiary
privilege should be construed narrowly, but we conclude that the text of AS 18.23.030(a)
does not support a narrower interpretation of the peer review privilege than that which
we reach here.
Complaint-related materials contained in peer review committee files, the
identities of the individuals reporting and reviewing the complaints, and any internal
action taken in response satisfy the requirements for the privilege to apply. First, these
materials are "acquired by a review organization in the exercise of its duties and
35 Black's Law Dictionary defines "acquire" as "[t]o gain possession or
functions."
control of; to get or obtain."36
The use of this broad term implies that all information
contained in peer review committee files is privileged, even if it was not generated by the
committee but rather originated from an outside source. And Mat-Su has represented
that all of the responsive materials in its possession were initially reported to either the
ExecutiveCommitteeor the Peer Review Committee. Accordingly, allofthesematerials
were acquired by a peer review committee.
35 Mat-Su also argues that the identities of individuals raising concerns or
complaints are privileged because Mat-Su Medical Staff Bylaws guarantee such
individuals confidentiality. However this guarantee of confidentiality cannot supplant
the scope of the peer review privilege set out in the statute.
36 Acquire, BLACK 'S LAW DICTIONARY (10th ed. 2014).
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Moreover, this acquisition was "in the exercise of [the committees'] duties
and functions." One statutorily defined duty and function of a review organization is
37 Mat-Su
"evaluating and improving the quality of health care rendered" in the hospital.
employees are instructed to report concerns or complaints about medical staff members
to the Executive Committee when the information implicates patient safety or patient
care, and the Executive Committee and the Peer Review Committee are both tasked with
maintaining the quality of patient care within Mat-Su. Thus when such complaints are
reported to and reviewed by the Peer Review Committee and Executive Committee, it
is at least in part for the purpose of maintaining the quality of patient care.
Likewise, complaints and concernsdirectedtoDr.Naylor arealso protected
as information acquired by a review organization. Dr. Naylor is the president of the
Executive Committee and testified in his deposition that such complaints are the initial
step in the peer review process and initiate that process. Moreover, the Mat-Su Medical
Staff Bylaws provide that "[a]ny person" can report to a medical staff member
"information . . . about the conduct, performance, or competence" of a medical staff
member, and indicate that such reports are the first step in the Executive Committee peer
review process. The president of the Executive Committee then reviews the information
and can elect to initiate "an investigation or action" against the medical staff member.
Accordingly, complaints aboutDr. Zwiacher thatDr.Naylor received fromother Mat-Su
employees and medical staff members are "information acquired by a review
organization in the exercise of its duties and functions" because receipt of such
information is the preliminary step in commencing the peer review process.38
37 See AS 18.23.070(5) (defining "review organization").
38 The record contains sufficient information about Dr. Naylor's role in
relation to the peer review committees for us to reach this conclusion. However, there
(continued...)
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Brandt and the Estate counter that Mat-Su must nevertheless provide the
materials they seek because the privilege specifically excludes from protection
"[i]nformation, documents, or records otherwise available from original sources" or
matters within an individual's "person[al] knowledge," even if those materials were
39
presented during or were the subject of testimony at review organization proceedings.
However, this argument views thelimitationon theprivilegein a vacuum, without regard
for the broad privilege outlined in the plain text of the preceding two sentences.40 The
first sentence prohibits a review organization from revealing the information and data it
acquires; the second sentence protects a review organization's deliberations. Reading
the limitation in the third sentence in conjunction with the broad protection in these first
38 (...continued)
is a paucity of information in the record about the role that other members of the medical
staff may play on the peer review committees and in the peer review process. Therefore,
based on this record, we cannot determine whether the privilege extends to complaints
directed to other members of the medical staff or the peer review committees. There is
also not sufficient information regarding administrator Joan Brodie's role to allow us to
determine whether complaints directed to her are privileged. But we note that to the
extent Brodie has observed personally Dr. Zwiacher's conduct, these personal
observations are not privileged, contrary to her assertions at her deposition. We leave
it to the superior court to determine on remand whether other individuals may be
required to divulge information relating to complaints about Dr. Zwiacher that were
reported to them. In making these determinations the superior court must apply the
analytical approach and must be guided by the policy considerations that we set forth in
this opinion.
39 AS 18.23.030(a).
40 See Alaska Airlines, Inc. v. Darrow, 403 P.3d 1116, 1127 (Alaska 2017)
("[W]hen construing a statute, 'we must, whenever possible, interpret each part . . . with
every other part . . . , so as to create a harmonious whole.' " (quoting State, Dep't of
Commerce, Cmty. &Econ. Dev., Div. of Ins. v. Progressive Cas. Ins. Co., 165 P.3d 624,
629 (Alaska 2007))).
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----------------------- Page 24-----------------------
two sentences suggests that the limitation permits a litigant to obtain the original
information or personal knowledge only from outside sources. In other words, it limits
the avenue of discovering this information to the original source or the individual with
personal knowledge. A contrary interpretation allowing a peer review committee or a
committee member to be compelled to disclose such original source information would
eviscerate the peer review privilege's protection for all data and information acquired by
the committee and for the committee's deliberations. It would also render meaningless
the limitation's requirement that the materials be "otherwise available" from other
sources. Therefore, this limitation does not require the peer review committees or
Dr. Naylor to divulge any materials related to concerns or complaints about
Dr. Zwiacher, even if the materials were obtained from an original source outside the
peer review process.
Other jurisdictions with peer review statutes like AS 18.23.030 have
similarly construed the privilege so that materials may be obtained only from the original
source. For example, Minnesota's peer review statute contains a limitation allowing
discovery of original source materials, which is worded nearly identically to Alaska's
41 The Minnesota Court of Appeals rejected the argument that this limitation
limitation.
41 The Minnesota limitation provides:
Information, documents or records otherwise available from
original sources shall not be immune from discovery or use
in any civil action merely because they were presented during
proceedings of a review organization, nor shall any person
who testified before a review organization or who is a
member of it be prevented from testifying as to matters
within the person's knowledge, but a witness cannot be asked
about the witness' testimony before a review organization or
opinions formed by the witness as a result of its hearings.
(continued...)
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----------------------- Page 25-----------------------
required a review organization to divulge documents it had acquired from original
42
sources.
Instead, the Minnesota court interpreted the limitation to allow discovery only
43 Similarly, the Minnesota
from the original sources, not the peer review committee.
Supreme Court - in concluding its peer review statute did not preclude a common law
claim for negligent credentialing - suggested that the statute prevented a party from
obtaining information directly from a review organization.44 The court noted that
Minnesota's peer review statute "preclude[d] the discovery of what evidence was
actually obtained by the [peer review organization] in the credentialing process,"45
indicating that the original source limitation does not require the organization to divulge
such evidence, even if it was obtained from outside sources.
South Carolina's original source limitation is also worded very similarly
46 The South Carolina Supreme Court has likewise
to that of Alaska's peer review statute.
41 (...continued)
Minn. Stat. § 145.64(1) (2017).
42 In re Fairview-Univ. Med. Ctr ., 590 N.W.2d 150, 154 (Minn. App. 1999).
43 Id. ("[D]ocuments available from other sources remain discoverable from
other sources.").
44 Larson v. Wasemiller, 738 N.W.2d 300, 302, 310 (Minn. 2007).
45 Id. at 310.
46 South Carolina's limitation provides:
Information, documents, or records which are otherwise
available from original sources are not immune from
discovery or use in a civil action merely because they were
presented during the committee proceedings, nor shall any
complainant or witness before the committee be prevented
from testifying in a civil action as to matters of which he has
(continued...)
-25- 7293
----------------------- Page 26-----------------------
rejected a litigant's attempt to access original source documents directly from the peer
47
review committee.
The court reasoned that the original source limitation meant that
information "available from a source other than the committee does not become
48 But a plaintiff seeking
privileged simply by being acquired by the review committee."
such information "cannot obtain [it] . . . directly from the [peer review] committee" and
instead must obtain it "from alternative sources."49
These cases from jurisdictions with similar peer review statutes bolster our
interpretation of the original source limitation in Alaska's peer review statute. We
interpret this limitation to permit discovery of original source information only from the
original source or the individual with personal knowledge. The limitation does not
require a peer review committee or its members to disclose these materials. Accordingly
it does not compel Mat-Su's peer review committees to disclose complaints reported to
them relating to Dr. Zwiacher, the identities of the individuals reporting or reviewing
those complaints, or any internal actions taken in response. We note however that the
privilege does not extend to an individual's personal observations and knowledge
46 (...continued)
knowledge apart from the committee proceedings or
revealing such matters to third persons.
S.C. Code Ann. § 40-71-20(A) (2018).
47 McGee v. Bruce Hosp. Sys., 439 S.E.2d 257, 260 (S.C. 1993).
48 Id.
49 Id. ; see also Prince v. Beaufort Mem'l Hosp., 709 S.E.2d 122, 128 (S.C.
App. 2011) ("To the extent the [peer review committee] obtained documents from other
sources during the course of its investigation, [the plaintiff] may seek copies of those
documents from the original sources but not from the [peer review committee] file.").
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----------------------- Page 27-----------------------
derived outside the peer review process even if the individual serves on a review
organization or the information relates to a matter under review.
Having established the scope of the peer review privilege outlined in
AS 18.23.030(a), we now reverse in part the superior court's June 2015 discovery order
in Bolinder. We affirm the portion of the order requiring Mat-Su medical staff to answer
questions based on their personal knowledge. However, the Estate may not ask
questions about staff knowledge of review proceedings. We reverse the portion of the
order compelling Mat-Su to provide peer review materials about complaints or concerns
regarding Dr. Zwiacher's conduct. To the extent that responsive materials are contained
in peer review committee files, the Estate may not obtain such information from Mat-Su
even if the materials originated from outside knowledge or were generated based on
personal knowledge.
We also reverse the superior court's order in Brandt compelling Mat-Su to
respond to Brandt's request for production 2 and interrogatories 3 and 10. Each of these
three discovery requests similarly seek privileged information regarding complaints
about Dr. Zwiacher, the identity of individuals reporting and reviewing the complaints,
documents relating to those complaints, and actions taken in response to the complaints.
To the extent all responsive materials and information are contained in peer review
committee files, this information is privileged. Brandt may nevertheless attempt to
obtain this information from original sources outside the peer review process or from
individuals with personal knowledge of Dr. Zwiacher's conduct.
C. The False Information Exception In AS 18.23.030(b) Does Not Permit
Discovery Of Information Regarding Dr. Zwiacher's Application For
Medical Staff Membership Because It Applies To Actions For Which
The Submission Of False Information Is An Element.
Alaska Statute 18.23.030(b) provides two exceptions to the peer review
privilege outlined in subsection (a). In full, subsection (b) provides:
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----------------------- Page 28-----------------------
Testimony, documents, proceedings, records, and other
evidence adduced before a review organization that are
otherwise inaccessible under this section may be obtained by
a health care provider who claims that denial is
unreasonable or may be obtained under subpoena or
discovery proceedings brought by a plaintiff who claims that
information provided to a review organization was false and
claims that the person providing the information knew or had
reason to know the information was false. [50]
The parties appear to agree that the first exception - which grants a "health care
provider" access to materials otherwise privileged under subsection (a) when the
provider "claims that denial is unreasonable"51 - does not apply. But the parties
disagree whether the second exception, the false information exception, applies. Under
this exception, "aplaintiff who claims that information provided toareview organization
was false and claims that the person providing the information knew or had reason to
know the information was false" may obtain, by subpoena or discovery proceedings,
evidence otherwise privileged under subsection (a).52
The Estate and Brandt argue that the false information exception applies to
exclude from the privilege all materials related to the decision to grant, renew, suspend,
or revoke Dr. Zwiacher's medical staff membership at Mat-Su and the identities of the
individuals involved in the decisions.53 They argue that the exception applies to these
50 AS 18.23.030(b) (emphases added).
51 Id. As relevant here a "health care provider" includes "a physician licensed
under AS 08.64," "a hospital as defined in AS 47.23.900," and "an employee of a health
care provider acting within the course and scope of employment." AS 18.23.070(3).
52 AS 18.23.030(b).
53 The Estate and Brandt also contend that a contrary construction of
AS 18.23.030(b) would conflict with our previous 2013 order in Bolinder. But we
(continued...)
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----------------------- Page 29-----------------------
materials because the Estate and Brandt each allege that Dr. Zwiacher knowingly
54
included false information in his initial application for medical staff membership. But
we conclude that this interpretation of the false information exception is too broad. The
falseinformationexceptionapplies to plaintiffs bringing claimsfor which thesubmission
of false information is an element. Since none of the claims at issue contain the
submission of false information as an element, neither the Estate nor Brandt qualifies as
a plaintiff within the meaning of the false information exception.
We base our interpretation of the false information exception on two
aspects of the peer review statute. First, we must read the exceptions to the peer review
privilege in subsection (b) in pari materia with other sections of the peer review statute.
Under the in pari materia canon of statutory construction, we construe statutory
provisions "enacted at the same time, or deal[ing] with the same subject matter"
55 The peer review privilege and its exceptions were enacted in 1976 as part of
together.
53 (...continued)
limited that order to that interlocutory appeal and explicitly refrained from deciding how
the exception "should be interpreted or how it may apply in future cases." Bolinder
Order, supra note 8. And this opinion does not alter our limited 2013 order. That order
required Mat-Su to release Dr. Zwiacher's application for hospital privileges to the
Estate, but nothing more. Id. Mat-Su has complied with that order.
54 In addition, in its first petition for review, the Estate argued that a
committee considering an initial credentialing decision is not a "review organization"
within the meaning of this exception to the peer review statute because it does not serve
one of the statutorily defined functions of such an organization. Neither the Estate nor
Brandt renews this argument in this appeal. Because Mat-Su has already provided the
initial credentialing file to both the Estate and Brandt, this argument is moot, and we do
not consider whether such a committee qualifies as a review organization.
55 Bullock v. State, Dep't of Cmty. & Reg'l Affairs, 19 P.3d 1209, 1214-15
(Alaska 2001) (quoting Underwater Constr., Inc. v. Shirley, 884 P.2d 150, 155 (Alaska
(continued...)
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----------------------- Page 30-----------------------
56
a comprehensive medical malpractice insurance bill. Another provision of the statute,
AS 18.23.010, contains similar language to that of the false information exception in
AS 18.23.030(b). Alaska Statute 18.23.010(a) limits when an informant to a review
organization can be held liable for defamation and similar actions: "A person providing
information to a review organization is not subject to action for damages or other relief
by reason of having furnished that information unless the information is false and the
person providing the information knew or had reason to know the information was
57 This language tracks the language of the false information exception.
false."
Another provision, AS 18.23.020, limits liability for members of a review
organization. It provides that members are shielded fromliability arising fromthe action
or recommendation of a review organization as long as they acted based on "the
reasonable belief that the action or recommendation is warranted by facts known to the
person or to the review organization" and took "reasonable efforts to ascertain the facts
upon which the review organization's action or recommendation is made."58 Reading
these provisions of the peer review statute together suggests that the false information
exception was intended to permit discovery in cases where submission of false
information is a required element.
Second, the legislative history of the peer review statute also supports this
limitation on the scope of the false information exception. The legislative history of the
medical malpractice insurance bill as a whole repeatedly emphasizes the legislature's
55 (...continued)
1994)).
56 See Ch. 102, § 40, SLA 1976.
57 AS 18.23.010(a) (emphases added).
58
AS 18.23.020.
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----------------------- Page 31-----------------------
concern with the dual goals of (1) increasing the availability of affordable medical
malpractice insurance and (2) protecting those who furnish information to review
organizations from defamation suits. The most detailed piece of legislative history
comes from a 1975 report and a supplemental report issued by a committee convened by
59 The report
the governor to study the malpractice insurance crisis in Alaska.
recommended reforms that ultimately led to the comprehensive medical malpractice
insurance bill that included AS 18.23.
The report recognized that the dual goals were intertwined - to decrease
the cost and increase the availability of malpractice insurance, there needed to be a
culture of self-policing in the medical profession.60 However, fears of defamation suits
impeded establishing such a culture: "[M]edical practitioners [were] reluctant to divulge
information concerning observed negligence or misconduct for fear the practitioner
involved w[ould] bring an action for defamation," and, as a result, "more information
[was] available from health care providers than [was] . . . made available to the licensing
61 To address these fears, the committee recommended that individuals who
boards."
provided informationtoapeer reviewcommitteeshould haveimmunityfromdefamation
59 MALPRACTICE COMMISSION REPORT, supra note 5; See STATE OF ALASKA,
EPORT OF THE GOVERNOR'S MEDICAL MALPRACTICE INSURANCE COMMISSION,
R
S U P P L E M E N T a t c r o s s - r e f e r e n c e t b l . , ( 1 9 7 5 ) ,
http://archives2.legis.state.ak.us/PublicImageServer.cgi?lib/7500370REPORT%20OF
%20THE%20GOVERNOR%27S%20MEDICAL%20MALPRACTICE%20INSURA
NCE%20COMMISSION,%20SUPPLEMENT.pdf.
60 MALPRACTICE COMMISSION REPORT, supra note 5, at 48.
61
Id. at 50.
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----------------------- Page 32-----------------------
62
actions. This was the committee's only recommendation specific to what ultimately
became AS 18.23.
Other relevant pieces of legislative history also emphasize limiting
defamation liability for those who participate in and provide information to review
organizations. At the same time, these materials fail to mention any exception to the peer
review privilege. A sectional analysis of the medical malpractice insurance bill
performed by one of the bill's sponsors includes a brief description of the portion of the
bill that ultimately became AS 18.23. The description simply states that the peer review
statute "[l]imits liability for persons providing information to a review organization and
for members of a review organization" and "[p]rovides that records of a review
63 Similarly, a comparison of the
organization are immune from discovery in a suit."
House and Senate versions of the medical malpractice insurance bill prepared by the
Legislative Affairs Agency mentions the portion that became AS 18.23 only in the
context of limiting defamation liability.64
The legislative history's emphasis on limiting defamation liability and
decreasing the cost of malpractice insurance - coupled with its silence with regard to
any exception to the peer review privilege - counsels in favor of construing any
exception to the privilege narrowly. Although the legislative history of the medical
malpractice insurance bill admittedly contains little information specific to the peer
review privilege or its exceptions, we conclude that the broad aims of the bill that we
62 Id.
63 RepresentativeTed Smith,SummaryofMedicalMalpracticeInsuranceBill
CSHB 574, 9th Leg., 2d Sess. at 2, Alaska Leg. (May 20, 1976).
64 Legislative Affairs Agency, Medical Malpractice Bills in Free Conference
Committee, 9th Leg., 2d Sess. at 2, Alaska Leg. (undated).
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have just distilled should guide our interpretation of this exception. If the legislature had
intended to establish a widely available exception to the privilege - i.e., one available
to any plaintiff alleging the provision of false information to a review organization, as
the Estate and Brandt urge - it is likely that the legislative history would include at least
some discussion of this exception. But no such mention appears. Instead, the drafters
of the medical malpractice bill focused on shielding participants in the peer review
process from liability in order to foster a culture of self-policing and increase the
affordability and availability of malpractice insurance. Allowing any plaintiff alleging
the provision of false information to obtain otherwise privileged information under this
exception would undermine these goals by facilitating malpractice suits and deterring
candor in peer review proceedings. The legislative history and other provisions of
AS 18.23 indicate that the false information exception is available only to plaintiffs
bringing the actions for which provision of false information is an element of the claim.
We therefore reverse the April 2015 discovery order in Bolinder and the
August 2016 order in Brandt. Both orders permit discovery of materials related to Mat-
Su's decision to grant, renew, suspend, or terminate Dr. Zwiacher's medical staff
membership. The false information exception does not apply in either of these cases and
thusdoesnot allowdiscovery fromMat-Su's peerreviewcommitteesofmaterials related
to the decision to grant, renew, suspend, or terminate Dr. Zwiacher's credentials at Mat-
Su. But we again note that the Estate and Brandt may seek discovery of such
information and materials from alternative sources outside the peer review process.
V. CONCLUSION
We REVERSE the April 27, 2015 discovery order in Bolinder and the
August 24, 2016 order in Brandt. We AFFIRM in part and REVERSE in part the
June 10, 2015 discovery order in Bolinder as detailed above. We REMAND for further
proceedings consistent with this opinion.
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