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June 12, 1989

BRUCE LEIPZIG, M.D., Defendant

George Howard, Jr., United States District Judge.

The opinion of the court was delivered by: HOWARD


 Pending before this Court is the motion by Baptist Medical System, d/b/a Memorial Hospital to quash the May 3rd notice of deposition subpoena duces tecum served by plaintiff upon William H. Trice, the attorney for the Arkansas State Medical Board, directing him to produce on June 9th all records, documents and other information provided to the Board by Memorial regarding revocation of the medical staff privileges of the defendant. Memorial contends that such information is absolutely privileged by Arkansas statutory provisions and so cannot be discovered or admitted into evidence in a medical malpractice suit like this case. Plaintiff has responded that such disclosure can be ordered by this Court by statutory authority, the Board is ready to respond to the subpoena, and the quashing of the subpoena would deprive her of due process and equal protection of laws. Memorial has filed a reply and the matter is now ready for decision. The Court is persuaded that oral argument would not assist the Court in this determination.

 The following statutory provisions are relevant to this decision:

Ark. Code Ann. § 16-46-105. Records of, and testimony before, committees reviewing and evaluating quality of medical or hospital care.
(a) The proceedings, minutes, records, or reports of organized committees of hospital medical staffs or medical review committees of local medical societies having the responsibility for reviewing and evaluating the quality of medical or hospital care, and any records compiled or accumulated by the administrative staff of such hospitals in connection with such reviews or evaluation, together with all communications or reports originating in such committees, shall not be subject to discovery or admissible in any legal proceeding and shall be absolutely privileged communications. Neither shall testimony as to events occurring during the activities of such committees be admissible.
(b) Nothing in this section shall be construed to prevent disclosure of the data mentioned in subsection (a) to appropriate state or federal regulatory agencies which by statute or regulation are entitled to access to such data, nor to prevent discovery and admissibility if the legal action in which such data is sought is brought by a medical practitioner who has been subjected to censure or disciplinary action by such committee.
(c) Nothing in this section or § 14-265-112 shall be construed to apply to original hospital medical records, incident reports, or other records kept with respect to any patient in the course of business of operating a hospital or to affect the discoverability or admissibility of such records.
Ark. Code Ann. § 17-93-104. Hospital's duty to report physician misconduct.
(a)(1) A hospital licensed by or under the jurisdiction of the State of Arkansas, within sixty (60) days after taking such action as described in this section, shall report in writing to the Arkansas State Medical Board the name of any member of the medical staff or any other physician practicing in the hospital whose hospital privileges have been revoked, limited, or terminated for any cause, including resignation, together with pertinent information relating to the action.
(2) The hospital shall also report any other formal disciplinary action concerning any such physician taken by the hospital upon recommendation of the medical staff relating to professional ethics, medical incompetence, moral turpitude, or drug or alcohol abuse.
(b) The filing of a report with the board pursuant to this section, investigation by the board, or any disposition by the board shall not, in and of itself, preclude any action by a hospital or other health care facility or professional society comprised primarily of physicians to suspend, restrict, or revoke the privileges or membership of such physician.
(c) No hospital or employee of a hospital reporting to the Arkansas State Medical Board as provided by this section shall be liable in damages to any person for slander, libel, defamation of character, or otherwise because of the report.
(d) Any reports, information, or records received and maintained by the board pursuant to this section, including any such material received or developed by the board during any investigation or hearing, shall be strictly confidential. ...

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