JEFFERSON HOSPITAL ASSOCIATION, INC., d/b/a JEFFERSON REGIONAL MEDICAL CENTER; CONTINENTAL CASUALTY COMPANY, AN INSURER OF JEFFERSON HOSPITAL ASSOCIATION, INC., d/b/a JEFFERSON REGIONAL MEDICAL CENTER; JEFFERSON REGIONAL MEDICAL CENTER PREFERRED PROVIDER ORGANIZATION; PINE BLUFF RADIOLOGISTS, LTD.; EDWARD ELMER CHUA ANGTUACO, M.D.; EDWARD E. ANGTUACO, M.D.; NANCY WILLIAMS, M.D.; CHARLES MABRY, M.D.; JEFF BALLARD, CT TECHNOLOGIST; JOHN/JANE DOES 1-5; JOHN/JANE DOE M.D.S 1-5; JOHN DOE DIRECT ACTION INSURERS, CARRIERS, AND INSURANCE COMPANIES APPELLANTS
v.
WHITNEY NICOLE SMITH, INDIVIDUALLY AND AS SPECIAL ADMINISTRATRIX OF THE ESTATE OF DORIS LAREE MOSS SMITH, DECEASED, AND ON BEHALF OF ALL WRONGFUL DEATH BENEFICIARIES AND HEIRS AT LAW APPELLEE
APPEAL
FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CV-16-298]
HONORABLE ROBERT H. WYATT, JR., JUDGE
Mitchell, Williams, Selig, by: Megan D. Hargraves, Benjamin
D. Jackson, and Brittany H. Pettingill, for appellants.
McKissic & Associates, PLLC, by: Gene E. McKissic, Sr.,
and Jackie B. Harris, for appellee.
BRANDON J. HARRISON, Judge
Jefferson
Hospital Association, Inc., d/b/a Jefferson Regional Medical
Center; Continental Casualty Company; Jefferson Regional
Medical Center Preferred Provider Organization; and Jeff
Ballard (collectively "Jefferson") appeal the
circuit court's order granting Whitney Smith's motion
to compel discovery. Jefferson argues that the circuit court
erred in its interpretation of Arkansas Code Annotated
section 16-46-105 (Supp. 2017). We reverse and remand to the
circuit court.
On 26
February 2014, Doris Smith underwent an outpatient procedure
at Jefferson, specifically, a CT scan with contrast.
Approximately twenty minutes after the contrast media was
administered, Smith experienced an "allergy-like
reaction" and was immediately transported to the
emergency room. On 19 September 2014, she had a second CT
scan with contrast; a reaction from that scan resulted in her
death. At some point that is not clear from the record,
Whitney Nicole Smith, individually and as special
administratrix of Doris Smith's estate, sued numerous
parties, including Jefferson, doctors, radiologists, and
insurers.
In
September 2017, Smith moved to compel discovery, asserting
that a global report on the 26 February 2014 incident had
been created pursuant to Jefferson's Global Reporting
System (the System). Smith sought a copy of that report and
an order requiring Jefferson to answer all questions
regarding the reporting of the incident. Jefferson responded
that the information sought by Smith was privileged and
protected under Ark. Code Ann. § 16-46-105 (Supp. 2017),
which governs discoverability of records of, and testimony
before, committees reviewing and evaluating the quality of
medical or hospital care. Jefferson asserted that the System
exists for the use of the Jefferson Quality Committee, that
the reports are not considered part of the patient's
medical record, and that the reports are maintained by the
quality committee for peer review and quality assurance
investigations. Thus, it argued, the report falls within the
privilege of section 16-46-105. Jefferson also noted that
according to hospital records, there was no global report
filed on the February 26 incident, but there was a global
report submitted on the September 19 incident.
Smith
amended her motion to compel to include the System report for
the September 19 CT scan. In reply to Jefferson's
objection to the motion to compel, Smith argued that the
requested documents fell within an exception to the
privilege, which states that the privilege shall not be
construed to apply to "incident reports or other records
with respect to the care or treatment of any patient or to
affect the discoverability or admissibility of such
records." Ark. Code Ann. § 16-46-105(c).
The
circuit court convened a hearing on 10 October 2017. After
hearing arguments from counsel, the court ordered Jefferson
to provide the System report from the September 19 incident
for an in camera inspection.[1] The court also ordered that
Jefferson provide "all related records and/or reports
that were generated as a result of . . . that report."
The
court convened a second hearing on 7 November 2017. At the
onset, the court expressed its displeasure with the packet of
documents received from Jefferson, calling it
"incomplete." The court called Louise Hickman,
Jefferson's vice president and chief nursing officer, to
the stand for questioning. She confirmed that there were no
quality-assurance documents generated for the February 26
incident but that there were documents generated and a
"review by the quality department at that time, in
conjunction with the risk management, to investigate the
report that was filed here on September the 19th." She
explained that not every incident goes to a committee;
instead, "[i]t is reviewed by the quality department.
[It is] investigated with the parties involved; and if it is
determined at that time, then it goes through the
committee." Hickman did not know if there was a
quality-assurance-committee review regarding the September 19
incident. She said, "If it's determined there's
no tracking or trending or no peer review or any further
action that's needed, that potentially may not even, you
know, go further to this committee." The court reviewed
the contents of the packet with Hickman, and she agreed that
several of the documents in the packet should be part of
Doris Smith's medical records.
The
court ordered that Jefferson provide (1) the hospital's
quality-assurance policy and (2) the names of the members of
the quality-assurance committee, and the court again ordered
any relevant minutes, reports, or records. The court required
this information be provided within twenty-four hours.
On
November 13, the circuit court granted Smith's motion to
compel in its entirety. The court found that there had been
neither a quality-assurance-committee meeting nor a
peer-review meeting conducted in Ms. Smith's case and
that there were no related committee minutes, records, or
reports. The court ordered Jefferson to "provide copies
of ALL documents provided to the Court for in camera
inspection to counsel for the Plaintiffs." Jefferson
immediately filed a motion to stay the order compelling
discovery and for findings pursuant to Ark. R. Civ. P. 26(f).
The court filed an amended order on November 14 that
incorporated the previous order and explicitly found that
the documents Plaintiffs seek are not privileged. Louise
Hickman, Jefferson Vice President and Chief Nursing Officer[,
] testified that there had been no quality assurance or peer
review proceeding in this case but some information was
gathered, and emails were exchanged by Jefferson employees
who may or may not have been part of the Quality Assurance
Committee. The Court finds that these emails amount to no
more than a conversation between employees. The Court finds
that the Objecting Defendants are not permitted to gather
damning evidence then stamp it as "quality
assurance" or "peer review" then not have a
quality assurance committee proceeding and hide behind the
statutory privilege. The Court doesn't believe that this
was the intent of the Legislature[.]
The
court granted Jefferson's motion to stay the order
compelling discovery so that it could pursue an interlocutory
appeal. Jefferson timely petitioned the supreme court for
permission to proceed with an interlocutory appeal, and
permission was granted on 4 January ...