Jefferson Hospital Association, Inc. v. Smith

          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 ...