Mulder v. Vankersen
637 N.E.2d 1335, 1994 Ind. App. LEXIS 919, 1994 WL 379599 (1994)
Rule of Law:
The Indiana Peer Review Statute grants a broad privilege to communications and records of a qualifying peer review committee, protecting them from discovery in judicial proceedings, and this privilege is not waived by a breach of confidentiality by a committee member, which only affects that individual's immunity from liability.
Facts:
- Phillip W. VanKersen worked as a registered nurse certified to administer anesthesia at St. Joseph’s Hospital of Huntingburg for seventeen years.
- In February 1992, a surgical technician reported to the director of the operating room that VanKersen had been smelling of marijuana almost daily and exhibiting mood swings over the previous couple of months.
- In May 1992, the surgical technician again reported smelling marijuana on VanKersen.
- On May 20, 1992, the Hospital's medical staff executive committee, which included five physicians and CEO Dale R. Mulder, discussed VanKersen’s situation during its regularly scheduled monthly meeting, though no minutes were kept.
- Immediately after the May 20 meeting, one of the physician committee members informed VanKersen of what had transpired.
- On June 15, 1992, VanKersen’s attorney sent Mulder a “cease and desist” letter, alleging Mulder had stated to the executive committee that VanKersen was smoking marijuana.
- After receiving the letter, Mulder created a memorandum memorializing the nature of his communications to the executive committee during the May 20, 1992, meeting.
- Mulder discussed VanKersen's situation, including his suspended staff privileges, with Dr. Ciccarelli, who was not a member of the executive committee and had no peer review responsibilities.
Procedural Posture:
- Phillip W. VanKersen filed a defamation action against Dale R. Mulder and Royale Healthcare, Inc., and Intervenor-Appellant St. Joseph’s Hospital of Huntingburg, Inc. (collectively, Mulder).
- VanKersen subpoenaed persons present at the May 20, 1992, executive committee meeting for depositions and also sought to discover Mulder's memorandum memorializing the discussion.
- The committee members deposed and Mulder invoked the peer review privilege and refused to testify or produce the memorandum.
- VanKersen filed a motion to compel the committee members to respond to deposition questions and for the production of Mulder’s memorandum.
- Mulder filed a motion to quash the subpoena.
- The trial court conducted a hearing on the discovery motions.
- The trial court granted VanKersen’s motion to compel and denied Mulder’s motion to quash, finding that the peer review statute did not apply, or if it did, confidentiality was breached, and Mulder’s memorandum was outside the privilege.
- Mulder brought an interlocutory appeal of the trial court's rulings.
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Issue:
Does the Indiana Peer Review Statute protect communications made to a hospital's executive committee and a memorandum memorializing those communications from discovery in a defamation action, even if the committee failed to keep minutes or if a committee member discussed the matter outside the committee?
Opinions:
Majority - Robertson, Judge
Yes, the Indiana Peer Review Statute protects communications made to a hospital’s executive committee and a memorandum memorializing those communications from discovery in a defamation action. No, the privilege is not waived if the committee failed to keep minutes or if a committee member discussed the matter outside the committee. The court determined that the Hospital's medical staff executive committee qualified as a “peer review committee” under I.C. 34-4-12.6-1(e). This was because it had the responsibility of evaluating professional health care providers, was organized by the hospital's medical staff, and consisted of over 50% professional health care providers (physicians). The court held that communications to the committee regarding VanKersen’s alleged marijuana use directly impacted his capability to render quality patient care and thus fell within the broad scope of the peer review privilege, which aims to foster effective review of medical care, as established in Ray v. St. John’s Health Care Corporation. The court found that the committee’s failure to keep minutes, as required by hospital bylaws, did not strip the communications of their peer review privilege, noting that even informal communications related to peer review are protected. Mulder’s memorandum, which memorialized these privileged communications, was also held to be protected under the peer review privilege, by analogy to the attorney-client privilege. Crucially, the court distinguished between the statutory privilege and immunity. It ruled that a breach of confidentiality by a committee member (such as the physician informing VanKersen or Mulder discussing with Dr. Ciccarelli) does not waive the peer review privilege itself. I.C. 34-4-12.6-2(m) only states that a person who violates confidentiality may be stripped of immunities from liability provided by I.C. 34-4-12.6-3. The privilege can only be waived by a prior written waiver executed by the peer review committee itself, as stipulated by I.C. 34-4-12.6-2(g)-(i), a principle supported by Terre Haute Regional Hospital v. Basden.
Analysis:
This case significantly broadens the application and protection of Indiana's Peer Review Statute by emphasizing a policy-driven, liberal interpretation of the privilege. The ruling clarifies the distinction between the peer review privilege (protecting the information from discovery) and statutory immunity (protecting individuals from liability), ensuring that breaches of confidentiality by individuals do not inadvertently waive the committee's privilege over the communications. This approach reinforces the confidentiality vital for candid and effective peer review, encouraging healthcare professionals to report concerns without fear that such discussions will be discoverable in litigation. However, it also means that while the peer review discussions themselves remain confidential, individuals who breach that confidentiality may still face personal liability consequences due to the loss of their statutory immunity.
