1 For purposes of this Article, “medical staff review committees” shall refer to the various committees within the hospital designed to evaluate the quality of patient care rendered. Therefore, the reports and proceedings that are discussed herein may result from such committees as tissue, executive, credentials, joint conference, medical records, or utilization review. It should be noted that these review functions may also be carried on by the departments within the institution. The exact organization and structure of the medical care review system varies in relation to the size and nature of the hospital in question. See Part II infra.

2 Joint Commission on Accreditation of Hospitals, Accreditation Manual for Hospitals 23 (1973).

3 Id. at 35.

4 Joint Commission on Accreditation of Hospitals, Guidelines for the Formulation of Medical Staff Bylaws, Rules, and Regulations 34 (1971).

5 Id. at 35.

6 Id. at 36-37.

7 Id. at 38.

8 Id. at 39.

9 Id. at 40.

10 Id. at 41.

11 Id. at 41.

12 See, e.g., Silver v. Castle Memorial Hospital, 53 Haw. 475, 497 P.2d 564 (1972), cert. denied, 409 U.S. 1048 (1972), rehearing denied, 409 U.S. 1131 (1973).

13 For a more thorough review of this area of hospital law, see Southwick, A., The Hospital as an Institution—Expanding Responsibilities Change Its Relationship with the Staff Physician, 9 Calif. W. L. Rev. 429 (1973)Google Scholar; Comment, The-Hospital-Physician Relationship: Hospital Responsibility for Malpractice of Physicians, 50 Wash. L. Rev. 385 (1975)Google Scholar.

14 Wm. Prosser, Law of Torts, 458-459 (4th ed. 1971) [hereinafter cited as Prosser].

15 Beeck v. Tucson General Hospital, 18 Ariz. App. 165, 500 P.2d 1153 (1972).

16 Id. at 1159.

17 Id. at 1158.

18 Keene v. Methodist Hospital, 324 F. Supp. 233 (N.D. Ind. 1971).

19 Id. at 235. In addition to the respondeat superior basis for hospital liability, the court also discussed a corporate negligence theory. The court noted that the hospital had a corporate responsibility to adopt procedures that would insure that opinions of this nature from the radiologist were immediately sent to the proper persons. Id.

20 See Hospital Law Manual, Principles of Hospital Liability, section 1, at 1-7.

21 Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 211 N.E.2d 253 (1965), cert. denied, 383 U.S. 946 (1966).

22 Id. at 258. The Darling concept of holding the governing board responsible for the quality of care rendered within the institution has been embodied in several state statutes. See, e.g., Mich. Comp. Laws Ann. § 331.422 (1974).

23 Gonzales v. Nork and Mercy Hospitals of Sacramento, Cal. Super. Ct., Sacramento Co., Docket No. 22856, Nov. 27, 1973 [hereinafter “Gonzales“]. This is an unreported case. But see Jahns, M., Court Decision Would Extend Liability, 48 Hospitals, J.A.H.A. 31 (Jan. 16, 1974)Google Scholar; Hedgepeth, J., But the Publicity is Premature, 48 Hospitals, J.A.H.A. 34 (Jan. 16, 1974)Google Scholar; Weissburg, C., The Nork Case, 7 Review 46 (Apr.-May, 1974)Google Scholar.

24 Gonzales at 146.

25 Id. at 150.

26 Id. at 164. Mercy General settled the case for an undisclosed sum, without admitting liability, prior to the court's issuance of the final judgment. However, the plaintiff did receive a judgment of $1,710,447.17 in compensatory damages against the defendants and $2,000,000 in punitive damages specifically against the physician. Id. at 196. The concept of institutional responsibility is further illustrated by Foley v. Bishop Clarkson Memorial Hospital, 185 Neb. 89, 173 N.W.2d 881 (1970), which held that a failure to follow the hospital's own rules and regulations could lead to liability. See also Purcell v. Zimbleman, 18 Ariz. App. 75, 500 P.2d 335 (1972), which concluded a hospital could be held liable for the harm resulting from a physician's negligence if the department of surgery, which was acting on behalf of the hospital, was negligent in its failure to take corrective action after a surgeon's competence was called into question. Compare Hull v. North Valley Hospital, 159 Mont. 375, 498 P.2d 136 (1972).

27 Prosser at 737.

28 Prosser at 785-796.

29 For an earlier analysis on the subject of the possibility that medical staff review committee members might be exposed to liability for their participation in the committee's affairs, see C. M. Jacobs and S. Weagly, The Liability Myth Exposed: Hospital Review Activities Pose No Risk (2d. ed. 1975). [Hereinafter cited as Jacobs.]

30 Prosser at 796.

31 See C. Wright, Law of Federal Courts, 441 (2d ed. 1970).

32 Mayfield v. Gleichert, 437 S.W.2d 638 (Tex. Civ. App. 1969).

33 Id. at 642.

34 Mayfield v. Gleichert, 484 S.W.2d 619 (Tex. Civ. App. 1972).

35 Anonymous v. Health Insurance Plan of Greater New York, 173 N.Y.S.2d 74 (1958).

36 Id. at 78.

37 Id. at 80.

38 Raymond v. Cregar, 38 N.J. 472, 185 A.2d 856 (1962).

39 Id. at 861. See also Sussman v. Overlook Hospital Association, 92 N.J. Super. 163, 222 A2d 530 (1966).

40 Prosser at 776, 785.

41 Schechet v. Kesten, 3 Mich. App. 126, 141 N.W.2d 641 (1966). See also the Mayfield case, 437 S.W.2d 638 (Tex. Civ. App. 1969).

42 Schechet v. Kesten, 3 Mich. App. 126, 141 N.W.2d 641 (1966) at 644.

43 Ascherman v. Natanson, 23 Cal. App. 3d 861, 100 Cal. Rptr. 656 (1972).

44 Id. at 660.

45 Goodley v. Sullivant, 32 Cal. App. 3d 619, 108 Cal. Rptr. 451 (1973).

46 Id. at 455.

47 Franklin v. Blank, 86 N.M. 585, 525 P.2d 945 (1974).

48 DiMiceli v. Klieger, 58 Wis. 2d 359, 206 N.W.2d 184 (1973).

49 Id. at 186.

50 Id. at 188.

51 McAfee v. Feller, 452 S.W.2d 56 (Tex. Civ. App. 1970).

52 Id. at 58.

53 Jacobs at 7. In this work the authors reveal that the states with this type of legislation include: Alabama, Arizona, Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Washington, and Wyoming.

54 Jacobs at 7-8.

55 Ascherman v. San Francisco Medical Society, 39 Cal. App. 3d 623, 114 Cal. Rptr. 681 (1974).

56 42 U.S.C.A. §§ 1320c et seq. (1974). It should be noted that hospital review committees are intended to play a major role under the legislation. Section 1320c-4(e)(1) provides that the PSROs shall utilize the services of, and accept the findings of, the hospital review committees if the organization is satisfied that, consistent with the purposes of the Act, the hospital committees can effectively review the care rendered within the institution. For a discussion of the possible legal implications of the PSRO system, see Comment, Professional Standards Review and the Limitation of Health Services: An Interpretation of the Effect of Statutory Immunity on Medical Malpractice Liability, 54 B.U. L. Rev. 931 (1974)Google Scholar.

57 The legislation also provides in 42 U.S.C.A. § 1320c-16(c) that:

1. (1) he takes such action (in the case of a health care practitioner) in the exercise of his profession as a doctor of medicine or osteopathy (or in the case of a provider of health care services) in the exercise of his functions as a provider of health care services, and

2. (2) he exercises due care in all professional conduct taken or directed by him and reasonably related to, and resulting from, the actions taken in compliance with or reliance upon such professionally accepted norms of care and treatment.

It appears that the PSRO legislation is granting immunity to physicians and hospital committees as long as they exercise due care and follow the norms of care and treatment established by the PSRO. However, there are several questions unanswered by the statute that could conceivably arise in the medical staff review process. Let us assume, for example, that a physician does follow the norms of care established by the PSRO, and the patient has an unsatisfactory result. Should he or should he not be held accountable? A more difficult question is presented by a fact situation in which the physician does not follow the PSRO norms of care, but the patient has a satisfactory result nonetheless. Because of the process rather than outcome approach utilized, a hospital review committee, after reviewing the facts, may seek to discipline the physician for a failure to follow the norms, even though there was no harm done from the patient's perspective. Should he or should he not be disciplined?

Another fact situation that conceivably might arise in the review process is one where a patient suffers aggravated injuries that result from the patient's premature discharge from the hospital on the recommendation of the utilization committee. Should anyone be held financially accountable for such injuries.

58 DHEW, Medical Malpractice: Report of the Secretary's Commission on Medical Malpractice (1973) [hereinafter cited as Medical Malpractice Report].

59 Medical Malpractice Report at 57.

60 Id.

61 Id. It should be pointed out that the ultimate authority to suspend, revoke, or curtail staff privileges is usually vested in the Board of Directors, not a committee of the medical staff. It is assumed that the Commission was aware of this when this language was penned.

62 This was suggested in Cypress v. Newport News General and Non-Sectarian Hospital Ass'n, 251 F. Supp. 667 (E.D. Va. 1966).

63 Guidelines for the Formulation of Medical Staff Bylaws, Rules and Regulations—1971, Art. V, Section 1(d), 11 (1971).

64 The National Bureau of Casualty Underwriters has developed a standard policy for this purpose, which is used by virtually all professional liability insurers. Coverage is extended to physicians serving on hospital staff or medical society admissions, credentials, disciplinary, or similar committees. R. C. Morris and A. L. Moritz, Doctor, Patient, and the Law, 360 (5th ed. 1971). A committee member would be well advised to review local insurance requirements in order to guard against undue surprises after the fact.

A recent DHEW Bureau of Quality Assurance opinion letter on the issue of potential liability arising from PSRO activities indicates the efforts now underway to determine appropriate protection from lawsuits which might be brought against the PSRO corporation, or its board members, officers, employees, pr review committee members.

“Though the risk of liability for damages is extremely remote,” said Dr. Michael Goran in a July, 1975 letter to the Tennessee Foundation for Medical Care (subsequently distributed to other PSROs), “a physician or patient cannot be prevented from suing and the costs of defending a lawsuit may be substantial. Preliminary inquiries by the General Counsel's Office indicate that the Justice Department would neither be required nor willing to defend PSROs or PSRO physician reviewers. Nor would the U.S. government indemnify a PSRO in the event of liability for damages. In recognition of this potential burden, [the Bureau of Quality Assurance] will regard the premiums for liability insurance … as an allowable contract cost … in the range of $300-750 a year. The Bureau will consider requests to reimburse premiums in excess of $750 only in highly unusual circumstances. …” Reported in A. Kaplan, PSRO Letter, September 15, 1975. (Emphasis added.)

65 Note that all of these protections are accorded to review committee participants on the assumption that the committees carry on their work in a judicious manner. Query, what protections exist for the individual physician whose work is reviewed by an overzealous committee?

66 Myers v. St. Francis Hospital, 91 N.J. Super. 377, 220 A.2d 693 (1966).

67 See generally Annot., 15 A.L.R.3d 1446 (1967) for a discussion of discovery problems in medical malpractice actions.

68 Sierra Vista Hospital v. Superior Court, 248 Cal. App. 2d 359, 56 Cal. Rptr. 387 (1967).

69 Kenney v. Superior Court in and for the County of Yolo, 255 Cal. App. 2d 106, 63 Cal. Rptr. 84 (1967).

70 Id. at 87. However, the identity of the members of the medical staff committee reviewing the case, as well as the comments made at the committee meeting were privileged from discovery. Id. at 90. Furthermore, the court disallowed discovery of the physician's appointment papers, documents, admitting privileges, payroll records, and retirement records, terming such discovery an invasion of the physician's privacy. Id. at 88. Likewise, the court in Russell v. Young, 452 S.W.2d 434 (Tex. 1970) concluded the pretrial discovery process is limited to information concerning treatment of the patient. It was held improper for an attorney to attempt discovery of the general financial records of the physician, i.e., ledgers, bank slips, appointment books, and similar material.

Another case concerning discovery is Gureghian v. Hackensack Hospital, 190 N.J. Super. 143, 262 A.2d 440 (1970) where the court allowed discovery of a report of the Perinatal Mortality Committee. Although the committee report was prepared a month after the infant's death and noted the cause of death and autopsy findings on five other infants, the court allowed discovery.

71 Nazareth Literary and Benevolent Institution v. Stephenson, 503 S.W.2d 177 (Ky. Ct. App. 1973) [hereinafter, Nazareth].

72 Id. at 178.

73 Id.

74 Id.

75 See cases and text cited at footnote 79 infra.

76 Nazareth at 178.

77 Id. at 179.

78 Id.

79 Bredice v. Doctors’ Hospital, Inc., 50 F.R.D. 249 (D.C.D.C. 1970). Adhered to in Bredice v. Doctors” Hospital, Inc., 51 F.R.D. 187 (D.C.D.C. 1970). [Hereinafter cited as Bredice.] In view of the fact that Bredice involves a construction of the federal rules of civil procedure, the decision will undoubtedly become more important as additional jurisdictions adopt rules of procedure based upon the federal rules.

80 Id. at 251.

81 Id. at 250.

82 Id.

83 Id. at 251. The Bredice decision was narrowly construed in Gillman v. United States, 54 F.R.D. 316 (D.C.S.D. N.Y. 1971), a case brought under the Federal Tort Claims V Act. Although the plaintiff was not allowed to have produced reports of a board of inquiry investigating a suicide, testimony by personnel elicited before the board relating to the events in question were ordered to be produced. Query, could ordering this testimony to be produced eventually destroy the confidential nature of the proceedings?

Other decisions disallowing discovery include Judd v. Park Avenue Hospital, 235 N.Y.S.2d 843 (1962), aff'd, 235 N.Y.S.2d 1023 (1962), which disallowed discovery because the reports were hearsay and, therefore, not subject to discovery in New York.

Salmonson v. Brown, 309 N.Y.S.2d 535 (1970), involved the plaintiff moving for discovery of the hospital's report of a committee's investigation into the death of a patient. The trial court held the hospital had waived its right to object to the production by not applying for a protective order within five days as the rules of procedure required. The case points out the importance of hospital counsel making timely objections to requests for production, even though the state law may favor protecting these records.

A 1972 New York case, Gourdine v. Phelps Memorial Hospital, 336 N.Y.S.2d 316 (1972), also involved an attempt by a malpractice plaintiff to discover minutes of all the staff meetings where the plaintiff's condition was discussed. The hospital stated no such meetings were held and the plaintiff was unable to offer proof to the contrary. The court concluded it would be an exercise in futility to order production. New York has also recently passed a statute protecting these reports from discovery. See footnote 94 infra.

Brown v. Superior Court, 218 Cal. App. 2d 430, 32 Cal. Rptr. 527 (1963) relied on the qualified “work product” privilege of attorneys in refusing to permit discovery of the records of a medical society review committee. Note that Brown did not deal with a medical staff review committee, but rather with a medical society review committee mandated by the malpractice insurance policy. The functions of the two committees are different. It is arguable that the medical staff review committee is endowed with a greater public purpose in view of the physician educational value inherent in its function.

84 Oviatt v. Archbishop Bergan Mercy Hospital, 191 Neb. 224, 214 N.W.2d 490 (1974) [hereinafter, Oviatt].

85 Id. at 492.

86 Id.

87 Id. Since Oviatt, there have been two other court decisions which have relied on state nondiscovery statutes to protect the reports and proceedings of review committees from discovery. First, Karp v. Cooley, 493 F.2d 408 (5th Cir. 1974) relied on the Texas statute to protect the reports and documents of the Baylor University College Investigating Committee which reviewed Dr. Denton Cooley's implantation of the first totally mechanical heart. Second, Matchett v. Superior Court for County of Yuba, 40 Cal. App. 3d 623, 115 Cal. Rptr. 317 (1974) relied on the California statute in holding that the records of the hospital medical staff committees, including credentials, records, tissue, and the executive committee, were immune from discovery. However, it should be noted that the court did find that the records of the hospital administration, as distinguished from those of the hospital staff, were subject to discovery.

88 Oviatt at 492.

89 Id.

90 Hayt, E. and Hayt, E., Legal Aspects of Medical Records, 153 (1965)Google Scholar.

91 See Klinge v. Lutheran Medical Center of St. Louis, 518 S.W.2d 157 (Mo. Ct. App. 1974).

92 See Boddy v. Parker, 358 N.Y.S.2d 218 (1974); Louisville General Hospital v. Hellman, 500 S.W.2d 790 (Ky. Ct. App. 1973); Spears v. Mason, 303 So.2d 260 (La. Ct. App. 1974).

93 Jacobs at 14. Other states, including Wisconsin, are considering similar legislation. See A. B. 56, Wisconsin Legislature, 1975 Session. It is interesting to note that Governor Michael Dukakis of Massachusetts recently vetoed a bill in his state which would have limited access to the records, reports, and proceedings of hospital medical staff review committees. The Governor understood the concerns of the medical community, but was concerned that any restrictions on access would be detrimental to the general public. See MHA, Monday Report (July 14, 1975).

94 See Ariz. Rev. Stat. §§ 36-445 to 445.03 (1974); Cal. Civ. Code § 43.7 (Supp. 1975), Cal. Evid. Code § 1157 (Supp. 1975); Fla. Stat. § 768.131 (Supp. 1975); Hawaii Rev. Stat. §§ 624-25.5, 663-1.7 (Supp. 1974); Idaho Code Ann. §§ 39-1392 to 1392e (Supp. 1974); La. Rev. Stat. § 44.7 (Supp. 1975); Mich. Comp. Laws §§ 331.531-33 (1975); Minn. Stat. Ann. §§ 145.61-67 (Supp. 1975); Neb. Rev. Stat. §§ 71-2046-2048 (1971); Nev. Rev. Stat. § 49.265 (1973); N.Y. Education Law § 6527.3 (Supp. 1975); Tex. Ann. Civ. Stat. art. 4447d, § 3 (Supp. 1975); Wash. Rev. Code §§ 4.24.240, .250, .260 (1974).

95 See Ala. Code tit. 46, § 297(a3) (Supp. 1973); Md. Ann. Code art. 43, § 134 (Supp. 1974); Courts and Judicial Proceedings §§ 5-302, 10-205 (1974); Mont. Rev. Code §§ 69-6301-6304 (1970); N.J. Stat. Ann. §§ 2A:84A-22.8, -22.9 (Supp. 1975); N.D. Cent. Code § 23-01-02.1 (1970); Ohio Rev. Code §§ 2305.24, -.25 (1974); Ore. Rev. Stat. § 41.675 (1973); PA. Stat. §§ 425.1-4 (Supp. 1975); Wyo. Stat. Ann. tit. 35, §§ 140.1-140.4, 528-530 (Supp. 1974).

96 See, e.g., Fla. Stat. § 768.131 (Supp. 1975).

97 Id.

98 Id. Note that the statute provides that the proceedings and records of these committees shall not be discovered or introduced into evidence in any civil action against the provider. Does this mean that only the plaintiff (patient or physician) cannot discover or admit these documents in any malpractice action against a hospital? Or does it mean that neither defendant nor plaintiff may discover or admit into evidence the documents? It is certainly arguable that the statute could be interpreted to preclude a hospital from having committee documents discovered or admitted into evidence in defense of a malpractice action.

Also to be determined is whether the statute protecting committees would also apply to departments carrying out the same function. In view of the purpose of the statute, it is likely that the language would be construed to include departments also.

99 191 Neb. 224, 214 N.W.2d 490 (1974).

100 42 U.S.C.A. § 1320 c-15 (1974).

101 Although final regulations have not yet been developed under this section of the Act, HEW Secretary Weinberger approved a set of PSRO confidentiality specifications regarding this subject on February 14, 1975. See 3 CCH Medicare and Medicaid Guide ¶ 27,291 (1975). The specifications, in attempting to balance the need of encouraging professional participation with the need for public accountability, address the issues of (1) limitation on data acquisition; (2) responsibility for maintaining confidentiality; (3) access to one's own records; (4) public knowledge of the system; (5) access to information by those within the review system; and (6) rules governing disclosure outside the PSRO system.

Regarding the issue of disclosure of this data and information in civil litigation, the specifications provide that, subject to regulations under Section 205(b) of the Social Security Act, “privileged data and information, PSRO sanction reports and PSRO deliberations shall not be subject to subpoena or discovery proceedings in any civil action.…” Furthermore, no PSRO member, employee, or consultant shall be subject to subpoena or discovery proceedings regarding any of the above materials.

102 Bernstein, A. H., Access to Physician's Hospital Records, Hospitals, J.A.H.A: 148, 152 (Sept. 1, 1971)Google Scholar.

103 503 S.W.2d 177 (Ky. Ct. App. 1973).

104 Hayt, , Hayt, & Groeschel, Law of Hospital, Physician, and Patient 1128 (3d ed. 1972)Google Scholar.

105 The Tissue Committee, 160 J.A.M.A. 1238 (1956)Google Scholar.

106 McCormick, C., Law of Evidence 460 (1954)Google Scholar.

107 Id

108 Hayt, , Hayt, & Groeschel, Law of Hospital, Physician, and Patient 1128 (3d ed. 1972)Google Scholar.

109 Id. at 1131.

110 McCormick, C., Law of Evidence 610 (1954)Google Scholar.

111 Purvis v. Johnson, 430 S.W.2d 226 (Tex. 1968).

112 See, e.g., Fla. Stat. § 768.131 (Supp. 1975).

113 Anderson, B. J., Legal Considerations and Peer Review, I Peer Review Manual ch. VI, 9 (AMA 1971)Google Scholar.