Forum
February 2014
HOSPITAL ABUSE OF CALIFORNIA EVIDENCE CODE SECTION 1157 IN ADMINISTRATIVE ACTIONS
By: Ara Jabagchourian
I. INTRODUCTION
Plaintiff’s Attorney: If I asked you any question related to the facts that you considered related to [Hospital Employee’s] complaints of [Doctor], you will refuse to answer based on the 1157 privilege, correct?
Physician’s Attorney: I’m going to instruct him not to answer that based on California Evidence Code Section 1157.
Plaintiff’s Attorney: Are you going to follow your attorney’s advice?
Doctor: Yes.
Plaintiff’s Attorney: Likewise if I asked the conclusions that you reached related to any investigation conducted by the medical staff related to the complaints raised by [Hospital Employee] against [Doctor], you will refuse to answer based on the 1157 privilege; is that correct?
Physician’s Attorney: Same instruction.
Plaintiff’s Attorney: Follow your attorney’s instruction, sir?
Doctor: Yes.
This recent deposition excerpt demonstrates the way that hospitals have stretched California Evidence Code section 1157 to block discovery of information that is far outside of that code’s original scope. Asserting section 1157 would have been a perfectly proper objection in a medical malpractice case because section 1157 applies to peer review committees which seek to evaluate and improve the quality of care rendered in the hospital. However, the immunity broadly afforded to peer review committees does not extend to administrative matters. The extension of section 1157 immunity to administrative actions, including the review of sexual harassment claims against doctors, is an abuse that violates both the letter and intent of section 1157.
II. HOSPITAL ADMINISTRATION AND MEDICAL PEER REVIEW STRUCTURE
In California, hospitals have a dual structure which consists of (1) an administrative governing body which oversees the operations of the hospital; and, (2) a medical staff which provides medical services and is generally responsible for ensuring that its members provide adequate medical care to the patients at the hospital. (El-Attar v. Hollywood Presbyterian Medical Center (2013) 56 Cal.4th 976, 983.) California has codified the medical staff/peer review structure. (See Cal. Bus. & Prof. Code sections 805-809.9.) “It is the policy of this state that peer review be performed by licentiates.” (Cal. Bus & Prof. Code section 809.05.) Peer review is defined as the process by which a peer review body reviews the basic qualifications, staff privileges and employment of doctors. (Cal. Bus & Prof. Code section 805(a)(1)(A)(I).) As discussed below, opportunity to exploit this dual structure exists given the separation of administrative duties of the hospital and the peer review function of the medical staff.
III. PURPOSE OF THE LAW
Many who do not practice medical malpractice may be unfamiliar with Evidence Code section 1157. Evidence Code section 1157 immunizes from discovery the “proceedings” and the “records” of peer review committees. (Cal. Evid. Code section 1157(a).) The purpose of section 1157 is “to prevent a chilling effect on the accurate evaluation of health care facilities which would lead to a decline in the quality of health care in California.” (People v. Superior Court (Memorial Medical Center)(1991) 234 Cal.App.3d 363, 373.) The California Legislature enacted section 1157 “upon the theory that external access to peer investigations conducted by staff committees stifles candor and inhibits objectivity. It evinces a legislative judgment that the quality of in-hospital medical practice will be elevated by armoring staff inquiries with a measure of confidentiality.” (Matchett v. Superior Court (1974) 40 Cal.App.3d 623, 629.) Protecting the communications of peer review committees promotes the candor and frankness necessary to effectively review the health and safety procedures of a hospital.
California’s Legislature weighed the competing interests of doctors and plaintiffs in medical malpractice incidents and found that public policy favored immunizing peer review committees. The idea is that if doctors and hospital executives can openly discuss medical malpractice incidents, they’ll be able to identify and prevent future errors which will ultimately improve the quality of care offered. Although the law encourages candor by providing peer review committees with a measure of confidentiality, it does so at the expense of malpractice plaintiffs. (Snell v. Superior Court (1984) 158 Cal.App.3d 44, 47.) Section 1157 protects defendant doctors in medical malpractice cases, but this immunity is “set aside . . .in suits by doctors claiming wrongful or arbitrary exclusion from hospital staff privileges.” (West Covina Hospital v. Superior Court (1984) 153 Cal.App.3d 134, 137.) Additionally, the immunity does not apply to administrative records, which are generally discoverable.
In cases where the countervailing public interest outweighs that of doctor candor, the 1157 immunity may be pierced. In criminal cases, for example, courts have looked to the legislative intent and concluded that the Legislature did not intend to preclude discovery in criminal actions. (See People v. Superior Court, supra, 234 Cal.App.3d at 374.) Because the threat of criminal activity outweighs the public’s interest in encouraging candor, public policy supports discovery of peer review committee records in criminal cases. Where the public’s interest in protecting peer review committees’ records is minimal, hospitals should not be able to stonewall discovery.
IV. ABUSE OF IMMUNITY
Hospitals have been using section 1157 for decades to inappropriately shield documents that do not relate to quality of care. In fact, hospitals have already been admonished for improperly shielding administrative investigations. In 1985, a trial judge believed he was helpless in compelling discovery when faced with a section 1157 objection:
I think it’s a little on the outrageous side that all of the hospitals are no longer holding it in administrative files and putting everything in those committees and everything is going there, but 1157 says that is privileged. [ ] There is no question in the court’s mind . . . that the hospitals are abusing 1157, but I can’t do anything about that.
(Brown v. Superior Court (1985) 168 Cal.App.3d 489, 495.)
The Court of Appeal agreed that there were abuses, but disagreed that there was nothing they could do about it, reversed the decision, and granted discovery. In Willitis v. Superior Court (1993) 20 Cal.App.4th 90, the Sixth District Court of Appeal stressed that this privilege does not extend to administrative determinations and must be limited to evaluations related to the quality of care provided by a hospital. Hospitals have attempted to expand the scope of this immunity far beyond the original intentions. In the deposition quote at the top of the article, the physician’s attorney asserted section 1157 in order to avoid all questions, even though they were related to a sexual harassment claim made against a doctor that obviously had no connection to a medical malpractice claim or with the quality of care, but entirely administrative in nature – effectively seeking to place doctors above the law.
V. CASE LAW
A. Medical Malpractice
Section 1157 immunity applies to medical malpractice cases because those cases necessarily involve quality of care issues. “The statute, then, is aimed directly at malpractice actions in which a present or former hospital staff doctor is a defendant.” (Matchett v. Superior Court, supra, 40 Cal.App.3d at 629, emphasis added.) In applying section 1157 to medical malpractice cases, courts have given medical executive committees great latitude, but the burden for demonstrating that evidence falls within this exception is nonetheless placed on the party invoking immunity. (Willitis v. Superior Court, supra, 20 Cal.App.4th at 104.)
In Matchett, the plaintiff had suffered negligent treatment by two doctors, and sought to discover the records of several committees, including the executive committee. The Third District Court of Appeal held that “[t]he burden of establishing entitlement to nondisclosure rested with the party resisting discovery, not the party seeking it.” (Matchett v. Superior Court, supra, 40 Cal.App.3d at 627.) Because the defendant had provided no argument other than a filed memorandum claiming that the documents were immune under California Evidence section 1157. the court held that the party resisting discovery had failed to meet its burden and therefore the documents were discoverable.
In Schultz v. Superior Court (1977) 66 Cal.App.3d 440, 446, the Third District Court of Appeal held that section 1157 applies only to records of medical investigative committees. In that case, a medical malpractice plaintiff sought documents related to the hospital’s investigation of the plaintiff’s claim. Because some of the documents requested were simply administrative documents, they were not considered to be records subject to section 1157 immunity.
Snell v. Superior Court, supra, 158 Cal.App.3d at 47, however, held that administrative records are protected when they relate to quality of care issues. There, the plaintiff asserted that the hospital had been negligent in the hiring and retaining certain personnel. The plaintiff sought to obtain the hospital’s administrative records relating to personnel decisions. However, the records sought were not hospital administrators’ personnel files, but rather the product of the executive review committee’s discussion of hospital privileges and thus were clearly within the protection of section 1157. The plaintiff may have been able to obtain purely administrative files, but the information the plaintiff sought discussed errors by doctors – exactly the sort of information that section 1157 is intended to protect. Although doubts regarding whether information is discoverable should be resolved in favor of discovery, the documents the plaintiff requested discussed decisions affecting doctors’ privileges. These concerned the assurance of quality care and the steps taken by the hospital to ensure that its doctors were continuing to provide quality treatment to its patients, which falls within the scope of section 1157.
B. Hospital Administration
In Saddleback Community Hospital v. Superior Court (1984) 158 Cal.App.3d 206, 209, the Fourth District Court of Appeal declined to extend immunity to files concerning hospital administration which did not relate to quality of care. When it is unclear whether the proceedings are subject to the privilege, the records should be reviewed in camera so that they can be assessed. Although any disclosure must be “narrowly drawn,” the scope of that disclosure should be determined in relation to the intent of the law; i.e. does non-disclosure protect the public from preventable medical errors, rather than shield internal administrative determinations, such as sexual harassment of hospital employees. The matter in Saddleback was remanded to the lower court to conduct the in camera review to determine whether those records related to quality of care.
A peer review committee’s review of a employee’s complaint regarding a needle stick was immune from discovery because, although the matter was administrative, it related to quality of care. (Willits v. Superior Court, supra, 20 Cal.App.4th 92-93.) The plaintiff alleged that maintaining the confidentiality of the proceedings of the executive review committee conflicted with her rights as an employee under California law. (Id.; Health and Safety Code section 429.14.) The Sixth District Court of Appeal sought to reconcile these interests, but noted that the burden lies on the hospital to demonstrate why a record should be immune. However, the negligence in that case was related to a medical procedure that alleged infected the plaintiff with HIV. The incident itself was related to the quality of care provided to patients because there was the potential for medical professionals to refuse to perform certain procedures. Because there was a direct link between quality of care and the procedure discussed in the peer review committee’s record, the documents fell within the scope of section 1157.
