Mann
Filed 3/2/12 Smalley v.
Mann CA6
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
EDWARD D. SMALLEY,
Plaintiff and
Appellant,
v.
STEPHEN B. MANN, D.D.S.,
Defendant and
Respondent.
H035663
(Santa Cruz County
Super. Ct. No. CV158339)
In this
dental malpractice action, a jury found defendant and respondent
Dr. Stephen B. Mann had not committed malpractice
in treating plaintiff and appellant Edward D. Smalley. On appeal, Smalley challenges the trial
court’s in limine order excluding evidence of the Monterey Bay Dental Society
and California Dental Association’s peer review decision regarding his
treatment with Dr. Mann on a number of grounds.
We review
the admissibility of the peer review decision under Evidence Code section 1157,[1]
which limits the discovery of the records and proceedings of professional
society peer review committees and the compelled testimony of persons who
attend peer review committee meetings, and hold that the Monterey Bay Dental
Society (MBDS) and the California Dental Association (CDA) were peer review
societies within the meaning of section 1157.
We also hold that the peer review decision in this case was inadmissible
under section 1157 and that the trial court did not err when it ruled that
Smalley’s experts could not testify regarding the peer review decision. We will therefore affirm the judgment.
Facts
After his
long-time dentist (Dr. Michael Eurs) retired, Smalley started treating with Dr.
Mann. During the five-year period from
August 2001 until August 2006, Dr. Mann performed a number of restorations
on Smalley’s teeth, including crowns, bridges, implants, and veneers. He also repaired broken teeth and did a root
canal and two extractions. During that
time, Dr. Mann worked on 23 teeth; he installed crowns on 19 teeth, eight of
which had dental implants. (Dr. George
Yellich installed the dental implants; Dr. Mann installed the crowns on the
implants.) The crowns on three teeth
(Nos. 2, 8, 10) fractured and had to be repaired. One tooth fractured at the gum line and an
existing bridge was redone and extended to include that tooth. Crowns had to be replaced or recemented.
Toward the
end of the treatment, Smalley became dissatisfied and asked Dr. Mann for an
accounting. According to Smalley, the
accounting revealed that he had paid Dr. Mann $22,000. Citing problems with his restorations,
Smalley asked Dr. Mann for a refund. Dr.
Mann told Smalley he could not afford to pay him a refund and suggested Smalley
submit his claim to the peer review process offered by the CDA. Dr. Mann explained that if Smalley obtained a
decision in his favor in the peer review process, then Mann’s insurance company
would pay his claim.
In November
2006, Smalley filed a request for peer review with the CDA and its local
component, the MBDS. As part of the
review process, Smalley signed a patient agreement in which he “consent[ed] to
the review by the [MBDS] and the CDA according to the CDA’s policies and
procedures.” The patient agreement
provided: “By virtue of the
neither the records nor any proceedings relating to this matter of the [MBDS’s]
Peer Review Committee, or of the CDA’s Council on Peer Review can be provided
or used to reveal information in any manner.”
In the patient agreement, Smalley (1) acknowledged that “Peer Review is
an evaluative rather than judicial process”; (2) agreed to sign a “Release of
All Claims form should the committee determine that a refund is in order”;
(3) acknowledged that there would be no recovery for “pain and/or
suffering” or wage loss; and (4) agreed to waive certain procedural rights,
including representation by an attorney, the right to conduct discovery, the
right to cross-examine Dr. Mann, and the right to present opposing
evidence.
Smalley
submitted a letter to the peer review committee in which he alleged that Dr.
Mann’s work “has resulted in a rapid bone loss, a bridge removed, an additional
root canal, extraction of teeth that were healthy prior to the restoration, a
misaligned bite, missing teeth, unsightly stubs where my teeth used to be, and
now three needed additional implants.”
He complained that it was painful to chew; that his jaw popped; that he
spoke with a lisp or a whistle; that he could not eat without biting his
tongue, lips and cheeks; that food spit out of his mouth when he chewed; and
that people stared at him. He told the
committee he had returned to Dr. Eurs, who had resumed his dental
practice. On a separate claim form,
Smalley claimed he paid “approximately $35,000 for this restoration”; in the
letter he said he had spent $40,300 “[t]o date.”
A committee
of three dentists from the MBDS reviewed Smalley’s case. The committee reviewed Smalley’s letter and
claim form, as well as information from Dr. Mann, subsequent treating
dentists, and Smalley’s dental insurance company. On January 4, 2007, the dentists on the MBDS
peer review committee examined Smalley’s teeth.
On February
27, 2007, the peer review committee sent Smalley a written decision in the form
of a letter on CDA letterhead (hereafter resolution letter). The committee found that Smalley’s complaints
regarding the porcelain crowns on teeth Nos. 2, 4 through 14, and 21
through 31 were “valid,” but concluded that the x-ray evidence did not support
his claim of bone loss around the implants in three teeth on the lower right
side. The committee concluded that
Smalley was entitled to a refund of $23,161.50 ($18,939 to Smalley and
$4,222.50 to his dental insurer) and directed Dr. Mann to pay Smalley and his
dental insurance company within 10 days of receipt of Smalley’s “Release of All
Claims” form. The committee “determined
that no further harm was caused.
Therefore, no corrective treatment is in order.” The committee noted that Smalley had “a
preexisting para-functional condition, with evidence of heavy wear [that] can
cause [his] teeth to fracture.”
In an
addendum to the resolution letter, the committee explained that the porcelain
crowns were “unacceptable due to breakages and occlusion problems” and noted
that Smalley was a “bruxer” (a person who grinds his teeth) with “evidence of
heavy wear on anterior teeth.”
Neither the
resolution letter nor the addendum identified the dentists that did the peer
review; both documents were signed “Peer Review Committee.” At deposition, Smalley could not recall the
names of any of the dentists on the peer review panel. The names of the peer review committee
members were never identified and none of the committee members was ever
disclosed as either a percipient witness or an expert witness.
Procedural
History
Smalley rejected the peer review
award and sued Dr. Mann for professional negligence. The case went to trial on November 30,
2009. Smalley was 74 or 75 years
old at the time of trial. In his trial
brief, Smalley claimed $82,556.50 for past dental expenses; $10,000 for future
treatment; and $250,000 in general damages.
On the first day of trial,
the trial judge heard motions in limine.
Smalley’s motion in limine No. 4 argued that “all documents relating to
the” peer review process were admissible in evidence. Dr. Mann’s motion in limine No. 14 argued
that any and all evidence of the MBDS’s intervention and decision should be
excluded on six different grounds: (1)
that it was barred by the provisions of the Patient Agreement; (2) that it is
hearsay; (3) that it constitutes an offer to compromise; (4) that it is
improper expert testimony; (5) that exclusion would further the legislative
intent behind section 1157; and (6) that it was barred by section 352 because
it would be unfair and prejudicial to Dr. Mann and would mislead the
jury. Dr. Mann also argued that if the
peer review was solely a fee dispute, as Smalley alleged, then the evidence was
irrelevant, since the amount of the fee was not at issue in the litigation.
The trial
court denied Smalley’s motion in limine No. 4, granted Dr. Mann’s motion in
limine No. 14, and excluded all evidence of the peer review process and
decision. The court stated, “I don’t
think that anything that came out of the peer review proceedings is admissible
both on the basis of a contractual agreement that plaintiff entered into and
agreed to submit the matter to peer review and, also, anything that would come
out of the findings of the peer review committee would be hearsay.” The court also reasoned that the evidence was
“arguably” covered by section 1157 and that it was “settlement discussions[,]
offers to compromise.” The court stated,
“I just can’t imagine how you would overcome the hearsay problem associated
with any of this evidence.” Smalley
argued that this evidence was not barred by section 1157 because that code
section only bars discovery of peer
review evidence, not the admission of
such evidence at trial. Smalley argued
that he was not seeking to discover peer review records; instead, he sought
admission of the resolution letter and all of the other documents relating to
the peer review process. The court
stated, “I think [the] California Supreme Court dealt with this in [
plaintiff can’t use it at trial when it’s precluded from obtaining discovery.
. . . So, on all grounds, it’s
not going to be admissible.” When
Smalley’s counsel inquired whether he would be permitted to introduce evidence
that Dr. Mann suggested Smalley go through the peer review process, arguing
that it was an admission against interest, the court responded, “No. That would be inadmissible on [section] 352
grounds because the jury is going to want to know what the process is all
about.”
Both
Smalley and Dr. Mann presented expert witness testimony at trial.[2] The jury concluded, in a special verdict,
that Dr. Mann was not negligent in his diagnosis or treatment of Smalley. Smalley appeals.
Discussion
I. Contentions
on Appeal
Smalley
attacks the trial court’s ruling on the motions in limine regarding the peer
review evidence on a variety of grounds.
His primary contention is that the peer review evidence is not made
inadmissible by section 1157. As a
threshold issue, he argues that the CDA and the MBDS are not Business and Professions
Code section 805 peer review bodies whose decisions are subject to section
1157. He also asserts that section 1157
only bars the discovery of peer
review records and not the admission
of the peer review committee’s resolution letter at trial because the committee
sent its resolution letter directly to Smalley.
Smalley argues that the court should have allowed him and his experts to
testify regarding the peer review process and that it was not necessary to subpoena
anyone from the peer review committee to testify about the committee’s
decision.
Smalley
also argues that this evidence is not inadmissible hearsay because it is
subject to the business records exception (§ 1271). He asserts that he was not contractually
barred from introducing the peer review evidence because the patient agreement
is “trickily worded,” defective, adhesive, unenforceable, and misrepresents the
law regarding section 1157. He contends
that the peer review decision is not an offer of compromise because it is
analogous to an arbitration award and did not come from Dr. Mann. He asserts that peer review evidence is
highly relevant expert opinion, but not improper. He contends that the peer review evidence is
not misleading and is more probative than prejudicial (§ 352). We begin by addressing the admissibility of
this evidence under section 1157.
II. Section
1157
Section
1157 provides in relevant part: “(a)
Neither the proceedings nor the records of organized committees of medical [or
other professional] staffs in hospitals, or of a peer review body, as defined
in Section 805 of the Business and Professions Code, having the responsibility
of evaluation and improvement of the quality of care rendered in the hospital,
or for that peer review body, . . . or dental
review . . . committees of local . . .
dental . . . societies, . . . , shall be
subject to discovery. [¶] (b) Except as hereinafter provided, no person
in attendance at a meeting of any of those committees shall be required to
testify as to what transpired at that meeting.
[¶] (c) The prohibition relating
to discovery or testimony does not apply to the statements made by any person
in attendance at a meeting of any of those committees who is a party to an
action or proceeding the subject matter of which was reviewed at that
meeting, . . .”
Section
1157 preserves the confidentiality of the proceedings and records of peer
review bodies and of organized committees of hospitals and specified
professional associations charged with evaluating and improving the quality of
care rendered by their members.
(§ 1157; West Covina Hospital
v. Superior Court (1986) 41 Cal.3d 846, 854 (West Covina).) Subject to
certain exceptions, these proceedings and records are not subject to discovery
(§ 1157, subd. (a)) and no one in attendance at the meetings of such
committees may be required to testify regarding what transpired at the meeting
(§ 1157, subd. (b)).
A.
The MBDS and CDA Are Subject to Section 1157
As a
threshold inquiry, we address Smalley’s contention that section 1157 does not
bar admission of the peer review committee’s records because it applies only to
a “peer review body” as defined in section 805 of the Business and Professions
Code and the MBDS and CDA do not fit within that definition. Smalley argues that the MBDS and CDA are not
“peer review bod[ies], as defined in Section 805 of the Business and
Professions Code” because Dr. Mann made no showing that the MBDS was a peer
review committee that is “subject to mandatory reporting, and which exist[s]
for the purpose of policing the profession and protecting the public from
incompetent or sub-par practitioners.”
Smalley contends that the peer review committee in this case is a
“voluntary committee that exists to mediate disputes between unhappy patients
and dentists in the Monterey Bay Area” and that it “more closely resembles a
Better Business Bureau group that exists primarily as a public relations
device.”
1. Forfeiture
Dr. Mann
argues that Smalley has “waived” this contention by failing to raise it in the
trial court. Our review of the record
persuades us that there has been no forfeiture.
In his motion in limine, Smalley argued that section 1157 does not bar
the use of evidence “from an investigation . . . by a dental
society which is not aimed at improving the quality of care provided by the
dentist, but which instead is aimed at resolving a fee dispute.” In our view, this was sufficient to encompass
Smalley’s arguments regarding the nature of the MBDS and CDA peer review committee. We therefore conclude that this contention
has not been forfeited and proceed to the merits of this argument.
2. Analysis
of the Merits
The peer
review was conducted by the MBDS, a local component of the CDA, which is a
constituent organization of the American Dental Association (ADA). (Salkin
v. California Dental Assn. (1986) 176 Cal.App.3d 1118, 1120 (
corporation . . . ; its purpose is to ‘encourage the
improvement of the health of the public, to promote the art and science of
dentistry and to represent the interests of the members of the dental
profession and the public which it serves.’
The CDA is a constituent society of the ADA. Its name and territorial jurisdiction are set
forth in the ADA charter, and its powers and duties as to membership, finances,
and discipline are defined by ADA bylaws.
Professional conduct of ADA members is governed by its Principles of
Ethics, in conjunction with the code of ethics of each member’s constituent
society.” (California Dental Assn. v. American Dental Assn. (1979) 23 Cal.3d
346, 350 (California Dental Assn.).) The ADA and the CDA are professional
organizations of “quasi-public significance” because “[i]n the public view,
membership in such organizations may appear to be tangible demonstration of
professional competence and skill, professional responsibility, and acceptance
by one’s peers.” (Salkin, supra, at
pp. 1124-1125 [discussing a member’s due process rights].)
Although
the peer review here was conducted by the MBDS, the local peer review
committee’s decision was subject to “approval and finalization by the
CDA.” The peer review was conducted in
accordance with procedures set forth in the CDA Peer Review Manual and the CDA
Quality Evaluation Manual and the resolution letter and addendum were both issued
on CDA letterhead. In addition to
conducting peer review evaluations, the CDA has the authority to discipline its
members, including censure, suspension, expulsion, or exclusion from
membership. (Salkin, supra, 176
Cal.App.3d at pp. 1120-1121; California
Dental Assn., supra, 23 Cal.3d at
p. 350.) Upon initiating the peer review
process, the MBDS advised Dr. Mann that if he received three or more adverse
peer review decisions in a 24-month period, he “could be referred to the CDA
Judicial Council for investigation of possible ethical violations” and that “an
adverse Judicial Council decision could result in a report to the Dental Board
of California and the National Practitioner Data Bank.” Based on this record and authority, we reject
Smalley’s contentions that the MBDS and CDA have no authority for policing the
profession or protecting the public and that they exist primarily as a public
relations device.
Smalley’s
arguments require that we construe the language of section 1157 and Business
and Professions Code section 805. “We
give effect to statutes according to the usual ordinary import of the language
employed in framing them. When statutory
language is clear and unambiguous there is no need for construction, and courts
should not indulge in it.” (
The interpretation of a statute is a question of law, which we review de
novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415,
432.)
When
section 1157 was enacted in 1968, it applied only to the records and
proceedings of “organized committees of medical staffs in hospitals having the
responsibility of evaluation and improvement of the quality of care” and
“medical review committees of local medical societies.” (Matchett
v. Superior Court (1974) 40 Cal.App.3d 623, 626, fn. 1 (
provisions to “medical-dental staffs in hospitals” and “dental review
committees of local . . . dental societies.” (Stats. 1975, ch. 674, § 1, pp. 1468-1469;
see Historical and Statutory Notes, 29B West’s Ann. Evidence. Code, pt. 3B
(2009 ed.) foll. § 1157, p. 484.)
Thus, the peer review committee of the MBDS, a local component of the
CDA, is covered by the express language of section 1157, since it is a “dental review
committee of [a] local . . . dental society.” (§ 1157, subd. (a).)
Since 1975,
section 1157 has been amended several times to expand its scope and extend its
provisions to professional societies and review committees representing several
types of caregivers, including dental hygienists, veterinarians, registered
dieticians, chiropractors, podiatrists, acupuncturists, psychologists, marriage
and family therapists, and licensed clinical social workers. (§ 1157; see Historical and Statutory
Notes, 29B West’s Ann. Evidence. Code, pt. 3B, supra, at pp. 484-485; Alexander
v. Superior Court (1993) 5 Cal.4th 1218, 1224, fn. 6 (Alexander), disapproved on another ground in Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709,
719-724.)
The 1990
amendment to section 1157 broadened the statute’s reach further, extending it
to the proceedings and records of “a peer review body, as defined in
Section 805 of the Business and Professions Code.” (Stats. 1990, ch. 196, § 2; Historical
and Statutory Notes, 29B West’s Ann. Evidence Code, pt. 3B,
in section 1157.
Business
and Professions Code section 805’s definition of a “peer review body” includes,
in relevant part, “Any medical, psychological, marriage and family therapy,
social work, dental, or podiatric
at least 25 percent of the eligible licentiates in the area in which it
functions (which must include at least one county), which is not organized for
profit and which has been determined to be exempt from taxes pursuant to
Section 23701 of the Revenue and Taxation Code.” (Bus. & Prof. Code, § 805, subd.
(a)(1)(C).)[3] The statutory definition of “licentiate”
includes “dentist.” (
In our
view, the MBDS and the CDA are also covered by the express language of Business
and Professions Code section 805, since the CDA is a dental professional
society which is not organized for profit.
(See California Dental Assn.,
Smalley
argues that the MBDS and CDA are not “peer review bod[ies], as defined in
Section 805 of the Business and Professions Code” because they did not file an
“ ‘805 report’ ” in this case. ~(AOB 17-18)~ Business and
Professions Code section 805, subdivisions (b), (c), and (e) require that a
peer review body file a written report with the “relevant agency” (in this case
the Dental Board of California, which regulates the practice of dentistry (Bus.
& Prof. Code, §1601.1)) when specified events occur. For example, subdivision (c) of the statute
requires an “805 report” when “as a result of an action of [the] peer review
body,” for a disciplinary cause or reason:
(1) a dentist’s application for staff privileges or membership is denied
or rejected; or (2) a dentist’s staff privileges, membership, or employment are
terminated or revoked; or (3) restrictions are imposed, or voluntarily
accepted, on a dentist’s staff privileges, membership, or employment for 30
days or more in a 12-month period. (Bus.
& Prof. Code, § 805, subd. (b).)
Other circumstances that require a peer review body to file an “805
report” are listed in subdivisions (c) and (e) of section 805, which are quoted
in the margin.[5]
In this
case, the MBDS and CDA concluded that some of Smalley’s complaints were valid
and recommended that Dr. Mann refund him $23,161.50. Recommending a refund to resolve a disputed
claim about the quality of care is not one of the circumstances that require
the filing of an “805 report” under Business and Professions Code section
805. That an “805 report” was not
required under the circumstances of this case does not mean that the MBDS and
the CDA are not peer review bodies within the meaning of Business and
Professions Code section 805 and section 1157.
Smalley
also argues that the MBDS and the CDA were not peer review bodies within the
meaning of Business and Professions Code section 805 because the peer review
here “was not launched [to determine] whether Dr. Mann was qualified to
practice dentistry, or to be a member of the society, or to renew his dental
license.” Instead, it was undertaken to
determine whether Smalley “should receive a partial or complete
refund . . . , given the outcome of the treatment performed
by Dr. MANN.”
The
statutory definition of “peer review body” in Business and Professions Code
section 805, subdivision (a)(1)(C) includes “any . . .
dental . . . professional society” whose members include “at
least 25 percent of the eligible [dentists] in the area in which it
functions . . . , which is not organized for profit,” and
which is tax exempt. The statute does
not define “peer review body” by the type of task performed. Section 1157, subdivision (a) provides in
relevant part that “[n]either the proceedings nor the records
of . . . a peer review body, as defined in Section 805 of the
Business and Professions Code, having the responsibility of evaluation and
improvement of the quality of care . . . for that peer review
body, or . . . dental review . . . committees of
local . . . dental . . .
societies, . . . , shall be subject to discovery.” Section 1157 applies to peer review bodies
that are responsible for “the evaluation and improvement of the quality of care”
and is not limited to functions related to the membership in the society or
qualifications to practice the profession or renew a professional license. In fact, licensing and license renewal are
the province of the “relevant state licensing agency” (i.e., Dental Board) and
not the peer review bodies, although, as noted before, peer review bodies must
report certain actions that they take that are relevant to a member’s
competence or professional conduct to the “relevant agency.” (Bus. & Prof. Code, § 805.) The peer review done by the MBDS and CDA
included an evaluation of the quality of care rendered by Dr. Mann. We therefore reject Smalley’s contention that
the MBDS was not a peer review body because the purpose of the peer review was
not to determine “whether Dr. Mann was qualified to practice dentistry, or to
be a member of the society, or to renew his dental license.”
In summary,
we conclude that section 1157 applies to the peer review in this case because
the MBDS is both “a peer review body, as defined in Section 805 of the Business
and Professions Code” and a “dental review committee[]” of a “local dental
societ[y].” (§ 1157.)
B.
Section 1157 Bars Admission of the Peer Review
Decision and Records
Smalley
contends that even if section 1157 applies to the peer review committee in this
case, it does not bar him from introducing the peer review records at
trial. He argues that section 1157
creates an immunity from discovery, not an evidentiary privilege. He asserts that if the Legislature had intended
to bar admission of peer review evidence, it could have expressly provided that
it was “inadmissible” in section 1157, as it has done in other parts of the
Evidence Code.
In 1974,
prior to the amendments that added dental and other professional societies to
section 1157, the Third District Court of Appeal described the legislative
policies and concerns relating to the admission of evidence of the records and
proceedings of peer review committees in judicial proceedings in
pages 628-630. Matchett has been referred to in numerous cases and since it
“reflects the various concerns the Legislature balanced in adopting section
1157,” we repeat its oft-quoted analysis here.
(West Covina,
states: “In an accredited hospital, the
organized medical staff is responsible to the hospital governing body for the
quality of in-hospital medical care; . . . . [Citations.]
When medical staff committees bear delegated responsibility for the
competence of staff practitioners, the quality of . . . care
depends heavily upon the committee members’ frankness in evaluating their
associates’ medical skills and their objectivity in regulating staff
privileges. Although composed of
volunteer professionals, these committees are affected with a strong element of
public interest. [¶] California law recognizes this public
interest by endowing the practitioner-members of hospital staff committees with
a measure of immunity from damage claims arising from committee
activities. (Civ. Code, § 43.7[[6]];
Ascherman v. San Francisco Medical
Society (1974) 39 Cal.App.3d 623.)
[S]ection 1157 expresses a legislative judgment that the public interest
in medical staff candor extends beyond damage immunity and requires a degree of
confidentiality.” (Matchett, at pp. 628-630.)
response to” Kenney v. Superior Court
(1967) 255 Cal.App.2d 106, which “sustained a malpractice plaintiff’s claim to
discovery of hospital staff records which might reveal information bearing upon
the competence of the defendant doctor.”
(Matchett,
revealing committee investigations and appraisals of their peers in
question. (Ibid.) “Section 1157 was
enacted 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 . . . practice will be elevated by armoring staff
inquiries with a measure of confidentiality.
[¶] This confidentiality exacts a
social cost because it impairs malpractice plaintiffs’ access to evidence. In a damage suit for . . .
malpractice against doctor or hospital or both, unavailability of recorded
evidence of incompetence might seriously jeopardize or even prevent the
plaintiff’s recovery. Section 1157
represents a legislative choice between competing public concerns. It embraces the goal of medical staff candor
at the cost of impairing plaintiffs’ access to evidence.” (Matchett,
at p. 629.)
The
establishes an immunity from discovery but not an evidentiary privilege in the
sense that medical staff records are excluded from evidence. It stands in contrast with . . .
section 1156, which expressly subjects to discovery hospital staff studies made
for the purpose of reducing morbidity or mortality, but excludes them as
evidence. Because discoverability is our
only concern, we need not decide whether section 1157 forms an exclusionary
rule barring hospital staff records as evidence.” (Matchett,
supra, 40 Cal.App.4th at p. 629,
fn. 3.) Thus, Matchett did not reach the question presented here: whether section 1157 bars the introduction of
peer review committee records at trial.
Addressing
this question, we begin by noting that section 1157 is not completely silent on
the question of the admissibility of peer review evidence at trial. Section 1157 expressly addresses the question
of trial testimony in subdivision
(b), which provides that “no person in attendance at a meeting of [a peer
review committee] shall be required to testify as to what transpired at that
meeting.” (Fox, supra, 22 Cal.4th at
pp. 544-545.) In addition, two Supreme
Court cases, West Covina and
peer review evidence is admissible at trial under section 1157.
The issue
in West Covina was whether section
1157 precluded a hospital medical review staff committee member from
proceedings of the committee in a medical malpractice action that alleged
negligence by a surgeon and negligence by the hospital in granting surgical
privileges and retaining the surgeon on its staff. (West
Covina, supra,
Covina court construed the language of section 1157, subdivision (b), which
provides that no person who attends a meeting of a peer review committee “shall
be required to testify as to what
transpired at that meeting” (italics added).
(West Covina, at pp.
849-855.) The court distinguished
voluntary testimony from compelled testimony and held that “section 1157,
subdivision (b) prohibits required testimony but does not preclude voluntary
testimony.” (West Covina, at pp. 854-855.)
The Court explained, “Seeking to promote the voluntary participation of
professionals in the peer review process so as to improve the quality
of . . . care, the Legislature sought to promote the
effectiveness of the committees by protecting the practitioner-members and by
providing a measure of confidentiality so as to promote candor and
objectivity. However, as
concerns such as the interests of victims of medical malpractice.” (Id.
at p. 854.) The court observed that
section 1157 contains some express exceptions[7]
and reasoned that “by providing exceptions from the prohibitions of compelled
discovery and required testimony, the Legislature has recognized that the
competing concerns in the designated circumstances take precedence over its
intent to promote candor by confidentiality.”
(West Covina, at pp. 849-850,
854.)
The
“[e]xclusion of compelled testimony alone serves the purposes and has the
effects enumerated in Matchett. Thus, exclusion of compelled testimony will
promote voluntary participation and candor and frankness of committee
members. To this extent the Legislature
has provided a measure of confidentiality which no doubt will seriously
jeopardize and prevent recovery by many malpractice plaintiffs. [¶]
Extending the prohibition to voluntary testimony would further promote
candor and frankness and would prevent recovery by additional plaintiffs. However, such extension is not essential to
the promotion of the legislative purposes, and it is for the Legislature to
determine how far to go in promoting its various goals. The Legislature has recognized in
subdivisions (c), (d) and (e) [of section 1157] that confidentiality must give
way to the need for evidence in the specified circumstances. We have no reason to assume that the
Legislature was not carefully balancing the need for confidentiality against
the need for evidence in subdivision (b) of the section as well, and there is
no justification for courts to strike a different balance.” (West
Covina, supra, 41 Cal.3d at
pp. 854-855.)
peer review evidence at trial. Fox was a medical malpractice action in
which the plaintiffs (husband and wife) sued two physicians and a hospital for
malpractice allegedly arising out of a colonoscopy procedure done on the
wife. (Fox, supra,
complained to the hospital, and as a result, hospital staff discussed the case
at a peer review committee meeting. (
with the California Department of Health Services (DHS), which assigned Dr.
Michael Schnitzer to investigate the matter.
As part of his investigation, Dr. Schnitzer reviewed the minutes of the
hospital peer review committee meeting and other records and prepared a draft
preliminary report. His report was never
finalized and DHS took no action against the hospital. (Id.
at p. 536.) Shortly before trial, the
plaintiffs issued a trial subpoena for the DHS draft preliminary report. They also moved to augment their expert
witness list to include Dr. Schnitzer and subpoenaed him to testify at trial. The DHS moved to quash the subpoena on the
ground that Dr. Schnitzer had relied substantially on the peer review
committee materials in formulating his opinions. The defendant doctors made a motion in limine
to exclude any reference to the peer review process, and the hospital moved to
exclude evidence of the DHS investigation and Dr. Schnitzer’s report, on
various grounds, including that they were privileged under section 1157. The trial court granted the DHS’s and the
doctors’ motions; it denied the hospital’s motion as moot, since it had
determined that Dr. Schnitzer was not going to testify. The jury reached a unanimous verdict for the
defendants. (Fox, supra,
On appeal
in Fox, the Supreme Court held that
the plaintiffs could not subpoena Dr. Schnitzer to give expert testimony or
refer to his report at trial “when his conclusions were based on hospital peer
review committee records reviewed in the course of his official duties for a
public agency.” (Fox, supra, 22 Cal.4th at
pp. 535, 540.) The court explained
that the peer review committee records were immune from discovery under section
1157. (Fox, at p. 540.) The court observed that section 1157,
subdivision (a) “ ‘[b]y its terms . . . creates only a
privilege against discovery from medical staff committees; it does not create a
bar against introduction of evidence’ otherwise properly obtained” and stated,
“Literally, section 1157 establishes an immunity from discovery but not an
evidentiary privilege in the sense that [peer review] records are excluded from
evidence.” (Fox, at p. 539, quoting
p. 629, fn. 3.) But the court
held that the records that are protected from discovery by section 1157 also
cannot be subpoenaed for trial. The
court explained that the plaintiffs “could not accomplish indirectly what was
forbidden to them to do directly, i.e., obtain the equivalent of
peer review committee records, by subpoenaing the testimony or the report of
the DHS investigator who reviewed them in the course of his public duties. When, as here, an expert has relied on
privileged material to formulate an opinion, the court may exclude his
testimony or report as necessary to enforce the privilege.” (Fox,
In response
to the plaintiffs’ argument that section 1157 only immunizes peer review
records from pretrial discovery and does not confer immunity from subpoena
at trial, the Fox court
stated: “The distinction that they
attempt to draw between the pretrial exchange of information and trial evidence
does not withstand scrutiny; . . . . [S]ection 1157, subdivision (a), does not bar
introduction of evidence voluntarily offered by a participant in the peer
review proceedings or voluntarily produced in the course of discovery. But the purpose of the provision—preserving
the confidentiality of hospital peer review proceedings—would clearly be
undermined if a party in a civil action could obtain through a trial subpoena
the same evidence that it was prohibited from obtaining through a pretrial
discovery request, i.e., otherwise privileged materials. The Legislature could not have intended such
an absurd result. The evidence at issue
herein was not subject to compulsory process by a party to a civil action
supra, 22 Cal.4th at p. 542.)
Section
1157 protects the “records” and “proceedings” of specified peer review
committees. These terms are construed
broadly to limit external access to the peer review process. (Alexander,
6.) Thus, the protection is not limited
to documents generated by or prepared by
the peer review committee and extends to documents submitted to the committee from outside sources. (Id.
at pp. 1227-1228 [protection extends to physicians’ applications and
reapplications for hospital staff privileges].)
In addition, the identities of the peer review committee members are so
intimately related to the evaluation itself that they fall within the
privilege. (Cedars-Sinai Med. Center v. Superior Court (1993) 12
Cal.App.4th 579, 588 (Cedars-Sinai).) To encourage candid evaluations, the
identities of the professionals who serve on peer review committees are
protected. (Id. at p. 588.)
Without a
doubt, the resolution letter was a “record” of the committee. Applying these rules to this case, Smalley
was not entitled to obtain the peer review committee’s records through pretrial
discovery. (§ 1157, subd.
(a).) None of committee members signed
the resolution letter or the addendum and Smalley was not entitled to learn
their identities through pretrial discovery.
(Cedars-Sinai, supra, 12
Cal.App.4th at p. 588.) Smalley cannot compel the committee members to
testify and none of them has voluntarily agreed to testify. (§ 1157, subd. (b); West Covina, supra, 41
Cal.3d at pp. 854-855.) Smalley cannot
subpoena the peer review records for trial and accomplish indirectly what
section 1157 expressly forbids, the discovery of the records of the peer review
committee. (Fox, supra, 22 Cal.4th at
p. 541.) The question here is whether
Smalley can introduce the resolution letter, which says that some of his claims
are “valid,” and the other peer review documents in his possession into
evidence.
This case
is factually distinguishable from Fox in
one important respect. Unlike the
plaintiff in Fox, who had not
obtained the peer review records before trial, Smalley had already received the
resolution letter, which was sent to him directly by the peer review committee
when it completed its review of his claim, prior to filing his malpractice
action.[8] He may also have received a copy of the
addendum. Seizing on this point, Smalley
argues that peer review proceedings in this case were not confidential since
the “outcome of the ‘peer review’ ” (the resolution letter) was
voluntarily disclosed to him and that the whole purpose of the peer review
process was to provide him with a decision.
He asserts that the decision was not secret or subject to any kind of
restraint on use[9]
and that the anonymity of the peer review process was preserved by not naming
the peer review committee members in the decision.
Section
1157 does not expressly address the admissibility of a peer review committee’s
dispute resolution letter that the committee sends directly to the parties to
the dispute prior to litigation. Section
1157 contains exceptions from the statute’s prohibitions by which “the
Legislature has recognized that the competing concerns” such as the interests
of the victims of malpractice “take precedence over its intent to promote
candor by confidentiality.” (
address the situation presented here.
The only exception that arguably has any application to this case is
found in subdivision (c) of the statute, which provides that section 1157 “does not apply to the statements made by any
person in attendance at a meeting of any of those committees who is a party to
an action or proceeding the subject matter of which was reviewed at that
meeting.”[10] By its terms, this exception applies to any
statements made by Smalley or Dr. Mann, the parties to this malpractice action,
at the peer review committee meeting or meetings. Smalley, however, does not seek the admission
of any statements he or Dr. Mann made to the peer review committee; he seeks
the admission of the peer review committee’s resolution letter. In addition, the “statement by persons in
attendance” exception does not apply to malpractice actions. (University
of Southern California v. Superior Court (1996) 45 Cal.App.4th 1283, 1291.)
“ ‘[T]o declare that the immunity is to be set aside when [the
health care professional is a party] to the malpractice proceedings would not
only achieve an absurd result, but would render sterile the immunity provisions
of the statute.’ ” (
In our view, the purpose of
preserving the confidentiality of peer review proceedings and the goal of
promoting the voluntary participation of health care professionals in the peer
review process would be seriously undermined if, in cases such as this, where a
peer review committee resolves a patient-provider dispute, a party to a civil
action was permitted to introduce the decision of the peer review committee as
evidence at trial when the peer review committee has not voluntarily produced
the report during discovery or agreed to voluntarily testify about the report
at trial. (Fox, supra,
22 Cal.4th at p. 542.) We note that
the admission of the resolution letter alone would have had as much force and
effect as if one or more of the committee members had testified. The peer review process depends on the
voluntary participation, candor, and frankness of the committee members (
frankness of health care professionals like Dr. Mann, who submit their disputes
to the peer review process and provide information to peer review committees (
the peer review committee will almost always provide the patient with some kind
of written decision or resolution of the dispute. To rule such evidence admissible simply
because the patient received a copy of the decision, would impact potential
committee members’ willingness to serve on peer review committees and defeat
the purposes of section 1157.
In summary,
we hold that section 1157 bars the admission into evidence of the decision of a
peer review committee that has resolved a patient-provider dispute in the
circumstances presented here, where although the peer review committee provided
its decision to the parties to the dispute, the peer review committee has not
voluntarily produced the decision during discovery and none of the committee
members has voluntarily agreed to testify regarding the peer review process or the committee’s decision. (Fox,
supra, 22 Cal.4th at p.
542.) For these reasons, we conclude
that the trial court did not err when it held that the peer review evidence was
inadmissible at trial.
III. Exclusion
of Expert Testimony Regarding Peer Review Decision
Citing
section 801, subdivision (b), Smalley argues that his experts should have been
allowed to testify regarding the peer review evidence because it is the type of
evidence an expert may reasonably rely on in forming an opinion. Smalley asserts the trial court’s in limine
ruling deprived him of testimony from his experts that their review of the
records, including the peer review decision, and their examinations of Smalley
led to the conclusion that Dr. Mann’s treatment was negligent. He argues that the fact that the peer review
committee ordered a refund supported his claim that Dr. Mann failed to meet the
standard of care and asserts that the peer review decision would have assisted
his expert witnesses in understanding the standard of care in the
community.
Section 801
permits an expert to testify to an opinion that is “[b]ased on matter
(including his special knowledge, skill, experience, training, and education)
perceived by or personally known to the witness or made known to him at or
before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in
forming an opinion upon the subject to which his testimony relates,
using such matter as the basis of his opinion.” (§ 801, subd. (b); italics added;
90.)
In Fox, the California Supreme Court explained that the records of
peer review committee investigations are privileged from discovery and
compelled testimony under section 1157, subdivision (a). (Fox,
supra, 22 Cal.App.4th at pp.
538.) The Fox court also instructed that when “an expert has relied on
privileged material to formulate an opinion, the court may exclude [the
expert’s] testimony or report as necessary to enforce the privilege.” And since we hold that the peer review
resolution letter and peer review evidence at issue here were inadmissible under
section 1157, the expert witnesses were “precluded by law from using such
matter as the basis of [their] opinion[s].”
(§ 801, subd. (b).)
Moreover, while section 801 permits
an expert to testify about the basis of his or her opinion, it was “not
intended to be a channel by which testifying [experts] can place the opinion of
innumerable out-of-court [experts] before the jury.” (Whitfield
v. Roth (1974) 10 Cal.3d 874, 895.)
Finally,
there is no evidence that Smalley’s experts relied on or reviewed the peer
review evidence either to determine the standard of care or to evaluate Dr.
Mann’s alleged negligence. In his motion
in limine, Dr. Mann told the court that Smalley’s experts had not testified in
deposition that they had reviewed or relied on the peer review evidence. Smalley did not dispute that assertion.[12]
For these reasons, we conclude that
the court did not abuse its discretion when it held that the expert witnesses
could not testify regarding the peer review evidence.
IV. Hearsay, Enforceability of Patient Agreement,
and Other Contentions
Since we
hold that the court properly excluded the peer review evidence under section
1157, we shall not reach Smalley’s contentions (1) that the peer review
decision was admissible under the business records exception to the hearsay
rule; (2) that he was not contractually barred from introducing the peer review
evidence because the patient agreement is unenforceable; (3) that the peer
review decision is not an offer of compromise; and (4) that the peer review
evidence is not misleading and is more probative than prejudicial (§ 352).
Disposition
The
judgment is affirmed.
Lucero,
J.*
I CONCUR:
Bamattre-Manoukian, Acting, P.J.
I
CONCUR IN THE JUDGMENT ONLY:
Mihara, J.
[1] All further statutory references are to the Evidence
Code unless otherwise stated.
[2] Dr. Mann’s
expert was John Baron, D.D.S.; Smalley’s experts were John Derdivanis, D.D.S.
and Mike Chen, D.D.S.; Smalley also disclosed Dr. Eurs as a nonretained expert.
