Baltimore Sun Co. v. University of Maryland Medical System Corp.

MURPHY, Chief Judge. This case focuses upon Maryland Code (1981, 1986 Repl. Vol.), § 14-601 of the Health Occupations Article relating to “Medical review committees.” As defined by subsection (b), these committees include, inter alia, medical staff committees of hospitals. Subsection (c) specifies the functions of a medical review committee: “(1) Evaluates and seeks to improve the quality of health care provided by providers of health care; (2) Evaluates the need for and the level of performance of health care provided by providers of health care; (3) Evaluates the qualifications, competence, and performance of providers of health care; or (4) Evaluates and acts on matters that relate to the discipline of any provider of health care.” Subsection (d)(1) provides that “the proceedings, records, and files of a medical review committee are not discoverable and are not admissible in evidence in any civil action arising out of matters that are being reviewed and evaluated by the medical review committee.” Subsection (e) provides that ⁶⁶¹ subsection (d)(1) does not apply to “[a] civil action brought by a party to the proceedings of the medical review committee who claims to be aggrieved by the decision of the medical review committee.” The case has been certified to us by the United States Court of Appeals for the Fourth Circuit, pursuant to the Maryland Uniform Certification of Questions of Law Act, Code (1974, 1989 Repl.Vol.), §§ 12-601 — 12-609 of the Courts and Judicial Proceedings Article. 1 The question of state law certified by the Fourth Circuit is whether § 14-601(d) “bars press access to confidential records of a hospital’s peer review committee when they are discoverable under section 14-601(e) and have been filed with and considered by the court in connection with a dispositive motion such as a motion for summary judgment.” I. In its certification order, the Fourth Circuit set forth the facts of the case as follows. 2 Malpractice actions were filed against Dr. H. Harlan Stone, a Professor of Surgery at the University of Maryland School of Medicine, the hospital and several others doctors.

After peer review committee investigations, Stone resigned from his position at the Medical System and Medical School. In November 1986, Stone filed an action against, inter alia, the University of Maryland ⁶⁶² Medical System Corporation (“the University”) under 42 U.S.C. § 1983 . This suit, filed in federal district court, District of Maryland, alleged that he was involuntarily terminated in violation of his right to due process. See Stone v. University of Maryland Medical System, 855 F.2d 167 (4th Cir.1988) (hereinafter “Stone I”).

All the defendants in the case filed a motion for summary judgment on July 10, 1987, attaching various exhibits, including excerpts from minutes of the medical review committees which had undertaken the peer review investigation of Stone. The district court, at the request of all parties, entered an order on July 23, 1987, directing that the record in the case, with the exception of the Complaint, Amended Complaint and Answers, be placed under seal. On August 14, 1987, Stone filed an opposition to the motion for summary judgment and attached to that opposition an exhibit which consisted of a peer review document. In October 1987, the district court granted defendants’ motion for summary judgment, and Stone appealed to the United States Court of Appeals for the Fourth Circuit.

In December 1987, the Baltimore Sun newspaper was allowed to intervene, and it moved to vacate the seal order. Dr. Frederick K. Toy and Dr. Walter Pegoli, who had been sued in some of the malpractice actions involving Stone (those actions are still pending), were also allowed to intervene to oppose the Sun’s motion. The Fourth Circuit upheld the district court’s grant of summary judgment to the defendants, Stone I, 855 F.2d 167 , and remanded the case to the district court to reconsider the appropriateness of the seal order in accordance with the procedures established in In re Knight Publishing Co., 743 F.2d 231 (4th Cir.1984). Stone v. University of Maryland Medical System, 855 F.2d 178 (4th Cir.1988) (hereinafter “Stone II”).

Specifically, the court instructed the district court “to give the public notice of a request to seal and a reasonable opportunity to challenge it” by docketing the motion “reasonably in advance of deciding the issue.” Id. at 181. ⁶⁶³ On remand, the district court issued an order modifying the July 23, 1987, seal order. It lifted the seal order on all but three documents consisting of peer review material. Two of those documents were attached as exhibits to the defendants’ motion for summary judgment, and the third was attached as an exhibit filed by Stone in opposition to that motion. The court’s “Order Modifying Seal Order” concluded that (1) the three documents remaining under seal did come within the statutory protection of section 14-601; (2) a compelling government interest in “protecting the confidentiality of medical review records in order to foster effective, thorough, frank, and uninhibited exchange among peer review committee members so that quality patient care can be ensured ... outweigh[ed] the Sun’s first amendment right of access to these records”; (3) the statutory immunity provided to these documents had not been waived; and (4) the modification is “narrowly tailored and there is no less drastic, effective alternative to it.” The Sun appealed from the district court’s order.

It maintained that the statute does not bar press access to medical review committee records filed in a civil action by a party to the committee proceedings, who claims to be aggrieved by the committee’s decision.

II

In its certification order, the Fourth Circuit opined that § 14-601(d) “ensures some level of confidentiality to medical peer review proceedings.” It recognized that in Unnamed Physician v. Comm’n, 285 Md. 1, 13 , 400 A.2d 396 (1979), we stated that the “fundamental reason for preserving confidentiality [by enacting § 14-601] ... is to ensure a high quality of peer review activity leading to the primary goal of this legislation — to provide better health care.” The Fourth Circuit further recognized in its certification order that “the confidentiality provided by § 14-601, however, is not absolute.” Stating that the statute addresses only “whether medical review committee materials are discoverable and admissible at trial,” the Fourth Circuit said ⁶⁶⁴ that the parties were in agreement that the documents were discoverable by Dr. Stone under the subsection (e)(1) exception “to the general protection afforded by § 14-601(d).” The certified question before us is thus limited to determining whether § 14-601 is applicable to bar the press access to the committee reports under the circumstances of this case. In this regard, the Fourth Circuit stated that we “might determine that the statute is not applicable to this case, and thus alleviate any conflict between the statute and the right to access provided by the first amendment.” The Sun argues that the statutory protection afforded by § 14-601(d) erects a shield around the peer review documents, which cannot be penetrated in the civil discovery process. But it says that once all of the prerequisites to the exception set forth in § 14-601(e)(l) are satisfied, the shield falls and the privilege is simply inapplicable. According to the Sun: “There is no middle ground permitted by the statute.

Either the documents are privileged or, as in this case, the privilege ‘does not apply.’ § 14-601(e)(l). The plain words of the statute command this result. The Court need look no further to find the Legislature’s intent.” The University responds that the statute prevents revelation of medical review committee records to any unauthorized person, including the media. It argues that the statutory immunity afforded these documents ensures that they remain confidential in all contexts other than utilization in the suit between Dr. Stone and the hospital.

It suggests that the purpose of the statute is to improve patient care by maintaining the confidentiality of peer review materials. As a result, the University says that complete waiver of the confidentiality of these documents, where they have been discovered pursuant to the exception in the statute, would be wholly inconsistent with the statutory objective.

III

What is now § 14-601 of the Health Occupations Article was enacted as ch. 722 of the Acts of 1976, then codified as ⁶⁶⁵ Code (1971 Repl.Vol., 1976 Cum.Supp.), Article 43, § 134A. In its original form, § 134A(d) provided that the proceedings, records and files of a medical review committee were “neither discoverable nor admissible into evidence in any civil action arising out of matters which are being reviewed and evaluated by the committee.” Within this same subsection, it was provided: “This immunity does not apply to a civil action brought by a party to the proceedings of the review committee and claiming to be aggrieved by the decision of the committee. Also, this immunity does not extend to any records or documents considered by the committee which would otherwise be subject to discovery and introduction into evidence in a civil action.” Subsection (e) of § 134A, now subsection (f) of § 14-601, immunizes any person acting in good faith and within the scope of jurisdiction of a medical review committee from civil liability for giving information to, participating in, or contributing to the function of the committee. The subsequent recodification of these provisions as § 14-601(d) and (e)(1) and (2) was accomplished by ch. 8 of the Acts of 1981.

According to the “Revisor’s Note,” the recodification was without substantive change from former Article 43, § 134A. 3 A later amendment to § 14-601 added subparagraph (2) to subsection (d); it provides that the proceedings, records and files of a medical review committee requested to insure compliance with the provisions of § 19-319 of the Health-General Article (which concerns the credentialing process for physicians seeking staff privileges at hospitals) are ⁶⁶⁶ “confidential and are not discoverable and are not admissible in evidence in any civil action arising out of matters that are being reviewed and evaluated by the medical review committee.” Code (1990 Cum.Supp.) § 14-601(d)(2). In Unnamed Physician v. Comm’n, supra, 285 Md. at 11-12 , 400 A.2d 396 , we noted that a “civil action,” within the contemplation of § 14-601(d), is an adversary proceeding before a court of law, encompassing a tort action for medical malpractice. A “fundamental reason” for preserving confidentiality of a medical review committee proceeding, we said, was to ensure high quality of peer review records in order to provide better health care. Id. at 13, 400 A.2d 396 .

Other states with statutes similar to § 14-601 have recognized this purpose of peer review committees. See, e.g., Franco v. Dist. Court in & For City & Cty., 641 P.2d 922 (Colo.1982); Holly v. Auld, 450 So.2d 217 (Fla. 1984); Jenkins v. Wu, 102 Ill.2d 468 , 82 Ill.Dec. 382 , 468 N.E.2d 1162