2011-00111377-CU-MM

Robert Wallace vs. Nancy Appelblatt

Nature of Proceeding: Motion to Quash Deposition Subpoena (Joinder by Robert V. Oliver MD)

Filed By: McPherson, Dennis

The motion of third party Mercy General Hospital (“Mercy”), joined by third party Robert
V. Oliver, M.D. (“Dr. Oliver”), to quash the deposition subpoena issued to Dr. Oliver is
DENIED.

Background Facts/Procedure

This is a medical malpractice case. Plaintiffs Robert Wallace (“R. Wallace”) and Ann
Wallace (collectively “Plaintiffs”) allege that Defendant Nancy Appleblatt, M.D. (“Dr.
Appleblatt”) negligently performed a procedure on R. Wallace. The procedure took
place within the facilities of Co-Defendant Sacramento Ear, Nose and Throat Surgical
(“Sac ENT”). R. Wallace recuperated in Mercy’s facilities.

After Dr. Appleblatt performed the surgery in question, she scheduled a follow-up
procedure for R. Wallace. On October 3, 2010, while Dr. Appleblatt was observing R.
Wallace within Mercy facilities, her demeanor and affect raised Plaintiffs’ suspicions
that she was somehow impaired. Plaintiffs alerted two Mercy nurses of their
suspicions, and the nurses observed Dr. Appleblatt. Both Mercy nurses reported that
they suspected Dr. Appleblatt was indeed impaired. Based on their reports, Mercy’s
Chief of Staff, Christian A. Swanson, M.D. (“Dr. Swanson”) approached Dr. Appleblatt
while she was still at the Mercy facility and asked her to report to Mercy’s emergency
room for an evaluation. Dr. Oliver performed the evaluation and communicated his
observations verbally to Dr. Swanson.

In 2012, counsel for Dr. Appleblatt and Sac ENT (collectively “Defendants”) spoke with
Dr. Oliver, and the latter reported his observations of and conclusions about Dr.
Appleblatt at the time of the evaluation. Defense counsel attempted for some time
thereafter to coordinate Dr. Oliver’s deposition, but when counsel issued a deposition
subpoena, Mercy objected on grounds that the deposition would violate the peer
review immunity at Evidence Code §1157. In Mercy’s view, Dr. Oliver’s emergency
room evaluation of Dr. Appleblatt is protected from discovery. This motion to quash
follows.

Discussion
Evidence Code § 1157 protects from discovery the “proceedings” and “records” of
organized committees and peer review bodies charged with “evaluation and
improvement of the quality of care… .” In addition, no person may be compelled to
testify about what transpired at such a committee meeting. (Cal. Evid. Code § 1157
(b).) The Legislative purpose behind § 1157 has been described as follows:

The obvious general purpose of section 1157 is to improve the quality of
medical care in the hospitals by the use of peer review committees. . . . If
doctors who serve on such committees were subject in malpractice
cases to the burdens of discovery and involuntary testimony on the basis
of their committee work, the evidentiary burdens could consume large
portions of the doctors’ time to the prejudice of their medical practices or
personal endeavors and could cause many doctors to refuse to serve on
the committees.

th
(Fox v. Kramer (2000) 22 Cal.4 531, 539-540 [quoting West Covina Hosp. v. Superior
Court (1986) 41 Cal.3d 846, 851-852] [ellipsis in original]; see also West Covina Hosp.,
41 Cal.3d at 853 [“Section 1157 was enacted upon the theory that external access to
peer investigations concluded by staff committees stifles candor and inhibits
objectivity”] [footnote omitted].) Thus, the California Supreme Court stated that the
confidentiality conferred upon peer view records and proceedings

exacts a social cost because it impairs malpractice plaintiffs’ access to
evidence. In a damage suit for in-hospital 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.

(West Covina Hosp., 41 Cal.3d at 853-854 [footnote omitted].)

In deciding whether Dr. Oliver’s observations of Dr. Appleblatt and subsequent
discussion with Dr. Swanson are within the scope of § 1157, the primary question is
whether those observations and discussion are the “reports” or “proceedings” of a
qualified peer review committee. (Cf. Matchett v. Superior Court (App. 3 Dist. 1974)
40 Cal.App.3d 623, 627 [“In passing upon the claim of immunity, the court must have
before it facts which allow it to match the staff committee’s mission and function
against the specifications of the statute”].) Thus, for example, § 1157 does not protect
records maintained by hospital administration, as opposed to those maintained by a
peer review committee. (Id. at 628, 631-632.) The burden is on Mercy to establish its
entitlement to nondisclosure. (Id. at 627 [citation omitted].)

Mercy attempts to meet its burden through the Swanson Declaration and exhibits
thereto. According to Dr. Swanson, he was Mercy’s Chief of Staff during the relevant
period. (Swanson Decl., ¶ 6.) As such, he chaired Mercy’s Medical Executive
Committee (“MEC”), acted on behalf of the MEC between meetings, and ensured
compliance with Mercy’s Medical Staff Bylaws. (Id., ¶¶ 3, 6.) At least part of the
MEC’s mission is to serve as a peer-review body. (Id., ¶¶ 3-5.)

With respect to Dr. Appleblatt’s evaluation in Mercy’s emergency room, Dr. Swanson asserts that: (1) he learned of her possible impairment from Mercy nurses, (2) he then
asked her to report to the emergency room for an evaluation, (3) he made his request
as Chief of Staff to “ensure no imminent danger to patient safety,” (4) he asked Dr.
Oliver to perform the evaluation to assess “possible imminent danger,” and (5) given
that he was invoking his powers pursuant to the Bylaws, Dr. Appleblatt’s impairment
“could be investigated by MEC.” (Swanson Decl., ¶¶ 10-11.) Elsewhere, Dr. Swanson
asserts that (6) Dr. Oliver reported his findings verbally directly to him and later in
writing, (7) he received Dr. Oliver’s written report “care of the Medical Staff Office,” and
(8) the report has been maintained as a Medical Staff peer-review document since
then. Finally, Dr. Swanson asserts that he became involved in Dr. Appleblatt’s referral
to Dr. Oliver solely “as Chief of Staff and in furtherance of [his] duty to ensure
immediate peer review and of the report…that…Dr. Appleblatt might have posed an
immediate danger to the health of her patient.” (Id., ¶ 13.)

Portions of Mercy’s Medical Staff Bylaws are attached to the Swanson Declaration.
Subsection 6.2-1 of the Bylaws authorizes certain Mercy individuals and groups
immediately to suspend or restrict a practitioner’s clinical privileges where “failure to
take that action may result in an imminent danger to the health or safety of any
individual… .” (Swanson Decl., Exh. A at A-2.) That subsection identifies the parties
authorized to order such a restriction or suspension as the Chief of Vice-Chief of Staff,
members of the MEC “acting as a whole,” or the Chair or Vice-Chair of the Clinical
Service in which the practitioner holds privileges.” In addition, among the duties of the
Chief of Staff enumerated in the Bylaws are the duties to enforce bylaws, rules and
regulations. (Id., Exh. A at A-5 [subsection 9.2-1].) The court finds that Dr. Swanson
acted as Chief of Staff pursuant to one or both of these subsections. The MEC was
not “acting as a whole” during the episode, Dr. Swanson acknowledged that it was
merely possible that the MEC would conduct its own investigation into the events, and
there is no evidence that the MEC actually conducted such an investigation. Thus,
although one of the Chief of Staff’s other enumerated duties is to perform MEC
“responsibilities” which, “in his reasonable opinion must be accomplished prior to the
next regular or special meeting of the M[EC],” (id., Exh. A at A-6), the court finds that
Dr. Swanson was not discharging this duty when he referred Dr. Appleblatt to Dr.
Oliver.

Even if Dr. Swanson was acting on behalf of the MEC when he confronted Dr.
Appleblatt, he was not acting as its proxy in a peer-review capacity. The MEC’s duties
are not limited to peer-review functions. Thus, whereas Bylaw subsection 11.3-2(f)
charges the MEC with “[e]valuating the medial care rendered to patients”, subsection
(i) imposes the further obligations of

Taking reasonable steps to promote ethical conduct and competent
clinical performance on the part of all Members, initiating and
participating in Medical Staff corrective or review measures when
warranted, including but not limited to, taking informal corrective action
such as counseling a Practitioner or issuing letters of warning or
reprimand to a Practitioner[.]

In the court’s view, immediately removing a potentially impaired practitioner from
patient interaction, without any meeting of a peer-view committee, fulfills a “corrective”
function, not a “review” function. Thus, to the extent Dr. Swanson took corrective
action on the date in question as the MEC’s proxy, he did so without triggering the
protections of Evidence Code § 1157. In sum, the court concludes that, when Dr. Oliver evaluated Dr. Appleblatt and
reported his findings to Dr. Swanson, he did not generate any “records” or partake in
any “proceedings” of a peer review committee within the purview of Evidence Code §
1157. Given this conclusion, the court does not reach the parties’ further dispute
whether the protections of § 1157 were waived.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.