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08/23/91 RICHARD N. SCOTT AND WASHINGTON HOSPITAL

August 23, 1991

RICHARD N. SCOTT AND THE WASHINGTON HOSPITAL CENTER CORPORATION, APPELLANTS
v.
ARTHUR JACKSON, AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF WILLARD M. JACKSON, ET AL., APPELLEES



Appeals from the Superior Court of the District of Columbia; Hon. Richard S. Salzman, Trial Judge

Farrell and Wagner, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Farrell

The issue we must decide is whether this court has jurisdiction to review pretrial orders of the trial court requiring discovery of information under the "extraordinary necessity" exception to the District of Columbia's statutory peer review privilege governing certain medical records and reports. D.C. Code § 32-505 (a) (1988). We hold that the orders, lacking requisites of finality, may not be appealed at this time.

I.

These are consolidated appeals from discovery orders directing appellant Washington Hospital Center Corporation to produce the personnel file of appellant Dr. Richard N. Scott along with records of Washington Hospital Center's peer review of Dr. Scott's surgical performance relating to his medical treatment of Mrs. Willard M. Jackson and other patients. Dr. Scott appeals from both the order to provide appellees, plaintiffs below, with his personnel file and the order to produce the peer review documents pertaining to his treatment of Mrs. Jackson and others. Washington Hospital Center appeals only the order compelling production of the records of its peer review committee's investigation of Dr. Scott.

The discovery orders were entered in a medical malpractice action that arose from Mrs. Jackson's death in 1980 during open heart surgery performed at Washington Hospital Center by Dr. Scott and Dr. Arthur Lee. *fn1 Appellees contend that Mrs. Jackson died as a result of a "massive hemorrhage caused by a perforated aorta" and that Dr. Scott's and Dr. Lee's "medical negligence during Mrs. Jackson's heart operation on August 26, 1980 was the direct cause of the injury which then caused her death." Appellees contend further that Mrs. Jackson's death certificate, signed by Dr. Scott, listing the cause of her death as "left ventricular failure," as well as Washington Hospital Center's official medical record, do not reflect the actual circumstances of her death and that appellants fraudulently concealed the true cause of death. Appellees allege that they brought their malpractice suit against appellants and Dr. Lee in October 1989 only after an article appeared in the October 26, 1988 issue of the Washington Post suggesting that Mrs. Jackson's death was the result of medical negligence. *fn2 Appellants vigorously dispute the claim that medical negligence caused Mrs. Jackson's death or that there was any form of cover-up of the cause of her death. Both appellants claim that the District's statutory "peer review privilege" *fn3 protects the records of Washington Hospital Center's internal investigation of Dr. Scott from disclosure. Dr. Scott contends that the documents contained in his Washington Hospital personnel file are similarly sheltered by the peer review privilege.

The trial court was persuaded that plaintiffs had made the requisite showing of "extraordinary necessity" to overcome the qualified privilege. The court reasoned:

This suit is based on events that took place nearly ten years ago. Plaintiffs' contentions -- that the 1980 operating room death of Mrs. Jackson is attributable to substandard care by the surgeons involved and that subsequent actions by defendants resulted in plaintiffs' not discovering this at the time -- is not one that may be rejected out of hand on the present record. Since 1980 evidence has been lost or destroyed. It appears that Dr. Scott's own records no longer exist, the Hospital Center's original documentation of Mrs. Jackson's surgery no longer exists, and portions of Dr. Scott's personnel record have been destroyed. Moreover, witnesses have died (defendant Dr. Fouty died during the pendency of this case) or become otherwise unavailable, and memories have faded. In the circumstances of this case, given the length of time between Mrs. Jackson's surgery and plaintiffs' filing suit, the peer review materials appear to be the most reliable evidence available of the events surrounding Mrs. Jackson's death.

On the defendants' motion for reconsideration and clarification, the court amplified its reasoning:

The defendant has misconstrued the basis of the Court's ruling. It is not the passage of ten years since the operation on Mrs. Jackson that is exceptional; rather it is the Hospital Center's actions that are extraordinary. First, the Hospital availed itself of the peer review process in effecting the withdrawal of the operating privileges of Dr. Scott, whom it believed (rightly or wrongly) was operating below acceptable surgical standards. Then the Hospital entered into an agreement with that surgeon to withhold from everyone else the basis for its decision to withdraw his privileges. *fn12 And finally, in carrying out that agreement, the Hospital removed from Dr. Scott's personnel file the pertinent records reflecting its concerns for patient care that led up to the suspension of his operating privileges. These are the circumstances the Court found "extraordinary." *fn13 When they are coupled with the nearly ten years since the operation on Mrs. Jackson and the inevitable fading of memory *fn14 and misplacement of records, the Court was satisfied that "extraordinary necessity" warranting disclosure of the peer review records had been demonstrated. Those records are virtually contemporaneous with the incident in suit and, as the Court stressed in its ruling, appear to be "the most reliable evidence available."

*fn12 Including not merely the patients' families, but other hospitals equally interested in that information. See Plaintiffs' Motion to Open Peer Review Records, Exhibit #6: Wednesday, October 26, 1988, Washington Post at p. 2 (Montgomery General Hospital not given access to the review committee's files concerning Dr. Scott).

*fn13 As Circuit Judge Spottswood Robinson observed, writing for the Court in Emmett v. Eastern Dispensary and Casualty Hospital, 130 U.S.App.D.C. 50, 54, n.19, 396 F.2d 931, 935 n.19 (1967), "We have found no case precisely in point, apparently because it is not often that an attending physician and a hospital would withhold information concerning a patient's last illness and death from his close relatives, . . . ."

*fn14 Plaintiffs' counsel represents that, having deposed the major participants in the operative procedure, "everyone so far has stated that they have no independent recollection whatsoever of the events that occurred ten years ago." Plaintiffs' Opposition to the Washington ...


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