Opinion
C.A. No. 99C-02-208-CHT.
March 31, 2000.
ORDER
This 31st day of March, 2000, in connection with this action, it appears, and the Court so finds the following.
1. This matter concerns a medical malpractice claim arising out of an operation performed on the Plaintiff (Mrs. McBroom) by the Defendant (Dr. Graybeal). While operating on Mrs. McBroom, Dr. Graybeal severed her bile duct. During discovery, Mrs. McBroom sought to obtain the documents that are the subject of this motion. In response to this request, Dr. Graybeal asserted the Peer Review Privilege as codified at 24 Del. C. § 1768.
2. The documents in question consist of the following: (1) four "Applications for Privileges" submitted to Milford Memorial Hospital by Dr. Graybeal; (2) one letter prepared by the Chief Executive Officer of Milford Memorial Hospital concerning Dr. Graybeal's Re-Appointment Privileges; and (3) one memorandum prepared by the Chairman of the Surgical Department at Milford Memorial Hospital concerning Department Monitoring and Evaluation/Quality Assessment and Improvement.
3. Mrs. McBroom argues that the four Applications for Privileges are not within the scope of protection of § 1768 because they are not in the possession of the peer review committee. Furthermore, she contends that the two letters from the Milford Memorial Hospital executives are not protected because privilege afforded by that Section has been waived by their dissemination. The Defendant, as might be expected, has argued that all the documents fall within the scope of § 1768 and that there has not been a waiver of the protection afforded any of the documents under the existing circumstances.
4. It is clear that Applications for Privileges are included in what § 1768 refers to as "records," which are protected by the statute. "Records include any paperwork, reports or compilation of data which are used exclusively by the committee." Connolly v. Labowitz, Del. Super., C.A. No. 83C-AU-1, Taylor, J. (Aug. 7, 1986). Further, "[t]he privilege should extend, at least presumptively, to both the decision makers and the information providers." Riggs Nat. Bank v. Boyd, Del. Super., C.A. No. 96C-05-122, 1998 WL 283384, Quillen, J. (March 16, 1998). An application for privileges can justly be considered paperwork and/or a compilation of data to be used by the committee. Indeed, an application for privileges would be prepared specifically and exclusively for a review committee. Moreover, as Riggs points out, those who provide the information to the committee have a right to protect the information provided. Thus, based on these rules, information provided by a doctor to a review committee are records that are privileged and protected by § 1768.
5. Likewise, the letter and memorandum prepared by the Milford Hospital executives are protected by the privilege that runs to these documents, and that privilege has not been waived. For the Court to find that privilege has been waived, "[t]he discoverer . . . must show the records were used by or published to persons outside the specific review organization." Connolly, supra at 1. In this case the Hospital, not a party to the litigation, raised the privilege afforded by the statute. In response, Plaintiff's Counsel asked that a privilege log be prepared by the Defendant. The Hospital apparently tendered the documents to the Defendant's Counsel who then prepared the log as requested. Under the circumstances, the records were not therefore outside of the specific review organization. It is notable, however, that the Hospital did in fact release the documents to Defendant's Counsel.
6. In sum, each of the items sought by the Plaintiff (Documents 1-6) are protected by § 1768 because they are "records" within the meaning of the statute and because information provided to the committee by the defendant is protected. Furthermore, there has been no showing that the privilege associated with the letter and memorandum (Documents 1 and 6) prepared by the representatives of Milford Memorial Hospital was waived. Again there was no dissemination.
Based on the foregoing, the Plaintiff's Motion to Compel Production of Materials Withheld on the Grounds of the Peer Review Privilege is denied.
IT IS SO ORDERED.