Director of Health Affairs Policy Planning v. Freedom of Information Commission
Director of Health Affairs Policy Planning v. Freedom of Information Commission
Opinion of the Court
Opinion
The dispositive issue in this appeal is whether certain records held by the plaintiff, the director of health affairs policy planning for the University of Connecticut Health Center,
The final decision of the commission sets forth the following relevant facts and procedure. The complainant, Louis J. Russo, a former patient of Jacob Zamstein, a physician, requested in writing records pertaining to the plaintiffs decision not to renew Zamstein’s clinical privileges. In response, the plaintiff produced minutes of four meetings of the clinical affairs subcommittee of the University of Connecticut Health Center board of directors, but declined to produce the remainder of the requested records, which the plaintiff claimed comprised the credentialing file created by the clinical affairs subcommittee and the credentials committee. The complainant then filed a complaint with the commission seeking disclosure of the records pursuant to the act. Following a hearing on the matter, the commis
The plaintiff appealed from the decision of the commission to the trial court, which sustained the appeal, concluding that § 19a-17b (d) constituted an exemption to disclosure under the act. In its analysis, the trial court relied heavily on the public policy reasons underlying the peer review privilege,
The plaintiff claims that § 19a-17b (d) provides a statutory exemption to mandatory disclosure under the act. The commission contends that § 19a-17b (d) is inapplicable to the act because proceedings pursuant to the act do not constitute civil actions within the meaning of § 19a-17b (d). We agree with the commission.
Section 19a-17b (d) provides in relevant part: “The proceedings of a medical review committee conducting a peer review shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider arising out of the matters which are subject to evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to the content of such proceedings . . . .” In order to interpret this language to
We address each of these questions of statutory interpretation in turn, beginning with the question of whether “discovery” properly may be understood to include disclosure under the act, and taking our starting point, as § 1-2z directs, with the text of the statute. In enacting § 19a-17b (d), the legislature defined its scope in terms of rendering the proceedings of a medical review committee “not . . . subject to discovery or introduction into evidence . . . .”
In contrast, the concept of “disclosure” is related to “[t]he overarching legislative policy of the [act]” which favors “the open conduct of government and free public access to government records.” (Internal quotation marks omitted.) Perkins v. Freedom of Information
Certainly, disclosure under the act and discovery share an essential characteristic—both are designed to obtain information that is in the possession of another and otherwise may be unavailable to the seeker. We have concluded, however, that the rules of discovery and the provisions of the act operate “separately and independently” of each other. Chief of Police v. Freedom of Information Commission, 252 Conn. 377, 396, 746 A.2d 1264 (2000). In Chief of Police, we addressed the “scope of General Statutes § 1-213 (b), which provides in relevant part: ‘Nothing in the . . . [a]ct shall be deemed in any manner to: (1) . . . limit the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state . . . .’” Id., 379. In that case, the plaintiff, the chief of police
Moreover, the phrase “civil action” in § 19a-17b (d) must be understood in relation to the other terms in the statute. Our conclusion that “discovery” as used in § 19a-17b (d) refers solely to discovery in the context of a court action in a civil matter makes it unlikely that the phrase “civil action” reasonably may be interpreted to include proceedings before the commission. Also, just as our understanding of “discovery” is informed by the use of that term in conjunction with the phrase
This interpretation is supported both by our case law interpreting the statutory definition of civil action in title 52 of the General Statutes, and by the statutory language employed by the legislature in defining the scope of other privileges to extend both to civil actions and proceedings before administrative agencies. Although there is no definition of “civil action” in § 19a-17b, it is defined in title 52 of the General Statutes, which governs civil actions. Specifically, General Statutes § 52-91 provides in relevant part that “[t]here shall be one form of civil action. The first pleading on the part of the plaintiff shall be known as the complaint and shall contain a statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for the relief, which shall be a statement of the remedy or remedies sought.” Additionally, General Statutes § 52-45a sets forth the procedures governing the commencement of a civil action: “Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiffs complaint. The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court
Moreover, we have never concluded that a proceeding before an administrative agency necessarily is a civil action. Although the question of whether such a proceeding could under no circumstances constitute a civil action is not before us today—and we expressly do not decide that issue—we note that administrative appeals, which are heard in the first instance in the Superior Court, are deemed to be civil actions only under some circumstances. See Practice Book § 14-6 (administrative appeals civil actions for purposes of rules of practice, but not for purposes of certain enumerated statutes);
Proceedings pursuant to the act are not commenced by service of process, but by filing a notice of appeal pursuant to General Statutes § 1-206 (b) (1), which provides in relevant part that “[a]ny person denied the right to inspect or copy records under [§] 1-210 . . . may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission. . . .” Although appeals to the commission often are referred to as complaints, the regulations adopted by the commission define “ ‘[c]omplainf ” as “an appeal to the commission under [§ 1-206] of the general statutes.” Regs., Conn. State Agencies § 1-21j-1 (b) (4). The commission, upon receipt of the notice of appeal, then “shall serve upon all parties, by certified or registered mail, a copy of such notice together with any other notice or order of such commission.” General Statutes § 1-206 (b) (1). Moreover, actions before the commission are not governed by the rules of pleading. Certainly, proceedings before the commission are governed by formal rules of procedure. See Regs., Conn. State Agencies § 1-21J-1 et seq. Procedural formality alone, however, does not convert an administrative proceeding conducted by an agency of the executive branch into a civil action conducted in a court of law. Any superficial similarities between the procedural rules governing proceedings before the commission and court actions in a civil case cannot overcome the obvious difference
Reference to other privilege statutes confirms that the legislature did not intend to use the phrase “civil action” to include proceedings before the commission. Virtually all of the privilege statutes list civil actions and administrative proceedings as separate contexts in which the privilege applies. An illustrative example appears in the very same chapter as § 19a-17b. General Statutes § 19a-25 provides that the information procured by the department of public health “for the purpose of reducing the morbidity or mortality from any cause or condition, shall be confidential and shall be used solely for the purposes of medical or scientific research . . . .” Section 19a-25 specifies that “[s]uch information . . . shall not be admissible as evidence in any action of any kind in any court or before any other tribunal, board, agency or person, nor shall it be exhibited or its contents disclosed in any way, in whole or in part, by any officer or representative of the [department of [p]ublic [h]eaith or of any such facility, by any person participating in such a research project or by any other person, except as may be necessary for the purpose of furthering the research project to which it relates.” (Emphasis added.) The legislature evinced a clear intent in § 19a-25 that the information at issue is not to be disclosed “in any action of any kind,” and specifies actions in court and before agencies as separate contexts in which the privilege applies. See also General Statutes § 52-146b (communications made to clergymen not disclosable absent waiver “in any civil or criminal case or proceedings preliminary thereto, or in any legislative or administrative proceeding”); General Statutes § 52-146c (b) (communications between psychologist and patient privileged absent waiver “in civil and criminal actions, in juvenile, probate, commitment and arbitration proceedings, in proceedings pre
When the legislature has not enumerated the specific contexts in which a privilege applies, it has in other ways defined the scope of the privilege to preclude disclosure under the act. For example, the legislature has extended certain privileges both to civil actions and to administrative proceedings by defining the privilege in very broad terms stating that the subject information
We conclude, on the basis of the foregoing, that the term “civil action” as used in § 19a-17b (d) plainly and unambiguously does not include proceedings before the commission. See General Statutes § 1-2z. Section 19a-17b (d) prevents the proceedings of a medical review committee engaged in the process of peer review from being subject to discovery or introduction into evidence in a civil action, but does not bar the disclosure of such information pursuant to the act. Therefore, because it is undisputed that the plaintiff is a public agency subject to the mandatory disclosure requirement of the act; see General Statutes §§ 1-210 (a) and 1-212 (a); and that the requested records are public
We do not reach this conclusion lightly. We, like the dissent, are mindful of the significant public policy purpose underlying the peer review privilege, namely, to promote public health and safety by encouraging “committee members to take positions that they might not otherwise take if they thought they were going to be subpoenaed in the middle of a malpractice case.” (Internal quotation marks omitted.) Babcock v. Bridgeport Hospital, 251 Conn. 790, 825, 742 A.2d 322 (1999). The privilege is grounded on the belief that “physicians . . . would not feel free to openly discuss the performance of other doctors practicing in the hospital, without assurance that their discussions in committee would be confidential and privileged . . . .” (Internal quotation marks omitted.) Id. Thus, preventing a malpractice litigant from acquiring, in a civil action, peer review records through discovery and use of those records by introducing them into evidence furthers this purpose by protecting participants in the peer review process from being hauled into court to testify regarding the peer review records or proceedings.
The judgment is reversed and the case is remanded to the trial court with direction to dismiss the plaintiffs appeal.
In this opinion PALMER, VERTEFEUILLE and ZARELLA, Js., concurred.
At various points in the proceedings underlying this appeal, both the director of health affairs policy planning and the University of Connecticut Health Center were identified as the plaintiff. For convenience, we refer to both as the plaintiff in this opinion.
General Statutes § 19a-17b (d) provides in relevant part: “The proceedings of a medical review committee conducting a peer review shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider arising out of the matters which are subject to evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testily in any such civil action as to the content of such proceedings . . . .”
The commission appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
Section 60.13 (a) of title 45 of the Code of Federal Regulations provides: “Limitations on disclosure. Information reported to the [National Practitioner] Data Bank is considered confidential and shall not be disclosed outside the Department of Health and Human Services, except as specified in § 60.10, § 60.11 and§ 60.14. Persons and entities which receive information from the [National Practitioner] Data Bank either directly or from another party must use it solely with respect to the purpose for which it was provided. Nothing in this paragraph shall prevent the disclosure of information by a party which is authorized under applicable [s]tate law to make such disclosure.”
General Statutes § 1-210 (a) provides in relevant part: “Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. . . .”
General Statutes § 1-212 (a) provides in relevant part: “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. . . .”
The commission based its finding that the requested records concern peer review on its in camera review of the forty-two records produced by the plaintiff upon the commission’s order.
The plaintiff did not challenge on appeal the following rulings of the commission: (1) the commission had not been deprived of jurisdiction over the complaint by virtue of the complainant’s repeated, earlier requests to the plaintiff for the records; (2) the records were not exempt from disclosure pursuant to § 1-210 (b) (2) on the ground that they were “[pjersonnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy”; and (3) the records were not exempt from disclosure pursuant to § 1-210 (b) (1) on the ground that they constituted “[p]reliminary drafts or notes . . . ."
Although § 19a-17b does not include the phrase “peer review privilege,” our case law uses that term in referring to the exemptions provided by § 19a-17b. See, e.g., Babcock v. Bridgeport Hospital, 251 Conn. 790, 825, 742 A.2d 322 (1999).
In Babcock v. Bridgeport Hospital, 251 Conn. 790, 821-22, 742 A.2d 322 (1999), we explained that the privilege does not shield all documents used in peer review proceedings. Rather, “the privilege applies only to those documents that reflect the proceedings of apeer review, or that were created primarily for the purpose of being utilized during the course of peer review.
The rules of practice allow for discovery in “any civil action . . . probate appeal, or . . . administrative appeal where the judicial authority finds it reasonably probable that evidence outside the record will be required . . . .” Practice Book § 13-2. Some of the available tools of discovery include interrogatories; see Practice Book § 13-6; production requests; see Practice Book § 13-9; depositions; see Practice Book § 13-26; and subpoenas. See General Statutes § 52-143 (subpoenas).
Practice Book § 14-6 provides: “For purposes of these rules, administrative appeals are civil actions. Whenever these rules refer to civil actions, actions, civil causes, causes or cases, the reference shall include administrative appeals except that: (a) appeals from judgments of the superior court in administrative appeals shall be by certification only as provided by General Statutes § 51-197b as amended, and by chapter 72 of these rules; and (b) an administrative appeal shall not be deemed an action for purposes of General Statutes §§ 52-591, 52-592 or 52-593.”
Interpreting “civil action” to include proceedings before the commission would not necessarily extend the privilege to other administrative proceedings before other administrative agencies, or proceedings before other tribunals or boards, thus undercutting one of the primary arguments in favor of interpreting “civil action” so broadly—namely, that the broad interpretation would effect the public policy underlying the peer review privilege, that is, the prevention of any public disclosure of peer review proceedings.
Because we conclude that disclosure of the requested records was required under the act, we further conclude that 45 C.F.R. § 60.13 (a) does not bar disclosure of the four records that the plaintiff asserts were obtained from the data bank. That provision specifically provides: “Nothing in this paragraph shall prevent the disclosure of information by a party which is authorized under applicable [s]tate law to make such disclosure.” 45 C.F.R. § 60.13 (a); see footnote 4 of this opinion. The act not only authorizes the plaintiff to make the disclosure; it makes such disclosure mandatory. Section 60.13 (a), therefore, is inapplicable.
A separate provision in § 19a-17b protects participants in the peer review proceedings from defamation actions. Section 19a-17b (c) provides: “There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any member of a medical review committee for any act or proceeding undertaken or performed within the scope of any such committee’s functions provided that such member has taken action or made recommendations without malice and in the reasonable belief that the act or recommendation was warranted.”
Dissenting Opinion
dissenting. I respectfully disagree with the majority’s conclusion that General Statutes § 19a-17b (d) is inapplicable in proceedings before the freedom of information commission (commission) and, therefore, that certain records held by the plaintiff, the director of health affairs policy planning for the University of Connecticut Health Center, are not exempt from disclosure under the freedom of information act (act), General Statutes § 1-200 et seq. In my view, the majority’s narrow interpretation of the ambiguous language of § 19a-17b (d) effectively reads the “shall not be subject to discovery” language out of the statute and will have a chilling effect on future peer review proceedings, thereby defeating the very purpose of the statute. Accordingly, I respectfully dissent.
“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in
It is well settled that, “[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . . General Statutes § 1-1 (a). We ordinarily look to the dictionary definition of a word to ascertain its commonly approved usage.” (Internal quotation marks omitted.) State v. Gelormino, 291 Conn. 373, 380, 968 A.2d 379 (2009). With respect to the term “discovery,” the majority concludes that, when read in conjunction with the statute’s prohibition on “introduction into evidence,” that term was intended to refer to its dictionary definition, under the heading “[t]riai practice,” as “[t]he pre-trial devices that can be used by one party to obtain facts and information about the case from the other party in order to assist the party’s preparation for trial.” Black’s Law Dictionary (6th Ed. 1990). A subsequent edition of that same dictionary, however, also defines the term “discovery” as, in relevant part, “[t]he act or process of finding or learning something that was previously unknown”; Black’s Law Dictionary (7th Ed. 1999); a definition that is virtually identical to that for the term “disclosure” which, as the majority notes, typically is associated with proceedings under the act. See id. (defining “disclosure” as, in relevant part, “[t]he act or process of making known something that was previously unknown”). In my view, each of these readings of the term “discovery” is perfectly reasonable in the context of § 19a-17b and, accordingly, I conclude that the legislature’s use of that term is, at the very least, ambiguous.
When the statutory language is ambiguous, “we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Fredette v. Connecticut Air National Guard, 283 Conn. 813, 821-22, 930 A.2d 666 (2007). In doing so, “[o]ur ultimate objective ... is to discern and effectuate the apparent intent of the legislature.” (Internal quotation marks omitted.) State v. Cote, 286 Conn. 603, 614—15, 945 A.2d 412 (2008). Thus, we are bound to construe the statute in a manner that will reflect and achieve the purpose for which it was enacted; see McGaffin v. Roberts, 193 Conn. 393, 407, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985); and to refrain from “interpret[ing] the statute in a way that would thwart [that] purpose.” Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 412, 944 A.2d 925 (2008).
I begin, then, with a discussion of the concept of peer review, which has become an entrenched aspect of the provision of quality health care throughout the United States. Peer review proceedings “are essential to the continued improvement in the care and treatment of patients. Candid and conscientious evaluation of clinical practices is a sine qua non of adequate health care.” Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249, 250, (D.D.C. 1970), aff'd, 479 F.2d 920 (D.C. Cir. 1973). “The purpose of [peer review] is the improvement, through self-analysis, of the efficiency of medical procedures and techniques.” Id. To that end, health care facilities throughout the United States have, in some form or
Courts and scholars consistently have recognized, however, that the efficacy of peer review is threatened by a reluctance on the part of many physicians and other health care providers to participate in that process. This reluctance generally stems from a number of factors, including “fear of exposure to liability, entanglement in malpractice litigation, [and] loss of referrals from other doctors . . . .” C. Creech, comment, “The Medical Review Committee Privilege: A Jurisdictional Survey,” 67 N.C. L. Rev. 179 (1988);
In an effort to address such concerns, virtually every state has adopted a peer review privilege statute. Although these statutes differ with regard to the scope of the privilege and the materials protected by it, with
In my view, the majority’s narrow interpretation of the statutory language fails to reflect or effectuate the legislature’s clear purpose and intent in enacting § 19a-17b. First, to the extent that § 19a-17b is intended to prevent litigants in a court action from obtaining peer review materials to assist in their preparation for trial— which I agree with the majority that, in large part, it is— the majority’s interpretation of the statutory language effectively reads that protection out of the statute with respect to all public health care facilities throughout the state.
From a practical standpoint, moreover, having obtained such materials pursuant to the act, a litigant will be able to use what was said and done during the peer review proceedings to determine what questions to ask, and of whom to ask them, during the formal discovery process in order to discover evidence that would be admissible at trial, thereby essentially providing litigants with the blueprint for an effective trial strategy. See Yuma Regional Medical Center v. Superior Court, supra, 175 Ariz. 76 (“Inherent in [the] plaintiffs’ ability to obtain information from another source is the knowledge on [the] plaintiffs’ part that such information exists. . . . Herein lies the real benefit to [the] plaintiffs of [obtaining peer review materials that are not themselves admissible in evidence]: it informs [the] plaintiffs what the peer review participants consider to be relevant information to [the] plaintiffs’ case— information of which [the] plaintiffs might be unaware.”). As a consequence, public health care providers will be reluctant to participate in the peer review
Second, as a result of the majority’s conclusions in this case, all peer review proceedings in public health care institutions potentially will be subject to disclosure beyond the litigation context. The ensuing public scrutiny of the comments made and documents submitted in such proceedings undeniably will have a chilling effect on peer review and will discourage health care providers—who risk their relationships with their peers, their reputation within the profession and the continued success of their practice through referrals— from participating in the process. Such a result defeats the clear purpose for which § 19a-17b was enacted, and we are bound to avoid such an interpretation. See Kelly v. New Haven, supra, 275 Conn. 616.
Accordingly, I conclude that the only permissible interpretation of the ambiguous language of § 19a-17b is that the legislature intended the language “shall not be subject to discovery ... in any civil action” to include an action before the commission seeking disclosure of medical peer review information under the act. Because I would affirm the judgment of the trial court to that effect, I respectfully dissent.
In concluding that the term “discovery” refers only to the pretrial process of obtaining information for subsequent use at trial, the majority states: “The meaning of ‘discovery’ must be understood as it is employed in the
I acknowledge that the rules governing the commencement of a civil action are set forth in part, elsewhere in the statutes; see General Statutes §§ 52-45a and 52-91; and that our cases have, as a factor in determining whether an administrative proceeding properly may be classified as a civil action, examined the procedure for commencing that proceeding to determine whether it is sufficiently similar to the requirements set forth in §§ 52-45a and 52-91. See, e.g., Board of Education v. Tavares Pediatric Center, 276 Conn. 544, 557-58, 888 A.2d 65 (2006); Waterbury v. Waterbury Police Union, 176 Conn. 401, 407, 407 A.2d 1013 (1979); Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 652, 363 A.2d 1085 (1975). As the majority notes, however, the process for filing an appeal before the commission is strikingly similar, although not identical, to the requirements set forth in
Moreover, our prior cases have not categorically stated that such similarity is the only relevant factor in classifying an administrative proceeding as a civil action. To the contrary, we have recognized on several occasions that the purpose for which a statute containing a term such as “civil action” was enacted is an important factor in determining whether a proceeding falls with the scope of that term as it is used in the specific context of that particular statute. See Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 423, 426 A.2d 1324 (1980) (“the scope of proceedings which will be included within a term, whose precise reach is uncertain, depends upon the nature and purpose of the particular statute in question”); Chieppo v. Robert E. McMichael, Inc., supra, 169 Conn. 653-54 (examining purpose of statute as factor in determining whether legislature intended administrative proceeding to constitute civil action); Carbone v. Zoning Board of Appeals, 126 Conn. 602, 605, 13 A.2d 462 (1940) (“the scope of proceedings which will be included within the term as used in the statutes depends upon the nature and purpose of the particular statute in question”); Fishman v. Middlesex Mutual Assurance Co., 4 Conn. App. 339, 344, 494 A.2d 606 (“[w]hat the legislature may have intended to be a civil action for some purposes may not be a civil action for others”), certs. denied, 197 Conn. 806, 807, 499 A.2d 57 (1985). Our prior case law, therefore, does not foreclose the possibility that the legislature intended an action before the commission to be considered a civil action in the specific context of protecting peer review proceedings from disclosure under § 19a-17b, and it is appropriate for us to examine the purpose behind § 19a-17b in order to determine if the legislature did so intend. See, e.g., Connecticut Light & Power Co. v. Costle, supra, 423-24.
Indeed, “[a] physician’s qualifications, competence, and ethics all are called into question when a medical staff committee is requested to review his application for staff privileges, to determine the extent of his clinical privileges, or to assess the quality of his work. The nature of these activities suggests that committee participants may lose professional friends, as well as referrals, from physicians who receive unfavorable reviews. In addition, the committee members, and the hospitals as well, may be exposed to costly litigation alleging defamation, the most common claim arising from committee activities.” R. Hall, “Hospital Committee Proceedings and Reports: Their Legal Status,” 1 Am. J.L. & Med. 245, 254 (1975).
At least one jurisdiction, foreseeing the very issue that we are presented with today, expressly has provided that peer review proceedings “shall not be subject to discovery pursuant to [that state’s] . . . [f]reedom of [i]nformation [a]ct . . . .” (Emphasis added.) Ark. Code Ann. § 16-46-105 (a) (1) (A) (LexisNexis 2008).
See also, e.g., Bredice v. Doctors Hospital, Inc., supra, 50 F.R.D. 251 (“[t]here is an overwhelming public interest in having [peer review proceedings] held on a confidential basis so that the flow of ideas and advice can continue unimpeded”); Tucson Medical Center, Inc. v. Misevch, 113 Aiiz. 34, 38, 545 P.2d 958 (1976) (“[t]he protection is justified by the overwhelming public interest in maintaining the confidentiality of the medical staff meetings so that the discussion can freely flow to further the care and treatment of patients”); West Covina Hospital v. Superior Court, 41 Cal. 3d 846, 853, 718 P.2d 119, 226 Cal. Rptr. 132 (1986) (peer review statute “expresses a legislative judgment that the public interest in medical staff candor extends beyond damages immunity and requires a degree of confidentiality”); West Covina Hospital v. Superior Court, supra, 853 (“[E]xtemal access to peer investigations conducted by staff committees stifles candor and inhibits objectivity. . . . [T]he quality of in-hospital medical practice will be elevated by armoring staff inquiries with a measure of confidentiality.”); Baltimore Sun Co. v. University of Maryland Medical System Corp., 321 Md. 659, 668, 584 A.2d 683 (1991) (“[A] high level of confidentiality is necessary for effective medical peer review. By protecting these records from public access in those situations covered by [the peer review statute], the legislature recognized that a system of effective medical peer review outweighs the need for complete public disclosure.”); Claypool v. Mladineo, 724 So. 2d 373, 383 (Miss. 1998) (“[the] privilege is intended to prohibit the chilling effect of the potential public disclosure of statements made to or information prepared for and used by the [medical review] committee in carrying out its peer review function” [internal quotation marks omitted]); Virmani v. Presbyterian Health Services Corp., 350 N.C. 449, 478, 515 S.E.2d 675 (1999) (“[t]he public’s interest in access to . . . court proceedings, records and documents is outweighed by the compelling public interest in protecting the confidentiality of medical peer review records in order to foster effective, frank and uninhibited exchange among medical peer review committee members”); Trinity Medical Center, Inc. v. Holum, 544 N.W.2d 148, 155 (N.D. 1996) (“[P]hysicians would be unwilling to serve on quality assurance committees, and would not feel free to openly discuss the performance of other doctors practicing in the hospital, without assurance that then-discussions in committee would be confidential and privileged. It was this purpose to encourage frank and open physician participation, and the resulting improvement in patient care, which underlies the privilege.”); Sanderson v. Frank S. Bryan, M.D., Ltd., 361 Pa. Super. 491, 494, 522 A.2d 1138 (1987) (“Generally, hospital peer review findings and records are protected
See also 19 S. Proc., Pt. 2, 1976 Sess., p. 516, remarks of Senator Anthony Ciarlone (bill intended to give immunity to physicians serving on peer review committee); 19 H.R. Proc., Pt. 6, 1976 Sess., p. 2384, remarks of Representative Morris N. Cohen (“[T]his bill is a most necessary bill if we are to continue checking on health care delivery in our [s]tate. Peer review committees must constantly judge the services rendered by their peers. Without giving them this immunity, they would not be able to do so.”); 19 H.R. Proc., Pt. 9, 1976 Sess., p. 4094, remarks of Representative James T. Healey (“opinions of the medical review committee ... are not subject to discovery or introduction into evidence and ... no person who is in attendance at a meeting of such committee shall be permitted or required to testify in civil actions as to any opinions of said committee”).
It is particularly troubling that only public health care institutions will be impacted adversely by the majority’s conclusions today, as private health care institutions are not subject to the provisions of the act. Accordingly, the public institutions sit at a distinct disadvantage in comparison to their private competitors with respect to assuring the continued provision of quality health care through an effective peer review process.
In my view, this court’s decision in Chief of Police v. Freedom of Information Commission, 252 Conn. 377, 746 A.2d 1264 (2000), is inapposite. Although I agree with the majority that Chief of Police v. Freedom of Information Commission supports the proposition that the fact that certain information is not subject to disclosure under the rules of discovery does not
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