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The Supreme Court of Virginia handed down its opinion in HCA Health Services of Virginia v. Levin and INOVA Health System v. Levin on Friday, June 9, 2000.

These cases involved subpoenas issued to Reston Hospital Center, Pentagon City Hospital and INOVA at the request of a television station defending a defamation action brought by a physician. The subpoenas sought peer review records. The hospitals moved to quash the subpoenas pursuant to Section 8.01-581.17 of the Virginia Code, which provides that peer review records are privileged, confidential and not discoverable. The trial court overruled the motions, ordered the documents produced, and held the hospitals in contempt for failure to comply with the order.

The hospitals appealed the contempt orders to the Court of Appeals, but before the Court of Appeals rendered a decision, the Supreme Court certified the cases for review directly by the Supreme Court because the "matters are of such imperative importance as to justify the deviation from normal appellate practice."

The Court answered the three questions on appeal as follows:

1. Is the privilege accorded by Code Section 8.01-581.17 to medical peer review records applicable only in medical malpractice actions?

No. The Court held that the "statutory language is clear, unambiguous, and unqualified. . . . No language of the statute limits its application to any particular type of suit or action." In light of the statute's clear and unambiguous language, the statute's placement within the Medical Malpractice Act does not restrict the privilege to medical malpractice cases. The Court further stated that "restrict[ing] the privilege . . . ignores the underlying purpose of the statute. The obvious legislative intent is to promote open and frank discussion during the peer review process among health care providers in furtherance of the overall goal of improvement of the health care system. If peer review information were not confidential, there would be little incentive to participate in the process."

2. Does the statutory privilege belong to and may it be unilaterally waived by an individual physician who is the subject of peer review?

No. The statutory privilege "does not belong to the physician who is the subject of peer review and may not be unilaterally waived by the physician. To allow the subject of peer review to waive the privilege runs counter to the purpose of the statute that encourages physicians to participate candidly in the peer review of other physicians, with the expectation that the information submitted will remain confidential and shielded from public disclosure." The Court further held that nothing in the plain language of the statute suggests that the privilege belongs to or may be waived by the target of peer review activities.

3. Did the television station demonstrate "good cause arising from extraordinary circumstances," as required by the statute, to justify disclosure of confidential peer review records?

No. The Court held that although the records are "'clearly relevant' to the issues of the truth of the alleged defamation. . . . there is a vast difference between the legal principle of 'relevance' and the term 'extraordinary circumstances.'" The Court held that "[t]here is nothing 'extraordinary' about the mere need to defend this lawsuit. Manifestly, the General Assembly did not contemplate a test for disclosure that is so easily satisfied."

The Court reversed the trial court's decision, thus setting aside the contempt order, annulling and dismissing the daily fines, and granting the motions to quash the subpoenas.

HeatherSulentic MSV