264 Kan. 144
(955 P2d 1169)
No. 77,848
ALBERT ADAMS and FORESTEAN ADAMS, Individually, and as Special Administrators of the Estate of NICHELLE DENISE ADAMS, deceased, Appellants, v. ST. FRANCIS REGIONAL MEDICAL CENTER and LINUS OHAEBOSIM, Appellees.
SYLLABUS BY THE COURT
1. There is no statutory set period of time in which a notice of appeal must be filed in the district court in an interlocutory appeal. However, Supreme Court Rule 4.01 (1997 Kan. Ct. R. Annot. 26) establishes the period of time in which a notice of appeal must be filed in the district court in an interlocutory appeal. Thus, where the notice of appeal is untimely, it is within the court's discretion to consider the appeal.
2. The fundamental rule of statutory construction is that the intent of the legislature governs. In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down. This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.
3. Privileges in the law are not favored because they operate to deny the factfinder access to relevant information.
4. In construing the peer review privilege granted to health care providers under K.S.A. 65-4915 et seq., the court must balance the privilege against a plaintiff's right to due process and the judicial need for the fair administration of justice.
5. Although the interest in creating the statutory peer review privilege is strong, it is outweighed by a plaintiff's right to have access to all the facts relevant to the issues raised in a malpractice action against a defendant health care provider.
Appeal from Sedgwick district court; MICHAEL CORRIGAN, judge. Opinion filed March 6, 1998. Reversed.
Randall E. Fisher, of Law Offices of Randall E. Fisher, of Wichita, argued the cause and was on the briefs for appellants, and Lynn R. Johnson, of Shamberg, Johnson & Bergman, Chartered, of Overland Park, argued the cause for appellants.
Don D. Gribble II, of Kahrs, Nelson, Fanning, Hite & Kellogg L.L.P., of Wichita, argued the cause, and Donald N. Peterson II, of the same firm, was with him on the brief for appellees.
Wayne T. Stratton, Charles R. Hay, and Marta Fisher Linenberger, of Goodell, Stratton, Edmonds & Palmer, L.L.P., of Topeka, were on the brief for amici curiae Kansas Hospital Association and Kansas Medical Society.
The opinion of the court was delivered by
ALLEGRUCCI, J.: Albert and Forestean Adams allege that their daughter suffered injury and died due to negligent treatment by Dr. Linus Ohaebosim and St. Francis Regional Medical Center, a/k/a Via Christi Hospital (St. Francis). They took this interlocutory appeal from the district court's decision that documents gathered and produced by the State Board of Nursing (Board) in connection with its investigation of Adams' death were protected by statutory privileges. The district court certified its rulings for interlocutory appeal pursuant to K.S.A. 60-2102(b). Appellants' request for leave to file the appeal was granted in December 1996. This court transferred the case from the Court of Appeals pursuant to K.S.A. 20-3018(c).
The following two issues are raised in this interlocutory appeal:
1. Are documents gathered and produced by the Board in connection with its investigation of the death of Nichelle Adams protected by statutory privileges?
2. Are the statutes that create health care privileges unconstitutional as applied in this case?
Nichelle Adams, the daughter of appellants Albert and Forestean Adams, died as a result of a ruptured ectopic pregnancy in July 1992. The Adamses allege that the emergency room nurse, Ann Locke, who initially assessed their daughter's condition, did not recognize its seriousness and did not alert a physician to Adams' need for immediate attention.
In the district court, St. Francis filed two motions for protective orders, the first in May 1995 and the second in July 1995. Both were granted. Appellants filed a motion to determine the constitutionality of the privilege statutes. It was denied.
St. Francis' first motion sought a protective order limiting use of documents obtained by plaintiffs' counsel from the Board relative to the Board's investigation of Ann Locke. The Board is not a party to this lawsuit. The following statement was made by St. Francis in explaining why it filed the first motion for a protective order:
"The Kansas State Board of Nursing investigated Ms. Locke's conduct concerning the events of July 23, 1992. The Board obtained various documents from St. Francis, including Disciplinary Action Forms on Ms. Locke. The Board also interviewed St. Francis personnel concerning Ms. Locke.
"During the litigation of this matter, plaintiffs' counsel subpoenaed the Board's investigation file on Ms. Locke. The Board produced to plaintiffs' counsel what appears to be the entire investigation file, including the Disciplinary Action Forms from St. Francis, typed summaries of interviews of St. Francis employees and the Board's investigative Summary. Plaintiffs' counsel has revealed that, when the Board produced the file, it did not in any way protect the confidentiality of the subject or sources of the information. Plaintiffs' counsel is now using the records as a cross-examination tool in depositions of St. Francis employees, directing specific inquiry to what employees may have stated to the Board concerning prior conduct of Ms. Locke. The St. Francis Disciplinary Action Forms are being used for this purpose, as well."
St. Francis contended that the Board is required by statute, K.S.A. 1997 Supp. 65-1135(a), to maintain confidential records, that the Board breached the confidentiality requirement, and that the disciplinary action forms were prepared in conjunction with peer review and are protected by K.S.A. 1997 Supp. 65-4915(3)(D) and (I). St. Francis asserted: "The Board, by producing these forms to plaintiffs' counsel, should not be allowed to unilaterally waive St. Francis' privilege with regard to the forms being protected by the peer review statute." The pertinent part of the prayer in St. Francis' first motion states: "St. Francis prays the Court enter a protective order preventing counsel's use of Kansas State Board of Nursing documentation."
The district court heard argument on St. Francis' first motion on June 14, 1995. It granted the motion. During argument, plaintiffs' counsel repeatedly stated that it would be unconstitutional for the court to grant protection to the Board's documents. The district court refused to rule on a question of constitutionality because it had not been briefed.
In July 1995, St. Francis filed another motion for protective order, alleging that plaintiffs' counsel was attempting to circumvent the protective order granted by the district court the previous month by deposing people with knowledge of the contents of the protected documents. St. Francis asked the court to enter another protective order and to quash depositions and notices sent by plaintiffs' counsel.
In August 1995, plaintiffs filed a motion to determine the constitutionality of the health care privilege statutes invoked by St. Francis. They prayed that the district court would "declare the various privilege statutes, such as risk-management and peer-review cited in oral arguments, unconstitutional[,] deny defendant's motion to obtain a protective order[,] and rule that plaintiff's evidence of previous acts of negligence and similar misconduct be admitted at trial." St. Francis contended that plaintiffs' knowledge of "previous acts of negligence and similar misconduct" of Ann Locke had been gleaned from the now-protected Board documents.
The record on appeal does not seem to contain any indication that the plaintiffs' motion was ruled on before October 1996, when a ruling on it was included in the order certifying issues for interlocutory appeal. The record on appeal contains only an oblique reference to a ruling on St. Francis' second motion. The reference was made during a hearing on still another pretrial motion.
In September 1995, plaintiffs requested leave to amend their petition to add a claim for punitive damages. The record contains a transcript of a hearing on the motion to amend. Plaintiffs' counsel stated to the district court that the claim for punitive damages was built on information in the Board documents. In this regard, plaintiffs' counsel stated:
"So I'm stuck in a position of trying to present to the Court a punitive damage claim by way of this motion so I can amend. But separately having to deal with the issue of whether or not I'm going to get it in at trial. And under Judge Corrigan's current ruling, I'm not going to.
"But the question is I intend to take that up and have it reviewed by either the Supreme Court or the Court of Appeals, and I feel like I have an obligation to present the issue to this Court whether or not this evidence would get me past the amendment, to allow me to proceed."
He explained to the district court that he and St. Francis' counsel disagreed about the scope and substance of the ruling on St. Francis' motion for protective order:
"I don't have any significant disagreement with [St. Francis' counsel] when he says that Judge Corrigan had entered an order. It's not been journalized at this point. So I'm not sure exactly what the copy would be, because we're still haggling over the Journal Entry, and we're going to be working on that."
St. Francis' counsel told the court that the unjournalized ruling was on the second motion for protective order. St. Francis' counsel represented that "the Court ruled [plaintiffs' counsel] could not depose the persons, among others, . . . connected with the Kansas State Board of Nursing, relative to these documents." He continued, "Judge Corrigan talked about certifying that matter for interlocutory appeal, so we have not seen the last of this or heard the final word on it."
As the hearing drew to a close, the district judge concluded that plaintiffs' motion for leave to amend their petition should be denied:
"[M]otions such as this are governed by K.S.A. 60-3703. Those statutes basically provide . . . that the initial question . . . is whether the plaintiff has established that there is a probability by clear and convincing evidence that the plaintiff will prevail on the claim.
"The quandary this Court is in is that another district judge has ruled upon the admissibility of various items, information which has been sustained by plaintiff. Judge Corrigan ruled, based upon what both counsel advised me, that the material obtained from the State Board of Nursing was confidential and privileged information.
"I cannot overrule Judge Corrigan. . . . I feel that the evidence that would be available for trial at this point in time, based upon everything I have observed in the plaintiffs' motion, would not . . . show that the plaintiffs would prevail on a claim at the time of trial."
The district judge continued: "I will state, although I think it is meaningless, that if the items and information from the State Board of Nursing were admissible, there would be sufficient grounds [for granting leave to amend]." Thus, the court denied plaintiffs leave to add a claim for punitive damages.
For reasons not apparent from the record, the matter lay dormant until October 1996, when another district judge signed the order that stated rulings on St. Francis' two motions and plaintiffs' motion challenging the constitutionality of the privilege statutes, incorporated findings and conclusions from the June 14, 1995, hearing, and certified the rulings for appeal. Exhibit B to the district court order is identified as "documents obtained from the Kansas State Board of Nursing relative to the Board's investigation of Ann Locke, RN."
The certified rulings are as follows:
1. St. Francis' motion for a protective order "regarding the records of Ann Locke, RN, in the possession of the Kansas State Board of Nursing" is granted. "Those records may not be used for any further purpose by plaintiffs in this case."
2. St. Francis' motion for a protective order and an order quashing the depositions of Patsy Johnson, Harry Holloway, Diane Glynn, and others is granted.
3. The district court expressly found that the witnesses, documents and information "sought by plaintiffs in Exhibits B and C [Business Records Subpoena and St. Francis' second motion for protective order] are protected by K.S.A. 65-1135, 65-4915, 65-4922, 65-4923 and 65-4925."
4. The district court expressly found that the statutes identified in No. 3 are constitutional.
As a preliminary matter, we need to dispose of the appellees' motion to dismiss this appeal. St. Francis filed a motion to dismiss the appeal for lack of jurisdiction on the ground that the notice of appeal was not timely filed in the district court. Appellants filed suggestions in opposition to the motion. On February 21, 1997, the Court of Appeals ordered that the motion would be considered by the hearing panel. In July, this court transferred the case from the Court of Appeals with appellees' motion to dismiss still pending.
The procedure for an interlocutory appeal in a civil case is established by statute and rule. K.S.A. 60-2102(b) provides, in part:
"When a district judge, in making in a civil action an order not otherwise appealable under this section, is of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the judge shall so state in writing in such order. The court of appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within 10 days after the entry of the order under such terms and conditions as the supreme court fixes by rule."
Supreme Court Rule 4.01 (1997 Kan. Ct. R. Annot. 26) provides, in part:
"If permission to appeal is granted, the notice of appeal shall be filed in the district court within the time fixed by K.S.A. 60-2103, for taking an appeal or within ten (10) days after permission to appeal is granted, whichever is later. Within ten (10) days after such filing, a certified copy of the notice of appeal, a copy of any request for transcript or statement that no transcript will be requested, and an original and one copy of the docketing statement required by Rule 2.041 shall be filed with the clerk of the appellate courts. The appeal shall thereupon be deemed docketed."
K.S.A. 60-2103 provides, in part:
"When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be 30 days from the entry of the judgment . . . .
"A party may appeal from a judgment by filing with the clerk of the district court a notice of appeal."
St. Francis' argument is that when the Court of Appeals granted permission for appellants to appeal, more than 30 days had elapsed from the entry of the district court's order from which the appeal was being taken. Thus, 10 days from the date permission to appeal was granted was the controlling deadline for filing the notice of appeal in the district court. Permission was granted on December 10, 1996; notice of appeal was filed in the district court on January 3, 1997. Therefore, according to St. Francis, the notice of appeal was untimely. St. Francis concludes: "Where a party fails to timely file a notice of appeal as required by statute, this Court lacks jurisdiction to consider the appeal."
Appellants advocate interpreting Rule 4.01 to give 30 days after permission to appeal is granted in regular civil actions and 10 days in other cases--probation and juvenile matters, for instance. In this way, the appellate court's granting permission to appeal would be treated as the appealable order. This argument defies logic and has no merit.
We agree with appellees that the notice of appeal was untimely. We do not agree that this court lacks jurisdiction to consider the appeal. There is no statutorily set period of time in which the notice of appeal must be filed in the district court in an interlocutory appeal. The 10-day period is established by rule of this court and, hence, is not jurisdictional. K.S.A. 60-2103 establishes a 30-day period from the entry of a final judgment and applies only to an interlocutory appeal by virtue of its incorporation in this court's Rule 4.01. As discussed in Jones v. Continental Can Co., 260 Kan. 547, 558, 920 P.2d 939 (1996), we would violate the separation of powers doctrine if we were to expand a clearly stated statutory period within which an appeal must be filed by the use of procedural rules. Here, since there is no clearly stated statutory period within which notice of appeal must be filed, we are under no comparable constraint. Thus, it is within the court's discretion to consider this appeal.
The purpose of an interlocutory appeal is to resolve a "controlling question of law" that would materially expedite a final determination in the case. Failure to resolve the issues raised in this appeal would cause further delay and not benefit the parties or serve any useful purpose. Justice would not be served if we refused to address the issues at this time. The motion to dismiss the appeal is denied.
We first consider whether the documents at issue are protected by statute. The "Protective Order and Order Granting Other Discovery Relief" filed by the district court on October 21, 1996, indicates that the documents obtained by plaintiffs' counsel from the Board are designated in the record as Exhibit B to the order. Examination of Exhibit B reveals that there are two categories of contested documents--those generated by the hospital and those generated by the Board. The Board's documents are:
1. Board's Investigative Summary, which is signed by Harry Holloway, Investigator, and dated June 9, 1993. The source of the report that seems to have alerted the Board to the incident has been blacked out.
2. Handwritten notes and typewritten summaries of interviews of Debbie Springer and Pat Howell. Howell is identified as Locke's supervisor at St. Francis. Springer is apparently a nurse employed at St. Francis.
3. A second document titled "Investigative Summary." It is not signed, it is dated October 27, 1992, and it is quite a bit less detailed than the later summary. The last paragraph states:
"On October 21, 1992, I travelled to Wichita, Kansas and met with Mary McHugh, Director of Nursing Services at St. Francis and issued a Subpoena for the complete patient records on this incident and copies of the Disciplinary action forms and Risk Management/Q.A. minutes concerning this incident. This information was delivered to me along with an affidavit verifying the information to be true and accurate copies."
The hospital's documents are:
4. A form titled "Disciplinary Action Documentation" is filled out for Ann Locke. It is signed by Department Director Kathy Conley and by Debra Springer, RN, who is identified as "witness." Both signatures are dated "8-5-92." Under "Type of Action," the box for "Termination Documentation" is marked. Locke's behavior is described as follows: "Failure to meet job standards as it pertains to an inaccurate assessment of a critical patient's condition. The inaccurate assessment resulted in a delay of further treatment which may have contributed to the patient's death."
5. A form titled "Disciplinary Action Form" is filled out for Ann Locke. It indicates that Locke was suspended for 3 days "for investigation of the [Adams] situation." It is signed by Kathy Conley and dated "7-27-92."
6. Another Disciplinary Action Form is filled out for Ann Locke. It bears an unreadable supervisor's signature and is dated "7-18-92." The identified problem is five unscheduled absences between mid-October 1991 and mid-July 1992.
7. A third Disciplinary Action Form filled out for Ann Locke. This one is signed by supervisor Patricia Howell and department director Kathy Conley, and is dated "3-24-92." The following situation is described:
"Failure to meet job standards in relation to quality, quantity, & timeliness of work. On March 5, 1992, Ann was assigned to be primary caregiver of a level II trauma pt. by BC personnel. Ann initially refused, instead wanting an inexperienced _________ [illegible]. Ann reluctantly provided primary care. Her lack of confidence in caring for critical/trauma pts & lack of initiative to seek nursing duties is a great concern."
Actions to be taken to improve her performance include: "Ann was assigned to 2 experienced RN's to share care of critical pts in effort to [increase] her comfort [with] these cases. After a 30 day period, Ann expressed she felt her level of comfort had improved. Clinical pract. does not reflect this."
8. A fourth Disciplinary Action Form filled out for Ann Locke involves attendance, specifically tardiness.
According to the parties, the statutes at issue are K.S.A. 1997 Supp. 65-1135, K.S.A. 1997 Supp. 65-4915, K.S.A. 65-4922, K.S.A. 65-4923 and K.S.A. 65-4925. K.S.A. 1997 Supp. 65-1135 was a 1993 addition to the Kansas Nurse Practice Act. It provided, in part:
"(a) Any complaint or report, record or other information relating to the investigation of a complaint about a person licensed by the board which is received, obtained or maintained by the board is confidential and shall not be disclosed by the board or its employees in a manner which identified or enables identification of the person who is the subject or source of such information . . . ."
There are some exceptions to this rule, and plaintiffs contend that the exception stated in subsection (a)(1) applies in the circumstances of the present case. It provides that records are confidential and shall not be disclosed in a manner which identifies or enables identification of the subject person or source of information except "[i]n a disciplinary proceeding conducted by the board pursuant to law or in an appeal of the order of the board entered in such proceeding, or to any party to such proceeding or appeal or such party's attorney."
In September 1994, the Board initiated disciplinary proceedings against Ann Locke. In Count I of the petition, Locke was charged with professional incompetency in failing to notify a physician of Adams' condition; in Count II, in the alternative, she was charged with unprofessional conduct for the same failing. In February 1995, the Board and Locke entered into a consent agreement that "there are reasonable grounds to believe [Locke] violated the [Kansas Nurse Practice] Act" and Locke pled no contest to Count II of the petition against her. "Pursuant to the disciplinary remedies available in K.S.A. 65-1120," Locke's license to practice as a registered professional nurse was suspended for 1 year, but the suspension was conditionally stayed so that she could continue to practice.
St. Francis treats the 65-1135(a)(1) exception as if its only significance were as a possible nexus to the Open Records Act, K.S.A. 45-215 through 45-223:
"Although K.S.A. 1996 Supp. 65-1135(a)(1) creates an exception allowing the use of confidential Nursing Board information as part of a Nursing Board 'disciplinary proceeding,' such a use by no means makes the information 'discoverable' under the Open Records Act. On the contrary, the Open Records Act specifically excludes release of such records. K.S.A. 1996 Supp. 45-221 states:
'[(a)] Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose:
. . . .
(36) Any report or record which is made pursuant to K.S.A. 65-4922, 65-4923 or 65-4924, and amendments thereto, and which is privileged pursuant to K.S.A. 65-4915 or 65-4925, and amendments thereto.'
Plaintiffs' claim that the Open Records Act made the subject documents public is simply not supported."
In the present case, upon receiving the business records subpoena, the assistant attorney general who acts as disciplinary counsel on behalf of the Board sent plaintiffs' counsel an open records request form with the suggestion that "[m]any of the records you request are available under the Open Records Act. However, please be advised that other records and information are protected by K.S.A. 65-1135, 65-4914, 65-4915 and 65-4921 et seq." Disciplinary counsel's letter is dated February 28, 1995, and his signature on the consent agreement is dated March 2, 1995. The petition by which the disciplinary proceeding was initiated against Locke was filed in September 1994.
K.S.A. 1997 Supp. 65-4915(b) provides:
"Except as provided by K.S.A. 60-437 and amendments thereto and by subsections (c) and (d), the reports, statements, memoranda, proceedings, findings and other records submitted to or generated by peer review committees or officers shall be privileged and shall not be subject to discovery, subpoena or other means of legal compulsion for their release to any person or entity or be admissible in evidence in any judicial or administrative proceeding. Information contained in such records shall not be discoverable or admissible at trial in the form of testimony by an individual who participated in the peer review process. The peer review officer or committee creating or initially receiving the record is the holder of the privilege established by this section. This privilege may be claimed by the legal entity creating the peer review committee or officer, or by the commissioner of insurance for any records or proceedings of the board of governors."
"Peer review committee" is defined as "a committee of or employed, designated or appointed by, a health care provider group and authorized to perform peer review." K.S.A. 1997 Supp. 65-4915(a)(4)(A). "Health care provider group" is defined to include a health care provider, which is defined as "[t]hose . . . entities defined as a health care provider under K.S.A. 40-3401 and amendments thereto." K.S.A. 1997 Supp. 65-4915(a)(1)(A). K.S.A. 1997 Supp. 40-3401(f) includes "a medical care facility licensed by the department of health and environment" in the definition of health care provider. K.S.A. 1997 Supp. 65-4915(e) provides:
"A peer review committee or officer may report to and discuss its activities, information and findings to other peer review committees or officers or to a board of directors or an administrative officer of a health care provider without waiver of the privilege provided by subsection (b) and the records of all such committees or officers relating to such report shall be privileged as provided by subsection (b)."
K.S.A. 65-4922 requires each medical care facility to establish and maintain an internal risk management program. Subsection (g) provides:
"Any reports and records reviewed or obtained by the department and in the department's possession, pursuant to subsection (a) of K.S.A. 65-4925, and amendments thereto, shall be confidential and privileged and not subject to discovery, subpoena or legal compulsion for their release to any person or entity, nor shall they be admissible in any civil or administrative action other than a disciplinary proceeding by the department."
K.S.A. 65-4923 requires health care providers and medical care facility agents and employees to report incidents in which the care may have been substandard and there was a reasonable probability of injury to a patient to appropriate authorities. K.S.A. 65-4925(a) provides:
"The reports and records made pursuant to K.S.A. 65-4923 . . . and amendments thereto, shall be confidential and privileged, including:
(1) Reports and records of executive or review committees of medical care facilities or of a professional society or organization;
(2) reports and records of the chief of the medical staff, chief administrative officer or risk manager of a medical care facility;
(3) reports and records of any state licensing agency or impaired provider committee of a professional society or organization; and
(4) reports made pursuant to this act to or by a medical care facility risk manager, any committee, the board of directors, administrative officer or any consultant.
"Such reports and records shall not be subject to discovery, subpoena or other means of legal compulsion for their release to any person or entity and shall not be admissible in any civil or administrative action other than a disciplinary proceeding by the appropriate state licensing agency."
The protection conferred on the documents produced by the Board is based strictly on the statutes quoted above. Interpretation of a statute is a question of law, and this court's review is unlimited. In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. 1, 930 P.2d 1366 (1997). In interpreting these statutes, we must necessarily address the constitutionality of the statutes as applied in the present case.
The rules of construction which guide us have been stated by this court numerous times. The fundamental rule of statutory construction is that the intent of the legislature governs: "In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested." State v. Le, 260 Kan. 845, Syl. ¶ 3, 926 P.2d 638 (1996).
"A statute is presumed constitutional and all doubts must be resolved in favor if its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down. This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing