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HCA Health Services of Virginia6/9/2000
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Leslie M. Alden, Judge
In these appeals of a contempt order arising from a defamation action, we consider the scope and application of the statutory privilege from disclosure accorded peer review records possessed by certain medical organizations.
In 1998, Stephen M. Levin, M.D., filed an action for damages against, among others, WJLA-TV, a television station that broadcasts in the Washington, D.C., metropolitan area, which includes Northern Virginia and Maryland. In a second amended motion for judgment, the plaintiff, who practices medicine in Northern Virginia, sought recovery against defendants for defamation, conspiracy, trespass, and the unauthorized use of his name and picture.
The lawsuit stems from a news story WJLA-TV and the other defendants disseminated about the plaintiff. A board-certified orthopedist, the plaintiff alleges the defendants defamed him by accusing him of sexual assaults upon female patients in connection with his use of internal pelvic diagnostic examinations and "intrapelvic stretching techniques," when the patients were suffering from "pelvic floor problems." The plaintiff asserts the techniques he employs are recognized as "medically appropriate and effective." The plaintiff alleges defendants characterized him as the "DIRTY DOC" and the "X-RATED DOCTOR."
During discovery proceedings in the pending action, appellants Reston Hospital Center and Pentagon City Hospital (collectively, the hospitals) as well as appellant INOVA Health System (INOVA), received subpoenas duces tecum issued and served at the request of WJLA-Tv. Neither the hospitals nor INOVA are parties to the litigation; instead, they are third parties whose peer review records are sought by WJLA-TV in its effort to defend the plaintiff's defamation action.
The subpoenas sought, for example, all documents dealing with any formal or informal complaint made against the plaintiff by any patient or health care provider; all documents describing any disciplinary action taken against the plaintiff by any hospital, medical licensing board, or medical association; and all documents that refer to any decision to grant, revoke, or suspend the plaintiff's hospital privileges. WJLA-TV sought to use the information in an effort to validate its allegedly defamatory statements about the plaintiff and to resist plaintiff's claim for lost income as the result of the defamation.
The hospitals and INOVA filed motions to quash the subpoenas duces tecum. Relying on the provisions of Code § 8.01-581.17, they asserted the documents sought are privileged, confidential, and not discoverable.
As pertinent, the statute provides that peer review information kept by hospitals and health-related organizations "are privileged communications which may not be disclosed or obtained by legal discovery proceedings unless a circuit court, after a hearing and for good cause arising from extraordinary circumstances being shown, orders the disclosure" of such information.
Following briefing and oral argument on the respective motions to quash, the trial court denied the motions and ordered the documents produced. In a letter opinion, the court stated that Code § 8.01-581.17 is not "applicable outside the context of medical malpractice actions"; that the plaintiff had waived the statutory privilege by filing suit and putting his reputation at issue; and that, even if the statute is applicable, WJLA-TV had shown the required "good cause arising from extraordinary circumstances" because the peer review records "are clearly relevant to the issue of the truth of the alleged defamatory statements, as well as the mitigation
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