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Cannon v. Salt Lake Regional Medical Center8/25/2005
tment; (3) the Quality Assurance Department requires staff at the Hospital to fill out incident reports for all unusual occurrences; (4) the Quality Assurance Department reviews all incident reports created for the specific purpose of evaluating and improving health care at the Hospital; (5) incident reports are necessary and critical to the care review work the Quality Assurance Department performs; (6) incident reports are not created or used for any purpose other than to evaluate and improve health care at the Hospital; and (7) incident reports are not included as part of a patient's medical records.
The trial court determined that, based on Ms. Wright's affidavit, and " n the absence of any evidence to the contrary," the incident reports are privileged under the statute. The Cannons argue, however, that Ms. Wright's assertions in her affidavit alone are an inadequate basis for finding that the Hospital's incident reports fall under the care review privilege. They argue instead that, at the very least, the documents for which the Hospital claims the privilege should have been submitted to the trial court for the court's in camera review. The Hospital, on the other hand, argues that Ms. Wright's uncontested affidavit establishes that its incident reports squarely fit within the statutory language and are, therefore, privileged under the care review provisions and "not subject to discovery, use, or receipt in evidence in any legal proceeding of any kind or character." Id. ยง 26-25-3. It argues that, despite the Cannons' claim to the contrary, Utah law does not require any corroborating evidence beyond Ms. Wright's affidavit, nor did the court err by not requesting additional corroborating evidence or by not conducting an in camera review of the reports.
The Utah Supreme Court has specifically addressed, or interpreted, the care review privilege in only one limited circumstance, see Benson v. I.H.C. Hosps. Inc., 866 P.2d 537 (Utah 1993), but in doing so has provided some helpful guidance as to what is required to establish that the privilege applies to protect information from discovery. In Benson, a hospital argued that both the "care review privilege," as well as the "peer review privilege," barred the discovery of documents it claimed "were prepared by or for a hospital review committee and are . . . part of its internal review process." Id. at 539. The Court in Benson clarified exactly what types of documents fall under the purview of the privilege, answering the question whether the care review privilege applied only to "documents prepared specifically to be submitted for review purposes or whether the privilege also includes documents that might or could be used in the review process." Id. at 540 (emphasis in original). The Supreme Court concluded that the privilege should be limited to only those "documents prepared specifically to be submitted for review purposes." Id. (emphasis in original). The Court reasoned that " therwise, an argument could be advanced that all medical documents prepared by hospital personnel are created to improve health care rendered by a hospital, and therefore, the care review privilege would apply to all such documents." Id.
Importantly, the Court also stated in Benson that, in order to determine the applicability of the privilege, it is "incumbent upon counsel to establish the evidentiary basis necessary for the trial court to make its determination of the issue of privilege." Id. at 538 (emphasis added). In fact, the Court in Benson noted that the evidentiary basis for determining whether the privilege applied in that case was lacking because "only bald assertions been made . . . that the documents [were] non-privileged medical records . . .
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