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Cannon v. Salt Lake Regional Medical Center8/25/2005
urt to make its determination of the issue of privilege." Benson, 866 P.2d at 538. Thus, we cannot say, as a matter of law, with reference only to Ms. Wright's affidavit, that these incident reports are privileged under the care review privilege and, thus, are not subject to discovery.
The affidavit fails to indicate what, exactly, these incident reports contain. The affidavit itself does not sufficiently summarize the nature of the incident reports, i.e., what they are, what information they contain, how they are used, who exactly gets to see them, etc. The affidavit speaks in conclusory terms, carefully tracking the key elements of the statutory language and the requirements the Court set forth in Benson, rather than providing more descriptive, detailed, and helpful information about the reports for which the privilege is asserted. Thus, while Ms. Wright's affidavit was uncontroverted by the Cannons, we do not see how they realistically could have controverted her statements. To hold that the affidavit sets forth an adequate evidentiary basis for the care review privilege leaves the Hospital with a virtual monopoly on the information the trial court will be able to consider. Allowing the Hospital to label information as an "incident report" or an "unusual occurrence report," and then declare by affidavit that such reports are created and used only for the purpose of evaluating and improving health care at the Hospital, effectively leaves the determination of whether these reports should be produced for discovery up to the party who possesses them.
That having been said, we do believe that the affidavit establishes something of a prima facie showing that the privilege applies, which constrains us from simply reversing and ordering the trial court to grant the Cannons' motion to compel. Nevertheless, because the affidavit only suggests the possibility that the privilege applies, the proper approach for the trial court is to review the incident reports in camera to determine whether the privilege indeed applies to these documents. There is simply no substitute for reviewing the reports themselves.
As a result, we remand to the trial court with instructions to conduct an in camera review of the incident reports in order to properly determine whether the information they contain qualifies for protection under the care review privilege.
Certainly both sides to this dispute have important interests in either the discovery of the incident reports or the protection of the information contained therein. In fact, it is the parties' competing interests that necessitate that the trial court have a more solid evidentiary basis for determining whether the privilege should apply to the reports in this case. The Hospital has a legitimate interest in protecting incident reports under the care review privilege in order to ensure an open exchange of accurate information between personnel and administrators in order to improve the effectiveness of studies, evaluations, and any measures implemented to improve hospitals and the quality of the health care they provide. See Benson, 866 P.2d at 539. ("Without the privilege, personnel might be reluctant to give such information, and the accuracy of the information and the effectiveness of the studies would diminish greatly."). That interest is aligned with the very purpose behind the care review privilege "to improve medical care by allowing health-care personnel to reduce 'morbidity or mortality' and to provide information to evaluate and improve 'hospital and health care.'" Id. (quoting Utah Code Ann. ยง 26-25-1(3)(a)-(b)).
Nevertheless, the privilege was never intended to shield hospitals from potential liability or to pr
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