However, additional matters are at stake in this appeal, including (a) clarification of the elements of negligent credentialing; (b) whether the peer review law "shields" Henry Medical Center from civil liability due to a lack of an employer-employee relationship between itself and Dr. Roberta Parker, which was the finding of the trial court; (c) whether the passage of the peer review law indicates that the tort of negligent credentialing has been implicitly abolished by the General Assembly; and (d) the scope of discovery allowed when a plaintiff makes a negligent credentialing claim.

In Joiner, the Georgia Supreme Court recognized the tort of negligent credentialing and distinguished it from a hospital's vicarious liability due to the act of its agents. Instead, the Court found that negligent credentialing was an act of independent negligence and analogized it to the tort of negligent entrustment, such as when a car owner gives their keys to someone who is unfit to drive:

. . . [T]he plaintiff does not seek to hold the Hospital Authority liable under the doctrine of respondeat superior or principal and agent, but upon the doctrine of independent negligence in permitting the alleged negligent physician to practice his profession in the hospital, when his incompetency is known. Such negligence is comparable to that of the owner of a motor vehicle permitting an incompetent, inexperienced, or reckless driver to operate such motor vehicle.

229 Ga. at 141-142, 189 S.E.2d at 414.

Finding that a hospital had the power to grant or deny privileges, the Joiner Court found that such action must be conducted in a non-negligent manner:

. . . [A] Hospital Authority operating a public hospital has authority to examine the qualifications of any physician seeking staff privileges and to limit his practice to those areas in which he is deemed qualified to practice or to completely bar him from such practice if he is incompetent, unqualified, inexperienced or reckless.

. . . If the physician was incompetent and the Authority knew, or from information in its possession such incompetency was apparent, then it cannot be said that the Authority acted in good faith and with reasonable care in permitting the physician to become a member of its staff.

229 Ga. at 142-143, 189 S.E.2d at 414.

Given that a hospital has the power to grant or deny privileges to a physician, the Supreme Court found that hospitals have a duty to act reasonably when considering privilege applications. Otherwise, a hospital could grant privileges indiscriminately, without any recourse by the patient when reasonable care was not used.

• For Summary Judgment to be Granted on a Negligent Credentialing Claim, a Defendant Must Show Both Reasonable Procedures Were in Place and that those Procedures Were Followed

As noted by the Joiner court above, the issue in a negligent credentialing case is whether the hospital acted reasonably in granting privileges to a particular physician. The cases from this Court addressing negligent credentialing indicate that, in order for summary judgment to be granted, the defendant hospital must come forward with evidence indicating (a) that there is no pre-existing circumstances in the physician's work history as to any incompetency, and (b) that the physician had the requisite training and credentials to perform the procedure in question. The burden then shifts to the plaintiff to produce evidence creating a question of material fact on these issues. See, e.g., Butler v. South Fulton Medical Center, 215 Ga.App. 809, 452 S.E.2d 768 (1994); Perryman v. DeKalb County Hosp. Auth., 197 Ga.App. 505, 398 S.E.2d 745 (1990).

In regards to what a hospital must prove at summary judgment to fulfill their initial burden of reasonable care, this Court has held that a hospital can merely show that they have credentialing procedures in place that meet the minimum standards of the Joint Commission on Accreditation of Healthcare Organizations ("JCAHO"). Butler, 215 Ga.App. at 811, 452 S.E.2d at 771. However, GTLA submits that this ruling ignores the fact that reasonable care includes more than merely putting procedures in place; rather, following these procedures is just as important in determining whether the hospital acted with reasonable care.

Having a procedure approved by JCAHO is certainly appropriate evidence in regards to a negligent credentialing claim. However, evidence of the existence of the procedure alone should not sufficient to meet defendant's burden. Common sense dictates that the existence of a procedure alone does not mean that it has been fully complied with or has even been minimally followed during the credentialing process.

Slip-and-fall cases provide guidance in this respect. One of the defenses available to a defendant in a constructive knowledge slip-and-fall case is that adequate inspection procedures were in effect and utilized at the time of the victim's injuries. A store may provide evidence that it has a procedure in place for inspecting floors on a regular basis; however, the mere existence of these procedures is insufficient for a grant of summary judgment in favor of the store, unless there is a showing of compliance on the date in question. Smith v. Toys "R" Us, Inc., 233 Ga.App. 188, 191, 504 S.E.2d 31, 34 (1998); Mallory v. Piggy-Wiggly Southern, Inc., 200 Ga.App. 428, 408 S.E.2d 443 (1991):

A lack of actionable constructive knowledge is normally established in [exercising reasonable care in inspecting and keeping the premises in safe condition] cases by evidence of compliance with reasonable inspection and/or cleaning procedures. Evidence establishing an adherence to customary inspection and cleaning procedures on the specific day in question is required, while proof of the mere existence of such customary procedures is insufficient.

Mallory, 200 Ga.App. at 430, 408 S.E.2d at 446 (emphasis added; citations omitted).

The same logic should hold true in a negligent credentialing case. Whether or not appellee Henry Medical Center had JCAHO procedures in place is relevant, but the analysis should not end there. Rather, the hospital should show both that the procedures were in place and they were followed in regards to Dr. Parker. Indeed, this Court has held that a defendant's failure to follow its own policies and procedures is both relevant and admissible on the issue of negligence. Luckie v. Piggly-Wiggly, Inc., 173 Ga.App. 177, 178, 325 S.E.2d 844, 845 (1984). If evidence regarding the procedures and compliance thereto is produced at the time of summary judgment, then the burden should shift to the plaintiff to provide evidence creating a question of material fact on this issue.

• Full Discovery Should Be Allowed Regarding Whether the Hospital Conducted their Investigation in a Reasonable Manner and Whether the Hospital Followed its Credentialing Procedures

It is axiomatic that, if a cause of action is recognized under Georgia law, then full discovery on all facts reasonably related to that cause of action should be allowed. O.C.G.A. § 9-11-26(b)(1). To rule otherwise would to eviscerate the cause of action itself. Thus, in this case, appellant should be allowed to conduct discovery not only on the credentialing procedures themselves but also on whether they were followed.

This fundamental concept makes the trial court's premature ruling on the motion for summary judgment all the more inappropriate. Appellant's pending motion to compel addressed the evidence she needed to rebut Henry Medical Center's defense of reasonable care in granting privileges to Dr. Parker. As discussed at length in appellant's brief, her discovery requests went directly to the issue of whether Henry Medical Center complied with its own procedures for credentialing. Thus, the very information that appellant needed to respond to the summary judgment was denied to her by (a) Henry Medical Center not fully responding to the discovery requests; and (b) the trial court failing to rule upon the pending motion to compel prior to considering the summary judgment motion. Granting of a defendant's summary judgment motion when a pending motion to compel would have produced evidence directly applicable to plaintiff's response to that motion constitutes reversible error. See, e.g., Tuck v. Marriott Corp., 187 Ga.App. 567, 568, 370 S.E.2d 795, 797 (1988).

A review of the possibilities indicates the breadth of the problem. Suppose that Henry Medical Center simply rubber-stamped Dr. Parker's application, without any references being contacted. Would that fact be relevant to a negligent credentialing claim? Most certainly. Would such evidence affect whether summary judgment should be granted? Probably. In this case, however, appellant has no idea whether this scenario is true, because the only discovery on this issue has been the submission via affidavit of conclusory, self-serving statements by the hospital's employees.

Suppose that one of Dr. Parker's references who was never contacted would have indicated that he or she had concerns about Dr. Parker's qualifications to perform the same type of surgery that was conducted on the plaintiff in 1997. Would that fact be relevant to a negligent credentialing claim? Most certainly. Would such evidence affect whether summary judgment should be granted? Probably. In this case, however, appellant has no idea whether this occurred or not, because no discovery has been allowed.

Suppose that several of Dr. Parker's references had concerns about Dr. Parker performing unnecessary surgery to increase revenues. Would that fact be relevant to a negligent credentialing claim? Most certainly. Would such evidence affect whether summary judgment should be granted? Probably. However, if this Court upholds the trial court's ruling, appellant will never know one way or the other, because appellant does not know who Dr. Parker's references were or whether they were ever contacted or interviewed.

The above examples might seem far-fetched, but the whole point is that the appellant has no idea whether these possibilities are true or not until full and complete discovery is allowed on all elements of appellant's negligent credentialing claim.

In order to shore up the trial court's ruling, both appellee Henry Medical Center and amicus Georgia Hospital Association ("GHA") have conjured up the rather creative argument that the passage of the peer review legislation implicitly abolished the tort of negligent credentialing. Of course, neither Henry Medical Center nor GHA could point to any case or any legislative history indicating such drastic action. Simply put, there is nothing to show that the General Assembly desired to abolish negligent credentialing when peer review was created.

Indeed, when one considers the GHA argument, it would give a hospital carte blanche to grant privileges without the slightest concern for the consequences of its actions. There is nothing to indicate that the General Assembly expected hospitals to be given complete immunity for granting privileges to someone clearly not qualified to receive those privileges. Such grave (and foolhardy) action would surely have been indicated in the legislative intent or in the language of the peer review statutes, but no such language can be found. The General Assembly has abolished rules and causes of action in the past, and they are able to do so with simple clarity.⁽¹⁾ There is nothing in either the scheme of peer review, nor in the cases interpreting it, that substantiates the argument that negligent credentialing has been abolished.

A similar argument was made by a hospital to the Supreme Court of Wyoming in the case of Greenwood v. Wierdsma, 741 P.2d 1079 (Wyo. 1987). The Wierdsma court, also dealing with a negligent credentialing-peer review dispute, dismissed the hospital's argument that peer review legislation implicitly abolished the tort of negligent credentialing:

The statute gives hospitals the means to carry out their duty to properly accredit and maintain staff or qualified medical personnel by giving the hospital's medical staff committee access to the necessary records. Certainly, legislation which fosters a hospital's ability to meet its legal obligations demonstrates legislative recognition that indeed such an obligation exists. The citizens of this state are without doubt entitled to institute civil suits to recover for injuries caused by a hospital's failure to perform its obligations.

If the legislature had wanted to prohibit actions against hospitals for breaching their duties to properly supervise the qualifications and privileges of their medical staffs, they would have done so expressly. We will not construe the privilege statute to impliedly prohibit this category of negligence actions.

Wierdsma, 741 P.2d at 1088.

E. This Court Should Address Exactly What Discovery Is Allowed in a Negligent Credentialing Cause of Action

This Court may simply choose to reverse the premature grant of summary judgment and return the case back to the trial court. However, assuming the grant of summary judgment is reversed, the next question becomes what discovery is appropriate in a negligent credentialing claim. While the Court may choose not to rule on this issue at this time, some guidance to the parties in this regard may avert another appeal in this case on a matter clearly in dispute between the parties.

The vast majority of the discovery objections raised by Henry Medical Center are based upon peer review confidentiality. Peer review has two principal components: (a) the persons involved in peer review investigations are given limited immunity for their activity (O.C.G.A. § 31-7-132); and (b) the records and documents generated during the peer review process are deemed confidential (O.C.G.A. §§ 31-7-133 and 31-7-143).

GTLA admits that Georgia's appellate courts have taken a strong stance in defending the confidentiality provisions of the peer review law. Poulnott v. Surgical Associates Associates of Warner Robins, P.C., 179 Ga.App. 138, 345 S.E.2d 639 (1986); Emory Clinic v. Houston, 258 Ga. 434, 369 S.E.2d 913 (1988). At the same time, Georgia's appellate courts have also held that the peer review scheme should be narrowly construed, given that it is a statutory privilege created in derogation of the common law. Fulton-DeKalb Hosp. Auth. v. Dawson, 270 Ga. 376, 509 S.E.2d 28 (1998); Hollowell v. Jove, 247 Ga. 678, 279 S.E.2d 430 (1981).

It appears that much of the discovery sought in this case involves original sources and thus should be produced. Regarding that information that does not fit so easily into that category, GTLA submits that the peer review privilege should have a certain flexibility if a plaintiff's ability to proves their case is seriously hampered or destroyed due to a broad reading of the statues.

F. Original Source Information Should Be Disclosed

It appears undisputed that materials from original sources are discoverable. O.C.G.A. §§ 31-7-133; Kennestone Hosp. Auth. v. Martin, 208 Ga.App. 326, 430 S.E.2d 604 (1993). Various original source documents should have been produced to appellant pursuant to her discovery requests. These documents would not seriously affect the deliberative processes of peer review, yet would go far in indicating the actual steps the peer review took in gathering evidence of Dr. Parker's competence.

For example, a list of all witnesses who were either mentioned by Dr. Parker or otherwise contacted by the peer review committee would be useful in showing the depth of the credentialing investigation. This witness list need not disclose the information given to the committee; just a listing of the names would be sufficient. These witnesses could then be contacted by appellant and asked to describe their personal knowledge of Dr. Parker's history and credentials. Thus, no protected peer review information would be disclosed.

Any original documents provided to the committee such as transcripts, test results, studies, and publications would also be relevant and would not reveal the deliberative process of the peer review committee. Any original documents that Dr. Parker provided to the committee, such as her application, letters of recommendation, and any other supporting documentation should likewise be provided. These documents, along with the above-described witness list, should provide a snapshot as to the information that was gathered and considered by the committee, without impinging upon the committee's deliberations.

G. Documents That May Involve The Peer Review Privilege Should be Carefully Scrutinized to See if They Are Peer Review Documents and to Consider Whether They Should be Produced in Certain Limited Circumstances

There is not a Georgia case on point that delves into the scope of discovery in a patient's negligent credentialing case when the hospital claims peer review privilege. Given the lack of guidance on this matter, it is appropriate to consider how other jurisdictions have dealt with this issue. Russaw v. Martin, 221 Ga.App. 683, 685, 472 S.E.2d 508, 510 (1996). The following jurisdictions have grappled with this issue and have ruled for a variety of reasons that peer review privilege must yield in some limited fashion in the appropriate circumstances.

To allow the hospital here to insulate from discovery the facts and information which go to the heart of the plaintiffs' claim would deny plaintiffs that right and, in the words of the federal court, 'raise significant constitutional implications.'

955 P.2d at 1187.

The Kansas Supreme Court found that, in the interests of due process, the plaintiff should be allowed access to the underlying facts and information gathered by the peer review committee, but excluded any discovery regarding the committee's decision-making process and conclusions. Id.

The same ruling could should be applied in this case. The decision-making process itself is not what is of critical importance here; rather, the issue is the reasonableness and extent of the underlying investigation. After all, the question in a negligent credentialing case is not necessarily whether the "correct" decision was reached, but whether the hospital used reasonable care in gathering evidence and investigating the physicians credentials.

Upon proper request, hospitals should be required to provide a list of witnesses and documents that were considered. Based upon this information, appellant could then depose the appropriate individuals to further substantiate her case. Additionally, references to the peer review committee could be deleted, e.g., one could simply inquire about a witness' prior "statements" or "testimony". Any particularly sensitive documents could be submitted to the trial court for an in camera inspection after the creation of a privilege log. Finally, any such documents and testimony could remain confidential to the parties to the litigation, and any peer review material could either be sealed or destroyed once the litigation is concluded.

The various techniques to limit the exposure of peer review documents is limitless, and they can be adjusted on a case-by-case basis. However, to provide blanket protection for all such credentialing information significantly hampers any plaintiff's attempts to investigate whether a hospital was negligent in granting privileges to a physician.

2. Sisters of Charity Health Systems v. Raikes

In Sisters of Charity Health Systems v. Raikes, 984 S.W.2d 464 (Ky. 1998), the Kentucky Supreme Court found that peer review statutory scheme was meant to protect the peer review committee members from liability from defamation suits. Thus, to apply the peer review privilege to a medical malpractice action would be inappropriate. 984 S.W.2d at 470.

Like Georgia, the Kentucky peer review scheme provides both limited immunity for the peer review members and also provides for confidentiality of peer review documents. While noting these passages, the Kentucky Supreme Court also made the following observations:

(A) the original purpose of the peer review process was to protect the peer review members from defamation litigation, not malpractice litigation, 984 S.W.2d at 467;

(B) the Kentucky constitution protected plaintiffs' right to bring suit for their injuries, 984 S.W.2d at 469;

(C) that the defendant hospital's broad interpretation of the peer review statute would create an absolute privilege for peer review material, which would unfairly tilt the playing field against a medical malpractice plaintiff, despite the fact that the statutory scheme was not meant to stymie medical malpractice litigation but instead protect against defamation suits against peer review committee members. 984 S.W.2d at 470.

GTLA submits that the strict reading used by the Kentucky Supreme Court would be appropriate for the peer review statutory scheme here in Georgia. The primary concern regarding peer review is that a full and open investigation be done by the committee without fear of repercussion to the members of the committee, unless malice is shown. The immunity granted to the peer review committee members under O.C.G.A. § 31-7-132 gives the members the necessary protection so that they may conduct their investigation freely without fear of personal liability from defamation actions. To create a broader interpretation of the statutory scheme is to provide additional protection where none is needed, and goes against the rule of strict construction of statutory privileges created in derogation of the common law. Furthermore, such a ruling would seriously hamper a Georgia litigant's right to pursue a negligent credentialing claim, a tort recognized by the Supreme Court long before the peer review privilege existed. This limited interpretation of the peer review scheme would still protect the committee members and also provide the necessary information to plaintiffs pursuing a negligent credentialing claim.

3. Harston v. Campbell County Memorial Hospital and Greenwood v. Wierdsma

In Harston v. Campbell County Memorial Hospital, 913 P.2d 870 (Wyo. 1996), the Wyoming Supreme Court reversed the trial court which had granted the defendant hospital's summary judgment motion on the plaintiff's negligent credentialing claim. The trial court had granted summary judgment after denying plaintiff's motion to compel certain documents claimed to be protected by peer review. 913 P.2d at 871.

The Supreme Court of Wyoming first ruled that the case recognizing the tort of negligent credentialing in Wyoming, Greenwood v. Wierdsma, 741 P.2d 1079 (Wyo. 1987), was still applicable despite the passage of recent peer review legislation, given that the legislative intent never indicated any desire to overturn the Wierdsma decision. 913 P.2d at 876.⁽²⁾

The Wyoming Supreme Court then ruled that an in camera inspection be utilized to weigh and balance the competing interests of the litigants, and cited to the Court's ruling in Houghton v. Franscell, 870 P.2d 1050 (Wyo. 1994) as support for such a process when one of the parties seeks the evidence in support of claims asserted in pending litigation.

As noted in the other jurisdictions already cited, the Wyoming approach fully respects the importance of peer review, but also requires a consideration of a plaintiff's right to pursue her claims for injuries due to negligent credentialing. Despite the theatrical claims of GHA and Henry Medical Center that medical care would grievously suffer, nothing could be further from the truth. Lawsuits, just like committee evaluations and other forms of regulation, provide a certain level of accountability to parties for their actions. While a lawsuit is generally conducted in a more public forum, safeguards can be utilized in appropriate cases that will serve both the interests of full discovery and peer review confidentiality.

4. Chicago Trust Company v. Cook County Hospital

In Chicago Trust Company v. Cook County Hospital, 698 N.E.2d 641 (Ill. App. Ct. 1998), the Appellate Court of Illinois, dealing with peer review statutes (735 ILS 5/8-2101 and 2102) just as restrictive as Georgia's, strictly construed the statute and ruled several pre-deliberation and post-deliberation documents as being discoverable.

The Appellate Court did a careful examination of when these various documents were created, and found that they had been created either before or after the peer review committee's deliberations. The critical factor to the court was that the deliberative process be as free and open as possible to foster improved health care. 698 N.E.2d at 646. Documents produced either before or after the deliberative process did not deserve the same level of protection. 698 N.E.2d at 646, 648. The Court also cited with approval the Illinois Supreme Court case of Roach v. Springfield Clinic, 623 N.E.2d 246 (Ill. 1993) in finding that the broad privilege sought by the hospital was inappropriate, as it would seriously hinder negligence claims: "[T]he statute was never intended to shield hospitals from potential liability." Chicago Trust Company, 698 N.E.2d at 647.

All of these cases emphasize one major point: the peer review privilege must not be considered absolute, but must be flexible in certain limited circumstances. When malpractice plaintiffs (as opposed to defamation plaintiffs, who seem to be the intended litigants against whom the peer review privilege was created) are seeking to gather evidence in support of the recognized claim of negligent credentialing, and the peer review privilege makes such gathering impossible, then the privilege must be more narrowly construed. Otherwise, the tort would be meaningless, due process would suffer, and hospitals could award privileges indiscriminately.

As discussed above, the knowledge of the list of witnesses and original documents that were examined by the committee members alone would shed significant light on whether the hospital acted with reasonable care in granting privileges to Dr. Parker. However, for certain other documents which may be relevant to appellant's claim, yet which allegedly come under the peer review scheme, a plaintiff should be allowed to seek an in camera inspection of certain documents as identified by a privilege log, so long as the portions of the documents reflecting the deliberative process itself are redacted.

While this Court may choose to simply reverse upon the trial court's improper granting of summary judgment, guidance regarding the scope of discovery in a negligent credentialing claim would be immensely helpful in this case where the issue is already hotly contested. As indicated by a variety of cases across the nation, the peer review privilege should be narrowly construed in appropriate circumstances when the privilege would otherwise eviscerate the legally-recognized claim of negligent credentialing.

Based on the foregoing, GTLA respectfully submits that the judgment in the court below should be reversed and the case remanded with guidance on the remaining discovery issues.

Respectfully submitted, this ____ day of March, 2001.

/s/ Mark L. Stuckey

1. For example, O.C.G.A. § 9-11-60(h) expressly abolished the law of the case rule.