Tuesday, August 19, 2003
Supreme Court Says Medical Staff Evaluation Privilege Is Qualified
By a MetNews Staff Writer
The privilege afforded by Civil Code Sec. 43.8 for communications intended to aid hospitals in evaluating doctors is qualified and may be overcome by a showing of bad faith, the state Supreme Court ruled yesterday.
The 6-1 ruling affirms a March 2002 decision by the Third District Court of Appeal upholding summary judgment against Dr. Allen Hassan. Hassan claimed Mercy American River Hospital defamed him in 1993 when it supplied unfavorable information about him to another institution that was considering granting him staff privileges.
Justice Joyce Kennard said the majority of the Court of Appeal panel correctly construed the statute to provide a qualified immunity for entities as well as individuals. The immunity can be overcome by showing the information provided was known to be false or that the provider “otherwise lacked a good faith intent to assist in the medical practitioner’s evaluation,” Kennard said.
She concluded, as had the Court of Appeal, that Hassan failed to make such a showing.
Kennard rejected Hassan’s argument that the immunity should fail if Mercy lacked any basis for believing the information it passed along from its files, which included a memorandum by its then-medical director documenting unfavorable comments made by an official at a state mental hospital where Hassan had been a psychiatry/neurology resident.
Hassan had resigned from the residency program, and the memo reported that his supervisor there described him as “militant vs. authority,” tending “to identify with the underdog,” and “too personally involved with problems of the misfortunate or oppressed (Arabs esp.).” The mental hospital had ceased operations at the time the document was forwarded.
Kennard noted that before the statute was amended in 1990, it provided an immunity for any communication which is “intended to aid in the evaluation of the qualifications, fitness, character, or insurability of a practitioner of the healing or veterinary arts and does not represent as true any matter not reasonably believed to be true.” The amendment dropped the “reasonable belief” provision, but retained the language about intent.
The amendment, Kennard said, was intended to relieve those in Mercy’s position of having to evaluate the credibility of information in their files before passing it on.
But it did not make the privilege absolute, the justice said.
“We have reviewed the legislative record for the 1990 amendment of section 43.8, and we find in it no indication that the Legislature intended that section 43.8 as amended would afford an absolute privilege that would immunize the communication of knowingly false and defamatory statements about a medical practitioner,” Kennard wrote.
“Reading section 43.8 as establishing an absolute privilege would be contrary to canons of statutory construction because it would render meaningless the statutory language requiring that the communication be ‘intended to aid in the evaluation of the qualifications, fitness, character, or insurability of a practitioner.’.... Although these words do not require that the communication actually assist the receiving party in evaluating the doctor’s ‘qualifications, fitness, character, or insurability,’ they do require that the communicator make the communication with a particular subjective intent. Because false information of any sort has no value in evaluating a medical practitioner, the communication of information known to be false cannot be intended to help or assist in that evaluation, or, in other words, an intent to deceive is inconsistent with an intent to aid. Thus, proof that the communicator knew the information to be false when it was conveyed establishes malice sufficient to defeat the qualified section 43.8 privilege.”
Chief Justice Ronald M. George and Justices Marvin Baxter, Kathryn M. Werdegar, Ming Chin and Carolos Moreno concurred.
Justice Janice Rogers Brown agreed that the privilege extends to institutions as well as individuals, but dissented from the majority’s ruling that it was not absolute.
Agreeing with the Third District’s Justice Harry E. Hull Jr., who had dissented from the decision authored by Justice Coleman A. Blease and joined by Justice Fred K. Morrison, she declared:
“The crucial misstep in the argument the majority makes in support of its conclusion is assuming that intended, as used in section 43.8, refers to the intent of the person providing the communication....
“The Legislature was, instead, referring to the intent of the hospital or hospital staff in soliciting the communication, namely, that the information is being sought to aid in an evaluation of a practitioner’s fitness, character, or insurability.”
The case is Hassan v. Mercy American River Hospital, 03 S.O.S. 4528.
Copyright 2003, Metropolitan News Company