SER Wheeling Hospital, Inc. David A. Graphery, M.D. v. Hon. Ronald E. Wilson, Judge

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2016 Term

FILED

February 9, 2016

released at 3:00 p.m.

RORY L. PERRY, II CLERK

No. 15-0558 SUPREME COURT OF APPEALS

OF WEST VIRGINIA

STATE OF WEST VIRGINIA EX REL.

WHEELING HOSPITAL, INC.;

DAVID A. GHAPHERY, M.D.; AND

A.D. GHAPHERY PROFESSIONAL ASSOCIATION,

Petitioners

V.

HONORABLE RONALD E. WILSON,

JUDGE OF THE CIRCUIT COURT OF OHIO COUNTY,

AND STEPHANIE MILLS,

Respondents

Petition for Writ of Prohibition

WRIT GRANTED AS MOULDED

Submitted: October 7, 2015

Filed: February 9, 2016

Edmund L. Olszewski, Jr. Christopher J. Regan

Dickie, McCamey & Chilcote, P.C. J. Zachary Zatezalo

Pittsburgh, Pennsylvania Meaghan L. Tague

Attorney for the Petitioner, Bordas & Bordas, PLLC

Wheeling Hospital, Inc. Wheeling, West Virginia

Patrick S. Casey Attorneys for the Respondent,

D. Kevin Coleman Stephanie Mills

Casey & Chapman, PLLC

Wheeling, West Virginia

Attorneys for the Petitioners,

David A. Ghaphery, M.D., and

A.D. Ghaphery Professional Association

JUSTICE DAVIS delivered the Opinion of the Court.

SYLLABUS BY THE COURT

1. To determine whether a particular document is protected by the peer

review privilege codified at W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 2015), a reviewing

court must ascertain both the exact origin and the specific use of the document in question.

Documents that have been created exclusively by or for a review organization, or that

originate therein, and that are used solely by that entity in the peer review process are

privileged. However, documents that either (1) are not created exclusively by or for a review

organization, (2) originate outside the peer review process, or (3) are used outside the peer

review process are not privileged.

2. Where documents sought to be discovered are used in the peer review

process but either the document, itself, or the information contained therein, is available from

an original source extraneous to the peer review process, such material is discoverable from

the original source, itself, but not from the review organization that has used it in its

deliberations.

3. The party seeking the protections of the peer review privilege bears the

burden of establishing its applicability by more than a mere assertion of privilege.

i

4. A party wishing to establish the applicability of the peer review

privilege, set forth at W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 2015), should submit a

privilege log which identifies each document for which the privilege is claimed by name,

date, and custodian. The privilege log also should contain specific information regarding (1)

the origin of each document, and whether it was created solely for or by a review committee,

and (2) the use of each document, with disclosures as to whether or not the document was

used exclusively by such committee. Finally, the privilege log should provide a description

of each document and a recitation of the law supporting the claim of privilege.

ii

Davis, Justice:

The petitioners herein, Wheeling Hospital, Inc.; David A. Ghaphery, M.D.; and

A.D. Ghaphery Professional Association (collectively, “Wheeling Hospital”), seek a writ of

prohibition to preclude the enforcement of an order entered February 26, 2015, by the Circuit

Court of Ohio County. By that order, the circuit court directed Wheeling Hospital to disclose

to the respondent herein, Stephanie Mills (“Ms. Mills”), various documents it claimed to be

subject to the peer review privilege. Before this Court, Wheeling Hospital asserts that the

documents ordered to be disclosed are protected by the peer review privilege set forth in

W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 2015).1 Ms. Mills rejects such arguments and

contends that the circuit court properly ordered the subject documents be disclosed. Upon

our review of the parties’ arguments, the appendix record presented for our consideration,

and the pertinent authorities, we grant as moulded the requested writ of prohibition.

Specifically, we find that certain of the challenged documents, including those comprising

Dr. Ghaphery’s request to renew his staff privileges, as well as other documents, are

specifically protected by the peer review privilege. With respect to the remaining challenged

1

For further treatment of W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 2015), see

Section III, infra.

Wheeling Hospital additionally contends that the subject documents are protected by

the nondisclosure provisions of the Health Insurance Portability and Accountability Act

(“HIPAA”) contained in 45 C.F.R. § 164.514(b)(2)(i) (2013) (Repl. Vol. 2014), and, further,

that such documents are not relevant under rules governing evidence and discovery. In light

of our disposition of the case, we deem further consider of these arguments to be premature

in the current posture of the case sub judice. See infra note 9.

1

documents, we conclude that the circuit court did not conduct a thorough in camera review

of such documents and that Wheeling Hospital did not provide a privilege log with sufficient

detail to permit the circuit court to determine whether such documents are protected by the

peer review privilege. Therefore, we prohibit the enforcement of the circuit court’s February

26, 2015, order, and further direct Wheeling Hospital to submit a revised privilege log

addressing the remaining documents and the circuit court to conduct further in camera

proceedings in accordance with this opinion.

I.

FACTUAL AND PROCEDURAL HISTORY

This case originated in 2011 when Ms. Mills consulted with Dr. Ghaphery for

treatment of a medical condition. On October 13, 2011, Ms. Mills had a thyroidectomy,2

performed by Dr. Ghaphery at Wheeling Hospital. Following the surgery, Ms. Mills had

difficulty breathing and swallowing, and was unable to talk. Ms. Mills then consulted with

a specialist who informed her that the nerves surrounding her thyroid gland had been severed

during her thyroidectomy thus resulting in bilateral vocal cord paralysis.

Ms. Mills thereafter filed suit in the Circuit Court of Ohio County against the

petitioners herein, Dr. Ghaphery; A.D. Ghaphery Professional Association; and Wheeling

2

Through the thyroidectomy, Dr. Ghaphery removed Ms. Mills’ thyroid gland.

2

Hospital, Inc., asserting claims for medical negligence; lack of informed consent; and

negligent credentialing. Ms. Mills also sought discovery from the named defendants,

including documents regarding Dr. Ghaphery’s surgeries that he had performed at Wheeling

Hospital, and whether such procedures had been accompanied by complications or infections

or whether those patients subsequently required readmission to the hospital. Wheeling

Hospital failed to respond to Ms. Mills’ discovery requests. Ultimately, Ms. Mills filed a

motion to compel, which the circuit court granted, ordering Wheeling Hospital to produce

a privilege log of the documents it claimed to be exempt from disclosure. The parties

reached agreement regarding disclosure of certain of the documents, but approximately 350

documents remained in dispute.

The circuit court then conducted an in camera review of the remaining disputed

documents, which Wheeling Hospital claimed were protected by the peer review privilege,3

HIPAA,4 and/or evidentiary and discovery rules regarding relevancy.5 By order entered

February 26, 2015, the circuit court ordered the majority of the disputed documents to be

disclosed. In so ruling, the circuit court observed that, while the documents ordered to be

disclosed may not be relevant in a typical medical malpractice action, Ms. Mills’ addition of

3

See supra note 1 and accompanying text.

4

See note 1, supra.

5

See supra note 1.

3

a negligent credentialing claim either made such documents relevant or, in view of the liberal

discovery rule, such evidence “is ‘reasonably calculated to lead to the discovery of

admissible evidence,’” and, thus, “it is difficult for a judge to draw the line between what

may lead to the discovery and what is clearly relevant. State ex rel. Erie Ins. Prop. & Cas.

Co. v. Mazzone, 218 W. Va. 593, 597, 625 S.E.2d 355, 359 (2005).” Accordingly, the circuit

court determined that the subject documents should be disclosed because they would either

be relevant to Ms. Mills’ claims or to Wheeling Hospital’s and Dr. Ghaphery’s defense

thereof.

The court additionally relied upon Ms. Mills’ representations that the subject

documents satisfied the “original source” exception to the peer review privilege because they

“were not created solely for Wheeling Hospital[’]s crediting committee but are otherwise

available from original sources extraneous to that committee.” The court explained further

that “these documents contain information that the hospital gathers in the ordinary course of

its business, or pursuant to regulations, that the crediting committee then uses in its work.”

Finally, to address the HIPAA and chilling effect of disclosure concerns raised by Wheeling

Hospital, the circuit court limited the discoverable documents to those documents pertaining

to Dr. Ghaphery, his surgeries, and their outcomes and which were generated prior to and on

October 13, 2011, i.e., the date of Ms. Mills’ surgery; required that identifying information

for Dr. Ghaphery’s other patients be redacted from the disclosed documents; and refused to

4

authorize the disclosure of documents relating to medical procedures performed by other

physicians in the hospital. Applying these criteria, the circuit court ordered that the majority

of the contested documents be disclosed, while finding that a few such documents were not

relevant and thus were not subject to disclosure.

Following this adverse ruling, Wheeling Hospital requests this Court to issue

a writ of prohibition to prevent the circuit court from enforcing its February 26, 2015,

disclosure order.

II.

STANDARD FOR ISSUANCE OF WRIT

In the instant proceeding, Wheeling Hospital requests this Court to issue a writ

of prohibition. As an extraordinary remedy, we have cautioned that we reserve such relief

for exceptional cases. See State ex rel. Suriano v. Gaughan, 198 W. Va. 339, 345, 480

S.E.2d 548, 554 (1996) (“Mandamus, prohibition and injunction against judges are drastic

and extraordinary remedies . . . . As extraordinary remedies, they are reserved for really

extraordinary causes.” (internal quotations and citations omitted)). Therefore, “[a] writ of

prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only

issue where the trial court has no jurisdiction or having such jurisdiction exceeds its

legitimate powers.” Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233

5

S.E.2d 425 (1977). Accord Syl. pt. 1, in part, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d

744 (1979) (“[T]his Court will use prohibition . . . to correct only substantial, clear-cut, legal

errors plainly in contravention of a clear statutory, constitutional, or common law mandate

which may be resolved independently of any disputed facts and only in cases where there is

a high probability that the trial will be completely reversed if the error is not corrected in

advance.”), superseded by statute on other grounds as stated in State ex rel. Thornhill Grp.,

Inc. v. King, 233 W. Va. 564, 759 S.E.2d 795 (2014). In this vein, we typically have found

challenges to discovery orders involving potentially privileged material to constitute such an

exceptional case. See, e.g., Syl. pt. 3, State ex rel. United Stated Fid. & Guar. Co. v. Canady,

194 W. Va. 431, 460 S.E.2d 677 (1995) (“When a discovery order involves the probable

invasion of confidential materials that are exempted from discovery under Rule[s] 26(b)(1)

and (3) of the West Virginia Rules of Civil Procedure, the exercise of this Court’s original

jurisdiction is appropriate.”).

When ruling on a petition for a writ of prohibition, our determination of the

merits of the petition is guided by the multi-faceted analysis adopted by our prior holding in

Syllabus point 4 of State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996):

In determining whether to entertain and issue the writ of

prohibition for cases not involving an absence of jurisdiction but

only where it is claimed that the lower tribunal exceeded its

legitimate powers, this Court will examine five factors: (1)

whether the party seeking the writ has no other adequate means,

such as direct appeal, to obtain the desired relief; (2) whether the

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petitioner will be damaged or prejudiced in a way that is not

correctable on appeal; (3) whether the lower tribunal’s order is

clearly erroneous as a matter of law; (4) whether the lower

tribunal’s order is an oft repeated error or manifests persistent

disregard for either procedural or substantive law; and (5)

whether the lower tribunal’s order raises new and important

problems or issues of law of first impression. These factors are

general guidelines that serve as a useful starting point for

determining whether a discretionary writ of prohibition should

issue. Although all five factors need not be satisfied, it is clear

that the third factor, the existence of clear error as a matter of

law, should be given substantial weight.

In light of this standard, we proceed to consider the parties’ arguments.

III.

DISCUSSION

At issue in the case sub judice is whether certain documents are subject to

disclosure or whether they are protected by the peer review privilege; HIPAA’s privacy

concerns; or relevancy considerations. We begin by considering the peer review privilege.

Wheeling Hospital first contends that the subject documents are exempted from

disclosure by the West Virginia peer review privilege. In support of its argument, Wheeling

Hospital asserts that the documents ordered to be disclosed contain confidential information

from Dr. Ghaphery’s credentialing file and that such disclosure will have a “chilling effect”

on the peer review process, itself. Citing Young v. Saldanha, 189 W. Va. 330, 431 S.E.2d

669 (1993). Wheeling Hospital further argues that this Court’s prior precedent prohibits the

7

disclosure of documents considered or generated by a hospital’s credentialing committee that

evaluates an application or a request to renew a physician’s staff privileges, and, thus, those

documents coming within this category are exempt from disclosure. Citing State ex rel.

Charles Town Gen. Hosp. v. Sanders, 210 W. Va. 118, 125-26, 556 S.E.2d 85, 92-93 (2001).

Finally, Wheeling Hospital contends that the subject documents are protected by the peer

review privilege insofar as they “are used by the Hospital for quality assurance, monitoring

and control and are considered by the Department of Medical Affairs/Credentialing for

appointment/reappointment purposes.”

Ms. Mills responds that the documents in issue were not created solely for the

credentialing process but rather encompass quality control information that the Hospital

collects and that can be queried at any time. With specific respect to the reappointment

profiles, Ms. Mills contends that the data comprising these records is collected and

maintained by the Hospital because it is required by law to do so and to report such

information to its regulatory body and the West Virginia Board of Medicine for physician

licensing purposes. As for the summary reports, procedure totals, general surgery

interventions, physician specific reports, and remaining categories of documents, Ms. Mills

suggests that such reports likely were not generated solely for the Hospital’s credentialing

process, but rather were created as business records, for quality control reasons, to satisfy

regulatory obligations, to gather claims denial information from insurance companies, and

8

for similar purposes. Thus, Ms. Mills argues, these documents were not created exclusively

for or by the credentialing committee, did not originate in that body, and are available from

original sources extraneous to the peer review process. Finally, Ms. Mills asserts that

Wheeling Hospital has not fulfilled its burden of demonstrating good cause sufficient to

preclude the documents’ disclosure pursuant to either Rule 26(c) of the West Virginia Rules

of Civil Procedure or State ex rel. Shroades v. Henry, 187 W. Va. 723, 421 S.E.2d 264

(1992)..

The peer review privilege has been adopted by statute in this State and

generally protects peer review proceedings conducted by a review organization. We

previously have observed that “[t]he enactment of West Virginia Code §§ 30-3C-1 to -3

(1993) very clearly evinces a public policy encouraging health care professionals to monitor

the competency and professional conduct of their peers in order to safeguard and improve

the quality of patient care.” Syl. pt. 2, Young v. Saldanha, 189 W. Va. 330, 431 S.E.2d 669

(1993). Accord Mahmoodian v. United Hosp. Ctr., Inc., 185 W. Va. 59, 65, 404 S.E.2d 750,

756 (1991). See also State ex rel. Shroades v. Henry, 187 W. Va. 723, 727, 421 S.E.2d 264,

268 (1992) (“The peer review privilege represents a legislative choice between medical staff

candor and the plaintiff’s access to evidence.” (footnote omitted)); Daily Gazette Co., Inc.

v. West Virginia Bd. of Med., 177 W. Va. 316, 322, 352 S.E.2d 66, 71 (1986) (“[I]t seems

9

evident that the legislature enacted these provisions with the ultimate purpose of improving

the quality of medical care provided in the hospitals of this State.”).

In recognizing this statutory privilege, the Legislature has defined “peer

review” as “the procedure for evaluation by health care professionals of the quality and

efficiency of services ordered or performed by other health care professionals, including

practice analysis, inpatient hospital and extended care facility utilization review, medical

audit, ambulatory care review, claims review and patient safety review.” W. Va. Code § 30­

3C-1 (2004) (Repl. Vol. 2015). Additionally,

“[r]eview organization” means any committee or

organization engaging in peer review, including a hospital

utilization review committee, a hospital tissue committee, a

medical audit committee, a health insurance review committee,

a health maintenance organization review committee, a hospital

medical, dental and health service corporation review

committee, a hospital plan corporation review committee, a

professional health service plan review committee or

organization, a dental review committee, a physicians’ advisory

committee, a podiatry advisory committee, a nursing advisory

committee, any committee or organization established pursuant

to a medical assistance program, the Joint Commission on

Accreditation of Health Care Organizations or similar

accrediting body or any entity established by such accrediting

body or to fulfill the requirements of such accrediting body, any

entity established pursuant to state or federal law for peer review

purposes, and any committee established by one or more state or

local professional societies or institutes, to gather and review

information relating to the care and treatment of patients for the

purposes of: (i) Evaluating and improving the quality of health

care rendered; (ii) reducing morbidity or mortality; or (iii)

establishing and enforcing guidelines designed to keep within

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reasonable bounds the cost of health care. It shall also mean any

hospital board committee or organization reviewing the

professional qualifications or activities of its medical staff or

applicants for admission thereto, and any professional standards

review organizations established or required under state or

federal statutes or regulations.

Id.

The statutory peer review privilege, itself, is set forth in W. Va. Code § 30-3C­

3 (1980) (Repl. Vol. 2015), and provides as follows:

The proceedings and records of a review organization

shall be confidential and privileged and shall not be subject to

subpoena or discovery proceedings or be admitted as evidence

in any civil action arising out of the matters which are subject to

evaluation and review by such organization and no person who

was in attendance at a meeting of such organization shall be

permitted or required to testify in any such civil action as to any

evidence or other matters produced or presented during the

proceedings of such organization or as to any findings,

recommendations, evaluations, opinions or other actions of such

organization or any members thereof: Provided, That

information, documents or records otherwise available from

original sources are not to be construed as immune from

discovery or use in any civil action merely because they were

presented during proceedings of such organization, nor should

any person who testifies before such organization or who is a

member of such organization be prevented from testifying as to

matters within his knowledge, but the witness shall not be asked

about his testimony before such an organization or opinions

formed by him as a result of said organization hearings:

Provided, however, That an individual may execute a valid

waiver authorizing the release of the contents of his file

pertaining to his own acts or omissions, and such waiver shall

remove the confidentiality and privilege of said contents

otherwise provided by this section: Provided further, That upon

11

further review by any other review organization, upon judicial

review of any finding or determination of a review organization

or in any civil action filed by an individual whose activities have

been reviewed, any testimony, documents, proceedings, records

and other evidence adduced before any such review organization

shall be available to such further review organization, the court

and the individual whose activities have been reviewed. The

court shall enter such protective orders as may be appropriate to

provide for the confidentiality of the records provided the court

by a review organization and all papers and records relating to

the proceedings had before the reviewing court.

Id. Interpreting this statutory language, we previously have held that

W. Va. Code, 30-3C-3 [1980] provides that “[t]he

proceedings and records of a review organization shall be

confidential . . . Provided, That information, documents or

records otherwise available from original sources are not to be

construed as immune from discovery or use in any civil action

merely because they were presented during proceedings of such

[a review] organization. . . .” The language of the statute grants

a privilege to all the records and proceedings of a review

organization, but no privilege attaches to information,

documents or records considered by a review organization if the

material is “otherwise available from original sources.”

Syl. pt. 3, State ex rel. Shroades v. Henry, 187 W. Va. 723, 421 S.E.2d 264. In other words,

the privilege allows some documents that are considered during the peer review process to

be disclosed, provided they come within the provision’s noted exceptions:

Pursuant to the plain language of W. Va. Code § 30-3C-3

(1980) (Repl. Vol. 1998), information, documents, and records

ordinarily protected by the peer review privilege lose their

specter of confidentiality and may be accessed by third parties

when (1) said materials are “otherwise available from original

sources” or (2) “an individual [has] execute[d] a valid waiver

authorizing the release of the contents of his file pertaining to

his own acts or omissions.”

12

Syl. pt. 4, State ex rel. Brooks v. Zakaib, 214 W. Va. 253, 588 S.E.2d 418 (2003).

Furthermore, we have recognized that the definition of “review organization,”

itself, provides additional guidance as to the scope of the privilege. In this regard, we

specifically have held that

[a] hospital committee that is responsible for considering

applications for admission to its staff and for issuing staff

privileges or credentials in accordance therewith is a “review

organization” within the definition of W. Va. Code § 30-3C-1

(1975) (Repl. Vol. 1998). As a “review organization,” such

hospital committee may also avail itself of the health care peer

review privilege, codified in W. Va. Code § 30-3C-3 (1980)

(Repl. Vol. 1998), provided it satisfies the requisite criteria for

the assertion of that privilege.

Syl. pt. 5, State ex rel. Charles Town Gen. Hosp. v. Sanders, 210 W. Va. 118, 556 S.E.2d 85

(2001). In accordance with this scope of the privilege, then, it necessarily follows that “[a]n

application for the issuance or renewal of staff privileges that is created solely for

consideration by a hospital credentialing committee is protected by the health care peer

review privilege pursuant to W. Va. Code § 30–3C–3 (1980) (Repl. Vol.1998).” Syl. pt. 8,

Sanders, 210 W. Va. 118, 556 S.E.2d 85.

However, “[b]lanket assertions of privilege are generally not sufficient to

invoke the peer review privilege.” Thomas J. Hurney, Jr. & Rob J. Aliff, Medical

Professional Liability in West Virginia, 105 W. Va. L. Rev. 369, 444 (2003). Rather, a party

13

wishing to avail him/herself of the protections afforded by the peer review privilege must

prove it applies to the documents he/she seeks to shield from discovery. “The determination

of which materials are privileged under W. Va. Code, 30–3C–1 [1975] et seq. is essentially

a factual question[,] and the party asserting the privilege has the burden of demonstrating that

the privilege applies.” Syl. pt. 2, Shroades, 187 W. Va. 723, 421 S.E.2d 264.

While these authorities all provide significant guidance as to the precise

parameters of the peer review privilege, the facts of the case sub judice clearly demonstrate

that this black and white line of demarcation is tinged with many, many shades of gray

uncertainty. Although the party asserting the protections afforded by the privilege bears the

burden of demonstrating its applicability by “[m]ore than mere assertions,”6 it is clear to us

that we have not yet scrupulously considered all the myriad scenarios in which peer review

documents may be generated or considered. Our review of the challenged documents herein

signifies an urgent need for more precise guidelines as to which documents are protected and

which documents are subject to disclosure. Therefore, we now undertake to provide a more

definitive explanation as to which documents referenced in a peer review proceeding are

required to be protected and which of those documents are permitted to be disclosed because

they are not subject to the protections of the peer review privilege.

6

State ex rel. HCR Manorcare, LLC v. Stucky, 235 W. Va. 677, 686, 776 S.E.2d

271, 280 (2015) (citation omitted).

14

It goes without saying that documents using data that is generated exclusively

for or by a peer review organization for its sole use are protected by the peer review

privilege. Moreover, “[m]aterial that originates in a review organization remains privileged

even if held by a non-review organization.” Shroades, 187 W. Va. at 728, 421 S.E.2d at 269

(footnote omitted). Similarly, documents that contain mental impressions, analyses, and/or

work product of the review organization are exempt from disclosure. Documents coming

within this “clearly privileged” category would include the credentialing files we found to

be protected in Sanders. See Syl. pt. 8, Sanders, 210 W. Va. 118, 556 S.E.2d 85.

On the other end of the spectrum are documents that are clearly subject to

disclosure because they were not generated as part of the peer review process or because the

peer review statute, itself, specifically exempts them from the rigors of the privilege. Thus,

“material that originates in a non-review organization does not become privileged after

presentation to a review organization.” Shroades, 187 W. Va. at 728, 421 S.E.2d at 269.

Similarly, information considered during the peer review process is not privileged if it either

is available from original sources extraneous to the peer review process or discoverable

because the document’s claim of privilege has been waived. Accord Syl. pt. 4, State ex rel.

Brooks v. Zakaib, 214 W. Va. 253, 588 S.E.2d 418. See also Sanders, 210 W. Va. at 126,

556 S.E.2d at 93 (“[R]ecords, documents, and the like that are available from original sources

extraneous to the credentialing process are not privileged and, thus, are subject to discovery.”

15

(citations omitted)); Syl. pt. 3, Young, 189 W. Va. 330, 431 S.E.2d 669 (“To effect a waiver

of the privilege of confidentiality which attends information and records properly the subject

of health care peer review under West Virginia Code §§ 30-3C-1 to -3 (1993), the Legislature

has required that an individual must formally indicate his intent to waive this confidentiality

by executing a valid waiver.”). Cf. Syl. pt. 3, Daily Gazette Co. v. West Virginia Bd. of Med.,

177 W. Va. 316, 352 S.E.2d 66 (“To the extent that any hospital peer review information is

brought before the West Virginia Board of Medicine under W. Va. Code, 30-3-14(o) (1986),

after probable cause to substantiate charges of disciplinary disqualification is found, the

public is entitled to such information.”). But see Syl. pt. 5, Brooks, 214 W. Va. 253, 588

S.E.2d 418 (“Where the privilege encapsulating peer review materials has been lifted because

such information is available from an original source or the privilege has been waived, such

materials may still be rendered inaccessible if the tribunal in which such information was

introduced or reviewed has entered a protective order in accordance with W. Va. Code § 30­

3C-3 (1980) (Repl. Vol. 1998) to guard against their disclosure.”).

The difficulty of distinction arises when documents are an amalgamation of the

two foregoing categories. Which category contains documents that are considered by a peer

review organization but that have not necessarily been created specifically for or by that

entity? What about compilations of existing data that are used by a peer review

organization? The answer to these questions is simple: “the origin of the document

16

determines if it is privileged.” Shroades, 187 W. Va. at 728, 421 S.E.2d at 269. “In order

to determine whether the [peer review] privilege . . . applies to a particular circumstance, the

courts must determine whether the records sought to be discovered arose from a peer review

proceeding to which the privilege applies.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 536

(Tenn. 2010) (citations and footnotes omitted). Thus,

[i]n determining whether a medical peer review privilege

applies in a particular circumstance, we look to the way in which

a document was created and the purpose for which it was used,

not . . . its content. Therefore, the proper inquiry as to whether

a document qualifies for protection . . . is whether it was created

by, for, or otherwise as a result of a medical peer review

committee. Under that formulation, while the work product of

the various committees involved in credentialing . . . –e.g.,

minutes from meetings, reports, or recommendations generated

by or for the committees—are protected . . . , documents used by

such committees are not necessarily similarly protected.

Board of Registration in Med. v. Hallmark Health Corp., 454 Mass. 498, 509-10, 910 N.E.2d

898, 907 (2009) (internal quotations and citations omitted).

Therefore, the test to apply to determine whether the peer review privilege

shields a particular document from disclosure is whether the document was created

exclusively by or solely for a review organization.

The peer review privilege . . . applies to information that

was created at the behest of a peer review committee. It covers

information gathered or prepared by the members of the

committee and information gathered or prepared by others at the

committee’s request. However, for the privilege to apply, the

17

information must be used for peer review purposes. If it

originated outside the peer review process, it is not privileged.

Powell v. Community Health Sys., Inc., 312 S.W.3d 496, 510 (Tenn. 2010) (citations

omitted).

Where, however, the peer review committee merely uses information that has

been generated or supplied by a source external to the committee, such information is

discoverable from the original, external sources, but not from the peer review committee,

itself. See W. Va. Code § 30-3C-3; Syl. pt. 4, Brooks, 214 W. Va. 253, 588 S.E.2d 418; Syl.

pt. 3, Shroades, 187 W. Va. 723, 421 S.E.2d 264. In this regard, the privilege

does not prohibit discovery from alternative sources. For

example, a medical peer review committee may have obtained

and reviewed a copy of a letter from a physician, but that

document is not thereby clothed with a privilege if its author or

recipient share it with individuals or entities that do not come

under the [peer review privilege]. Or, a medical committee may

review documents that are within the public domain. See

McGee v. Bruce Hosp. Sys., 312 S.C. 58, [62,] 439 S.E.2d 257,

260 (1993) (information that is available from a source other

than the committee does not become privileged simply by being

acquired by the review committee); Cruger v. Love, 599 So. 2d

111, 114 (Fla. 1992) (if the applicant obtains a document from

a source that is not within the scope of the privilege, the

document is not privileged). Further, routine business records

of a health-care entity such as a patient’s medical records do not

become privileged and are not shielded from discovery simply

because a medical peer review committee has reviewed or

considered them.

Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12, 18 (Tex. 1996). Stated otherwise,

18

the source of nonprivileged material cannot be the peer review

committee or any other entity or individual included within the

protections of the committee privileges. Rather, a party must

seek the documents and communications from a nonprivileged

source. . . . [The] privilege [permits] only the withholding of the

fact that ordinary business records were reviewed by the

committee, not the ordinary business records themselves. The

peer review privilege protects the products of the peer review

process: reports, records (including those produced for the

committee’s review as part of the investigative review process),

and deliberations.

In re Living Ctrs. of Texas, Inc., 175 S.W.3d 253, 260 (Tex. 2005) (citations omitted).

Moreover, merely because a review organization uses, in its deliberative

process, records kept by a medical facility in the ordinary course of business does not mean

that all such facility records are then sequestered from the grasp of discovery.

Documents that may be provided to a peer review committee,

but were not originally prepared exclusively for the committee

and are also accessible to staff of the facility in their capacities

as employees or managers of the facility, separate and apart

from any role on a review committee, are not in any way

protected by the privilege. The privilege attaches only to the

files maintained by and for the committee, not to all files in a

facility.

Large v. Heartland-Lansing of Bridgeport Ohio, LLC, 995 N.E.2d 872, 884-85 (Ohio Ct.

App. 2013) (citations omitted). In other words,

[t]he records and proceedings of the peer review committee are

not coextensive with all of the records of the facility in which

the committee operates. The fact that copies of certain material

may have been provided to a committee does not extend the

protection afforded committee proceedings, and committee

19

generated records, to material generated outside of the

committee. If a health care entity itself is the original source, it

cannot shield documents from disclosure just by circulating

them during peer review proceedings.

Id., 995 N.E.2d at 883-84 (internal quotations and citations omitted).

It bears repeating, though, that “documents that are otherwise discoverable do

not become privileged merely because they have been dipped in the waters of a peer review

committee file.” Large, 995 N.E.2d at 886. Accord Smith v. Cleveland Clinic, 197 Ohio

App. 3d 524, 532, 968 N.E.2d 41, 47 (2011) (“[M]erely labeling a committee or a document

‘peer review’ is insufficient to meet the burden of proving that the privilege applies to the

requested information.”); In re Living Ctrs. of Texas, Inc., 175 S.W.3d at 257 (“[S]imply

passing a document through a peer review committee does not make it privileged.” (citation

omitted)). Neither is “[t]he peer-review privilege . . . a generalized cloak of secrecy over the

entire peer-review process. If all materials viewed and utilized by review committees were

deemed undiscoverable, a hospital could never be held accountable for any negligent act

within the purview of the committee.” Smith, 197 Ohio App. 3d at 529, 968 N.E.2d at 45

(internal quotations and citations omitted). Rather,

[t]he peer review privilege is intended to extend far

enough to foster candid internal discussions for the purpose of

making improvements in the quality of care, but not so far as to

permit the concealment of routinely accumulated information.

The privilege does not prevent discovery of material that has

been presented to a hospital committee if it is otherwise

20

available and offered or proved by means apart from the record

of the committee.

In re Living Ctrs., 175 S.W.3d at 260 (internal quotations and citations omitted). Therefore,

“[t]he fact that copies of certain material may have been provided to a committee does not

extend the protection afforded committee proceedings, and committee generated records, to

material generated outside of the committee.” Bailey v. Manor Care of Mayfield Heights,

2013-Ohio-4927, ¶ 24, 4 N.E.3d 1071, 1078 (Ct. App. 2013) (internal quotations and citation

omitted).

Above all, however,

[t]he party seeking privilege must . . . establish that the

documents being sought were prepared by or for the use of a

peer review committee. Stated another way, the party seeking

privilege is required to show that each of the documents over

which it asserts the privilege is a record within the scope of a

peer review committee. In so doing, the party seeking privilege

must provide evidence as to the specific documents requested,

not generalities regarding the types of documents usually

contained in a peer-review committee’s records.

Bailey, 2013-Ohio-4927, at ¶ 26, 4 N.E.2d at 1078-79 (internal quotations and citations

omitted). Furthermore, to establish entitlement to the peer review privilege, the party seeking

its protections must

begin [by] establishing that a peer review committee was in

existence and that the facility actually investigated the incident

or incidents that the disputed documents or information

reference. A broad assertion that the committee may rely on a

particular type of document or information, if the document was

21

not generated by or under the direction of the committee, is

insufficient. For the privilege to attach, the committee must

have used or relied on the specific document or information the

facility seeks to exclude, and the particular document or

information must not be something that is simultaneously

available to employees of the facility in the course of their duties

separate and apart from any peer review responsibilities.

Large, 995 N.E.2d at 884 (citations omitted).

Consolidating these various principles into a single, cohesive framework to

provide precise parameters to courts reviewing allegedly privileged documents, we therefore

hold that, to determine whether a particular document is protected by the peer review

privilege codified at W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 2015), a reviewing court

must ascertain both the exact origin and the specific use of the document in question.

Documents that have been created exclusively by or for a review organization, or that

originate therein, and that are used solely by that entity in the peer review process are

privileged. However, documents that either (1) are not created exclusively by or for a review

organization, (2) originate outside the peer review process, or (3) are used outside the peer

review process are not privileged. We further hold that, where documents sought to be

discovered are used in the peer review process but either the document, itself, or the

information contained therein, is available from an original source extraneous to the peer

review process, such material is discoverable from the original source, itself, but not from

the review organization that has used it in its deliberations. Finally, we hold that the party

22

seeking the protections of the peer review privilege bears the burden of establishing its

applicability by more than a mere assertion of privilege.

Applying these holdings to the facts of the case sub judice, we are left with the

definite and firm conviction that the circuit court clearly erred when it conducted its in

camera review because several of the challenged documents at issue herein are protected by

the peer review privilege. A mere cursory review of the subject documents shows that

several of the documents are protected as material that has been created specifically for and

that is used exclusively by the peer review committee: Dr. Ghaphery’s applications for

renewal of his staff privileges at Wheeling Hospital. See Syl. pt. 8, Sanders, 210 W. Va. 118,

556 S.E.2d 85. In particular, Document Numbers 168-170, 297-298, 650-651, and 817 are

all applications for the renewal of Dr. Ghaphery’s staff privileges; as such, they are protected

by the peer review privilege and should not have been ordered to be disclosed to Ms. Mills.

Accordingly, we grant the requested writ of prohibition as moulded and prohibit the circuit

court from enforcing that portion of its order that required Wheeling Hospital to disclose

these four documents in discovery.

Further review of the challenged documents leads to the conclusion that still

others, that the circuit court has ordered to be disclosed, are protected by the peer review

privilege because they come within the statutory definition of the purpose for which a review

23

organization may be established and are materials that the peer review committee either

created or requested be generated for the committee’s exclusive use. See W. Va. Code § 30­

3C-1. Within this category, two distinct types of documents emerge: (1) documents that

“[e]valuat[e] and improve[e] the quality of health care rendered” and (2) materials that

“establish[] and enforc[e] guidelines designed to keep within reasonable bounds the cost of

health care.” Id. Documents that fall within the quality of health care classification include

the committee’s analysis of physicians’ procedures and their outcomes. As quality control

documents, Document Numbers 214, 224-225, 226-227, 234-242, 347, 354-365, 471-474,

476, 478-485, 546, 550-552, 218-219, and 489-490 are protected by the peer review

privilege. Moreover, still other documents involve the committee’s evaluation of health care

costs related to various patients’ care outcomes. Therefore, Document Numbers 1000, 1001,

and 1002 are protected from disclosure by the peer review privilege because they involve

determinations regarding the cost of health care. Accordingly, we further prohibit the circuit

court from enforcing that portion of its order requiring these two groups of documents to be

disclosed.

With regard to the remaining challenged documents, we are unable to

determine whether they are protected by the peer review privilege because we lack the crucial

information determinative of the applicability of the privilege: (1) the origin of the

documents, i.e., whether they were created exclusively for or by a peer review committee,

24

and (2) their specific use, i.e., whether they were used solely by the peer review committee.

See Shroades, 187 W. Va. at 729-30, 421 S.E.2d at 270-71 (indicating that peer review

privilege log should contain information regarding document’s “source and reason for

creation”). Without these crucial pieces of information, we are “‘greatly at sea without a

chart or compass.’” State ex rel. HCR Manorcare, LLC v. Stucky, 235 W. Va. 677, 687, 776

S.E.2d 271, 281 (2015) (quoting Workman v. Workmen’s Comp. Comm’r, 160 W. Va. 656,

662, 236 S.E.2d 236, 240 (1977)).

On the one hand, it could be said that the party bearing the burden of

establishing the privilege’s applicability has failed to carry its burden. See Syl. pt. 2,

Shroades, 187 W. Va. 723, 421 S.E.2d 264. On the other hand, while this Court previously

has instructed parties as to the information that should be included in a privilege log

attempting to establish the applicability of the peer review privilege, we have not specified

that both (1) the origin of the document, with specific information as to whether it was

created solely for or by a review committee, and (2) the document’s use, with disclosures as

to whether or not it was used exclusively by such committee, also are vital details necessary

for a determination of privileged status. In this regard, we previously have recommended

only that “the party claiming the document is privileged should identify the document by

name, date, custodian, source and reason for creation.” Shroades, 187 W. Va. at 729, 421

S.E.2d at 270. From the foregoing authorities and our holdings herein, it is apparent that a

25

privilege log seeking to protect documents under the peer review privilege should also

include this additional, critical information. Therefore, we hold that a party wishing to

establish the applicability of the peer review privilege, set forth at W. Va. Code § 30-3C-3

(1980) (Repl. Vol. 2015), should submit a privilege log which identifies each document for

which the privilege is claimed by name, date, and custodian. The privilege log also should

contain specific information regarding (1) the origin of each document, and whether it was

created solely for or by a review committee, and (2) the use of each document, with

disclosures as to whether or not the document was used exclusively by such committee.

Finally, the privilege log should provide a description of each document and a recitation of

the law supporting the claim of privilege.

Insofar as Wheeling Hospital’s privilege log provided information about the

“author or origin of document,” we cannot ascertain, from the use of the disjunctive “or,”7

whether the information in that field identifies the document’s author or its origin in terms

of the location from which the document is being provided. Neither can we determine from

the privilege log, or the documents, themselves, whether the subject documents were used

exclusively by the peer review committee or whether they also were used for other, external

7

“We have customarily stated that where the disjunctive ‘or’ is used, it

ordinarily connotes an alternative between the two clauses it connects.” State v. Rummer,

189 W. Va. 369, 377, 432 S.E.2d 39, 47 (1993) (internal quotations and citations omitted).

Accord State v. Wilkerson, 230 W. Va. 366, 372, 738 S.E.2d 32, 38 (2013) (“The use of the

word ‘or’ indicates an alternative choice.”).

26

purposes. Given this dearth of information, we cannot definitively say whether the circuit

court erred by ordering the remaining documents to be disclosed because we do not have

enough information to guide our review thereof vis-à-vis the peer review privilege.

Therefore, we grant as moulded the requested writ of prohibition regarding the remaining

challenged documents, and we prohibit the circuit court from enforcing its order requiring

the remaining challenged documents to be disclosed. Additionally, we direct the circuit court

to conduct further in camera proceedings to determine whether the remaining challenged

documents are privileged or subject to disclosure.8 During these further proceedings,

Wheeling Hospital should provide a revised privilege log that contains the information

detailed in our holdings herein, and the circuit court should conduct a new in camera review

following its receipt of this additional detail regarding the specific origin and precise use of

each of the challenged documents.9

8

In rendering this ruling, we wish to make clear that this opinion should, in no

way, be construed as an implicit ruling as to the discoverability of the challenged documents

returned to the circuit court for further review or the applicability of the peer review privilege

thereto. Rather, we find further proceedings to be necessary because we simply cannot tell,

one way or the other, whether the subject documents should be protected by the peer review

privilege or whether they should be disclosed in discovery.

9

Given our determination that the privilege log upon which the circuit court

based its initial determination of privilege was deficient and that the circuit court should

consider the applicability of the peer review privilege anew, we find it premature to address

Wheeling Hospital’s remaining assignments of error regarding HIPAA and relevancy

considerations. We note only that it is apparent from the circuit court’s order at issue herein

that the court is cognizant of the law in this area, and, during its further proceedings, it should

continue to be guided by these authorities. See 45 C.F.R. § 164.514(b)(2)(i) (enumerating

HIPAA privacy concerns). See also W. Va. R. Civ. P. 26(b)(1) (“It is not ground for

(continued...)

27

IV.

CONCLUSION

For the foregoing reasons, we grant as moulded the requested writ of

prohibition. The Circuit Court of Ohio County is hereby prohibited from enforcing its order

of February 26, 2015, insofar as it requires Wheeling Hospital to disclose the documents

referenced therein. We find Document Numbers 168-170, 297-298, 650-651, 817, 214, 224­

225, 226-227, 234-242, 347, 354-365, 471-474, 476, 478-485, 546, 550-552, 218-219, 489­

490, 1000, 1001, and 1002 to be protected by the peer review privilege set forth in W. Va.

Code § 30-3C-3 (1980) (Repl. Vol. 2015). With regard to the remaining documents, we find

that the existing privilege log lacks sufficient detail to permit a definitive determination as

to whether the peer review privilege shields such documents from disclosure. Accordingly,

Wheeling Hospital is directed to submit a revised privilege log containing the information

9

(...continued)

objection [to discovery] that the information sought will be inadmissible at the trial if the

information sought appears reasonably calculated to lead to the discovery of admissible

evidence.”); Syl. pt. 4, in part, State ex rel. Erie Ins. Prop. & Cas. Co. v. Mazzone, 218

W. Va. 593, 625 S.E.2d 355 (2005) (“[T]he trial court is required under the provisions of

Rule 26(b)(1) of the West Virginia Rules of Civil Procedure to make a preliminary

determination of whether the requested information is relevant in that it is admissible or is

reasonably calculated to lead to the discovery of admissible evidence.”); Syl. pt. 4, in part,

State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992)

(“[U]nder Rule 26(b)(1) of the West Virginia Rules of Civil Procedure, discovery is not

limited only to admissible evidence, but applies to information reasonably calculated to lead

to the discovery of admissible evidence.”).

28

identified in the body of this opinion, and, upon receipt thereof, the circuit court is instructed

to conduct an in camera review to determine whether the remaining documents addressed

in its prior opinion are or are not protected by the statutory peer review privilege.

Writ granted as moulded.

29