Dennis L. Cawthorn v. Catholic Health Initiatives Iowa Corp. D/B/A Mercy Hospital Medical Center, a Corporation

IN THE SUPREME COURT OF IOWA

No. 10–1013

Filed December 2, 2011

DENNIS L. CAWTHORN,

Appellant,

vs.

CATHOLIC HEALTH INITIATIVES IOWA CORP.

d/b/a MERCY HOSPITAL MEDICAL CENTER,

a corporation,

Appellee.

Appeal from the Iowa District Court for Polk County, Arthur E.

Gamble and Douglas F. Staskal, Judges.

Dennis Cawthorn appeals the district court’s grant of summary

judgment to Catholic Health Initiatives Iowa Corp. d/b/a Mercy Hospital

Medical Center. AFFIRMED.

Gary R. Fischer of Simpson, Jensen, Abels, Fischer & Bouslog,

P.C., Des Moines, and Verle W. Norris, Corydon, for appellant.

Thomas A. Finley, John (Jack) D. Hilmes, and Eric G. Hoch of

Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des

Moines, for appellee.

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MANSFIELD, Justice.

This case comes before us for the second time. We must determine

whether a hospital that previously produced a physician’s credentialing

file and relied on that file at trial may object to the use of those

documents following our reversal and remand for retrial. We conclude

the law of the case did not bar the hospital from changing course

because our earlier opinion did not expressly or impliedly decide the

admissibility of the credentialing file. We also find that Iowa Code

section 147.135(2) (2009) sets forth not only a privilege, but also a

separate rule of inadmissibility, so principles of waiver that might be

applicable in other contexts do not govern here.

For these reasons, we find that neither law of the case nor waiver

foreclosed the hospital and the district court from revisiting the

admissibility of the credentialing file. Hence, we affirm the district

court’s order granting summary judgment to the hospital.

I. Background Facts and Proceedings.

Dr. Daniel Miulli performed two back surgeries on Dennis

Cawthorn in May 2000. After Cawthorn suffered complications from

those surgeries, he filed suit in May 2002 against Dr. Miulli, Catholic

Health Initiatives Iowa Corp. d/b/a Mercy Hospital Medical Center

(Mercy), and several other defendants. Cawthorn’s petition set forth

claims of medical malpractice against Dr. Miulli and negligent

credentialing against Mercy. In particular, Cawthorn alleged Mercy failed

to investigate Miulli’s qualifications properly, negligently extended

surgical privileges to Miulli, and allowed Miulli to continue to perform

surgeries after having reason to know that extensive questions had been

raised and existed concerning the appropriateness of some of the

surgeries and procedures he was performing.

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On February 2, 2004, Cawthorn served a request for production on

Mercy for “a complete copy of Dr. Miulli’s credential file.” On March 31,

2004, Mercy responded:

This Request is objected to because it requires the

production of documents which are subject to the “peer

review” privilege in Iowa Code § 147.135. Without waiving

said objection, this defendant affirmatively states that it is

named as a co-defendant with Defendant Dr. Miulli in

another case—Polk County No. C.L. 87281 [the Christy case]

involving similar allegations against this Defendant re:

negligent credentialing/supervision. Similar discovery was

requested and resisted. The Honorable Richard G. Blane

entered his Order Compelling Discovery dated May 22, 2003.

This Defendant filed its “Compliance Report” (and privilege

log) and furnished the documents from Dr. Miulli’s credential

file and other requested information which Judge Blane

found were non-privileged. The Order, Compliance

Report/privilege log and documents are being provided. 1

Thus, consistent with Judge Blane’s order in the Christy case, Mercy

produced almost the entire contents of Dr. Miulli’s credentialing file in

this case. A stipulated protective order had been entered a few days

before, providing that all documents produced by Mercy to Cawthorn

“shall . . . not . . . be used in any manner or fashion outside the context

of this present litigation” and would be destroyed upon termination of the

case.

On April 20, 2004, Mercy moved for summary judgment. Mercy

argued that Iowa does not recognize a cause of action for negligent

credentialing and, alternatively, that Cawthorn had no competent

evidence to support such a claim. Mercy supported its motion with a

1Although Mercy received an unfavorable ruling in the Christy case as to the

discoverability of Dr. Miulli’s credentialing file, Mercy did not seek nor obtain an

appellate ruling on the issue. The Christy case was disposed of on summary judgment

based on the statute of limitations. The plaintiff appealed and this court reversed in

part and affirmed in part. Christy v. Miulli, 692 N.W.2d 694, 697–98 (Iowa 2005). The

peer review protection was neither raised by the parties nor mentioned by this court in

the appeal.

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number of the documents it had previously produced relating to

Dr. Miulli’s credentialing. The motion was denied by Judge Blink, the

trial judge then presiding over the case.

The case proceeded to trial in late June and early July 2004 before

Judge Reis. At trial, Mercy objected to the admission of evidence relating

to an Iowa Board of Medical Examiners (IBME) investigation and

disciplinary hearing concerning Dr. Miulli. Mercy’s objections were

overruled and the evidence was admitted. Mercy did not object to the

introduction of Dr. Miulli’s credentialing file into evidence and, in fact,

offered into evidence numerous documents from that file.

The jury returned a verdict in favor of Cawthorn, awarding

$10,590,000 in actual damages and allocating thirty percent of the fault

to Mercy and seventy percent to Dr. Miulli. The district court ordered a

new trial unless Cawthorn agreed to a remittitur reducing the verdict to

$1,190,000.

Both parties appealed: Cawthorn argued his claim for punitive

damages should have been submitted to the jury, and Mercy argued the

IBME evidence should have been excluded. In November 2007, on

further review, this court affirmed the district court’s refusal to submit

Cawthorn’s punitive damage claim, but reversed on Mercy’s cross-appeal.

We concluded the IBME evidence was confidential under section

272C.6(4) and should have been excluded. We remanded the case for a

new trial. Cawthorn v. Catholic Health Initiatives Iowa Corp., 743 N.W.2d

525, 526 (Iowa 2007). Procedendo issued on January 22, 2008.

In May 2009, the court of appeals decided Day v. Finley Hospital,

769 N.W.2d 898, 902 (Iowa Ct. App. 2009), holding that the contents of a

hospital’s credentialing file fell within the scope of Iowa Code section

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147.135’s peer review protection, to the extent those documents were in

the custody of a peer review committee.

In September 2009, Mercy filed a new motion for summary

judgment in this case. Relying on Day, Mercy argued the contents of

Dr. Miulli’s previously produced credentialing file were inadmissible

under section 147.135. Without these documents, Mercy maintained

that Cawthorn lacked sufficient evidence to establish a prima facie case.

Cawthorn resisted the motion, arguing it was too late for Mercy to

be objecting to the admission of the credentialing documents. Cawthorn

denied that Day was an intervening change in the law. Rather, he

argued, “Nothing the Iowa Court of Appeals said in Day created new law

that made this argument newly available.”

On January 11, 2010, the district court 2 ruled on Mercy’s

summary judgment motion. It stated:

Defendant is not barred by the doctrines of waiver,

estoppel or law of the case from asserting the peer review

privilege of Iowa Code Section 147.135 to the admissibility of

documents from the credentialing file that it previously

produced subject to the objection pursuant to an order

entered in a companion case. Day v. The Finley Hosp., 769

N.W.2d 898 (Iowa App. 2009) is an intervening change or

clarification of the law entered since the remand that clearly

holds such peer review material is inadmissible. See

Springer v. Weeks & Leo Co., Inc., 475 N.W.2d 630, 632 (Iowa

1991). The law is constantly developing. Circumstances

change with the passage of time. The defendant is not

bound [by] the trial strategy of the first trial in a new trial.

However, the district court declined to grant summary judgment to

Mercy at that point. As the court explained, “It is appropriate for the

trial judge to rule on the admissibility of evidence prior to determining

the sufficiency of evidence.” Thus, the court allowed Cawthorn time to

gather other evidence in support of his negligent credentialing claim,

2At this point, the case had been assigned to Chief Judge Gamble.

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including “evidence gathered by plaintiff from sources other than the

credentialing file as well as plaintiff’s expert testimony bearing on issues

of negligence and proximate cause.”

On April 30, 2010, Mercy renewed its summary judgment motion.

It argued, “Despite [the] grace period provided by the Court in which

Plaintiff was to gather admissible evidence, Mercy is not aware of any

further efforts by Plaintiff to obtain any evidence outside of the exhibits

he previously offered into evidence at the first trial.” Cawthorn resisted

the renewed motion by incorporating his earlier resistance. On May 18,

2010, the district court 3 granted Mercy’s motion, reasoning as follows:

There is no doubt that the only evidence proposed by the

plaintiff to prove the defendant’s alleged negligence fits

within the categories of evidence held inadmissible in

Cawthorn and Day. While the trial court’s original denial of

the defendant’s motion for summary judgment appears to be

consistent with this conclusion [footnote omitted], it also

recognizes the possibility that the plaintiff could generate

some other admissible evidence to support his claim,

including expert testimony. This possibility appears to be

the reason the court denied the summary judgment motion.

Now, as the defendant points out, discovery has closed and

the plaintiff has failed to uncover or produce any other such

evidence. This means that the plaintiff has failed to produce

affirmative, admissible evidence that creates a fact issue as

to whether the defendant was negligent. Thus, there is no

possibility that the plaintiff could prevail at trial and,

therefore, the defendant is entitled to summary judgment

dismissing the petition.

Cawthorn appeals. He contends that under the doctrine of law of

the case, Mercy was precluded from arguing the credentialing documents

were inadmissible, and the district court lacked authority to exclude

them. Alternatively, Cawthorn argues that Mercy waived its right to

object to the admission of the credentialing documents by voluntarily

3Judge Staskal was now presiding over the matter.

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producing them and offering them as evidence in the first trial.

II. Scope and Standards of Review.

The parties agree that our review of a district court’s ruling on a

motion for summary judgment is for errors at law. Kragnes v. City of

Des Moines, 714 N.W.2d 632, 637 (Iowa 2006). Summary judgment is

appropriate if the record shows there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. Iowa R.

Civ. P. 1.981(3). The moving party has the burden to show it is entitled

to summary judgment. Hunter v. City of Des Moines Mun. Hous. Auth.,

742 N.W.2d 578, 584 (Iowa 2007). We will view the record in the light

most favorable to the nonmoving party and will grant that party all

reasonable inferences that can be drawn from the record. Wernimont v.

Wernimont, 686 N.W.2d 186, 189 (Iowa 2004).

However, Cawthorn does not here appeal the district court’s

conclusion that there was no genuine issue of material fact once the

credentialing file was found to be inadmissible. Rather, Cawthorn is

challenging the district court’s ruling on admissibility. “When the

admission of evidence depends on the interpretation of a statute, we

review for correction of errors of law.” State v. Palmer, 554 N.W.2d 859,

864 (Iowa 1996).

III. Discussion.

A. Law of the Case. Both parties relied extensively on Dr. Miulli’s

credentialing file during the 2004 trial. Cawthorn therefore argues that

the law of the case barred Mercy from raising, and the district court from

sustaining, an objection to the use of the credentialing file on remand.

However, the law of the case doctrine applies only to issues that were

raised and reached in the first appeal. See Bahl v. City of Asbury, 725

N.W.2d 317, 321 (Iowa 2006) (indicating that a “ ‘question not passed on

is not included’ under the doctrine” (quoting In re Lone Tree Cmty. Sch.

8

Dist., 159 N.W.2d 522, 526 (Iowa 1968))); Mass v. Mesic, 258 Iowa 1301,

1306, 142 N.W.2d 389, 392–93 (1966) (holding that the law of the case

doctrine applies “only to those questions that were properly before [the

appellate court] for consideration and passed on” and that “[a] question

not passed on” may be raised in later proceedings); State v. Di Paglia, 248

Iowa 97, 100, 78 N.W.2d 472, 473 (1956) (holding that where the

constitutionality of a statute had been determined in a prior appeal, the

law of the case barred the defendant from continuing to argue that the

statute was unconstitutional, even on new grounds). Here the first

appeal simply did not touch upon section 147.135’s applicability to the

credentialing file, and thus the parties were free to litigate that issue on

remand.

Our previous opinion, we believe, was self-explanatory. We

considered only two issues: first, whether the IBME investigation should

have been admitted; and, second, whether punitive damages should have

been submitted to the jury. Cawthorn, 743 N.W.2d at 527–30. Neither

party asked us to address the admissibility of the credentialing file, and

we did not do so. Moreover, while Mercy argued that both section

147.135 and section 272C.6(4) barred the IBME investigation from being

admitted, we did not end up considering section 147.135 because we

found that section 272C.6(4) by itself precluded the introduction of the

IBME investigation. Id. at 527–28. At the conclusion of our opinion, we

remanded for “a new trial” without further direction. Id. at 530.

Thus, on remand the parties and the court were entitled to take a

fresh look at matters we had not expressly or impliedly decided, such as

the admissibility of the credentialing file under section 147.135(2). See

City of Hampton v. Iowa Civil Rights Comm’n, 554 N.W.2d 532, 535 (Iowa

1996) (“Unless the remand limits the issues to be considered, the case

should be reviewed in its entirety.”); Mundy v. Olds, 254 Iowa 1095,

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1106, 120 N.W.2d 469, 476 (1963) (“ ‘Broadly speaking, on a new trial

the case is tried de novo and as though there had been no previous

trial.’ ” (quoting 66 C.J.S. New Trial § 266)); see also United Fire & Cas.

Co. v. Iowa Dist. Ct., 612 N.W.2d 101, 104 (Iowa 2000) (“Generally, the

district court is vested with discretion to direct the course of the case

following remand absent specific instructions. Thus, when remand is

general, the district court may take action consistent with the appellate

decision.” (Citation omitted.)).

Of course, the district court must observe and implement both the

letter and the spirit of the mandate, City of Okoboji v. Iowa Dist. Court,

744 N.W.2d 327, 332 (Iowa 2008), but the district court did so here. Our

previous opinion did not address the admissibility of the credentialing file

under section 147.135 either directly or by implication.

Cawthorn also argues the district court did not have the authority

to grant summary judgment given that the case had been remanded “for

a new trial.” Cawthorn relies on an 1883 decision of our court,

Kershman v. Swehla, 62 Iowa 654, 17 N.W. 908 (1883), that followed an

1882 decision of our court in the same proceeding. Kershman v. Swhela,

59 Iowa 93, 12 N.W. 807 (1882). In the first Kershman decision, we

reversed a judgment for the plaintiff entered following a trial, holding the

defendant’s motion to exclude certain depositions should have been

granted. 59 Iowa at 94–95, 12 N.W. at 808. On remand, the defendant

apparently argued that a decree should be automatically entered in his

favor, since the plaintiff no longer could rely on the depositions.

Kershman, 62 Iowa at 655, 17 N.W. at 908. The district court denied the

defendant’s request, and a new trial was held resulting in another verdict

for the plaintiff. In the second Kershman decision, we upheld the district

court’s action, explaining:

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Upon discovering that errors had been committed, by

reason of which the cause could not be tried upon its merits,

it was the duty of this court to remand the cause, to the end

that the decision of the court below should be corrected. It

was neither proper to dismiss plaintiff’s action, nor to render

a decree for defendant. In case either had been done, justice

would have been defeated by a decision without a trial in

which the real merits of the controversy were brought before

the court for decision. For the same reason, when the cause

was remanded, the court below could neither dismiss it nor

render a decree for defendant, but was required to try it

anew, correcting the errors pointed out in the decision of this

court.

Id. at 655–56, 17 N.W. at 908.

We do not believe Kershman goes as far as Cawthorn wants to take

it. As we read our former decision, it simply holds that when we reverse

a judgment based on the incorrect admission of evidence and remand for

a new trial, the district court should not assume that everything else in

the case is static, and enter judgment on that basis, without giving the

parties an opportunity to be heard. Indeed, Kershman in that regard is

consistent with our decision in the present case. On remand, the door

generally reopens, except to the extent we have expressly or impliedly

closed it by the terms of our decision or the scope of our remand. 4

Mercy also argues that an exception to the law of the case applies

here because Day was a change or clarification in the controlling law that

occurred following remand. See United Fire & Cas. Co., 612 N.W.2d at

103; Springer v. Weeks & Leo Co., 475 N.W.2d 630, 632 (Iowa 1991).

Because we have found the law of the case inapplicable in any event, we

need not reach that argument.

4Italso should be kept in mind that current summary judgment practice did not

come into being until the twentieth century. Rule 1.981’s predecessor, Rule 237, was

not adopted until 1943. See Iowa Code Ann. Rule 1.981 Official Comment (2002). For

this reason as well, it would be a mistake to view Kershman as a blanket holding that a

summary judgment may not be granted following a remand for retrial.

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B. Waiver. Cawthorn argues alternatively that Mercy waived any

privilege for the credentialing file during the initial round of district court

litigation. Iowa Code section 147.135(2) provides in part:

As used in this subsection, “peer review records” means all

complaint files, investigation files, reports, and other

investigative information relating to licensee discipline or

professional competence in the possession of a peer review

committee or an employee of a peer review committee. . . .

Peer review records are privileged and confidential, are not

subject to discovery, subpoena, or other means of legal

compulsion for release to a person other than an affected

licensee or a peer review committee, and are not admissible in

evidence in a judicial or administrative proceeding other than

a proceeding involving licensee discipline or a proceeding

brought by a licensee who is the subject of a peer review

record and whose competence is at issue. . . . Information or

documents discoverable from sources other than the peer

review committee do not become nondiscoverable from the

other sources merely because they are made available to or

are in the possession of a peer review committee. However,

such information relating to licensee discipline may be

disclosed to an appropriate licensing authority in any

jurisdiction in which the licensee is licensed or has applied

for a license. If such information indicates a crime has been

committed, the information shall be reported to the proper

law enforcement agency. This subsection shall not preclude

the discovery of the identification of witnesses or documents

known to a peer review committee. Any final written

decision and finding of fact by a licensing board in a

disciplinary proceeding is a public record. Upon appeal by a

licensee of a decision of a board, the entire case record shall

be submitted to the reviewing court. In all cases where

privileged and confidential information under this subsection

becomes discoverable, admissible, or part of a court record

the identity of an individual whose privilege has been

involuntarily waived shall be withheld.

Iowa Code § 147.135(2) (second emphasis added).

In Carolan v. Hill, we characterized section 147.135 as “a broad

statutory privilege for the writings and other records generated by a peer

review committee.” 553 N.W.2d 882, 886 (Iowa 1996). Cawthorn argues,

however, that Mercy waived this privilege by producing the credentialing

documents voluntarily, by relying on them in several stages of the prior

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trial, and by not objecting to their admission at trial. Mercy actually

placed several of the documents into the public record by submitting

them with its initial motion for summary judgment. Also, during the

subsequent trial, Mercy entered many of the documents into evidence

itself. Under these circumstances, Cawthorn contends Mercy has waived

the protections of section 147.135.

We disagree. As we noted in Carolan, we are dealing with a

“statutory” privilege. Id. Accordingly, we must review the terms of the

statute. See id. (“When an asserted privilege is based on a statute, the

terms of the statute define the reach of the privilege.”). Iowa did not have

a common law peer review privilege before section 147.135 was enacted.

See Hutchinson v. Smith Labs., Inc., 392 N.W.2d 139, 141 (Iowa 1986).

Iowa’s sui generis peer review statute sets forth three basic

restrictions, connected by the conjunctive “and.” First, peer review

records are “privileged and confidential.” Iowa Code § 147.135(2).

Second, they are “not subject to discovery, subpoena, or other means of

legal compulsion for release to a person other than an affected licensee

or a peer review committee.” Id. Finally, subject to exceptions not at

issue here, they are “not admissible in evidence.” Id. Thus, Iowa’s law

not only specifies that peer review records are privileged, it also contains

a separate prohibition on their admissibility in evidence. Even if the

privilege could have been waived here, the rule against admissibility

would remain in effect.

Although Iowa’s statute is uniquely worded, a nonwaiver outcome

conforms with the result in a number of other jurisdictions. See, e.g.,

Emory Clinic v. Houston, 369 S.E.2d 913, 913 (Ga. 1988) (stating that by

a “clear statutory mandate, the General Assembly has placed an absolute

embargo upon the discovery and use of all proceedings, records, findings

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and recommendations of peer review groups and medical review groups

in civil litigation” and “[b]ecause of this affirmative prohibition, the

analysis of privileged communications of individuals is inapplicable”);

McCoy v. Hatmaker, 763 A.2d 1233, 1251 (Md. Ct. Spec. App. 2000)

(holding that “materials protected by [the Maryland medical peer review

statute] are confidential and not discoverable, and, even when they end

up in the hands of the other party to litigation, as they did here, they are

inadmissible in court”); Ayash v. Dana-Farber Cancer Inst., 822 N.E.2d

667, 692 n.28 (Mass. 2005) (“In our view, applying waiver principles to

peer review communications would significantly undermine the

effectiveness of the statute.”); Virmani v. Presbyterian Health Servs. Corp.,

515 S.E.2d 675, 685–87 (N.C. 1999) (where North Carolina law provided

that the records of a medical review committee “shall be confidential and

not considered public records . . . and shall not be subject to discovery or

introduction into evidence,” the documents “continue to be inadmissible

as evidence” even after they have been attached to the plaintiff’s

complaint and entered the public domain); Powell v. Cmty. Health Sys.,

Inc., 312 S.W.3d 496, 513 (Tenn. 2010) (“declining to engraft a waiver

provision onto [the Tennessee peer review statute]”); Ollman v. Wis.

Health Care Liab. Ins. Plan, 505 N.W.2d 399, 406–07 (Wis. Ct. App. 1993)

(rejecting the argument that the health care services review privilege had

been waived: “Thus, because the list of exceptions found in [the

Wisconsin statute] does not provide for the loss of confidentiality due to

disclosure to third parties, we conclude that no such waiver exists under

the statute”).

Cawthorn cites State ex rel. Brooks v. Zakaib, 588 S.E.2d 418

(W. Va. 2003), Todd v. South Jersey Hospital System, 152 F.R.D. 676

(D.N.J. 1993), and Missouri ex rel. St. John’s Regional Medical Center v.

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Dally, 90 S.W.3d 209 (Mo. Ct. App. 2002), for the proposition that the

peer review privilege can be waived. All three cases, in our view, are

distinguishable.

Zakaib involved a West Virginia statute that expressly recognized

waivers: “[A]n 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.” See Zakaib, 588 S.E.2d at

426–27 (2003) (quoting W. Va. Code § 30-3C-3). Given the statute’s

recognition of voluntary waivers, the court held that under some

circumstances, an implied waiver could also be given effect even if it did

not necessarily meet the statutory requirements for waiver. Id. at 428–

29. Iowa Code section 147.135, unlike the West Virginia statute, does

not allow for voluntary waivers of the peer review privilege.

Todd and Dally are not on point, either. They hold that, as a

matter of fairness, a party cannot simultaneously rely on peer review

materials for its defense while asserting the privilege. Todd, 152 F.R.D.

at 688; Dally, 90 S.W.3d at 215–17; see also Murphy v. Wood, 667 P.2d

859, 866 (Idaho Ct. App. 1983) (indicating that application of the peer

review statute cannot result in a “misrepresentation of fact” being made

to the jury); Powell, 312 S.W.3d at 513 n.21 (discussing fairness limits).

That scenario does not describe the present case: On remand, Mercy

disclaimed any reliance on the credentialing file. We have no “sword and

shield” problem here.

The wording of Iowa Code section 147.135 can be usefully

contrasted with the wording of section 622.10 which governs a number

of other privileges, such as the attorney-client privilege and the

physician-patient privilege. Thus, section 622.10(1) provides an attorney

15

or a physician, for example, “shall not be allowed, in giving testimony, to

disclose any confidential communication properly entrusted to the

person in the person’s professional capacity.” Iowa Code § 622.10(1).

Section 622.10(2), however, states, “The prohibition does not apply to

cases where the person in whose favor the prohibition is made waives the

rights conferred.” Id. § 622.10(2). Hence, in section 622.10, the general

assembly expressly recognized that all protections would be lost once the

privilege was waived. But the legislature included no such provision in

section 147.135.

Cawthorn argues that the last sentence of section 147.135(2)

indicates a hospital may waive the peer review protections and thereby

forfeit the right to object to the admission of peer review documents.

This sentence provides:

In all cases where privileged and confidential information

under this subsection becomes discoverable, admissible, or

part of a court record the identity of an individual whose

privilege has been involuntarily waived shall be withheld.

Id. 147.135(2). We do not read this sentence in the same way Cawthorn

does. Looking at the sentence in context, it follows several narrow

exceptions to the broad rules of privilege and inadmissibility set forth at

the beginning of section 147.135(2). The exceptions state that peer

review information relating to licensee discipline “may be disclosed to an

appropriate licensing authority”; that peer review information indicating

a crime has been committed “shall be reported to the proper law

enforcement agency”; that any final decision of a licensing board in a

disciplinary proceeding is “a public record”; and that upon appeal by a

licensee, “the entire case record shall be submitted to the reviewing

court.” Id. Thus, under certain specific circumstances, section

147.135(2) provides peer review records will be disclosed. In those

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circumstances, the last sentence of section 147.135(2) instructs that “the

identity of an individual whose privilege has been involuntarily waived

shall be withheld.” Id. Section 147.135(2) says nothing about voluntary

waivers, however. Apart from the enumerated exceptions, we are

unwilling to read an additional exception into section 147.135(2)’s

general rule against admissibility. 5

C. Day v. Finley Hospital. In the routing statement of his

principal brief and again in the opening sentence of his reply brief,

Cawthorn suggests we should review the court of appeals’ holding in Day

that credentialing files are covered by the peer review protections of

section 147.135. See Iowa Code § 147.135(2) (defining “peer review

records” to mean “all complaint files, investigation files, reports, and

other investigative information relating to licensee discipline or

professional competence in the possession of a peer review committee or

an employee of a peer review committee”); see also id. § 147.1(4) (defining

“peer review” to mean “evaluation of professional services rendered by a

person licensed to practice a profession”). 6 We decline to do so. A one-

5As Cawthorn points out, although the statute codifying the common law

privilege for marital communications in Iowa Code section 622.9 does not expressly

contemplate waivers, we have recognized waivers of that privilege in certain “fairness”

scenarios. See, e.g., State v. Klindt, 389 N.W.2d 670, 675–76 (Iowa 1986) (crimes

committed by one spouse against another), overruled in part on other grounds by State v.

Reeves, 636 N.W.2d 22, 25–26 (Iowa 2001); State v. Pepples, 250 N.W.2d 390, 394 (Iowa

1977) (indicating that the marital privilege is waived “when the objecting spouse has

earlier made a voluntary revelation of a material part of the communication”). But the

present case, again, does not implicate such a fairness scenario, since on remand the

credentialing file was placed off limits to both parties. See generally State v. Anderson,

636 N.W.2d 26, 36–37 (Iowa 2001) (declining to recognize an additional nonstatutory

exception to the marital privilege).

6Statecourts in other jurisdictions have addressed this issue under their own

peer review laws. See, e.g., Humana Hosp. Desert Valley v. Super. Ct. of Ariz., 742 P.2d

1382, 1388 (Ariz. Ct. App. 1987) (holding that the peer review privilege applies to

credential committee files and is not limited to retrospective review of care provided by

physicians already practicing in hospitals); Columbia/JFK Med. Ctr. Ltd. P’ship v.

Sanguonchitte, 920 So.2d 711, 713 (Fla. Dist. Ct. App. 2006) (holding that documents

in a physician’s credentialing file were protected by the statutory peer review privilege

17

sentence comment about the proper routing of an appeal, even when

repeated in the reply brief, is not sufficient argument. Cawthorn has

failed to support his position regarding Day by citing authority on

appeal, nor did he preserve an argument before the district court that

Day was wrongly decided. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to

cite authority in support of an issue may be deemed waiver of that

issue.”). We therefore do not reach the issue.

IV. Conclusion.

For the foregoing reasons, we affirm the judgment of the district

court.

AFFIRMED.

All justices concur except Wiggins, J., who specially concurs.

________________________

from discovery in patient’s action against hospital for negligent credentialing and other

claims); Dye v. St. John Hosp. & Med. Ctr., 584 N.W.2d 747, 749–50 (Mich. Ct. App.

1998) (holding that materials relating to the provision of staff privileges are covered by

the peer review privilege); Tenan v. Huston, 845 N.E.2d 549, 555 (Ohio Ct. App. 2006)

(stating that “the law of Ohio, as currently written by the legislature and interpreted by

the courts, does in fact grant hospitals an impenetrable wall of secrecy surrounding

the credentialing of doctors”); Troescher v. Grody, 869 A.2d 1014, 1021 (Pa. Super. Ct.

2005) (holding that credentialing documents were immune from discovery under the

Pennsylvania Peer Review Protection Act); Mem. Hosp.-The Woodlands v. McCown, 927

S.W.2d 1, 3 (Tex. 1996) (holding that Texas’s statutory peer review privilege extends to

the initial credentialing process); State ex rel. Charles Town Gen. Hosp. v. Sanders, 556

S.E.2d 85, 94 (W.Va. 2001) (holding that “an 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”). But see Hosp. Auth. of

Valdosta and Lowndes Cnty. v. Meeks, 678 S.E.2d 71, 74–75 (Ga. 2009) (holding that

the Georgia peer review privilege does not extend to routine credentialing information

that does not involve evaluation of the quality and efficiency of actual medical services);

Bd. of Registration in Med. v. Hallmark Health, 910 N.E.2d 898, 907 (Mass. 2009)

(holding that the work product of the various committees involved in credentialing is

protected but documents used by such committees are not necessarily similarly

protected); State ex rel. Faith Hosp. v. Enright, 706 S.W.2d 852, 855 (Mo. 1986) (holding

that Missouri’s peer review privilege does not cover credentials committee findings and

deliberations unless they specifically concern the health care provided to a patient).

18

#10–1013, Cawthorn v. Catholic Health Initiatives

WIGGINS, Justice (concurring specially).

I write to concur specially. I agree with the majority on its analysis

of the law of the case issue. I also agree with the outcome; however, I

disagree with the majority’s analysis of Iowa Code section 147.135(2)

(2009). The legislature chose to use the term “privileged and

confidential” to restrict the use of peer review records. The legislature

not only used this term in section 147.135(2), but also in at least fifteen

other statutes. See, e.g., Iowa Code §§ 2.32(10), 35B.10, 80A.17(1),

124.553(3), 155A.39(4), 252.25, 455B.484A(2), 507.14(1), 508E.7(5)(c),

508E.15(7)(c), 521E.8(1), 521F.9(1), 522B.11(6)(a), 542.7(10), 542.8(19).

The majority analyzes this case under terms of common law

privilege and waiver. I do not think the majority’s analysis is correct.

The legislature did not intend to use the words “privileged and

confidential” to refer to the law of privilege, waiver, or confidential

communications. My review of the statutes incorporating the same

language as section 147.135(2) leads me to conclude that, when the

legislature uses this language, it is not referring to privilege, waiver, or

confidential communications law. Rather, by the use of this language,

the legislature intended that these statutes make the protected material

unavailable to any person and that no party or court can waive the

protection afforded in these statutes. Therefore, the majority’s attempt to

use the law of privilege, waiver, or confidential communications to

analyze the statute is misplaced because the legislature is not referring

to the law of privilege, waiver, or confidential communications in these

statutes.

19

Thus, the protected documents under 147.135 7 are not

discoverable or admissible in any proceeding. Furthermore, I believe it is

the obligation of the possessor of the protected documents to preserve

the confidentiality of those documents, even if the documents will

support the position of the possessor of the protected documents. By

finding the legislature did not intend to incorporate the law of privilege,

waiver, or confidential communications in section 147.135, the analysis

becomes quite simple and straightforward. We should not complicate an

area of the law the legislature made simple.

7In Day v. Finley Hospital, 769 N.W.2d 898, 901 (Iowa Ct. App. 2009), the court

of appeals broadly interpreted which materials are protected under 147.135. Neither

party raises the correctness of Day’s broad interpretation; therefore, we will leave that

issue for another day.