King v. Bartholomew County Hospital

RATLIFF, Presiding Judge,

concurring.

To the physician, denial of hospital privileges, in many cases, is tantamount to denial of the opportunity to practice a chosen profession. This is particularly true in the case of the one hospital community. Kiracofe v. Reid Memorial Hospital (1984), Ind.App., 461 N.E.2d 1134, 1142 (concurring opinion of Ratliff, J.). Consequently, that opportunity to practice such profession in the hospital should not be denied arbitrarily, capriciously, or unreasonably.

On the other hand, both the hospital and the public have a vital interest in maintaining high standards of medical care. Therefore, the hospital must have the opportunity to obtain information concerning the physicians to whom it is considering granting or renewing hospital privileges in order to fulfill its obligation to the public. To this end, there must be a free exchange of information, in good faith sought and given, to aid in discharging this ominous responsibility.

Here, the hospital required a physician seeking either initial admission or renewal of privileges to execute the release and grant of immunity which it deemed necessary in order to obtain needed information. The majority opinion points out statutes pertaining to peer review committees which afford such immunity. Indeed, the hospital’s bylaws, both with which all physicians applying for staff privileges agree to abide, contain similar immunity provisions. Further, the application for reappointment to the hospital staff contains a similar grant of immunity.

Indeed, the hospital governing authority, its credentials committee, and persons furnishing information in regard to an applicant may well be clothed with a qualified privilege. A communication made in good faith on any subject matter in which the party making the communication has an interest or in reference to which such party has a duty, public or private, and either legal, moral, or social, if made to a person having a corresponding interest or duty is subject to a qualified privilege. Lawson v. Howmet Aluminum Corp. (1983), Ind.App., 449 N.E.2d 1172 ; Weenig v. Wood (1976), 169 Ind.App. 413 , 349 N.E.2d 235 , trans. denied. In Lawson the privilege was held applicable to communications between a plant supervisor and plant manager relative to termination of an employee. Likewise, Indiana courts have held a qualified privilege exists as to communications made to a school board by a board member concerning dismissal of a teacher. Henry v. Moberly (1898), 23 Ind.App. 305 , 51 N.E. 497 . See also Lieberman v. Gant (D.C.Conn.1979), 474 F.Supp. 848 , aff'd 630 F.2d 60 (2d Cir.1980) (qualified privilege extends to university faculty members and officers for statements made in good faith as to skills of teacher and made in course of tenure proceeding). Manguso v. Oceanside Unified School District (1984), 153 Cal.App.3d 574 , 200 Cal.Rptr. 535 (letter *881 containing alleged defamation written by school superintendent, regarding qualifications of a particular teacher and directed to prospective employers of that teacher, subject to qualified privilege). Statements made by a medical committee to a hospital with regard to physicians have been held clothed with qualified privilege. Spencer v. Community Hospital of Evanston (1980), 87 Ill.App.3d 214 , 42 Ill.Dec. 272 , 408 N.E.2d 981 . Likewise, a letter from the director of nurses at a hospital to a nurses’ registry concerning a certain nurse was deemed privileged in Judge v. Rockford Memorial Hospital (1958), 17 Ill.App.2d 365 , 150 N.E.2d 202 , where the court stated that the essential elements of a qualified privilege are good faith, an interest or duty to be upheld, a statement limited in its scope to that purpose, a proper occasion, and publication in a proper manner and to proper parties only. 1 150 N.E.2d at 207 . Again, in Heying v. Simonaitis (1984), 126 Ill.App.3d 157 , 81 Ill.Dec. 335 , 466 N.E.2d 1137 , testimony of physicians before a nurses’ review committee concerning a particular nurse’s qualifications was held protected by a qualified privilege.

It seems to me that the release and grant of immunity must be within the context of a good faith request for information, and a good faith communication thereof. Such would be consistent with the qualified privilege granted in such cases. To hold that a hospital may require a physician-applicant to grant absolute immunity to the hospital, its representatives, and any third party, and to release them from any and all liability which might arise from any such acts, communications, reports, disclosures, or recommendations without regard to whether such are made or given in good faith goes far beyond any legitimate privilege. Requiring a release and grant of immunity as a condition of applying for hospital privileges which is so broad as conceivably to include within its protection acts, statements, communications, or recommendations motivated by ill will, or done maliciously or capriciously, is unconscionable. In order to avoid unconscionability, the requirement of acting in good faith must be read into the release and grant of immunity. In fact, Article C of the application for reappointment releases the hospital, its representatives, and third parties for “statements made, materials provided or acts performed in good faith in evaluating me ... [Emphasis added.]” Record at 11. Section 4 of Article VI, Part C of the Medical Staff bylaws in subsection (c) provides that “[t]he applicant or member grants immunity to any and all hospitals, health care facilities, individuals, institutions, organizations and their representatives who in good faith supply oral or written information ... [Emphasis added.]” Record at 20, pp. 43 of exhibit.

With the limitation that the release and grant of immunity, in order to escape being invalid for unconscionability, must be read to grant immunity and release from liability only to those communications in good faith requested and given, I concur in the decision in this case.

. The protection of a qualified privilege may be lost if the plaintiff shows that the speaker was primarily motivated by ill will, or if the privilege was abused by excessive publication of the defamatory statement, or if the statement was made without belief or grounds for belief in its truth (lack of good faith). Lawson v. Howmet Aluminum Corp. (1983), Ind.App., 449 N.E.2d 1172 .