Baxter County Newspapers, Inc. v. Medical Staff of Baxter General Hospital

Steele Hays, Justice, concurring in part, dissenting in part. I concur in that part of the opinion of the majority that affirms the trial court with respect to the right of the commission members to retire into executive session for the purpose of discussing or considering the decision they should reach — that issue was settled in Ark. State Police Commission v. Davis, 253 Ark. 1090 , 490 S.W. 2d 788 (1973). However, the majority opinion fails to explain how it arrives at a distinction in the statutes between the proceedings of a hearing and the “discussion or consideration” that resolves the issue itself. I believe it is clear under the law that meetings of the kind presented in this appeal are intended to be privileged in their entirety.

The majority opinion expands considerably the decision of Laman v. McCord, 245 Ark. 401 , 32 S.W. 2d 753 (1968). At issue in Laman was the language of Ark. Stat. Ann. § 28-601 (Repl. 1962), now superseded by Rule 502, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001, append. (Repl. 1979), rendering an attorney incompetent to testify concerning communications between the attorney and the client:

The following persons shall be incompetent to testify: . . . Fourth, an attorney, concerning any communication made to him by his client in that relation, or his advice thereon, without the client’s consent.

As Justice Fogleman correctly pointed out in his concurring opinion in Laman:

There is no conflict between these acts because § 28-601 does not specifically provide for private conferences between attorney and client. That section simply affords a measure of protection to the client against disclosure of the subject matter of those conferences. Thus, there is no specific provision of law which permits the governing board of a city collectively to have the advantage of confidential communications with its attorney. Laman, at 407.

At issue here is Act 445 of 1977, Ark. Stat. Ann. § 28-934, which specifically provides:

The proceedings ... of organized committees of hospital medical staffs or medical review committees of local medical societies having the responsibilities for reviewing and evaluating the quality of medical or hospital care, and any records compiled or accumulated by the administrative staff of such hospitals in connection with such review or evaluation, together with all communications or reports originating in such committees, shall not be subject to discovery or admissibility in any legal proceeding and shall be absolutely privileged communications; nor shall testimony as to events occurring during the activities of such committees be admissible. (Emphasis supplied.)

Had the Legislature intended to confer merely a testimonial privilege, as the majority reasons, it would have done so by amending the Uniform Rules of Evidence, and not by separate statute as was done here. But more than that, the Legislature must have employed the language as emphasized above with the purpose in mind that the hearings themselves were to be confidential. This view is buttressed by the language of § 28-935:

Nothing contained herein shall be construed to prevent disclosure of such data to appropriate state or federal regulatory agencies which by statute or regulation are entitled to access to such data . . .

The view taken by the majority renders § 28-935 mere surplusage and effectually void. The end result of today’s decision is to rewrite § 28-935 to say: “Nothing contained herein shall be construed to prevent disclosure of such data to the general public.” How can this result be said to have been intended by the Legislature? If any uncertainty were left, reference to the title and emergency clause of Act 445 forbears any reasonable doubt as to the legislative intent. The title states that the act is to provide an “absolute privilege of confidentiality to data presented to such committees” and the emergency clause reads:

It is hereby found and declared by the General Assembly of the State of Arkansas that in order to insure candor, objectivity and the presentation of all pertinent information sought by committees reviewing the quality of medical and hospital care and thus contribute to the effective functioning of committees striving to determine and improve such care, an absolute privilege of confidentiality should be afforded to data elicited during the course of such inquiries and that the privilege of confidentiality should be provided for as soon as possible. Therefore, an emergency is hereby declared to exist, and this Act, being necessary for the immediate preservation of the public peace, health and safety, shall be in effect from the date of its passage and approval. (Emphasis supplied.)

In reversing this case, the majority relies on the FOI proviso that all meetings shall be public “except as otherwise specifically provided by law.” But in so doing too much is made of the word “specifically” and too little of the words “except as otherwise . . . provided by law.” In enacting the FOI the Legislature did not, I believe, intend to render void all instances of confidentiality except those categorically preserved in the act. I agree with the trial court that the language of Act 445 meets the exception “as otherwise specifically provided by law.” The degree of particularity required of the statutes by the majority opinion cannot be rationally inferred from the purpose and intent of the FOI embodied in Ark. Stat. Ann. § 12-2802.

I would affirm the lower court in full.

Purtle, J., joins.