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California Supreme Court
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No. S048308.
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14 Cal.4th 4, 923 P.2d 1, 56 Cal.Rptr.2d 706, 1996.CA.4
<http://www.versuslaw.com>
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October 3, 1996
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DIXON ARNETT, AS EXECUTIVE DIRECTOR, ETC., PLAINTIFF AND
RESPONDENT,
v.
WILLIAM J. DAL CIELO, AS CHIEF EXECUTIVE OFFICER,
ETC., DEFENDANT AND APPELLANT.
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Alameda County Superior Court. Ct. App. No. A066269. Court of Appeal
of California, First Appellate District, Fourth Division. Super Ct. No.
734354-8. Hon. James R. Lambden, Judge.
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Horvitz & Levy, David M. Axelrad, David S. Ettinger, Bjork,
Lawrence, Poeschl & Kohn and Robert K. Lawrence for Defendant and
Appellant.
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David E. Willett, Catherine I. Hanson, Kimberly S. Davenport, Davis,
Cowell & Bowe, Richard G. McCracken, Andrew J. Kahn, Musick, Peeler
& Garrett and W. Clark Stanton as Amici Curiae on behalf of Defendant
and Appellant.
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Daniel E. Lungren, Attorney General, Robert L. Mukai, Chief Assistant
Attorney General, Alvin Korobkin, Assistant Attorney General, Vivien Hara
Hersh, Jane Zack Simon and Thomas P. Reilly, Deputy Attorneys General, for
Plaintiff and Respondent.
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Elisabeth C. Brandt, Taylor S. Carey, Sharon Mosley, David Link, J.
Joseph Curan, Jr., C. Frederick Ryland, Cynthia G. Peltzman, Robert C.
Fellmeth and Julianne B. D'Angelo as Amici Curiae on behalf of Plaintiff
and Respondent.
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Opinion by Mosk, J., expressing the unanimous view of the
court.
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The opinion of the court was delivered by: Mosk
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MOSK, J.
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Evidence Code section 1157 provides that the records of a hospital
peer review committee are not "subject to discovery." We address here the
narrow issue whether an investigative subpoena issued by the Medical Board
of California as part of its inquiry into the conduct of a physician with
an apparent drug problem is "discovery" within the meaning of that
statute. The trial court ruled that it is not and ordered compliance with
the subpoena, and the Court of Appeal held to the same effect. We agree
with those rulings, and therefore affirm the judgment of the Court of
Appeal.
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THE MEDICAL BOARD OF CALIFORNIA
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The state has long regulated the practice of medicine as an exercise
of the police power. (See, e.g., Stats. 1876, ch. 518, p. 792 ["An Act to
Regulate the Practice of Medicine in California"]; Stats. 1913, ch. 354,
p. 722 [same]; Stats. 1937, ch. 399, p. 1254 [codifying Medical Practice
Act as Bus. & Prof. Code, § 2000 et seq.].) A key instrument of that
regulation has been the statewide agency authorized to license and
discipline medical practitioners, successively known as the Board of
Medical Examiners, the Board of Medical Quality Assurance, and now the
Medical Board of California (hereafter the Board), a unit of the
Department of Consumer Affairs (Bus. & Prof. Code, § 101, subd.
(b)).
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Since the earliest days of regulation the Board has been charged with
the duty to protect the public against incompetent, impaired, or negligent
physicians, and, to that end, has been vested with the power to revoke
medical licenses on grounds of unprofessional conduct (e.g., Stats. 1876,
ch. 518, § 10, p. 794). In recent years the Legislature has provided the
Board with tools of increasing power and sophistication to assist it in
that task. (See, e.g., Stats. 1990, ch. 1597, § 1, p. 7683; Stats. 1993,
ch. 1267; Stats. 1995, ch. 708.) We deal here, however, with a tool that
the Board has possessed at least since 1921: the investigative subpoena.
(Stats. 1921, ch. 602, § 1, p. 1023 [adding former Pol. Code, § 353];
Stats. 1945, ch. 111, § 3, p. 439 [recodifying former Pol. Code, § 353, as
Gov. Code, § 11181].) To appreciate the role of the Board's subpoena power
it will be helpful to review briefly the authority and operation of the
Board as a whole.
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The Board currently consists of two divisions. (Bus. & Prof. Code,
§ 2003.) Its Division of Licensing is responsible for approving medical
education programs, administering the licensing examination, and issuing
licenses to practice. (Id., § 2005.) Its Division of Medical Quality,
which we are concerned with here, is responsible for reviewing the quality
of medical practice, conducting disciplinary proceedings in cases of
unprofessional conduct, and generally enforcing the disciplinary and
criminal provisions of the Medical Practice Act. (Id., §
2004.)
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A primary power exercised by the Board in carrying out its enforcement
responsibilities is the power to investigate : the statute broadly vests
the Board with the power of "Investigating complaints from the public,
from other licensees, from health care facilities, or from a division of
the board that a physician and surgeon may be guilty of unprofessional
conduct." (Bus. & Prof. Code, § 2220, subd. (a).) The Board delegates
its authority to conduct such an investigation to its executive director
and its staff of professional investigators. (Id., § 2224.) The Board's
investigators have the status of peace officers (id., § 160), and possess
a wide range of investigative powers. In addition to interviewing and
taking statements from witnesses, the Board's investigators are authorized
to exercise delegated powers (Gov. Code, § 11182) to "Inspect books and
records" and to "Issue subpoenas for the attendance of witnesses and the
production of papers, books, accounts, documents and testimony in any
inquiry [or] investigation . . . in any part of the state." (Id., § 11181,
subds. (a), (e).)
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Because the statute authorizes the Board to issue a subpoena "in any
inquiry [or] investigation" (Gov. Code, § 11181, subd. (e)), the Board may
do so for purely investigative purposes; it is not necessary that a formal
accusation be on file or a formal adjudicative hearing be pending. (
Brovelli v. Superior Court (1961) 56 Cal. 2d 524, 528 [15 Cal. Rptr. 630,
364 P.2d 462].) Indeed, such investigations often do not result in formal
charges or hearings. (Ibid.) We further observed in the cited case that
"As has been said by the United States Supreme Court, the power to make
administrative inquiry is not derived from a judicial function but is more
analogous to the power of a grand jury, which does not depend on a case or
controversy to get evidence but can investigate 'merely on suspicion that
the law is being violated, or even just because it wants assurance that it
is not.' " ( Id. at p. 529, quoting from United States v. Morton Salt Co.
(1950) 338 U.S. 632, 642-643 [94 L. Ed. 401, 410-411, 70 S. Ct.
357].)
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The Board's subpoena power, nevertheless, is judicially enforced: in
the event that its subpoena is disobeyed, the Board may petition the
superior court for an order compelling compliance. (Gov. Code, § 11186,
11187.) After a hearing, "If it appears to the court that the subpoena was
regularly issued . . ., the court shall enter an order that the person
appear before the officer named in the subpoena at the time and place
fixed in the order and testify or produce the required papers. Upon
failure to obey the order, the person shall be dealt with as for contempt
of court." (Id., § 11188.)
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The Board is also authorized to order a licensee to personally submit
to two types of examinations. First, after investigation by a medical
expert the Board may order a licensee to take a professional competency
examination if there is reasonable cause to believe that the licensee is
"unable to practice medicine with reasonable skill and safety to
patients." (Bus. & Prof. Code, § 2292, subd. (a).) *fn1
Second, the Board may order a licensee to undergo a physical or
psychiatric examination if it appears the licensee is "unable to practice
his or her profession safely because the licentiate's ability to practice
is impaired due to mental illness, or physical illness affecting
competency . . . ." (Id., § 820.) Each of these examinations is an
investigatory, not an accusatory, procedure. ( Smith v. Board of Medical
Quality Assurance (1988) 202 Cal. App. 3d 316, 322-324 [248 Cal. Rptr.
704] [Bus. & Prof. Code, § 2292]; Alexander D. v. State Bd. of Dental
Examiners (1991) 231 Cal. App. 3d 92, 96-97 [282 Cal. Rptr. 201] [Bus.
& Prof. Code, § 820].)
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If, after such investigation as it deems necessary, the Board
determines there is sufficient evidence of unprofessional conduct to
warrant instituting a formal disciplinary action against a licensee, it
refers the matter to the Attorney General; the action will then be
prosecuted by the Senior Assistant Attorney General of the Health Quality
Enforcement Section (see Gov. Code, § 12529) and the proceedings will be
conducted in accordance with the Administrative Procedure Act (id., §
11500 et seq.). (Bus. & Prof. Code, § 2230, subd. (a).) The Board may
also petition for injunctive relief against any licensee whenever it has
"reasonable cause to believe that allowing such person to continue to
engage in the practice of medicine would endanger the public health,
safety, or welfare" (id., § 2313; see also Gov. Code, § 11529 ["interim
order" suspending license, etc., on same ground].) If, after formal
adjudicative proceedings, the licensee is found guilty of unprofessional
conduct, the Board has a range of options: it may either suspend or revoke
the license, or place the licensee on probation, or issue a public
reprimand. (Bus. & Prof. Code, § 2227.) Finally, the Board's authority
to order probation includes the authority to require the licensee to
obtain additional professional training and pass an examination thereon,
and to submit to a complete diagnostic examination, as well as the
authority to restrict the extent or nature of the licensee's practice.
(Id., § 2228.)
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It is apparent from the foregoing statutes that the purpose of the
Board is to protect the health and safety of the public. This Conclusion
is confirmed by two additional provisions of the code. First, the Board
shares the general purpose of public protection served by all agencies of
the Department of Consumer Affairs. (Bus. & Prof. Code, § 101.6.)
Second, the Legislature has recently specified that in exercising its
disciplinary authority, "Protection of the public shall be the highest
priority" of the Board (id., § 2229, subd. (a)); and that although the
Board must promote the goal of rehabilitating the erring licensee whenever
possible, "Where rehabilitation and protection are inconsistent,
protection shall be paramount" (id., subd. (c)). *fn2
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It is equally apparent that the "public" thus protected by the Board
is the public at large, i.e., all consumers of medical services in
California. This is because the Board is an agency of statewide
jurisdiction: it licenses and disciplines all physicians and surgeons in
California, not simply those practicing in a particular medical facility;
and when it restricts, suspends, or revokes a license, it affects the
licensee's right to practice throughout the state, not simply in a
particular institution. We state these largely self-evident facts in order
to contrast the Board with the entities we discuss next.
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HOSPITAL PEER REVIEW COMMITTEES
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Every licensed hospital has a formally organized and self-governing
medical staff responsible for "the adequacy and quality of the medical
care rendered to patients in the hospital." (Cal. Code Regs., tit. 22, §
70703, subd. (a).) The medical staff is required to adopt rules for
"appropriate practices and procedures to be observed in the various
departments of the hospital" (id., subd. (e)), and to keep minutes of its
meetings and retain them in the hospital files (id., subd. (c)). The
medical staff acts primarily through a number of peer review committees.
These committees evaluate physicians applying for staff privileges,
establish standards and procedures for patient care, assess the
performance of physicians currently on staff, and review such matters as
the need for and results of each surgery performed in the hospital, the
functioning of the patient records system, the control of in-hospital
infections, and the use and handling of drugs within the hospital. (Id.,
subds. (b) & (d); Comment, Anatomy of the Conflict Between Hospital
Medical Staff Peer Review Confidentiality and Medical Malpractice
Plaintiff Recovery: A Case for Legislative Amendment (1984) 24 Santa Clara
L.Rev. 661, 668, fn. 36 (hereafter Peer Review
Confidentiality).)
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A peer review committee may informally investigate a complaint or an
incident involving a staff physician. If the committee proposes to
recommend that the privileges of the physician be restricted or revoked
because of the manner in which he or she exercised those privileges, the
physician is entitled to written notice of the charges and may request a
formal hearing. (Bus. & Prof. Code, § 809.1.) If a hearing is
requested, it must be conducted pursuant to strictly circumscribed
procedures. (Id., § 809.2-809.6.)
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If a hospital restricts or revokes a physician's staff privileges as a
result of a determination by a peer review body, the discipline must be
reported to the Medical Board. (Bus. & Prof. Code, § 805.) The statute
imposes this reporting requirement on all peer review bodies, which are
defined to include the medical staff of any licensed health care facility
and any representative medical society or committee that reviews the
quality of professional care. (Id., subd. (a)(1).) The chief of staff or
administrator of any such peer review body must file a report with the
Board whenever, as a result of that body's action and for a "medical
disciplinary cause or reason," *fn3
a licensee's application for staff privileges is denied, or staff
privileges are revoked, or restrictions on staff privileges are imposed or
voluntarily accepted, or a licensee resigns or takes a leave of absence.
(Id., subd. (b).) The report must name the licensee and provide "a
description of the facts and circumstances of the medical disciplinary
cause or reason" and any other relevant information. (Ibid.) The report
must be filed within 15 days after the effective date of the discipline,
and a supplemental report must be filed within 30 days after the licensee
has satisfied any conditions of the discipline. Failure to file such a
report, whether or not intentional, is punishable by a civil penalty of up
to $5,000; an intentional failure to do so is a crime punishable by a fine
of up to $10,000. (Id., subds. (g) & (h).) *fn4
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In addition, if a proceeding initiated by a peer review committee
against a staff physician results in disciplinary action required to be
reported under the foregoing statute, the Board is entitled to inspect and
copy the statement of charges, the exhibits introduced at the hearing, and
the opinion, findings, or Conclusions of the hearing officer. (Bus. &
Prof. Code, § 805.1.)
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Finally, it is unprofessional conduct for a physician to practice in
any hospital with a staff of more than four physicians unless the hospital
requires its medical staff members to conduct regular peer review of their
clinical experience (Bus. & Prof. Code, § 2282, subd. (c)), and to
ensure compliance the Board is authorized to inspect the "medical staff .
. . records" of the institution (id., § 2226).
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It is apparent that these statutes implement the Legislature's finding
and declaration that "Peer review, fairly conducted, will aid the
appropriate state licensing boards in their responsibility to regulate and
discipline errant healing arts practitioners." (Bus. & Prof. Code, §
809, subd. (a)(5).)
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It is also apparent, however, that a hospital peer review committee
differs from the Board in several ways. First, it is not a public agency
created and funded by the state, but a group of private physicians
selected by and from the staff of a hospital. *fn5
Second, the conduct of the errant physician is not reviewed by
independent, professional investigators, but by the physician's own
colleagues practicing in the same hospital: it is, by definition, a peer
review committee. By weeding out incompetent or impaired staff physicians,
therefore, the peer review process--in addition to its public protection
function--inevitably also serves the private purpose of reducing the
exposure of the hospital to potential tort liability. Third, the "public"
protected by the peer review process is not the public at large, but is
limited to the patients of the particular hospital in question. The
process is institution specific: a physician stripped of staff privileges
by one hospital is not ipso facto prevented from obtaining or maintaining
such privileges at other hospitals--the only entity with the power to
prevent that from happening is the Board. *fn6
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FACTS *fn7
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In the spring of 1992 several nurses at Alameda Hospital (hereafter
the Hospital) observed Dr. A., an anesthesiologist on the medical staff of
the Hospital, behaving while on duty as if he were under the influence of
narcotic drugs.
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The first incident took place one evening in March 1992. Dr. A. was
the anesthesiologist on call when a patient required emergency surgery. As
Dr. A. was interviewing the patient, Nurse Larson observed that his speech
was slurred. In discussing the case with him before surgery, she saw that
his attention and comprehension were impaired. Dr. A. subsequently
administered a general anesthetic to this patient. Following the surgery,
Nurse Larson reported Dr. A.'s abnormal behavior to her
supervisor.
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The second incident occurred in late May 1992. A patient was awaiting
scheduled surgery, but Dr. A. could not be found. After being paged
several times he arrived and began interviewing the patient. Nurse Larson
observed that his speech was even more slurred than during the first
incident. She promptly called her supervisor and expressed her "grave
concern" about Dr. A.'s condition. Thereafter the patient was taken into
the operating room and Dr. A. administered sedation
intravenously.
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On another day that month Nurse McKenna was trying to take a patient
into a bathroom but found the door locked. A visitor told her that someone
had been in the bathroom for a long time. Nurse McKenna unlocked the door
and found Dr. A. asleep in the room with his surgical pants down around
his knees. He did not respond to his name, and Nurse McKenna had to shake
him several times in order to rouse him. When he awoke, Dr. A. was
disoriented and unsteady; in Nurse McKenna's opinion, he "did not behave
like someone who had simply fallen asleep." She told Dr. A. that he was
needed in surgery; he responded "OK," and went off to the operating room.
Suspecting that Dr. A. was taking drugs, Nurse McKenna looked
unsuccessfully for drug paraphernalia after he left. She then reported the
incident to her supervisor. Later that day another nurse (Nurse McClure)
told Nurse McKenna that Dr. A.'s behavior in the recovery room had been
"strange" and he had had to lay his head on a desk.
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Approximately six weeks thereafter, Nurse McKenna noticed that Dr.
A.'s handwriting was shaky on several occasions, and again reported it.
She also saw that Dr. A. had made an entry in a record--possibly a
patient's chart--stating that he had broken an ampule of Fentanyl during a
procedure. *fn8
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At some point during this period the Medical Executive Committee of
the Hospital medical staff--a peer review committee--began to investigate
the matter. Following the bathroom incident, the committee interviewed
Nurse McKenna. Dr. A. thereafter appeared before the committee and
admitted he had been injecting himself with Fentanyl, which he had taken
from the Hospital's narcotics supplies. Dr. A. then requested a leave of
absence for the months of October and November 1992 in order to enter an
inpatient drug rehabilitation program at the New Bridge Foundation in
Berkeley. The request was granted.
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As noted above, the code requires that the peer review body report to
the Medical Board any leave of absence taken by a staff physician after
notice of an investigation into conduct reasonably likely to be
detrimental to patient care or safety. (Bus. & Prof. Code, § 805,
subd. (b).) The Hospital did not make such a report.
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In January 1993 Dr. A. resumed his staff privileges, but under
multiple restrictions imposed by the Hospital. These included random
supervised urine testing as often as necessary to ensure that he remain
drug free, peer review within 24 hours of every case performed, random
concurrent review during procedures, daily review of all narcotics records
including requirements that all breakages be co-signed and all drugs
signed out be accounted for, weekly reports on his outpatient drug
rehabilitation program including documentation of ongoing therapy, regular
evaluation sessions with the principal medical staff members, and possible
use of a narcotic antagonist.
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At the same time, Dr. A. entered an outpatient drug rehabilitation
program at the Merritt-Peralta Institute in Oakland, agreeing to further
restrictions embodied in a "contract" he signed with the "monitoring and
re-entry program" of that organization. At the outset of the document he
acknowledged that "I am suffering from the disease of chemical
dependency." The agreement obligated Dr. A., inter alia, to attend weekly
progress and compliance meetings with the monitoring program, to attend 90
meetings of a 12-step program, a physician's support group, and a relapse
group, to undergo weekly random body fluid analyses with notification of
any positive results to the president of the Hospital's medical staff, to
participate for 1 year in a narcotic antagonist program, and to obtain a
work site monitor authorized to promptly report any suspected drug use or
unusual behavior. The agreement was to run for 12 months, from January 7,
1993, to January 7, 1994, and could be extended for a second
year.
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As noted above, the code requires that the peer review body report to
the Medical Board any restrictions, whether imposed or voluntarily
accepted, on a staff physician's privileges, membership, or employment,
for a total of 30 days or more in any 12-month period, because of any
conduct reasonably likely to be detrimental to patient care or safety.
(Bus. & Prof. Code, § 805, subd. (b)(3).) Again the Hospital did not
make such a report. Indeed, both the Hospital's restrictions on Dr. A.'s
practice and the "contract" he signed could be read to imply that no
report would be made to the Board as long as he did not violate their
terms. *fn9
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The Board nevertheless learned of this case when a confidential
informant reported to it that Dr. A. was a narcotic drug addict who had
been under the influence of controlled substances while on duty at the
Hospital. The Medical Practice Act contains numerous provisions under
which such behavior could be found to be "unprofessional conduct" within
the meaning of the act. For example, the following acts constitute
unprofessional conduct: any violation of state or federal laws regulating
controlled substances (Bus. & Prof. Code, § 2238), self-administration
of a controlled substance (id., § 2239), and practice while under the
influence of any narcotic drug that impairs the ability to practice safely
(id., § 2280). Also relevant here are the general provisions declaring
that it is unprofessional conduct to commit a violation of any provision
of the Medical Practice Act, or gross negligence, or repeated acts of
ordinary negligence, or any act that would have warranted denial of a
license. (Id., § 2234.)
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The Board initiated the present investigation and assigned the case to
Senior Investigator Shane P. Wright. On March 5, 1993, Investigator Wright
interviewed the president of the Hospital medical staff and the medical
staff coordinator. They informed her that when Dr. A. first applied for
privileges some years earlier he admitted that during his residency he had
had a "drug problem" but said he had recovered. In this interview
Investigator Wright also learned the above recited facts that in 1992 two
nurses had complained of Dr. A.'s unusual behavior, that Dr. A.
subsequently admitted to injecting himself with Fentanyl, and that he had
taken a leave of absence in October and November 1992 to participate in an
inpatient drug rehabilitation program.
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Investigator Wright thereafter learned the names of the two
complaining nurses (Nurse Larson and Nurse McKenna) from a confidential
informant, and interviewed them on April 1, 1993. They provided her with
the descriptions of their observations of Dr. A.'s behavior that we have
summarized above.
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On April 2, 1993, Investigator Wright received a letter from the
president of the medical staff and the chief executive officer of the
Hospital outlining the above listed restrictions that the Hospital placed
on Dr. A.'s practice when he returned from his leave of absence, and
attaching a copy of Dr. A.'s above discussed "contract" with the drug
rehabilitation program of the Merritt-Peralta Institute.
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The Hospital also allowed Investigator Wright to interview its
pharmacy and surgery personnel and to review its narcotic logs and the
patient records in the cases under investigation. The Hospital refused,
however, to allow Investigator Wright access to any records involving Dr.
A. in the possession of either the Medical Executive Committee or the
Credentials Committee. *fn10
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Investigator Wright's efforts to obtain information from other sources
were also resisted. Thus Investigator Wright invited Dr. A. to an
interview with the Board to discuss the incidents under investigation, but
on March 17, 1993, Dr. A.'s counsel replied that his client declined the
interview.
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On March 26, 1993, Dr. A.'s counsel informed Investigator Wright that
his client also refused to sign releases to allow the Board to obtain his
treatment records from the New Bridge Foundation and the Merritt-Peralta
Institute.
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Investigator Wright subsequently asked Dr. A. to sign a waiver of a
formal petition to compel him to submit to a physical and psychiatric
examination (Bus. & Prof. Code, § 820), and to voluntarily agree to
such an examination instead. On November 1, 1993, Dr. A.'s counsel
informed Investigator Wright that his client refused to agree to the
examination.
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Investigator Wright then referred the case to Dr. William S. Brostoff,
a specialist in addiction medicine, for an evaluation whether Dr. A. was
able to practice with safety to the public. (See Bus. & Prof. Code, §
820.) On December 10, 1993, the Board received Dr. Brostoff's report, in
which he stated that he could not determine whether Dr. A. posed a danger
to the public because "I have not been able to review any medical or
psychiatric records or evaluations of Dr. A., himself. Specifically, no
medical or psychiatric records or evaluations of Dr. A. from his treatment
programs are provided. Further, there are no medical or psychiatric
updates since the signing of his monitoring and re-entry contract by Dr.
A. on January 20, 1993. In addition, Dr. A., through his attorney,
declined an invitation for an interview with the investigator.
Consequently, I am unable to reach any Conclusions about Dr. A.'s current
medical or psychiatric state, the current status of his recovery from
chemical dependency or the question of his being a potential danger to
himself or others, or finally, whether or not he has impaired ability to
conduct a solo practice with safety to the public." Dr. Brostoff
recommended that Dr. A. take the above mentioned physical and psychiatric
examination.
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At this point Investigator Wright turned to the Board's subpoena
power. On March 3, 1994, she served a subpoena duces tecum on the New
Bridge Foundation and the Merritt-Peralta Institute for any records of Dr.
A.'s treatment at those facilities after January 1, 1992. The
Merritt-Peralta Institute replied that it could not locate such records,
and the New Bridge Foundation refused to comply with the subpoena on the
ground that disclosure was prohibited by a federal
regulation.
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Unable to obtain the information she sought either from the Hospital,
from Dr. A., or from his treatment providers, Investigator Wright served a
subpoena duces tecum on William J. Dal Cielo, chief executor officer of
the Hospital, on April 11, 1994. The subpoena sought, inter alia,
information provided by Dr. A. in his application for staff privileges
that related to his prior history of drug abuse; copies of complaints
received by the Hospital from staff or patients regarding Dr. A. after
January 1, 1992; records of the meetings of the Medical Executive
Committee concerning Dr. A.'s drug use; documentation of Dr. A.'s leave of
absence, of the terms of the Hospital's restrictions on his practice, and
of his monitoring and re-entry agreement; and copies of the periodic
reports required under those terms and that agreement concerning such
matters as Dr. A.'s body fluid testing, compliance with the rehabilitation
programs, and response to treatment.
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The Hospital refused to comply with the subpoena. On April 29, 1994,
the Board, acting through Dixon Arnett, its executive director, filed the
present petition for an order to enforce the subpoena. (Gov. Code, §
11187.) The Hospital opposed the petition on the grounds that the
documents sought by the subpoena were immune from discovery under Evidence
Code section 1157 and that the Board failed to show "good cause" for its
issuance (see, e.g., Wood v. Superior Court (1985) 166 Cal. App. 3d 1138,
1145-1150 [212 Cal. Rptr. 811]). After hearing, the court granted the
petition and ordered the Hospital to comply with the
subpoena.
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The Hospital appealed from the order. In its briefs before the Court
of Appeal, the Hospital abandoned its claim of lack of good cause and
asserted only its contention that the records sought by the Board were
immune from discovery under Evidence Code section 1157. While the appeal
was pending, the Board petitioned the superior court for an order
compelling the New Bridge Foundation and the Merritt-Peralta Institute to
comply with the subpoenas it had served on them for Dr. A.'s treatment
records. The court again granted its petition to compel. The New Bridge
Foundation, the Merritt-Peralta Institute, and Dr. A. separately
challenged this order by petitions for extraordinary relief, and the Court
of Appeal granted alternative writs. The Court of Appeal thereafter
addressed these petitions and the Hospital's appeal in a single
opinion.
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| [58] |
First, the Court of Appeal held that the "better view" is that an
order compelling compliance with an administrative subpoena is appealable
as a final order in a special proceeding, following Millan v. Restaurant
Enterprises Group, Inc. (1993) 14 Cal. App. 4th 477, 484-485 [18 Cal.
Rptr. 2d 198], and cases cited. The parties do not question that holding
here, and it is therefore not before us for review.
|
| [59] |
Next, the Court of Appeal addressed the writ petitions by the New
Bridge Foundation and the Merritt-Peralta Institute, and held that records
of drug abuse treatment such as Dr. A. received from those organizations
are made confidential by a federal statute and its implementing
regulations and by section 11977 of the Health and Safety Code.
Accordingly, the Court of Appeal issued a peremptory writ of mandate
directing the superior court to vacate its order granting the Board's
motion to enforce its subpoenas against the New Bridge Foundation and the
Merritt-Peralta Institute. The Board did not seek review of this holding,
and it is therefore not before us.
|
| [60] |
Turning to the Hospital's appeal, the Court of Appeal held that in
enacting Evidence Code section 1157 the Legislature did not intend to
immunize peer review records from investigative subpoenas by
administrative agencies. Accordingly, the Court of Appeal affirmed the
order granting the Board's petition to enforce its subpoena for such
records. We granted the Hospital's petition for review, and now affirm the
judgment of the Court of Appeal.
|
| [61] |
I
|
| [62] |
Insofar as relevant here, subdivision (a) of Evidence Code section
1157 (hereafter section 1157) provides that "Neither the proceedings nor
the records of organized committees of medical . . . staffs in hospitals,
or of a peer review body . . . having the responsibility of evaluation and
improvement of the quality of care rendered in the hospital, . . . shall
be subject to discovery." (Italics added.) There is no question that the
Board seeks to obtain hospital peer review committee records within the
meaning of section 1157. The sole issue is whether the Board's
investigative subpoena is "discovery" within the meaning of this
statute.
|
| [63] |
The Hospital contends that as used in section 1157 the word
"discovery" includes subpoenas issued by administrative agencies for
investigative purposes. The Board contends, rather, that in section 1157
"discovery" means only the formal exchange of evidentiary information
between parties to a pending adversary proceeding. The Court of Appeal
correctly recognized that "as commonly used in its legal sense, the term
is limited as the Board suggests." But the Court of Appeal then reasoned
that the Hospital's construction of the term is at least "reasonable," and
invoked the rule that when the wording of a statute is "susceptible of
more than one reasonable interpretation," the courts resolve the conflict
by giving weight to a variety of extrinsic aids such as legislative
history, the purpose to be served, and public policy. ( People v. Woodhead
(1987) 43 Cal. 3d 1002, 1008 [239 Cal. Rptr. 656, 741 P.2d
154].)
|
| [64] |
In our view, the rule of construction relied on by the Court of Appeal
is not here applicable. It is true that courts ordinarily give the words
of a statute the usual, everyday meaning they have in lay speech. (
Alexander v. Superior Court (1993) 5 Cal. 4th 1218, 1225 [23 Cal. Rptr. 2d
397, 859 P.2d 96].) But that rule has an important exception, and it
governs this case: when a word used in a statute has a well-established
legal meaning, it will be given that meaning in construing the statute.
This has long been the law of California: "The rule of construction of
statutes is plain. Where they make use of words and phrases of a
well-known and definite sense in the law, they are to be received and
expounded in the same sense in the statute." ( Harris v. Reynolds (1859)
13 Cal. 514, 518.)
|
| [65] |
This rule has been declared in our basic codes since they were first
enacted in 1872. (Civ. Code, § 13 [words and phrases are to be construed
according to "approved usage," but "such others as may have acquired a
peculiar and appropriate meaning in law . . . are to be construed
according to such peculiar and appropriate meaning"]; accord, Code Civ.
Proc., § 16; Pen. Code, § 7, subd. 16; see Prob. Code, § 21122.) The
United States Supreme Court follows this rule. (E.g., Bradley v. United
States (1973) 410 U.S. 605, 609 [35 L. Ed. 2d 528, 532, 93 S. Ct. 1151]
["Rather than using terms in their everyday sense, '[t]he law uses
familiar legal expressions in their familiar legal sense.' "]; Standard
Oil Co. v. United States (1911) 221 U.S. 1, 59 [55 L. Ed. 619, 644-645, 31
S. Ct. 502], and cases cited.) And it is the general rule in our sister
states. (See 2A Sutherland, Statutory Construction (5th ed., 1992 rev.) §
47.30, p. 262.)
|
| [66] |
The rule applies most obviously when the meaning of the word in
question is wholly or primarily legal. (E.g., Estate of Ross (1903) 140
Cal. 282, 290 [73 P. 976] ["devise" and "legacy"]; Bruner v. Superior
Court (1891) 92 Cal. 239, 245 [28 P. 341] ["elisor"]; Texas Commerce Bank
v. Garamendi (1992) 11 Cal. App. 4th 460, 475 [14 Cal. Rptr. 2d 854]
["annuities"]; Taylor v. Forte Hotels International (1991) 235 Cal. App.
3d 1119, 1123-1124 [1 Cal. Rptr. 2d 189] ["conversion" and "recovery"];
Plotitsa v. Superior Court (1983) 140 Cal. App. 3d 755, 762 [189 Cal.
Rptr. 769] ["special and general damages"]; Handlery v. Franchise Tax
Board (1972) 26 Cal. App. 3d 970, 981 [103 Cal. Rptr. 465] ["unitary
business"].) But the rule is also applicable when the word has both a
specific legal meaning and a more general sense in informal legal usage or
in lay speech. (E.g., People v. Murray (1994) 23 Cal. App. 4th 1783, 1789
[29 Cal. Rptr. 2d 42] ["imprisonment"]; In re Jodi B. (1991) 227 Cal. App.
3d 1322, 1328 [278 Cal. Rptr. 242] ["parent"]; Poe v. Diamond (1987) 191
Cal. App. 3d 1394, 1398-1399 [237 Cal. Rptr. 80] ["party"]; People v.
Heitz (1983) 145 Cal. App. 3d Supp. 8, 17 [193 Cal. Rptr. 138]
["construction" and "improvements"].) In that event the lawmakers are
presumed to have used the word in its specifically legal
sense.
|
| [67] |
This is such a case. It is true, as the Hospital contends, that from
time to time courts and commentators speak of an administrative agency as
using its investigative subpoena power to "discover" evidence for the
purpose of deciding whether to charge a statutory violation. (E.g., Okla.
Press Pub. Co. v. Walling (1946) 327 U.S. 186, 201 [90 L. Ed. 614, 625, 66
S. Ct. 494, 166 A.L.R. 531] [the purpose of an investigative subpoena of
the Wage and Hour Administrator is "to discover and procure evidence, not
to prove a pending charge or complaint, but upon which to make one if, in
the Administrator's judgment, the facts thus discovered should justify
doing so."].) To speak in those terms, however, is simply to use the word
"discover" in its general sense of finding something out by search or
observation, as when we say that a detective "discovered" incriminating
evidence at the scene of a murder.
|
| [68] |
As the Board contends and the Court of Appeal agreed, "discovery" also
has a specific legal meaning, to wit, the formal exchange of evidentiary
information and materials between parties to a pending action. The two
meanings of the word are well recognized in the dictionaries. Thus a
leading legal dictionary first defines "discovery" to mean, " In a general
sense, the ascertainment of that which was previously unknown; the
disclosure or coming to light of what was previously hidden," and gives as
example, "the granting of a new trial for newly 'discovered' evidence."
(Black's Law Dict. (6th ed. 1990) p. 466, italics added.) But the same
work also defines the word in its specifically legal sense, as "The
pre-trial devices that can be used by one party to obtain facts and
information about the case from the other party in order to assist the
party's preparation for trial," and gives as examples such formal
procedures as depositions, interrogatories, requests for admission, and
motions for production of documents. (Ibid.) Even nonlegal dictionaries
draw this distinction, defining "discovery" as "1. The act or an instance
of discovering. 2. Something that has been discovered. 3. Law. Data or
documents that a party to a legal action is compelled to disclose to
another party either prior to or during a proceeding." (Am. Heritage Dict.
(2d college ed. 1985) p. 403.)
|
| [69] |
The Legislature has long been aware of the specific legal meaning of
the term "discovery." (E.g., Stats. 1851, ch. 5, § 417, p. 117 [referring
to "discovery" by means of depositions of parties].) Almost four decades
ago the Legislature enacted the landmark Civil Discovery Act of 1957
(Stats. 1957, ch. 1904, § 3, p. 3322), largely based on the discovery
provisions of the Federal Rules of Civil Procedure. (See Greyhound Corp.
v. Superior Court (1961) 56 Cal. 2d 355, 375-376 [15 Cal. Rptr. 90, 364
P.2d 266].) In turn, the provisions of the 1957 act were substantially
rewritten and expanded in the Civil Discovery Act of 1986 (Stats. 1986,
ch. 1334, § 2, p. 4700), which is currently in effect. Throughout this
act, codified in sections 2016 to 2036 of the Code of Civil Procedure, the
Legislature repeatedly and consistently uses the term "discovery" only in
the foregoing legal sense of the procedures by which parties to a pending
action exchange evidence admissible in that action. For example, in
defining the scope of discovery under the act the Legislature specifies
that "any party may obtain discovery regarding any matter, not privileged,
that is relevant to the subject matter involved in the pending action or
to the determination of any motion made in that action, if the matter
either is itself admissible in evidence or appears reasonably calculated
to lead the discovery of admissible evidence." (Id., § 2017, subd. (a),
italics added.)
|
| [70] |
The Legislature exhibited a similarly consistent understanding of the
term "discovery" when in 1968 it enacted a special statutory scheme
(Stats. 1968, ch. 808, § 3, p. 1561) "provid[ing] the exclusive right to
and method of discovery" in proceedings under the Administrative Procedure
Act (Gov. Code, § 11507.5), including therefore proceedings brought by the
Board to discipline a physician charged with unprofessional conduct.
There, too, discovery is defined as the right of "a party" to obtain
evidentiary information "upon written request made to another party," but
only "After initiation of a proceeding in which [the person charged] is
entitled to a hearing on the merits" (id., § 11507.6), i.e., after the
process has passed from the investigatory stage to the filing of a formal
accusation (id., § 11503-11506).
|
| [71] |
The Legislature is also well aware of the distinction between
discovery and the exercise of the subpoena power; when it wishes to
protect a class of evidence from both procedures, it knows how to do so.
As noted above, the Board is authorized to order a licensed physician to
undergo a physical or psychiatric examination if it appears the licensee's
ability to practice is impaired by mental or physical illness. (Bus. &
Prof. Code, § 820.) Section 828 of the same code provides in relevant part
that "If the licensing agency determines, pursuant to proceedings
conducted under Section 820, that there is insufficient evidence to bring
an action against the licentiate . . . , then all licensing agency records
of the proceedings, including the order for the examination, investigative
reports, if any, and the report of the physicians and surgeons or
psychologists, shall be kept confidential and are not subject to discovery
or subpoena." (Italics added.) If "discovery" included "subpoena," the
latter word would be surplusage. Courts should give meaning to every word
of a statute if possible, and should avoid a construction making any word
surplusage. ( Delaney v. Superior Court (1990) 50 Cal. 3d 785, 798-799
[268 Cal. Rptr. 753, 789 P.2d 934], and cases cited.)
|
| [72] |
The emphasized choice of words, moreover, is deliberate: the
Legislature uses the same wording in at least 13 other provisions of the
code. For example, if the Board finds insufficient cause to file an
accusation against a physician based on the results of a professional
competency examination (Bus. & Prof. Code, § 2292), all records of the
examination "shall be kept confidential and shall not be subject to
discovery or subpoena." (Id., § 2294, subd. (b), italics added; see also
id., § 3756, subd. (e) [respiratory care practitioner].)
|
| [73] |
Again, the Board is authorized to operate a "diversion program" for
the treatment and rehabilitation of physicians whose competency is
impaired by drug or alcohol abuse. (Bus. & Prof. Code, § 2340.) The
code declares that all records pertaining to the treatment of a physician
in that program "shall be kept confidential and are not subject to
discovery or subpoena." (Id., § 2355, subd. (b), italics added.) The
Legislature has made essentially identical provisions for eight other
classes of licensees, *fn11
and has likewise provided that all records of drug and alcohol treatment
and rehabilitation of licensees furnished by providers under contract with
any regulatory board in the Department of Consumer Affairs "shall be kept
confidential and are not subject to discovery or subpoena." (Id., § 156.1,
subd. (b), italics added; see also id., § 4982.2, subd. (g) [records of
physical and mental condition of family counselor petitioning for
reinstatement after suspension or revocation of license].)
|
| [74] |
Finally, the Board calls our attention to two recent federal decisions
that draw the distinction between discovery and subpoena in different but
nevertheless illustrative contexts. Linde Thomson Langworthy Kohn &
Van Dyke v. RTC (D.C. Cir. 1993) 5 F.3d 1508, dealt with the Resolution
Trust Corporation (RTC), an agency that Congress created to act as the
receiver for failed savings and loan institutions and vested with the
power to issue investigative subpoenas. In the cited case the RTC began an
investigation of a failed Missouri thrift by issuing a subpoena duces
tecum to a law firm connected with the thrift. The firm refused to comply
with certain portions of the subpoena. On the RTC's petition, the district
court ordered compliance. While the firm's appeal was pending, the RTC
filed suit against it in federal district court alleging violations of
Missouri law.
|
| [75] |
The Court of Appeals for the District of Columbia Circuit affirmed.
Relevant here is the firm's contention that the Missouri law of
attorney-client privilege applied and barred the subpoena because the
subsequently filed suit would turn on rules of state law. The contention
was based on the premise that an administrative investigation is merely an
opening stage of subsequent litigation and is the equivalent of a civil
discovery procedure. The federal circuit court rejected this premise,
observing that "An investigation conducted by the RTC may conceivably
neither culminate in litigation, nor be initially designed to inspire it."
(5 F.3d at p. 1512.) And such an investigation is not the equivalent of
discovery; rather, "Unlike a discovery procedure, an administrative
investigation is a proceeding distinct from any litigation that may
eventually flow from it." ( Id. at p. 1513.)
|
| [76] |
E.E.O.C. v. Deer Valley Unified School Dist. (9th Cir. 1992) 968 F.2d
904, dealt with the federal Equal Employment Opportunity Commission
(EEOC), an agency that is likewise empowered by Congress to issue
investigative subpoenas. In the cited case the EEOC began an investigation
into the hiring policies and practices of an Arizona school district,
issuing an administrative subpoena duces tecum for certain documents. When
the school district failed to produce all the documents, the EEOC
petitioned the district court for an order of compliance. The district
court denied relief because the EEOC had not followed a local rule that
required parties to meet and confer before filing a "discovery" motion.
The district court found "no reason to treat a subpoena enforcement action
such as this, which is in essence pre-litigation discovery, any
differently from a more typical discovery request." ( Id. at p. 906.)
Although the school district ultimately complied with the subpoena, the
district court awarded attorney fees against the EEOC because of its
violation of the local rule.
|
| [77] |
The Court of Appeals for the Ninth Circuit reversed the award, holding
that the EEOC's petition to enforce its subpoena was not a "discovery"
motion. The court reasoned that "The investigatory subpoena power of the
EEOC is based on specific statutory authority, not on the general
discovery provisions of the Federal Rules of Civil Procedure." (968 F.2d
at p. 906.) In language that echoes our reasoning in the case at bar, the
court explained that "The function of administrative investigatory
subpoenas differs from that of the discovery provisions of the Federal
Rules of Civil Procedure. The discovery provisions apply to actions that
have already been filed with the court, and the parties are seeking to
develop evidence for the action that is before the court. The statutory
subpoena authority, on other hand, is designed for administrative
investigations, which may or may not result in any further action before
the district court." (Ibid., fn. omitted.)
|
| [78] |
For all these reasons, the term "discovery" in section 1157 is to be
given its well-established legal meaning of a formal exchange of
evidentiary information between parties to a pending action, and that
meaning does not include a subpoena issued, as here, by an administrative
agency for purely investigative purposes.
|
| [79] |
II
|
| [80] |
The Hospital raises a number of contentions to the contrary, but none
is persuasive.
|
| [81] |
The Hospital begins by arguing that to construe "discovery" to include
an administrative investigative subpoena, as it urges, would serve the
purpose or policy that the Legislature sought to promote in enacting
section 1157. The Hospital then devotes considerable effort to
establishing that the purpose or policy underlying section 1157 is to
encourage members of hospital review committees to engage in candid and
uninhibited evaluations of the competence of their peers. (See Alexander
v. Superior Court, (supra) , 5 Cal. 4th 1218, 1226-1227, and West Covina
Hospital v. Superior Court (1986) 41 Cal. 3d 846, 852-854 [226 Cal. Rptr.
132, 718 P.2d 119, 60 A.L.R.4th 1257], both quoting from Matchett v.
Superior Court (1974) 40 Cal. App. 3d 623, 628-629 [115 Cal. Rptr. 317].)
The contention puts the cart before the horse. In determining legislative
intent, courts look first to the words of the statute itself: if those
words have a well-established meaning, as we hold they do here, there is
no need for construction and courts should not indulge in it. ( People v.
Jones (1993) 5 Cal. 4th 1142, 1146 [22 Cal. Rptr. 2d 753, 857 P.2d 1163];
DaFonte v. Up-Right, Inc. (1992) 2 Cal. 4th 593, 601 [7 Cal. Rptr. 2d 238,
828 P.2d 140]; Solberg v. Superior Court (1977) 19 Cal. 3d 182, 198 [137
Cal. Rptr. 460, 561 P.2d 1148].) The Hospital's argument that a different
or broader meaning would also serve the purpose or policy underlying
section 1157 is an argument that should be made to the Legislature, not to
the courts.
|
| [82] |
The Hospital next asserts that a "broad construction" of the term
"discovery" would be "consistent with prior interpretations of the
statute," again citing Alexander v. Superior Court, (supra) , 5 Cal. 4th
1218. But in Alexander and similar decisions the courts were called upon
to construe provisions of section 1157--or to answer questions relating to
the coverage of the statute itself--that in the circumstances were
susceptible of more than one reasonable interpretation. For the reasons
stated above, that is not the case here.
|
| [83] |
The Hospital also notes that in certain other states, statutes similar
to section 1157 provide that peer review committee records shall not be
subject to discovery "in any civil action." (See Com'r of Health Services
v. Kadish (1989) 17 Conn.App. 577 [554 A.2d 1097, 1099]; Mercy Hosp. v.
Dept. of Professional Reg. (Fla.Dist.Ct.App. 1985) 467 So.2d 1058,
1059-1060; Unnamed Physician v. Com'n on Medical Dis. (1979) 285 Md. 1
[400 A.2d 396, 399-402].) From the fact that in this state section 1157
does not include the quoted words, the Hospital infers that the
Legislature does intend the term "discovery" in our statute to be broadly
construed to extend beyond "civil actions" to include administrative
investigative subpoenas. The inference is strained. Although the presence
of the quoted words in section 1157 would have facilitated our task--in
the three cited cases the courts had no difficulty in holding, as we do
here, that peer review committee records are not immune from an
administrative investigative subpoena--their absence does not compel a
contrary Conclusion: as explained above, our statute uses the term
"discovery" in its well-established legal sense and that sense does not
include such subpoenas.
|
| [84] |
The Hospital also relies on the fact that another provision of the
Evidence Code (§ 1156, subd. (a)) provides that hospital staff committee
records of studies designed to reduce morbidity or mortality are "subject
to Sections 2016 to 2036, inclusive, of the Code of Civil Procedure,"
i.e., the Civil Discovery Act. Again, such a citation in section 1157
would have been helpful but its absence does not change the plain meaning
of the statute. Indeed, the lack of significance of this very wording is
demonstrated by a pair of closely related provisions of the Evidence Code.
Section 1156.1, subdivision (a), provides that the records of a certain
type of quality assurance committee relating to studies designed to reduce
morbidity or mortality are "subject to Sections 2016 to 2036, inclusive,
of the Code of Civil Procedure . . . ." The Hospital stresses the fact
that the statute expressly cites the Civil Discovery Act rather than
saying simply that the records are "subject to discovery." But section
1157.6 of the same code, which addresses essentially the same topic, does
say simply that such records are "subject to discovery," and the
Legislature enacted the two statutes in successive sections of the same
bill (Stats. 1982, ch. 234, § 4, 5, p. 767). Thus at least in this portion
of the Evidence Code--which includes section 1157, the statute at issue
here--the Legislature refers interchangeably to "discovery" and to the
Civil Discovery Act.
|
| [85] |
The Hospital contends that our reading of section 1157 leads to "
'absurd consequences' " ( Harris v. Capital Growth Investors XIV (1991) 52
Cal. 3d 1142, 1166 [278 Cal. Rptr. 614, 805 P.2d 873]) because after the
Board files an accusation, it is assertedly prohibited from discovering
the same records that our reading allows it to discover before filing an
accusation. The Hospital finds this prohibition in a clause of the
Government Code statute that provides generally for discovery under the
Administrative Procedure Act after a formal accusation is filed. (Gov.
Code, § 11507.6.) That statute lists several categories of discoverable
documents, and then declares by way of limitation that "Nothing in this
section shall authorize the inspection or copying of any writing or thing
which is privileged from disclosure by law or otherwise made confidential
or protected as the attorney's work product." (Ibid.) In reply, the Board
argues that the Legislature did not intend the quoted clause of Government
Code section 11507.6 to incorporate the bar of Evidence Code section 1157
against discovery of peer review committee records. Whether the cited
Government Code provision bars the Board from discovering peer review
committee records after the filing of a formal accusatory proceeding
against a physician under the Administrative Procedure Act is not an issue
in this case, however, and we decline to decide it. We therefore also
decline to speculate that the "absurd consequence" envisioned by the
Hospital would in fact flow from our reading of section
1157.
|
| [86] |
The Hospital next asserts that our reading of section 1157 makes
superfluous a statute that we discussed above, Business and Professions
Code section 805.1. As we explained, a hospital peer review committee may
conduct formal disciplinary proceedings against a staff physician pursuant
to a special statutory procedure. (Id., § 809.2 et seq.) If after such
proceedings the hospital imposes formal discipline on the physician that
it is required to report to the Board pursuant to section 805, section
805.1 entitles the Board to "inspect and copy" the principal documents
generated by the hearing, to wit, the statement of charges, exhibits
introduced at the hearing, and the opinion, findings, or Conclusions of
the hearing officer. (Id., subd. (a).) The Hospital claims there is "no
purpose" to the latter statute if the Board already has the general power
to obtain peer review committee records by means of an administrative
investigative subpoena.
|
| [87] |
The point is unpersuasive. Prior to the enactment of Business and
Professions Code section 805.1 in 1986, if a hospital refused to release
peer review records that the Board needed to inspect, the Board was
required to issue a subpoena under Government Code section 11181 and, if
necessary, to file a proceeding in superior court under Government Code
section 11187 to enforce that subpoena. In section 805.1 the Legislature
sought to provide the Board with a simpler option in a limited class of
cases and for a limited category of records, by giving the Board automatic
access to the principal documents generated in any formal disciplinary
proceedings conducted by the Hospital. Yet by providing the Board with
this limited additional investigative tool, the Legislature cannot have
intended to strip it ipso facto of its broad preexisting power under the
Government Code to issue subpoenas to investigate all cases of
unprofessional conduct, whether or not they resulted in formal
disciplinary proceedings by the hospital. The Hospital's argument reads
too much into the modest aim of section 805.1.
|
| [88] |
Section 1157 contains several express exceptions to its prohibition
against the discovery of peer review committee records. *fn12
The Hospital next contends that our reading of section 1157 adds a new
exception to the statute--for administrative investigative subpoenas--and
therefore violates the rule of construction that " 'where exceptions to a
general rule are specified by statute, other exceptions are not to be
implied or presumed.' " ( Mutual Life Ins. Co. v. City of Los Angeles
(1990) 50 Cal. 3d 402, 410 [267 Cal. Rptr. 589, 787 P.2d 996], quoting
from Wildlife Alive v. Chickering (1976) 18 Cal. 3d 190, 195 [132 Cal.
Rptr. 377, 553 P.2d 537].)
|
| [89] |
That rule of construction, however, applies only when a court proposes
to create an "exception" to a "rule," and a true "exception" is a case
that would otherwise be included within the rule. That is not the case
here. For the reasons stated above, the "rule" of section 1157 is that
peer review committee records are immune from "discovery" in the sense of
a formal exchange of evidentiary information between parties to a pending
action; because an administrative investigative subpoena is not
"discovery" in that sense, it would not be within the scope of section
1157 in any event, and our holding excluding it does not create an
"exception" to the statute.
|
| [90] |
The Hospital invokes one last rule of statutory construction. On March
4, 1993, a lengthy and complex bill was introduced in the Legislature
(Sen. Bill No. 916) that proposed a large number of changes in the several
statutes governing the discipline of health care professionals. *fn13
The bill was amended no less than nine times during its passage through
the Legislature in the ensuing six months, and many sections were added,
omitted, or rewritten. *fn14
It was finally passed and signed into law in September 1993. (Stats. 1993,
ch. 1267.) One of the provisions of the original bill that was omitted in
the midst of this process--in the fourth of its nine amendments, on June
3, 1993--would have added a clause to section 1157 reciting that "Nothing
in this section shall be construed to prevent the discovery of evidence
relevant to a disciplinary proceeding or investigation against a licensee
by the applicable licensing board." From the fact that the quoted clause
was not adopted, the Hospital infers that the Legislature intends the
opposite, i.e., that section 1157 shall be construed to prevent "the
discovery of evidence relevant to . . . [an] investigation" of a licensee
by the Board. In support, the Hospital invokes a rule of construction,
found in several Court of Appeal decisions, to the effect that " ' "The
rejection by the Legislature of a specific provision contained in an act
as originally introduced is most persuasive to the Conclusion that the act
should not be construed to include the omitted provision." ' " ( Crespin
v. Kizer (1990) 226 Cal. App. 3d 498, 514 [276 Cal. Rptr.
571].)
|
| [91] |
In reply, the Board relies on a distinction drawn by another Court of
Appeal between a failure to enact a proposed provision of a new statute
and a failure to enact a proposed amendment to an existing statute,
concluding that "there is relatively little value in examining an existing
statute in light of proposed amendments which have not been approved." (
Save-on Drugs, Inc. v. County of Orange (1987) 190 Cal. App. 3d 1611, 1623
[236 Cal. Rptr. 100].)
|
| [92] |
Although the distinction would be sufficient to defeat the Hospital's
contention in this case because section 1157 had been in existence for 25
years when Senate Bill No. 916 proposed to amend it, we question the
soundness of the Hospital's rule of construction itself. In most cases
there are a number of possible reasons why the Legislature might have
failed to enact a proposed provision. One reason might have been, of
course, that the Legislature rejected the proposal on its merits. But the
Legislature might equally well have been motivated instead by
considerations unrelated to the merits, not the least of which is that it
might have believed the provision unnecessary because the law already so
provided: in the case at bar, for example, the Legislature could well have
believed that section 1157 did not need amending because its prohibition
against "discovery" did not include administrative investigative subpoenas
in any event. Indeed, when as here a provision is dropped from a bill
during the enactment process, the cause may not even be a legislative
decision at all; it may simply be that its proponents decided to withdraw
the provision on tactical grounds.
|
| [93] |
Because these reasons apply equally to a failure to enact a new
statute and to a failure to amend an existing statute, we decline to draw
any such distinction: both cases are governed by our often stated rule
that "Unpassed bills, as evidences of legislative intent, have little
value." ( Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43
Cal. 3d 1379, 1396 [241 Cal. Rptr. 67, 743 P.2d 1323]; accord, Santa Clara
County Local Transportation Authority v. Guardino (1995) 11 Cal. 4th 220,
238 [45 Cal. Rptr. 2d 207, 902 P.2d 225]; Granberry v. Islay Investments
(1995) 9 Cal. 4th 738, 746 [38 Cal. Rptr. 2d 650, 889 P.2d 970].) Under
that rule, the inference that the Hospital seeks to draw from the
legislative history of Senate Bill No. 916 is unpersuasive.
|
| [94] |
Finally, the Hospital contends that to immunize peer review committee
records from administrative investigative subpoenas "would do little, if
any, harm to the Board's disciplinary function" because the Board can
assertedly obtain much of the same information from other sources. Like
the Hospital's first contention, this is an argument that should be made
to the Legislature, not to the courts. *fn15
|
| [95] |
The judgment of the Court of Appeal is affirmed.
|
| [96] |
George, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and
Brown, J., concurred.
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Opinion Footnotes |
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|
| [97] |
*fn1
"Reasonable cause" IS DEFINED AS ONE OR MORE OF: "(1) a single incident of
gross negligence; (2) a pattern of inappropriate prescribing; (3) an act
of incompetence or negligence causing death or serious bodily injury; or
(4) a pattern of substandard care." (Bus. & Prof. Code, § 2292, subd.
(a).)
|
| [98] |
*fn2
We take no position on whether the quoted amendments to Business and
Professions Code section 2229 in 1990 were a substantive change in the law
or merely a clarification of existing law. (See Borden v. Division of
Medical Quality (1994) 30 Cal. App. 4th 874 [35 Cal. Rptr. 2d
905].)
|
| [99] |
*fn3
A "medical disciplinary cause or reason" is defined as any aspect of a
licensee's competence or professional conduct that is "reasonably likely
to be detrimental to patient safety or to the delivery of patient care."
(Bus. & Prof. Code, § 805, subd. (a)(6).)
|
| [100] |
*fn4
The Legislature imposes similar reporting requirements on other persons
and agencies. (Bus. & Prof. Code, § 800-803.6.) For example, a
judgment, settlement, or arbitration award against a licensee in a
malpractice action must be reported to the Board by the appropriate court
clerk, by the insurer or employer who pays it, or by the defendant
licensee if uninsured. In such a case the Board has specific authority to
"Investigat[e] the circumstances of practice" of the licensee in question.
(Id., § 2220, subd. (b).) Any felony indictment, information, or
conviction of a licensee must be reported to the Board by the prosecuting
agency, the court clerk, and the defendant licensee, and copies of any
preliminary hearing transcript and probation report must be sent to the
Board. Coroners must also report to the Board any pathologist's findings
that a death may be the result of a licensee's gross negligence or
incompetence.
|
| [101] |
*fn5
It bears remembering that "So-called staff physicians should be
distinguished from the resident physicians who are employed by the
hospital. Staff physicians are private doctors granted medical staff
privileges to treat their patients in the hospital setting." (Peer Review
Confidentiality, (supra) , 24 Santa Clara L.Rev. 661, 664, fn.
14.)
|
| [102] |
*fn6
In an effort to reduce the likelihood of such "hospital shopping," the
Legislature also provides that before granting or renewing staff
privileges for any physician, a hospital must ask the Board if it has
received a report of disciplinary action by any other hospital against
that physician. (Bus. & Prof. Code, § 805.5, subd. (a).) The Board
will furnish a copy of any such report unless the discipline was based
solely on a failure to complete medical records, or the information
reported is without merit, or the report is more than three years old.
(Id., subd. (b).)
|
| [103] |
*fn7
The following facts are taken from the principal pleading herein--the
Board's petition for an order to compel compliance with its administrative
subpoena, together with its declaration in support of that subpoena. No
objection has been raised to the accuracy of the facts there
alleged.
|
| [104] |
*fn8
Fentanyl, an opiate, is a Schedule II controlled substance. (Health &
Saf. Code, § 11055, subd. (c)(8).)
|
| [105] |
*fn9
Item 8 of the Hospital's restrictions provided that the "first infraction"
would be "reported to the Medical Board of California." Item 14 of the
"contract" provided that the consequences of a relapse or noncompliance
could include "notification to the Board of Medical Quality Assurance
[i.e., the Medical Board]."
|
| [106] |
*fn10
The Credentials Committee, another peer review committee, had reviewed Dr.
A.'s application for staff privileges.
|
| [107] |
*fn11
(Bus. & Prof. Code, § 1698, subd. (b) [dentist], 2369, subd. (b)
[osteopath], 2497.1, subd. (g) [podiatrist], 2667 [physical therapist],
2770.12 [registered nurse], 3534.7 [physician assistant], 4436
[pharmacist], 4871, subd. (b) [veterinarian].)
|
| [108] |
*fn12
The principal exceptions are: "The prohibition relating to discovery . . .
does not apply to the statements made by any person in attendance at a
meeting of any of those committees who is a party to an action or
proceeding the subject matter of which was reviewed at that meeting, or to
any person requesting hospital staff privileges, or in any action against
an insurance carrier alleging bad faith by the carrier in refusing to
accept a settlement offer within the policy limits." (§ 1157, subd. (c);
see also id., subds. (d), (e).)
|
| [109] |
*fn13
The bill was 47 pages in length and contained 35 sections, many of which
made multiple changes in the relevant statutes.
|
| [110] |
*fn14
By the time of its final version the bill had grown to 60 pages in length
and contained 62 sections.
|
| [111] |
*fn15
Shortly before oral argument the Hospital filed two requests asking us to
take judicial notice of (1) an order of the Board dated September 15,
1995, directing Dr. A. to submit to a psychiatric examination pursuant to
Business and Professions Code section 820, and (2) a report dated June 10,
1996, on the outcome of that examination by the psychiatrist who conducted
it. Both events occurred long after the trial court entered its judgment
on May 15, 1994, and the Hospital took this appeal. We are therefore
governed by the general rule that an appellate court will consider only
matters that were part of the record at the time the judgment was entered.
( Reserve Insurance Co. v. Pisciotta (1982) 30 Cal. 3d 800, 813 [180 Cal.
Rptr. 628, 640 P.2d 764].) No exception to that rule is here applicable.
For this reason the requests for judicial notice are
denied.
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