UPDATES & ANALYSIS

Supreme Court Affirms Privilege Applicable to Physician’s Credentialing File

by Matthew Eslick | December 5, 2011

By Matthew Eslick

In Cawthorn v. Catholic Health Initiatives Iowa Corp, the Supreme Court of Iowa determined that neither the law of the case doctrine nor Iowa Code section 147.135(2) applied to prevent a hospital from objecting to the admissibility of a document during a second trial following reversal and remand, even though the hospital relied on that document in a first trial.

The Cawthorn plaintiff brought medical malpractice and negligent credentialing claims against a physician and a hospital, respectively.  During discovery, the plaintiff requested—and the hospital produced—the physician’s credentialing file.  Portions of the credentialing file were offered into evidence by the hospital and the plaintiff without objection.  The jury returned a verdict in favor of the plaintiff; the district court ordered a new trial unless the plaintiff agreed to a remittitur reducing the verdict.  Both parties appealed.  The Supreme Court reversed and remanded for a new trial.  Among other things, the Court held that evidence relating to an Iowa Board of Medical Examiners (IBME) investigation and disciplinary hearing concerning the physician was confidential under Iowa Code section 272C.6(4), and should have been excluded.

Following remand, the hospital filed a motion for summary judgment.  Relying on a Court of Appeals decision issued during the pendency of the first appeal, the hospital asserted that the physician’s credentialing file was inadmissible vis-à-vis the peer review provisions found in Iowa Code section 147.135.  The plaintiff resisted, arguing the hospital’s argument was untimely.  The district court agreed that the peer review provisions rendered the credentialing file inadmissible.  The court denied the hospital’s motion and permitted the plaintiff to conduct further discovery to support his negligent credentialing claim.  The plaintiff was unable to locate such evidence, so the district court granted the hospital’s renewed motion for summary judgment.

On appeal, the plaintiff asserted the hospital was precluded from arguing that the credentialing documents were inadmissible under the doctrine of law of the case.  The plaintiff alternatively argued that the hospital waived its right to object to the documents by voluntarily producing them and offering them as evidence in the first trial.

The Court unanimously rejected the plaintiff’s first argument, holding that the law of the case doctrine applied only to issues raised and reached during the first appeal.  Because the first appeal did not address the admissibility of the credentialing file, the law of the case doctrine did not apply to that issue.  Consequently, the parties were entitled to take a “fresh look” at matters not explicitly or implicitly decided, such as the admissibility of the credentialing file under section 147.135(2).

A majority of the Court rejected the plaintiff’s alternative argument.  The Court first observed that 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 (subject to certain inapplicable exceptions) are “not admissible in evidence.”  Based on a clear reading of the statute, the Court determined that the credentialing file was both privileged and not admissible.  Unlike statues pertaining to attorney-client communications or patient-physician communications, the peer review statute did not permit the applicable privilege to be waived.

Finding that the district court committed no error, the Supreme Court affirmed judgment entered in favor of the hospital.

Tags: Iowa Supreme Court Opinions