DANIEL ALAN DAY and NICOLE LEIGH DAY, individually and on behalf of their children GABRIEL ALEXANDER DAY and ELIJAH PATRICK DAY, Plaintiffs-Appellants, vs. THE FINLEY HOSPITAL, Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-214 / 08-0171
Filed May 29, 2009
DANIEL ALAN DAY and NICOLE
LEIGH DAY, individually and on
behalf of their children GABRIEL
ALEXANDER DAY and ELIJAH
PATRICK DAY,
Plaintiffs-Appellants,
vs.
THE FINLEY HOSPITAL,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Lawrence J.
Fautsch, Judge.
The plaintiffs in a negligence case against a hospital appeal from the
district court‟s giving of an instruction and denial of their motion to compel
discovery. AFFIRMED.
Timothy S. White and Daniel M. Key of White & Johnson, P.C., Cedar
Rapids, for appellant.
Nancy J. Penner, Constance Alt, and Mark Zaiger of Shuttleworth &
Ingersoll P.L.C., Cedar Rapids, for appellee.
Heard by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ.
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MANSFIELD, J.
This case presents two questions of statutory interpretation. Daniel Day
and members of his family appeal an adverse jury verdict in their negligent
credentialing case against The Finley Hospital (Hospital).
Day developed
osteomyelitis after Dr. Michael Arnz, a podiatrist, performed ankle surgery on him
at the Hospital, utilizing an external fixation frame that required drilling of holes
through the tibia. Day contends the Hospital was negligent in allowing Dr. Arnz
to perform this surgery because it exceeded the lawful scope of podiatry practice
and because Dr. Arnz was not properly qualified.
During the course of discovery, the district court refused to allow Day to
have access to records in Dr. Arnz‟s credentialing file at the Hospital, citing Iowa
Code section 147.135(2) (2005). Also, at the close of trial, the district court
instructed the jury that Dr. Arnz had not practiced outside the lawful scope of
podiatry as defined in section 149.1, thus eliminating this part of Day‟s case.
Thereafter, the jury returned a verdict in favor of the Hospital. Day argues that
the district court‟s interpretations of sections 147.135(2) and 149.1 were both
erroneous. Finding no error, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND.
The trial testimony revealed that Day suffers from a congenital ailment
known as Charcot-Marie-Tooth disease. This neurological condition can lead to
deformities in the feet. On June 17, 2004, Day met with Dr. Arnz to discuss
having surgery on his right foot in order to correct certain effects of his disease.
Dr. Arnz raised the possibility of using an external fixator instead of a
traditional cast for stabilization. This fixator requires holes to be drilled through
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the tibia,1 and pins to be inserted.
infection.
This creates an increased possibility of
Dr. Arnz had assisted physician instructors in the use of external
fixators while in his residency and had just attended a training session on the use
of external frames. With these exceptions, however, his experience had been
with traditional methods of casting and stabilization. Nonetheless, the Hospital
granted him privileges to perform this kind of surgery. Day‟s surgery was only
the second time Dr. Arnz had applied a circular frame by himself.
On July 14, 2004, Dr. Arnz performed surgery on Day‟s right foot at the
Hospital. Following the surgery, Day developed a postoperative infection in his
tibia, which developed into osteomyelitis, a bone infection, resulting in serious
complications.
On May 18, 2006, Day filed a medical malpractice case naming Dr. Arnz,
Dubuque Podiatry, P.C., and the Hospital as defendants. Prior to trial, Dr. Arnz
and Dubuque Podiatry settled with Day, and those claims were dismissed. The
remaining claim was a negligent credentialing claim against the Hospital.
Although our supreme court has not yet expressly recognized negligent
credentialing claims, a number of other jurisdictions have.
The district court
denied the Hospital‟s motion for summary judgment on that claim.
During the discovery phase of the case, Day tried repeatedly to compel
the production of documents in the Hospital‟s credentialing file for Dr. Arnz. The
court denied Day‟s motions, citing Iowa Code section 147.135.
On December 4, 2007, a jury trial began. At the conclusion of testimony,
the district court determined Dr. Arnz had not practiced outside the scope of
1
The tibia, or shinbone, is the larger bone that connects the knee to the ankle.
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podiatry as defined by Iowa Code section 149.1 and so advised the jury. On
December 21, 2007, the jury returned a verdict in favor of the Hospital. Day
moved for a new trial, which the district court denied on January 18, 2008.
On appeal, Day asserts: (1) the district court erred in finding Iowa law
permits podiatrists to perform surgery on the medial tibia to facilitate foot and
ankle surgery and (2) the district court abused its discretion in denying the
discovery of credentialing files.
II. LEGAL ANALYSIS.
We believe both questions raised by this appeal are straightforward
matters of statutory interpretation, which we review for correction of errors at law,
and we resolve both in favor of the Hospital. State v. Iowa District Ct., 730
N.W.2d 677, 679 (Iowa 2007) (review for correction of errors at law). By doing
so, we avoid reaching certain other arguments raised by the Hospital in support
of the verdict below.
A. Definition of Podiatry.
Iowa Code section 149.1(1)(b) defines podiatrists as “Persons who
diagnose, prescribe, or prescribe and furnish medicine for ailments of the human
foot, or treat such ailments by medical, mechanical, or surgical treatments.”
Section 149.1(2) adds that “[a]s used in this chapter, „human foot‟ means the
ankle and soft tissue which insert into the foot as well as the foot.”
Day‟s position is that these provisions did not authorize Dr. Arnz to drill
holes into his tibia, as part of a procedure for treating his foot. We respectfully
disagree for two reasons. First, the statute by its literal terms encompasses
“treat[ing] . . . ailments [of the human foot and ankle] by medical, mechanical, or
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surgical treatments.” That is what Dr. Arnz did here. He was treating Day‟s foot.
The fact that this treatment involved drilling holes in the tibia for a fixation device
does not alter the analysis, because Dr. Arnz was not treating the tibia. As the
Hospital points out, if Day‟s position were correct, then logically podiatrists could
not prescribe medications for the foot if the patient takes them orally. Nor could
podiatrists provide traditional leg casts for their patients undergoing foot or ankle
surgery.
Second, in this case, Day asked the Iowa Board of Podiatry Examiners for
its opinion. The board concluded that “if the more proximal tibia is being used for
treatment of foot or ankle condition,” this is within podiatric practice. The board‟s
letter is not a formal agency action, and we do not believe interpretation of
section 147.1 has been clearly vested by statute in the board. See Iowa Code §
17A.19(10). Thus, we are not bound by the board‟s views. Nevertheless, the
precedents caution us to give some, limited deference to agency interpretations
of law within their areas of expertise. Madrid Home for the Aging v. Iowa Dep’t of
Human Servs., 557 N.W.2d 507, 510-11 (Iowa 1996). Thus, we believe it is
appropriate to give consideration to the board‟s opinion. See Jaramillo v. Morris,
750 P.2d 1301, 1307 (Wash. Ct. App. 1988) (giving deference to the Washington
State Podiatry Board‟s opinions regarding the permissible scope of podiatry
because of the WSPB‟s expertise and the pervasive scope of its regulation).
Accordingly, the district court did not err in determining that Dr. Arnz‟s use
of external fixation was within the scope of lawful podiatry practice.
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B. Discovery of Credentialing File.
Day‟s other ground for appeal is that the district court should have ordered
the production of at least portions of Day‟s credentialing file with the Hospital.
Day contends that, at a minimum, the district court should have required the
Hospital to produce documents that were merely gathered as part of the
credentialing process, rather than generated in that process. Again, we differ
with Day‟s interpretation of the relevant statute.
Iowa Code section 147.135(2) provides:
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.
We believe the language of the statute is clear and unambiguous and extends to
all “investigation files,” “reports,” and “other investigative information” relating to
Dr. Arnz in the custody of the peer review committee, whether the information
was generated by the peer review committee or not.
Indeed, the statute
expressly contemplates that such information might be discoverable “from other
sources,” but directs the party seeking the information to those other sources.
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Furthermore, the supreme court has stated that the statutory privilege in
Iowa Code section 147.135(2) is “broad.” Carolan v. Hill, 553 N.W.2d 882, 886
(Iowa 1996); Hutchinson v. Smith Lab., Inc., 392 N.W.2d 139, 141 (Iowa 1986).
Day also argues that it would be impractical and absurd to have negligent
credentialing claims without allowing plaintiffs access to credentialing files. This,
however, puts the cart before the horse. The legislature has spoken and has
directed that peer review files be kept confidential, even when requested in
litigation. The legislature has never approved negligent credentialing claims. It
makes no sense to argue that express statutory language should yield to the
needs of a cause of action that the legislature has never recognized.
Furthermore, Iowa is not the only jurisdiction where this situation has
arisen. In Florida, the appellate courts have
consistently construed the peer review privilege broadly and
declined to recognize an exception to [the peer review
confidentiality statute] even where the plaintiffs were suing for
negligent credentialing and faced difficulty in proving their claim
without access to peer review and hospital privilege documents.
Columbia/JFK Med. Ctr. Ltd. P’ship v. Sanguonchitte, 920 So. 2d 711, 712 (Fla.
Dist. Ct. App. 2006); accord Palm Beach Gardens Cmty. Hosp., Inc. v. O’Brien,
651 So. 2d 783, 784 (Fla. Dist. Ct. App. 1995); see also Brownwood Reg’l Hosp.
v. Eleventh Ct. of Appeals, 927 S.W.2d 24, 27 (Tex. 1996) (holding that a
hospital‟s peer review records are not discoverable despite the plaintiffs‟ claim
that this “severely compromises their ability to present evidence in support of
their negligent credentialing claim”); Snell v. Superior Court, 204 Cal. Rptr. 200,
202 (Cal. Ct. App. 1984) (holding that the “relevance of a hospital‟s records to
show its conduct, whether careful or negligent, cannot serve as an implied
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exception to the clear, absolute immunity legislatively established in [the peer
review confidentiality statute]”).
Thus, other jurisdictions have confronted the
same issue that we confront in this case and resolved it the same way.
Also, as the Hospital correctly points out, the privilege works both ways. It
denies Day some material that might be helpful to his case, while also denying
the Hospital some material that might assist its defense.
For the foregoing reasons, we affirm the decision of the district court.
AFFIRMED.
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