ELECTRONICALLY FILED DEC 12, 2016 CLERK OF ... General of Iowa ANNE UPDEGRAFF (AT0008026) Assistant Attorney General Department of Justice - Special Litigation Hoover State Office

IN THE IOWA SUPREME COURT

No. 16-1009

DENNIS WILLARD,

Plaintiff-Appellee,

vs.

STATE OF IOWA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OFJOHNSON COUNTY

HONORABLE MITCHELL E. TURNER

APPELLANT’S BRIEF

THOMAS J. MILLERAttorney General of Iowa

ANNE UPDEGRAFF (AT0008026)Assistant Attorney GeneralDepartment of Justice - Special LitigationHoover State Office BuildingDes Moines, Iowa 50319Phone: 515-281-6669Fax: [email protected]

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PROOF OF FILING AND SERVICE

The undersigned hereby certifies that she, or a person acting on her

behalf, electronically filed the Appellant's Brief on the 12th day of

December, 2016, and further certifies that she, or a person acting on her

behalf, served the Appellant’s Brief on all other parties to this appeal via

EDMS.

JEFFREY R. TRONVOLDMATT J. REILLYEELLS & TRONVOLD LAW OFFICES, P.L.C.1921 51st Street NECedar Rapids, IA 52402ATTORNEYS FOR PLAINTIFF-APPELLEE

PAUL DREY, JEANINE FREEMAN, ALLISON M. STEUTERMANBRICK GENTRY, P.C.6701 Westown Parkway, Suite 100West Des Moines, IA 50266ATTORNEYS FOR AMERICAN MEDICAL ASSOCIATION &IOWA MEDICAL SOCIETY

ERIKA ECKLEY100 East Grand Avenue, Suite 100Des Moines, IA 50309ATTORNEY FOR IOWA HOSPITAL ASSOCIATION

T. RANDALL WRIGHT ofBAIRD HOLM L.L.P.1700 Farnam Street, Suite 1500Omaha, NE 68102-2068ATTORNEY FOR IOWA HOSPITAL ASSOCIATION

/s/ ANNE UPDEGRAFFANNE UPDEGRAFFAssistant Attorney General

iii

TABLE OF CONTENTS

Proof of Filing and Service.......................................................................... ii

Table of Contents......................................................................................... iii

Table of Authorities ..................................................................................... iv

Statement of the Issues ................................................................................ viii

Routing Statement........................................................................................ 1

Statement of the Case .................................................................................. 1

Statement of the Facts.................................................................................. 3

Argument ..................................................................................................... 7

I. THE DISTRICT COURT ERRED IN FINDING THATTHE STATE FAILED TO PROVE THE MORBIDITYAND MORTALITY PRIVILEGE APPLIES TO THE PSNDOCUMENTS ....................................................................... 7

A. THE PSN AT ISSUE WAS PROVIDED TO BEUSED IN THE COURSE OF ANY STUDY FOR THEPURPOSE OF REDUCING MORBIDITY ANDMORTALITY................................................................... 10

B. THERE IS NO REQUIRMENT OF A THIRD PARTYREQUEST FOR THE MORBIDITY ANDMORTALITY PRIVILEGE TO APPLY...................... 15

II. THE DISTRICT COURT INCORRECTLY HELD THATTHE PSN MATERIAL IS DISCOVERABLE UNDERTHE MORBIDITY AND MORTALITY PRIVILEGE.... 17

Conclusion ................................................................................................... 31

Notice of Oral Argument ............................................................................. 33

iv

Certificate of Compliance............................................................................ 34

TABLE OF AUTHORITIES

Cases Page(s)

Bredice v. Doctors Hospital Inc., 50 F.D.R. 249 (D.D.C. 1970) ........... 28, 30

Burton v. University of Iowa Hospitals & Clinics, 566 N.W.2d 187(Iowa 1997)................................................................................... 8, 11, 16, 27

Cairns v. Grinnell Mutual Reinsurance Co., 398 N.W.2d 821(Iowa 1987)................................................................................................ 20

Carolan v. Hill, 553 N.W.2d 882 (Iowa 1996)................................... 8, 10, 18

Carr v. Howard, 689 N.E.2d 1304 (Mass. 1998) ...................................... 27

Cawthorn v. Catholic Health Initiatives Iowa Corp., 806 N.W.2d 282(Iowa 2011)................................................................................................ 22

Day v. The Finley Hosp., 769 N.W.2d 898 (Iowa Ct. App. 2009) ............ 22

Hardin County Drainage District 55 v. Union Pacific RailroadCompany, 826 N.W.2d 507 (Iowa 2013)..........................................8-9, 18-19

Hutchinson v. Smith Laboratories, Inc. 392 N.W.2d 139(Iowa 1986).............................................................................................. 8, 25

In Interest of G.J.A., 547 N.W.2d 3 (Iowa 1996) ...................................... 19

Iowa Comprehensive Petroleum Underground Storage Tank FundBoard v. Shell Oil Company, 606 N.W.2d 376 (Iowa 2000)..................... 20

Keefe v. Bernard, 774 N.W.2d 663 (Iowa 2009)..................................... 7, 18

Powell v. Community Health System, 312 S.W.2d 496 (Tenn. 2010)....... 27

v

State ex rel. Iowa Department of Transportation v. General ElectricCredit Corp. of Delaware, 448 N.W.2d 335 (Iowa 1989) ........................ 19

Weekoty v. United States, 30 F.Supp.2d 1343 (D.N.M. 1998)............... 27, 29

Zimmer v. Vander Waal, 780 N.W.2d 730 (Iowa 2010) ............................ 8

Statutes

Iowa Code § 4.1(30)(a) (2016) ............................................................... 16, 21

Iowa Code § 4.1(30)(c) (2016) .................................................................. 16

Iowa Code § 4.4(2) (2016)......................................................................... 19

Iowa Code § 4.4(5) (2016)...................................................................... 19, 29

Iowa Code § 4.6 (2016) ........................................................................... 9, 18

Iowa Code § 4.6(5) (2016)......................................................................... 30

Iowa Code § 135.40 (2016) .......................................1, 4, 8, 10, 12-13, 21, 32

Iowa Code § 135.41 (2016) ............................1, 4, 8, 12, 15-17, 21-22, 24, 32

Iowa Code § 135.42 (2016) ............................................. 1, 4, 8, 12, 19-21, 32

Iowa Code Chapter 147 (2016).................................................................. 24

Iowa Code § 147.135 (2016) ..................................................................... 22

Iowa Code § 147.135(2) (2016)...............................................................22-23

Iowa Code § 147.135(3)(b) (2016)............................................................ 23

Iowa Rule of Appellate Procedure 6.1101(2) (2016) ................................. 1

vi

Iowa Rule of Civil Procedure 1.503(1) (2016).......................................... 18

Iowa Rule of Evidence 5.501 (2016)......................................................... 18

Iowa Rule of Evidence 5.1101 (2016)....................................................... 18

Other Authority

House File 803, 66th General Assembly, Chapter 239, section 15(June 30, 1975)........................................................................................... 25

House File 2518, 73rd General Assembly, Chapter 1086, section 7(March 27, 1990) ....................................................................................... 25

House File 2718, General Assembly Chapter 1128, sections 1, 2(May 24, 2006)........................................................................................... 24

Iowa Senate File 74, 82nd General Assembly, Chapter 10, section 82(March 9, 2007) ......................................................................................... 25

Iowa Senate File 85, 66th General Assembly, Chapter 1245, section138 (June 28, 1976) ................................................................................... 24

Iowa Senate File 340, 60th General Assembly, Chapter 121, sections1, 2, 3 (June 4, 1963) ................................................................................. 24

Iowa Senate File 449, 83rd General Assembly, Chapter 133, section51 (May 22, 2009) ..................................................................................... 25

Iowa Senate File 2265, 71st General Assembly, Chapter 1211,section 14 (May 22, 1986) ......................................................................... 25

Pamela L. Popp et al., The Trials and Tribulations of IncidentReports: Are They Worth the Trouble? (Mar. 2, 2000) (AmericanHealth Lawyers Association Seminar Materials, available on Westlawat AHLA-PAPERS P03020018)................................................................ 26

vii

Promoting Better Health Care; Policy Arguments for ConcurrentQuality Assurance and Attorney - Client Hospital Incident ReportPrivileges, 3 Health Matrix 259 (1993)..................................................... 26

The Medical Review Committee Privilege: A Jurisdictional Survey,67 N.C. L. Rev. 179 (1998) ....................................................................... 26

http://c.merriam-webster.com/medlineplus/morbidity .............................. 11

http://c.merriam-webster.com/medlineplus/mortality ............................... 11

http://www.merriam-webster.com/dictionary/study.................................. 14

viii

STATEMENT OF THE ISSUES

I. THE DISTRICT COURT ERRED IN FINDING THAT THESTATE FAILED TO PROVE THE MORBIDITY ANDMORTALITY PRIVILEGE APPLIES TO THE PSNDOCUMENTS

Iowa CodeIowa Code § 135.40 (2016)Iowa Code § 135.41 (2016)Iowa Code § 135.42 (2016)Iowa Code § 4.6 (2016)Iowa Code § 4.1(30)(a) (2016)Iowa Code § 4.1(30)(c) (2016)

CasesKeefe v. Bernard, 774 N.W.2d 663 (Iowa 2009)Hardin County Drainage District 55 v. Union Pacific Railroad Company,

826 N.W.2d 507 (Iowa 2013)Burton v. University of Iowa Hospitals & Clinics, 566 N.W.2d 187 (Iowa

1997)Hutchinson v. Smith Laboratories, Inc. 392 N.W.2d 139 (Iowa 1986)Carolan v. Hill, 553 N.W.2d 882 (Iowa 1996)Zimmer v. Vander Waal, 780 N.W.2d 730 (Iowa 2010)

Other Authoritieshttp://c.merriam-webster.com/medlineplus/morbidityhttp://c.merriam-webster.com/medlineplus/mortalityhttp://www.merriam-webster.com/dictionary/study

II. THE DISTRICT COURT INCORRECTLY HELD THAT THEPSN MATERIAL IS DISCOVERABLE UNDER THEMORBIDITY AND MORTALITY PRIVILEGE

Iowa CodeIowa R. Civ. P. 1.503(1) (2016)Iowa Rule of Evidence 5.501 (2016)Iowa Rule of Evidence 5.1101 (2016)Iowa Code § 4.6 (2016)

ix

Iowa Code § 4.4(2) (2016)Iowa Code § 4.4(5) (2016)Iowa Code § 135.42 (2016)Iowa Code § 4.1(30)(a) (2016)Iowa Code § 135.40 (2016)Iowa Code § 135.41 (2016)Iowa Code § 147.135 (2016)Iowa Code § 147.135(2) (2016)Iowa Code § 147.135(3)(b) (2016)Iowa Code Chapter 147 (2016)Iowa Code § 4.6(5) (2016)

CasesKeefe v. Bernard, 774 N.W.2d 663 (Iowa 2009)Hardin County Drainage District 55 v. Union Pacific Railroad Company,

826 N.W.2d 507 (Iowa 2013)Carolan v. Hill, 553 N.W.2d 882 (Iowa 1996)In Interest of G.J.A., 547 N.W.2d 3 (Iowa 1996)State ex rel. Iowa Department of Transportation v. General Electric Credit

Corp.of Delaware, 448 N.W.2d 335 (Iowa 1989)Iowa Comprehensive Petroleum Underground Storage Tank Fund Board v.

Shell Oil Company, 606 N.W.2d 376 (Iowa 2000)Cairns v. Grinnell Mutual Reinsurance Co., 398 N.W.2d 821 (Iowa 1987)Cawthorn v. Catholic Health Initiatives Iowa Corp., 806 N.W.2d 282 (Iowa

2011)Day v. The Finley Hosp., 769 N.W.2d 898 (Iowa Ct. App. 2009)Powell v. Community Health System, 312 S.W.2d 496 (Tenn. 2010)Carr v. Howard, 689 N.E.2d 1304 (Mass. 1998)Weekoty v. United States, 30 F. Supp.2d 1343 (D. N. M. 1998)Burton v. University of Iowa Hospitals & Clinics, 566 N.W.2d 187 (Iowa

1997)Bredice v. Doctors Hospital Inc., 50 F.D.R. 249 (D.D.C. 1970)

Other AuthoritiesIowa Senate File 340, 60th General Assembly Chapter 121, section 1, 2, 3

(June 4, 1963)Iowa Senate File 85, 66th General Assembly Chapter 1245, section 138 (June

28, 1976)House File 2718, General Assembly Chapter 1128, sections 1, 2 (May 24,

2006)

x

House File 803, 66th General Assembly Chapter 239, section 15 (June 30,1975)

Senate File 2265, 71st General Assembly, Chapter 1211, section 14 (May 22,1986)

House File 2518, 73rd General Assembly, Chapter 1086, section 7 (March27, 1990)

Senate File 74, 82nd General Assembly, Chapter 10, section 82 (March 9,2007)

Senate File 449, 83rd General Assembly, Chapter 133, section 51 (May 22,2009)

Pamela L. Popp et al., The Trials and Tribulations of Incident Reports: AreThey Worth the Trouble? (Mar. 2, 2000) (American Health LawyersAssociation Seminar Materials, available on Westlaw at AHLA-PAPERS P03020018)

The Medical Review Committee Privilege: A Jurisdictional Survey, 67 N.C.L. Rev. 179 (1998)

Promoting Better Health Care; Policy Arguments for Concurrent QualityAssurance and Attorney –Client Hospital Incident Report Privileges,3 Health Matrix 259 (1993)

ROUTING STATEMENT

Appellant State of Iowa urges the Iowa Supreme Court to retain this

interlocutory appeal as it presents a fundamental and urgent issue of broad

public importance regarding the construction and application of the State of

Iowa’s Morbidity and Mortality statutes, pursuant to Iowa Rule of Appellate

Procedure 6.1101(2).

STATEMENT OF THE CASE

This case is a medical malpractice action and involves the

construction and application of the Morbidity and Mortality (M & M)

statutes found in Iowa Code §§ 135.40-135.42. The State objected to

disclosure of M & M materials on the grounds that they are protected under

legal privilege, the protection cannot be waived, and the materials are not

discoverable. (App. 4, 18, 93). On March 14, 2016, Appellee Willard

(Willard), filed a motion to compel against the State seeking discovery of the

M & M materials. (App. 4). On March 24, 2016, the State resisted the

motion to compel. (App. 18). On March 29, 2016, Willard replied. (App.

38).

On April 15, 2016, the district court held a telephone conference call

and the parties made legal argument as to the discovery of the contested M

& M materials. (App. 48). The district court permitted the State to submit

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the disputed M & M materials to the district court for in camera review.

(App. 46). The district court continued the hearing until May 18, 2016 to

allow the State to present evidence. (App. 46). An evidentiary hearing was

held on May 18, 2016, in which Deborah Thoman testified. (App. 50, 52).

On June 9, 2016, the district court entered a ruling granting Willard’s motion

to compel discovery of the M & M materials, ordering the State to produce

the materials within ten days, denying the State’s request for a stay until any

interlocutory appeal was resolved, and ordering Willard not to disclose the

M & M materials to anyone other than his expert witness(es) without further

court order. (App. 101).

On June 13, 2016, the State filed an application for interlocutory

review. (App. 103). On June 16, 2016, the Court denied the application

(App. 114). On June 17, 2016, the State sought review of the denial for

interlocutory appeal pursuant to Iowa Rule of Appellate Procedure

6.1002(5). (App. 116). That same day, the Court stayed the district court’s

order and permitted Willard to file a response. (App. 118). On June 22,

2016, Willard filed a resistance. (App. 120). On June 24, 2016, the Court

granted the State’s interlocutory appeal and stayed further district court

proceedings. (App. 128).

3

STATEMENT OF THE FACTS

Willard filed this medical malpractice suit alleging “[o]n or about

November 6, 2011, while being transported for the purpose of obtaining a

CT, Dennis was negligently handled in such a way that he sustained

significant injuries to his left shoulder, and his foot was broken.” (App. 2).

Willard was transported to the University of Iowa Hospitals and Clinics

(UIHC) following a head-on motor vehicle accident during the late hours of

November 3, 2011. (App. 91). Willard arrived at the UIHC early in the

morning of November 4, 2011. (App. 91). Later that day, he had an x-ray

of his left shoulder. (App. 130). The x-ray showed his left shoulder in

apparent anatomic alignment.

On November 6, 2011, Willard underwent an abdominal CT for his

internal organ injuries. Upon return from the CT, UIHC staff requested an

orthopaedic team consult regarding Willard’s left shoulder. The orthopaedic

physician ordered more x-rays and at that point a diagnosis of “anterior-

inferior dislocation of the left shoulder” was made by Dr. Buckwalter. (App.

132). Dr. Buckwalter then relocated Willard’s shoulder. During this time

period, Willard was under heavy sedation. (App. 91).

4

During written discovery and depositions, the State acknowledged

that 20 pages1 of materials were withheld pursuant to the Morbidity and

Mortality provisions found in Iowa Code §§ 135.40-135.42, and, thus,

objected to disclosing the material. (App. 93-94, 141, 143). As noted by

Willard, the State has produced 5,557 pages of discovery during litigation.

(App. 6). The 20 pages are covered by the M & M provisions in Iowa Code

§§ 135.40-135.42. Specifically, a four-page document known as a Patient

Safety Net (PSN) form and an associated eight pages of response were

withheld pursuant to those provisions. The second PSN information is also

eight pages in length. Thus, the disputed M & M materials/information is 20

pages in total. (Confidential App. 1-20).

The State submitted the disputed 20 pages of M & M materials to the

district court for in camera review. (App. 46, 48, 91, 94; Confidential App.

1-20). Additionally, the State offered evidence on the PSN process through

the UIHC compliance, accreditation, and privacy officer, Ms. Deborah

Thoman. (App. 52-53). At UIHC a PSN is an electronic document where

UIHC employees enter events that raise a safety concern for patients. (App.

60). Examples of the type of events reported in a PSN include wrong timing

1After the State responded to the follow-up discovery requests and with thesupplemental answers, a second Patient Safety Net (PSN) form regardingWillard was found. The discovery responses were supplementedaccordingly to reflect this.

5

or dose of medications or incorrect routing of laboratory results. (App. 62).

UIHC employees are encouraged to submit a PSN for any event that raises a

safety concern for patients. (App. 60).

Once submitted electronically by a UIHC employee, the PSN is

initially reviewed by individuals in the UIHC Quality Department. The

review is conducted daily. (App. 63-64). The Quality Department

employees conduct a triage of the PSNs to determine where to route each

PSN. (App. 64, 77). The Safety Oversight Team, a multidisciplinary group,

reviews many of the PSNs for trends and then revises policy based on

trends. (App. 63).

If a PSN reports a serious adverse event or a sentinel event, it is

reviewed by the Safety Oversight Team to decide whether a Root Cause

Analysis (RCA) is called for or whether a policy needs to be revised. (App.

26, 30, 63). In a RCA, a group of content experts studies a serious patient

event and determines the root and contributing causes to the event. (App.

31, 56). The RCA group then provides recommendations to reduce the risk

of reoccurrence in the future. (App. 31). An action plan based on the

recommendations is then implemented. (App. 31-32). A UIHC formal

policy requires that a PSN be entered for all serious adverse events. (App.

26). PSNs can also be routed to an individual in a specific department who

6

handles patient safety issues. (App. 64-65). For instance, if the PSN reports

an issue about anesthesia care, it may be sent to the individual in the

anesthesia department responsible for patient safety issues. (App. 65).

PSN materials are used to track concerning trends; for conducting

RCAs; for research purposes; for conference presentations; and for literature

reviews. (App. 56, 61). Further, PSN materials are used in quality

improvement studies, which is when UIHC internally reviews processes in

order to improve patient care. (App. 62). PSNs are a source of data and

information regularly used by UIHC in order to learn and improve on patient

safety. (App. 62). Hundreds or thousands of PSNs are entered every year.

(App. 62-63).

Although it is unknown whether the Willard PSN(s) was used for a

research purpose, RCA, quality improvement study, or conference

presentation, because the database does not track how PSNs are used, the

PSN system has resulted in significant changes and improvements in patient

care and safety at UIHC. (App. 68-74). The improvements can be as minor

as removing a line from a form that is confusing, or as major as redesigning

a process or policy to improve patient safety. (App. 68). The UIHC

constantly studies ways to improve patient outcomes and reduce the

7

morbidity and mortality of patients, and PSNs are an essential part of this

process. (App. 66, 68, 74).

Most hospitals or health facilities have a system where individuals can

report patient safety concerns or events, although those other facilities may

have a different name for the process. (App. 75-76). UIHC employees are

told that PSNs are confidential and protected so that they are comfortable

reporting events or incidents. (App. 65-66). If the PSNs are subject to

disclosure in litigation, it would have a chilling effect on people reporting

events. (App. 67).

ARGUMENT

I. THE DISTRICT COURT ERRED IN FINDING THAT THESTATE FAILED TO PROVE THE MORBIDITY ANDMORTALITY PRIVILEGE APPLIES TO THE PSNDOCUMENTS

Error Preservation.

Error was preserved by the State in its resistance to the motion to

compel, evidence and argument at hearing, and by in camera review of the

documents in issue. (App. 18, 50, 91).

Standard of Review.

The standard of review on a motion to compel is for abuse of

discretion. Keefe v. Bernard, 774 N.W.2d 663, 667 (Iowa 2009) (citations

omitted). Issues of statutory construction are reviewed for corrections of

8

legal error or errors at law. Id., Hardin County Drainage District 55 v.

Union Pacific Railroad Company, 826 N.W.2d 507, 510 (Iowa 2013).

Merits.

The first issue to be reviewed by this Court is whether the M & M

confidentiality privilege applies to the PSNs at issue. Iowa Code §§ 135.40-

135.42 create a confidentiality privilege for M & M information. Burton v.

University of Iowa Hospitals & Clinics, 566 N.W.2d 187-188 (Iowa 1997).2

No authority exists in Iowa for a M & M privilege under common law. See

Cf. Hutchinson v. Smith Laboratories, Inc. 392 N.W.2d 139, 141 (Iowa

1986)(no common law privilege exists for peer review records). When a

privilege is statutory, the terms of the statute “define the reach of the

privilege”. Carolan v. Hill, 553 N.W.2d 882, 886 (Iowa 1996).

In order to determine whether the PSNs are entitled to

the M & M confidentiality privilege, statutory construction must be

employed. The goal of statutory construction is to determine legislative

intent. Zimmer v. Vander Waal, 780 N.W.2d 730, 733 (Iowa 2010). When

ascertaining legislative intent, the language of the statute is examined

holistically. Hardin County Drain District 55 v. Union Pacific Railroad

Company, 826 N.W.2d 507, 512 (Iowa 2013). The statute is assessed in its

2 Neither the district court nor the Plaintiff disputed that the statutes do createa privilege. (App. 4, 38, 100).

9

entirety, “not just isolated words and or phrases”, and no part is rendered

redundant or irrelevant. Id. (citations omitted). The goal is a “reasonable

interpretation that best achieves the statute’s purpose and avoids absurd

results”. Id. (citations omitted). Legislative intent is ascertained from the

subject matter, the object sought to be served, underlying policies and

consequences of the various interpretations. Id. (citations omitted); Iowa

Code § 4.6 (2016). The analysis begins with the question of what the

legislature intended to accomplish with the statutory scheme. Hardin

County Drainage District 55 v. Union Pacific Railroad Company, 826

N.W.2d at 512.

If the statutory language is plain and unambiguous, there is no need

for construction. Id. (citation omitted). Statutory construction is utilized

when the terms of the statute are ambiguous. Id. (citation omitted). “If

reasonable persons can disagree on a statute’s meaning, it is ambiguous.”

Id. (quotation and citation omitted). Words in a statute are given their

ordinary and common meaning under the context used in the absence of a

statutory definition or an established meaning in the law. Id. (citations

omitted).

The M & M privilege applies for purposes of this suit when:

1) any person or hospital;

10

2) provides information, interview, reports, statements,memorandum or other data;

3) relating to the condition and treatment of any person;4) to any in-hospital staff committee; and5) to be used in the course of any study for the purpose of

reducing morbidity and mortality.

Iowa Code § 135.40 (2016).

A. THE PSN AT ISSUE WAS PROVIDED TO BE USED IN THECOURSE OF ANY STUDY FOR THE PURPOSE OFREDUCING MORBIDITY AND MORTALITY

The district court held the State failed to prove that the PSN

documents were “created for use in the course of any study”. (App. 100).

The district court used an overly restrictive construction of Iowa Code §

135.40. Similarly to the peer review privilege statute, the M & M statute

should be granted a broad and expansive scope. Carolan v. Hill, 553

N.W.2d at 886 (citations omitted). Proof of the expansive scope of the M &

M privilege is found in the language of Iowa Code § 135.40. It applies to

any persons, specific organizations or other organizations who provide

information in all formats. The information must only relate to the condition

and treatment of any person. The receiving parties are equally

encompassing. Finally, the privilege applies to any study. The legislature

enacted a statute that allows for many different types of people to provide

different types of information to an array of organizations. Furthermore, the

11

statute does not dictate what types of studies satisfy the statute; but, rather

provides that any type of study satisfies the requirement.

Morbidity and mortality are statutorily undefined terms. Therefore,

their ordinary and common meaning within the context of health care should

be utilized. Morbidity is defined by the Merriam Webster /Medline Plus

medical dictionary as a diseased state or symptom, or the incident of disease;

rate of sickness. (http://c.merriam-webster.com/medlineplus/morbidity).

Mortality is defined by the same source as the number of deaths in a given

time or place or the proportion of deaths to population. (http://c.merriam-

webster.com/medlineplus/mortality). In the health care field, reducing

morbidity and mortality entails improving patient care and safety, or in other

words reducing disease and death of patients. According to common sense

this would include information about events or incidents that either result in

harm or an unexpected outcome for a patient or which could have resulted in

harm to a patient.

The legislative intent is to encourage people to report events,

incidents, or concerns about patient care to reduce sickness and death, and

then to allow whatever type of study the in-hospital committee deems is

appropriate. As noted in Burton, the objective of the peer review privilege is

equally applicable to the M & M privilege. Burton, 566 N.W.2d at 188.

12

The objective is to allow critical retrospective analysis of cases to learn

better methods of treatment for the future. Id. Requiring disclosure of

documents in the course of litigation which fall under the ambit of Iowa

Code § 135.40 would frustrate the very purpose of collecting information to

reduce morbidity and mortality. Disclosure during any stage of litigation

discourages voluntary reporting. The clear legislative intent of Iowa Code

§§ 135.40 to 135.42 is to provide a confidential method of reporting

incidents or concerns about the care and treatment of patients and to allow

for critical self-analysis for improvement of the practice of medicine.

At UIHC a PSN is an electronic document where UIHC employees

enter events that raise a safety concern for patients. (App. 60). UIHC

employees are encouraged to submit a PSN for any event that raises a safety

concern for patients. (App. 60). Once submitted electronically by a UIHC

employee, the PSN is reviewed by individuals in the UIHC Quality

Department. The review is conducted daily. (App. 63-64). The Quality

Department employees conduct a triage of the PSN and determine where to

route the PSN. (App. 64). A PSN can be routed to the Safety Oversight

Team, which is a multidisciplinary group of individuals that evaluates

trends, in order to revise and improve processes or policies. (App. 63). If a

PSN reports a serious adverse event or a sentinel event it is reviewed by the

13

Safety Oversight Team to decide whether a RCA is called for or whether a

policy needs to be revised. UIHC formal policy requires that a PSN be

entered for all serious adverse events. (App. 26). PSNs can also be routed

to an individual in a specific department who handles safety issues. (App.

65). PSNs have resulted in significant changes and improvements at UIHC.

(App. 68). UIHC employees are told that PSNs are confidential and

protected so they are comfortable reporting concerning events or incidents.

(App. 65-66). If the PSNs are subject to disclosure in litigation it would

have a chilling effect on people reporting events. (App. 67).

The district court incorrectly construed the phrase “in the course of

any study” narrowly.3 A PSN was submitted relating to the condition and

treatment of Willard. It was submitted by a UIHC employee with the

understanding it would be confidential and protected. The UIHC employee

could, therefore, be comfortable with being forthcoming and critical of the

care and treatment of Willard. Importantly, Iowa Code § 135.40 does not

require that the information actually be used in a study. It requires that a

person provides the information to be used in the course of any study. The

UIHC employee’s intent is the important factor. The district court erred by

finding that there is no evidence that the PSN “was created for use in the

3 The PSN in this case satisfies the other requirements of the statute that werenot specifically addressed by the district court.

14

course of any study.” The primary purpose of the PSN system is to submit

concerns about the care and treatment of a patient to be reviewed and dealt

with as appropriate. The UIHC employee submits the form so that the

incident or issue can be evaluated in a systematic manner.

In any event, a study of the PSN did occur. In accordance with UIHC

policy and practice, the PSN was reviewed by the UIHC staff in the Quality

Department. Ms. Thoman does not know whether this particular PSN went

any farther than the initial review with the Quality Department staff. (App.

69-73). This should be of no consequence. This review, in and of itself

without any further action taken, constitutes a study.

The statute refers to “any study”. No particular type, level, quality or

quantity of study is required. The word “study” is undefined by the statute.

The common meaning of the noun study is “the activity or process of

learning about something by reading, memorizing facts, attending school,

etc.” (http://www.merriam-webster.com/dictionary/study). The inclusive

definition of the noun “study” includes the review of the PSN by the Quality

Department Staff. By use of the word “any”, the legislative intent was to

grant great leeway in what constitutes “study”. The UHIC Quality

Department reviews the PSN looking for trends and events that need to be

evaluated more closely. The purpose of the initial review is to improve

15

patient care and safety which is M & M. It is the first step in the process at

UIHC to reduce morbidity and mortality. The first step is as important as

additional steps that may occur based on the initial review or study of the

PSN.

B. THERE IS NO REQUIRMENT OF A THIRD PARTYREQUEST FOR THE MORBIDITY AND MORTALITYPRIVILEGE TO APPLY

It was error and an abuse of discretion for the district court to find no

privilege based on lack of a third-party request for the PSN. Iowa Code §

135.41 provides:

The department, the Iowa medical society or anyof its allied medical societies, the Iowa osteopathicmedical association, any in-hospital staffcommittee, or the Iowa healthcare collaborativeshall use or publish said material only for thepurpose of advancing medical research or medicaleducation in the interest of reducing morbidity ormortality, except that a summary of such studiesmay be released by any such group for generalpublication. In all events the identity of any personwhose condition or treatment has been studiedshall be confidential and shall not be revealedunder any circumstances. A violation of thissection shall constitute a simple misdemeanor.

Iowa Code § 135.41 (2016). The district court’s reasoning seems to have

been that the M & M privilege does not apply because Willard is the subject

of the PSN, and implies that the privilege only protects against disclosures to

parties that are strangers to the PSN.

16

Iowa Code § 135.41 governs the manner in which the entity in

possession of the M & M material, in this case an in-hospital staff committee

(UIHC Quality Department), can use and publish such materials. It contains

both a mandatory and a permissive component. The in-hospital staff

committee “shall” use or publish the M & M materials only for the purpose

of medical research or education. Iowa Code § 135.41 (2016). “Shall”

imposes a duty. Iowa Code § 4.1(30)(a) (2016). Then the section lists an

exception to the mandatory limitation stating that any group “may” release a

summary of the study for general publication. Iowa Code § 135.41 (2016).

The use of “may” confers a power. Iowa Code § 4.1(30)(c) (2016).

However, under all circumstances the identity of the person or patient

“shall” be confidential.

There is no provision for a third-party or a plaintiff in a civil lawsuit

to request M & M materials. The statute does not permit disclosure of M &

M materials to a plaintiff in a malpractice action. There is no exception to

the mandatory limitation on the use and publication of M & M materials for

disclosure to plaintiffs who may be the subject of the M & M document. As

decided in Burton, release of M & M study summaries is permissive.

Burton, 566 N.W.2d at 187-188. The entity in possession of the materials

cannot be forced to produce even summaries. Id.

17

In direct opposition to the district court’s conclusion, Iowa Code §

135.41 strongly indicates that the legislature intended M & M materials to be

confidential and privileged. It actually prohibits the production of the PSN

for use and publication in this lawsuit. Willard’s request for the PSN does

not advance medical research or medical education. The exception does not

apply because Willard is not requesting a summary of the PSN, and, in any

event, publication of a summary is completely discretionary. The legislature

felt so strongly about limiting the use and publication of M & M materials,

that disclosure not authorized by the statute is a crime. Iowa Code § 135.41

(2016). The person who produces the PSN in this lawsuit can be charged

criminally. The district court’s interpretation of Iowa Code § 135.41 is a

strange contortion which is not supported by the plain language of the

statute, the legislative intent, or the statutory scheme.

II. THE DISTRICT COURT INCORRECTLY HELD THAT THEPSN MATERIAL IS DISCOVERABLE UNDER THEMORBIDITY AND MORTALITY PRIVILEGE

Error Preservation.

Error was preserved by the State in its resistance to the motion to

compel, evidence and argument at hearing, and by in camera review of the

documents in issue. (App. 18, 50, 91).

18

Standard of Review.

The standard of review on a motion to compel is for abuse of

discretion. Keefe v. Bernard, 774 N.W.2d 663, 667 (Iowa 2009) (citations

omitted). Issues of statutory construction are reviewed for corrections of

legal error or errors at law. Id., Hardin County Drainage District 55 v.

Union Pacific Railroad Company, 826 N.W.2d 507, 510 (Iowa 2013).

Merits.

The district court erred when it held that construction of discovery

rules and the M & M statutes require production of the PSN documents.4

Discovery of privileged matters is prohibited. Iowa R. Civ. P. 1.503(1)

(2016). Privileges apply in all stages of actions, cases, and proceedings.

Iowa R. Evid. 5.501, 5.1101 (2016). The party resisting discovery due to a

privilege has the burden of showing that the privilege exists and applies.

Carolan, 553 N.W.2d at 886. The object sought to be obtained and the

consequence of particular constructions of a statute may be considered when

determining legislative intent. Iowa Code § 4.6 (2016). When construing a

4 The district court held that the PSN did not qualify as M & M materials sothat no privilege exists, but then continued to rule that the M & M privilegedid not preclude discovery of the materials. Although the district court heldthe PSN material was not privileged, he instructed the Plaintiff not todisclose the PSN material to anyone but his expert witness and that anyfurther disclosure needed court approval which is inconsistent with a findingof no privilege. (App. 101).

19

statute, no part is rendered redundant or irrelevant or superfluous. Hardin

County Drainage District 55, 826 N.W.2d at 512; In Interest of G.J.A., 547

N.W.2d 3, 6 (Iowa 1996). It is presumed that the legislature enacted each

part of the statute for a purpose and intended that each part be given effect.

In Interest of G.J.A., 547 N.W.2d at 6; Iowa Code § 4.4(2) (2016). It is

presumed that a statute favors the public interest over any private interest.

Iowa Code § 4.4(5) (2016).

The portion of Iowa Code § 135.42 in dispute is whether the language

“shall not be used or offered or received in evidence in any legal proceeding

of any kind or character” prohibits discoverability of M & M materials. The

dispute resolves around the words “used” and “in evidence”. One

interpretation is that “use(d)…in evidence” is prohibited, thus, discovery is

permitted. Another interpretation is that the word “used” stands alone

prohibiting the “use” of M & M materials “in any legal proceeding of any

kind or character” and, thus, precluding discovery of the material. The

principles of statutory construction require the conclusion that the PSN

materials are not discoverable.

The doctrine of the last preceding antecedent is instructive. State ex

rel. Iowa Department of Transportation v. General Electric Credit Corp. of

Delaware, 448 N.W.2d 335, 345 (Iowa 1989)(citations omitted). “Under the

20

doctrine of last preceding antecedent, qualifying words and phrases refer

only to the immediately preceding antecedent, unless a contrary legislative

intent appears.” Iowa Comprehensive Petroleum Underground Storage

Tank Fund Board v. Shell Oil Company, 606 N.W.2d 376, 380 (Iowa

2000)(citations omitted). A qualifying phrase applies to all antecedents

rather than only the immediate preceding one when the qualifying phrase is

separated from the antecedents by a comma. Id. Iowa courts have

consistently reasoned that qualifying words or phrases refer to the

immediately preceding antecedent. Cairns v. Grinnell Mutual Reinsurance

Co., 398 N.W.2d 821, 824 (Iowa 1987). However, Iowa courts also

recognize that punctuation is not always a highly persuasive factor in

interpreting a statute, and will not defeat otherwise clear legislative intent.

Id. (citations omitted).

Applying this doctrine to Iowa Code § 135.42, the phrase “in

evidence” only applies to “received”. Because “in evidence” is not

separated by commas from the antecedent, it does not qualify “used”.

It does not apply to the antecedent “used”. The construction concerning

“used”, therefore, is: shall not be used in any legal proceeding of any kind or

character. The prohibition on “used in any legal proceeding” includes

discovery.

21

An interpretation of “used in evidence” instead of “used in any legal

proceeding”, renders the word “used” redundant, irrelevant and superfluous.

There is no need to include the prohibition of use in evidence, because the M

& M information shall not be offered or received in evidence. The term

“used” has no meaning or utility if it does not apply to discoverability. The

correct interpretation is that the M & M materials are not to be used in any

legal proceeding. It is not discoverable, and no party is to use it. Rather, the

parties should simply proceed with the litigation as if it does not exist.

Also, the overall language employed by the legislature indicates a

broad and inclusive confidentiality privilege. The use of “shall” creates a

mandatory duty. Iowa Code § 4.1(30)(a) (2016). The prohibition is broad

by the use of the word “any” twice in the phrase “any legal proceeding of

any kind or character”. Iowa Code § 135.42 (2016) (emphasis added). In

addition, it applies to “all” M & M information. Iowa Code § 135.42 (2016)

(emphasis added). The inclusive language indicates a legislative intent to

prohibit discovery of the PSN materials.

In addition, the overall statutory scheme of the M & M division at

Iowa Code §§ 135.40-135.42 indicates a legislative intent to prohibit

discovery in this case. As previously noted, the language of Iowa Code §

135.40 is broad, providing for a wide array of materials to qualify as well as

22

a study of any nature. The substantial limitation of the use and publication

set forth in Iowa Code § 135.41 is similarly consistent with not allowing

discovery of M & M materials in legal proceedings.

Other laws on similar subjects may be examined when determining

legislative intent. The confidentiality privilege of peer-review materials is

analogous. Iowa Code § 147.135 (2016). Peer review materials are not

subject to discovery and are inadmissible. See Cawthorn v. Catholic Health

Initiatives Iowa Corp., 806 N.W.2d 282, 289 (Iowa 2011) (“Thus, Iowa's

[peer review] law not only specifies that peer review records are privileged,

it also contains a separate prohibition on their admissibility in evidence.

Even if the privilege could have been waived here, the rule against

admissibility would remain in effect.”) (emphasis in original); Day v. The

Finley Hosp., 769 N.W.2d 898, 901 (Iowa Ct. App. 2009) (“Furthermore,

the supreme court has stated that the statutory privilege in Iowa Code §

147.135(2) is ‘broad.’”) (citations omitted). The counter argument is that

the peer review statute is not analogous because it more directly prohibits

discovery, which means that the legislature knows how to prohibit

discovery, but chose not to for M & M. The fact that the peer review statute

uses different language to prohibit discovery does not indicate under these

circumstances an intent to permit discovery of M & M materials.

23

First, although the objectives of the peer review and the M & M

privileges in keeping materials confidential are identical, the purposes of the

statutes diverge. Peer review is the critical analysis of a specific person, i.e.

a doctor, a nurse, a dentist. Iowa Code § 147.135(2) (2016) (“Peer review

records means all complaint files. . . relating to licensee discipline or

professional competence…”). Whereas, M & M is analysis of patient care

and treatment. M & M does not focus on the competency of the medical

provider, but rather analyzes care and treatment of a patient or population of

patients. The focus of peer review and M & M differ.

In addition, certain peer review materials are subject to production to

the Iowa Board of Medicine. Iowa Code §§ 147.135(2) & 3(b) (2016)

(“[p]eer review records are not admissible in evidence…other than a

proceeding involving licensee discipline” and “a hospital pursuant to

subpoena shall make available” peer review “information and documents” to

the board of medicine). The peer review statute was written to carefully

delineate that peer review records are subject to a subpoena issued by the

board of medicine and are admissible in a professional licensing proceeding,

but not in other types of litigation. Iowa Code §§ 147.135(2) & (3)(b)

(2016). The peer review statute necessarily had to refer to discovery,

subpoenas, and admissibility to ensure that the board of medicine has access

24

to certain peer review materials when needed for investigation and so that

licensing boards are able to use those materials during its disciplinary or

licensing processes. Whereas, the board of medicine or other licensing

agencies have no legitimate interest in M & M materials. Furthermore, the

location of the two statutes in the Iowa Code is illustrative of this difference.

The peer review statute is contained in Iowa Code Chapter 147, entitled

Health–Related Professions. Chapter 147 regulates health-related

professions. In contrast, the M & M statute is located in the Iowa Code

Chapter entitled Department of Public Health.

Legislative history also provides an explanation for the different

language. The M & M statute was enacted in 1963 and has undergone very

little revision. Iowa Senate File 340, 60th General Assembly Chapter 121,

section 1, 2, 3 (June 4, 1963). Effective in 1978, Iowa Code § 135.41 was

amended to make a violation a simple misdemeanor rather than a

misdemeanor. Iowa Senate File 85, 66th General Assembly Chapter 1245,

section 138 (June 28, 1976). A 2006 amendment added the Iowa Healthcare

Collaborative to the list of potential recipients of M & M materials and

added a reasonable and good faith requirement for immunity for M & M

material use. House File 2718, General Assembly Chapter 1128, sections 1,

2 (May 24, 2006).

25

Comparatively, the peer review statute was originally enacted thirteen

years later in 1975 and only included the current subsection 1. House File

803, 66th General Assembly Chapter 239, section 15 (June 30, 1975). There

was no section addressing discoverability or admissibility of peer review

materials. Subsections 2 and 3(a) of the current statute were added in 1986

and the current subsection 3(b) was added in 1990. Senate File 2265, 71st

General Assembly, Chapter 1211, section 14 (May 22, 1986); House File

2518, 73rd General Assembly, Chapter 1086, section 7 (March 27, 1990).

Minor amendments, not relevant to the issues in this case, were made in

2007 and 2009. Senate File 74, 82nd General Assembly, Chapter 10, section

82 (March 9, 2007); Senate File 449, 83rd General Assembly, Chapter 133,

section 51 (May 22, 2009).

The different language used could very well be due to the length of

time between the enactment of the statutes. Also, the fact that the

prohibition on discovery and admissibility in the peer review statute was

added ten years after its original enactment may mean that it was a response

to specific issues that had arisen, perhaps the Board of Medicine’s desire to

access peer review documents. See Hutchinson v. Smith Laboratories, Inc.

392 N.W.2d 139, 141, 143 (Iowa 1986). The evolution of the two statutes

are dissimilar which negates the argument that because the legislature did

26

not draft the M & M statute identically to the peer review statute, there is a

lack of intent to prohibit discovery.

Various other jurisdictions have addressed a wide range of statutes

involving the confidentiality of health-care self-critical analysis in the

context of peer review, M & M, quality assurance and risk management.

There is a lack of consensus. Since these foreign jurisdiction decisions are

largely based on the statutes in place, which vary widely, their precedential

value is negligible. See Pamela L. Popp et al., The Trials and Tribulations

of Incident Reports: Are They Worth the Trouble? (Mar. 2, 2000) (American

Health Lawyers Association Seminar Materials, available on Westlaw at

AHLA-PAPERS P03020018); The Medical Review Committee Privilege: A

Jurisdictional Survey, 67 N.C. L. Rev. 179 (1998); Promoting Better Health

Care; Policy Arguments for Concurrent Quality Assurance and Attorney –

Client Hospital Incident Report Privileges, 3 Health Matrix 259 (1993).

However, some of these cases echo the same public policy concerns

with discoverability of self-critical analysis materials. For example, a

Tennessee court stated that the peer review privilege “reflects a legislative

judgment that the public interest in promoting candor among health care

providers requires an assurance of confidentiality and that ‘the quality of in-

hospital medical practice will be elevated by armoring staff inquiries with a

27

measure of confidentiality.’” Powell v. Community Health System, 312

S.W.2d 496, 509 (Tenn. 2010) (citation omitted). In Carr v. Howard, the

Massachusetts court held that pursuant to statute, hospital incident reports

are protected from discovery because they constitute the first step of the peer

review process. Carr v. Howard, 689 N.E.2d 1304, 1310 (Mass. 1998). A

New Mexico federal court held that M & M material was not discoverable in

a medical malpractice suit by recognizing a federal common law self–critical

analysis privilege. This Court explained “the self-critical analysis privilege

is particularly pertinent in the medical context as it promotes frank and

honest discussions which protect lives and improve patient care”. Weekoty

v. United States, 30 F.Supp.2d 1343, 1345-1346 (D. N. M. 1998)(quotations

and citations omitted). The Court concluded that the “mere possibility of

disclosure would undermine this necessarily open and unconstrained self-

examination”. Id. (quotations and citations omitted). “Thus, the public good

is multiplied far beyond an individual patient’s care, as the information

promotes more effective patient care throughout a hospital.” Id. at 1346.

The objective and purpose of the statutes are relevant when

determining legislative intent. As already noted by the Iowa Supreme Court,

the objective and purpose of the M & M statutes is similar to that of the peer

review statute and is of equal importance. Burton, 566 N.W.2d at 187-188.

28

The objective is to allow for critical retrospective analysis of cases to learn

better methods of treatment for the future. Id. Further, the objective of the

M & M statutes is to permit hospital employees to report adverse events,

sentinel events, near misses, safety issues, and any other issues or concerns

about the care and treatment of patients. The information is granted

confidentiality so that individuals are forthcoming with concerns and are

comfortable being critical of doctors and other UIHC employees, as well as

policies, practices or procedures in place. As explained by one federal court,

“[c]andid and conscientious evaluation of clinical practices is a sine qua non

of adequate hospital care” and “[c]onstructive professional criticism cannot

occur in an atmosphere of apprehension that one doctor’s suggestion will be

used as a denunciation of a colleague’s conduct in a malpractice suit.”

Bredice v. Doctors Hospital Inc., 50 F.D.R. 249, 250 (D.D.C. 1970),

superseded by statute as noted in Syposs v. United States, 179 F.R.D 406,

410 (W.D.N.Y. 1998). The purpose of the M & M statutes is to permit

evaluation and study of singular problems, problems that reoccur, or

systematic problems. Through this process, care and treatment of patients is

improved, advances in medical care are made, and morbidity and mortality

is reduced.

The district court held that public policy and fundamental fairness

29

requires production of the PSN materials. The district court hypothesized

that UIHC would hide facts of malpractice in PSN and M & M materials.

Contrary to the district court’s fear that facts will be hidden from plaintiffs,

relevant facts can be obtained through traditional discovery methods

including the production of the patient’s medical chart and records, written

discovery to identify eyewitnesses and people with knowledge about the

care and treatment, and depositions of people with knowledge. UIHC,

despite what information is contained in the PSN, must disclose the facts

known to them about the incident and produce people involved in the

incident or treatment of Willard for deposition. The M & M process and the

PSN in this case does not deprive the Plaintiff of his evidence.

The district court elevated a plaintiff’s private interest in liberal

discovery over the public interest of confidentiality of M & M materials. A

guiding principle of legislature enactments is that public interest is favored

over any private interest, i.e. a plaintiff in a civil lawsuit. Iowa Code §

4.4(5) (2016). In Weekoty the court found that the public interest served by

protection of medical peer review conference from disclosure is perhaps

more than that served by the individual based spousal, attorney-client and

psychotherapist-patient privilege. Weekoty v. United States, 30 F. Supp.2d

1343, 1346 (D.N.M. 1998). Critical analysis of care and treatment of

30

patients, multiplies the public good “far beyond an individual patient’s care,

as the information promotes more effective patient care throughout a

hospital.” Id. The Bredice court held that medical staff meetings

concerning improvement of care and treatment of patients is of

overwhelming public interest so that the flow of ideas and advice can

continue unimpeded. Bredice, 50 F.R.D at 251. The protected meetings

were not part of a patients’ current care and treatment, but were in the

“nature of a retrospective review of the effectiveness of certain medical

procedures”. Id. The Iowa Legislature determined that the public good of

encouraging M & M study by making it confidential supersedes any

individual’s need for the M & M materials in any individual’s legal

proceedings. It was error and an abuse of discretion for the district court to

substitute its opinion on public policy for the Legislature’s judgment

reflected in the M & M statutes.

The consequences of a particular construction are relevant. Iowa

Code § 4.6(5) (2016). Ms. Thoman testified that UIHC employees

understand that PSN are confidential. She further testified that PSNs have

resulted in significant changes at UIHC for patient safety. She also believes

that disclosure of PSNs in litigation would have a chilling effect on people

reporting events. Constructive analysis and criticism of an incident cannot

31

take place if the employee will be dragged into court to explain his or her

criticisms. Very few and maybe no UIHC employees will want to subject

themselves to interrogation for reporting an incident or perceived problem.

If not protected from use in lawsuits against care providers, the worst case

scenario is that M & M studies will simply cease to exist. The best case

scenario is that reports will be significantly reduced and the information

provided will not be candid or helpful. In either case, overall patient care

and treatment will suffer. The purpose of the M & M statutes is to

encourage individuals to provide information about the care and treatment of

patients in order to improve patient care and safety. This important purpose

will be substantially frustrated if materials are subject to disclosure in

malpractice actions.

CONCLUSION

The PSN system at UIHC is an essential and important part of studies

to reduce morbidity and mortality. Individuals will not submit PSNs without

protection from legal proceedings because most will be unwilling to subject

themselves to interrogation criticizing UIHC, co-workers, or supervisors. If

PSNs are not protected from discovery in lawsuits, many concerning events

which could be corrected upon review will not be reported or addressed. If

32

this particular PSN, and PSNs in general, are not protected from discovery,

patient safety and care will suffer.

The district court erroneously held that the PSN in this case was not

created for use in the course of any study. The UIHC employee submitted

the PSN for the purpose of review, evaluation, and study. Iowa Code §

135.40 should be broadly construed so that the review conducted by the

Quality Department constitutes “any study”. The PSN in this case is of the

type contemplated by the Iowa Legislature as encompassing M & M study.

Iowa Code § 135.41 makes no exception for use or publication of M

& M materials to plaintiffs in civil lawsuits regardless of whether their

condition and treatment is the subject. Use and publication in malpractice

lawsuits is not permitted and the district court erred and abused its discretion

in finding otherwise.

The prohibition of use of M & M materials in Iowa Code § 135.42

prohibits discovery of the PSN. A contrary conclusion is inconsistent with

the doctrine of last preceding antecedent and renders the word “used”

redundant, irrelevant and superfluous. The purpose and objective of the M

& M division is to encourage reporting and self-critical analysis of patient

care and treatment to improve morbidity and mortality. Allowing discovery

33

of the PSN frustrates this purpose and objective. For these reasons, the

district court’s ruling should be reversed.

NOTICE OF ORAL ARGUMENT

Notice is hereby given that upon submission of this cause, counsel for

Appellant hereby desires to be heard in oral argument.

THOMAS J. MILLERAttorney General of Iowa

/s/ ANNE UPDEGRAFFANNE E. UPDEGRAFF (AT0008026)Assistant Attorney GeneralDepartment of Justice-Special LitigationHoover State Office BuildingDes Moines, Iowa 50319PHONE: (515) 281-6669FAX: (515) [email protected] FORDEFENDANT-APPELLANT

34

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/s/ Anne Updegraff 12/12/2016Signature Date