| Mary
McQuain,
Esq. Stuart Calwell, Esq. Law Offices of Stuart Calwell, PLLC Charleston, West Virginia Attorneys for the Petitioner Chanin Wolfingbarger Krivonyak, Esq. James D. McQueen, Jr., Esq. McQueen, Harmon & Murphy, L.C. Charleston, West Virginia Attorneys for the Respondent, Rakesh Wahi, M.D.
Robert P. Fitzsimmons,
Esq. J. Michael Benninger,
Esq. |
The Honorable Paul Zakaib, Jr. Judge of the Circuit Court of Kanawha County Charleston, West Virginia Pro Se Richard D. Jones,
Esq. William S. Druckman, Esq.
James C. Peterson, Esq. |
JUSTICE ALBRIGHT concurs and reserves the right to file a concurring opinion.
JUSTICE
MCGRAW dissents and reserves the right to file a dissenting opinion.
1. “In determining whether to
entertain and issue the writ of prohibition for cases not involving an absence
of jurisdiction but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors: (1) whether the
party seeking the writ has no other adequate means, such as direct appeal, to
obtain the desired relief; (2) whether the petitioner will be damaged or
prejudiced in a way that is not correctable on appeal; (3) whether the lower
tribunal's order is clearly erroneous as a matter of law; (4) whether the lower
tribunal's order is an oft repeated error or manifests persistent disregard for
either procedural or substantive law; and (5) whether the lower tribunal's order
raises new and important problems or issues of law of first impression. These
factors are general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should issue. Although
all five factors need not be satisfied, it is clear that the third factor, the
existence of clear error as a matter of law, should be given substantial
weight.” Syllabus point 4, State ex rel. Hoover v. Berger, 199
W. Va. 12, 483 S.E.2d 12 (1996).
2. “W. Va. Code,
30-3C-3 [1980] . . . . grants a privilege to all the records and
proceedings of a review organization, but no privilege attaches to information,
documents or records considered by a review organization if the material is
'otherwise available from original sources.'” Syllabus point 3, in part,
State ex rel. Shroades v. Henry, 187 W. Va. 723, 421 S.E.2d 264
(1992).
3. “To effect a waiver of the
privilege of confidentiality which attends information and records properly the
subject of health care peer review under West Virginia Code §§ 30-3C-1 to
-3 (1993), the Legislature has required that an individual must formally
indicate his intent to waive this confidentiality by executing a valid waiver.”
Syllabus point 3, Young v. Saldanha, 189 W. Va. 330, 431 S.E.2d 669
(1993).
4. Pursuant to the plain
language of W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 1998),
information, documents, and records ordinarily protected by the peer review
privilege lose their specter of confidentiality and may be accessed by third
parties when (1) said materials are “otherwise available from original sources”
or (2) “an individual [has] execute[d] a valid waiver authorizing the release of
the contents of his file pertaining to his own acts or omissions.”
5. Where the privilege
encapsulating peer review materials has been lifted because such information is
available from an original source or the privilege has been waived, such
materials may still be rendered inaccessible if the tribunal in which such
information was introduced or reviewed has entered a protective order in
accordance with W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 1998) to
guard against their disclosure.
Davis, Justice:
The petitioner herein, Richard Brooks
[hereinafter referred to as “Mr. Brooks”], requests this Court to issue a writ
of prohibition (See footnote 1) against the
respondent herein, the Honorable Paul Zakaib, Jr., Judge of the Circuit Court of
Kanawha County. Specifically, Mr. Brooks desires this Court to prevent the
circuit court from enforcing its December 18, 2002, order whereby it sealed
certain documents, from a related matter, that Mr. Brooks' counsel had obtained
from the Circuit Court of Grant County pursuant to a Freedom of Information Act
request. (See footnote 2) Upon a review of
the parties' briefs, appendices, and arguments herein, we grant as moulded the
requested writ. To the extent that the peer review documents contained in the
Grant County jury trial record (1)(a) are available from an original source
other than the peer review process or (b) are no longer protected by said
privilege as a result of Dr. Wahi's waiver thereof and (2) have not been sealed
by that tribunal, the petitioner may access such documents and make use thereof
in his medical malpractice action against Dr. Wahi and CAMC. See
generally W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 1998). Whether
or not such documents are exempt from the privilege or were sealed by the Grant
County Circuit Court must be determined by the Circuit Court of Kanawha
County.
Shortly after the incidents described above, Dr.
Wahi left CAMC and moved to Grant County, West Virginia. At approximately the
same time, CAMC undertook a peer review investigation of Dr. Wahi, due, in part,
to the unfortunate outcome of Mr. Brooks' surgery and as a result of the
unanticipated surgical outcomes of other patients treated by Dr.
Wahi. (See footnote 3) After the
conclusion of such peer review proceedings, an article was published in the
Charleston Gazette newspaper which allegedly re-printed verbatim the contents of
certain peer review documents in spite of the privilege that usually attaches to
such records. (See footnote 4) In response to this
article, Dr. Wahi filed a defamation action, in the Circuit Court of Grant
County, against the Daily Gazette Company and CAMC claiming that the published
information questioning his skill as a cardiothoracic surgeon jeopardized his
ability to practice medicine in this State.
During the course of the Grant County proceedings,
both Dr. Wahi and CAMC (See footnote 5) introduced into
evidence the peer review documents alleged to have been divulged in the
newspaper article; these documents, as well as other peer review records, were
also admitted into evidence by the circuit court and published to the jury.
Ultimately, the jury concluded that Dr. Wahi had not proven the elements of his
defamation claim and ruled in favor of the remaining defendant, CAMC. Although
the peer review documents placed in evidence in support of the parties'
respective positions were ostensibly protected by the peer review privilege
following the conclusion of the jury trial, (See footnote 6) there is no
evidence before this Court to indicate that any party made a written motion to
seal the record of the trial proceedings or that the Circuit Court of Grant
County issued a written order placing such record under seal. Although not
apparent from the party's appendices in the instant proceeding, Dr. Wahi and
CAMC nevertheless maintain that the Circuit Court of Grant County sealed the
subject trial record by verbal order.
Thereafter, on October 8, 2002, Dr. Wahi and CAMC
moved for dismissal of Mr. Brooks' Kanawha County malpractice action due to
failure to prosecute. (See footnote 7) While defending
this motion, Dr. Brooks' counsel filed a Freedom of Information Act [hereinafter
referred to as “FOIA”] request, (See footnote 8) on October 11,
2002, with the Circuit Clerk of Grant County to obtain information from Dr.
Wahi's defamation action. Specifically, attorneys for Mr. Brooks
requested
a. The
Complaint filed in Civil Action No: 00-C-61,
Wahi v. CAMC filed in the Grant County Circuit
Court;
b. The Answer or
Answers filed by CAMC in this matter;
c.
A transcript of the trial proceedings; [and]
d. The docket sheet for
this Civil Action [00-C-61][.]
Counsel further asked
that
[i]f access to these
records [is] being denied pursuant to a Court Order, please provide a copy of
that Order. Also please provide a copy of the Motion entered requesting the
Court deny access to the record. If any other requested writings are withheld by
your office, please provide a detailed description of the writings which the
Court claims are exempt from disclosure and provide an itemized explanation
specifying and indexing the exemption or exemptions of the West Virginia FOIA
your office maintains are the basis for exempting each writing from disclosure
with the description of the writings withheld.
(Citations omitted).
In response to such request, the Grant County Circuit
Clerk sent Mr. Brooks' counsel all of the requested documents except for the
jury trial transcript because no transcript had yet been requested or prepared.
Upon being apprised of this fact, counsel then requested copies of the
electronic recordings of the Grant County proceedings and the exhibits therein,
for which payment was tendered. During the fulfillment of this request, Mary
Comer, the certified court reporter who had recorded the Grant County
proceedings, discussed the release of such records with the Honorable Andrew N.
Frye, Jr., Chief Judge of the Circuit Court of Grant County, who had presided
over said trial. In her affidavit, Ms. Comer related
that
[i]n a conversation
with Judge Frye of Grant County on or about the last week of October or first
week of November of 2002, [I] was advised that any documents which were a part
of the court record were to be considered public records because there was never
any order entered to seal the records or make the[m] confidential.
As a
result, copies of both the jury trial exhibits and electronic recordings of the
proceedings were forwarded to Mr. Brooks' counsel, who had said recordings
transcribed by another certified court reporter.
On November 25, 2002, the Circuit Court of Kanawha
County held a hearing on CAMC's and Dr. Wahi's motions to dismiss Mr. Brooks'
malpractice lawsuit for inaction and failure to prosecute his case. Prior to
said hearing, counsel for Mr. Brooks filed the pleadings, exhibits, and trial
transcript of the Grant County proceedings in the Circuit Court of Kanawha
County in support of his claims that Dr. Wahi had acted negligently in his
treatment of Mr. Brooks and that CAMC knew of Dr. Wahi's alleged incompetence as
a thoracic surgeon. By order entered December 18, 2002, the circuit court denied
the defendants' motion to dismiss “finding that the plaintiff had engaged in
sporadic activity since this Court ruled on an earlier motion to dismiss three
years ago, and further finding that the harsh remedy defendants seek is not
justified under the circumstances of this case.” However, during the course of
said hearing,
counsel for defendant Wahi made an
oral motion to the Court, joined by defendant CAMC, to seal the transcript of
the November 25, 2002, hearing in this case, as well as the recent pleadings and
exhibits filed by the plaintiff prior to the hearing, which pleadings and
exhibits make reference to Dr. Wahi and the trial exhibits and trial testimony
in . . . Wahi v. CAMC, Civil Action No. 00-C-61, in the Circuit
Court of Grant County, West Virginia. After hearing argument of counsel on that
issue, the Court, over the objection of plaintiff's counsel, GRANTED Dr.
Wahi's request and ordered that the records and the pleadings filed by the
plaintiff which make reference to Dr. Wahi and the civil action in Grant County
be temporarily placed under seal. Accordingly, the records and pleadings
filed by the plaintiff which make reference to Dr. Wahi in the civil action in
Grant [C]ounty, as well as the transcript of the November 25, 2002, hearing in
this matter, are hereby ORDERED SEALED UNTIL FURTHER ORDER OF THIS COURT
AND UNTIL SUCH TIME AS THIS COURT HAS AN OPPORTUNITY TO HEAR ARGUMENT ON THE
MERITS.
(Emphasis added).
Prior to these subsequent proceedings contemplated by
the circuit court, and before the court had issued its December 18, 2002, order,
Mr. Brooks petitioned this Court, on December 16, 2002, for a writ of
prohibition seeking to prevent the circuit court from enforcing its November 25,
2002, verbal orders sealing the Grant County records and the Kanawha County
hearing transcript. (See footnote 9) Albeit premature at
the time of its initial filing, (See footnote 10) we nevertheless
considered Mr. Brooks' petition and issued a rule to show cause to evaluate the
merits of his claim for relief.
W. Va. Code § 53-1-1 (1923) (Repl. Vol. 2000). Accord Syl.
pt. 1, State ex rel. United Hosp. Ctr., Inc. v. Bedell, 199 W. Va.
316, 484 S.E.2d 199 (1997). When, as in the case sub judice, the relator
seeking such relief avers not that the lower tribunal lacks jurisdiction but
that the presiding judge has exceeded the bounds of his/her authority, the writ
of
“'prohibition [is used] . . . to
correct only substantial, clear-cut, legal errors plainly in contravention of a
clear statutory, constitutional, or common law mandate which may be resolved
independently of any disputed facts and only in cases where there is a high
probability that the trial will be completely reversed if the error is not
corrected in advance.' Syllabus point 1, [in part,] Hinkle v. Black, 164
W. Va. 112, 262 S.E.2d 744 (1979).” Syllabus point 1, in part, State ex
rel. DeFrances v. Bedell, 191 W. Va. 513, 446 S.E.2d 906 (1994) [(per
curiam)].
Syl. pt. 1, in part, State ex rel. Charleston Mail Ass'n v.
Ranson, 200 W. Va. 5, 488 S.E.2d 5
(1997).
Moreover,
[i]n
determining whether to entertain and issue the writ of prohibition for cases not
involving an absence of jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will examine five factors:
(1) whether the party seeking the writ has no other adequate means, such as
direct appeal, to obtain the desired relief; (2) whether the petitioner will be
damaged or prejudiced in a way that is not correctable on appeal; (3) whether
the lower tribunal's order is clearly erroneous as a matter of law; (4) whether
the lower tribunal's order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5) whether the lower
tribunal's order raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as a useful starting
point for determining whether a discretionary writ of prohibition should issue.
Although all five factors need not be satisfied, it is clear that the third
factor, the existence of clear error as a matter of law, should be given
substantial weight.
Syl. pt. 4, State ex rel. Hoover v. Berger,
199 W. Va. 12, 483 S.E.2d 12 (1996). Having enunciated the standard of
review applicable herein, we proceed to consider the merits of the parties'
arguments.
We are called upon, in this proceeding, to determine
whether Mr. Brooks is entitled to use the peer review information, which is
ordinarily protected by a privilege attaching thereto, contained in the Grant
County trial records in his Kanawha County lawsuit against Dr. Wahi and CAMC. To
ascertain whether this privilege exists to preclude Mr. Brooks from accessing
these materials, we must consider whether the peer review privilege is
applicable to the information in question; whether, despite the existence of the
privilege, any exceptions apply to permit Mr. Brooks to review such documents;
whether the respondents waived such privilege by introducing these materials
into evidence and publishing this information to the jury in the Grant County
action; and whether the records of such proceeding were sealed upon the
conclusion of the Grant County litigation thereby prohibiting their disclosure
to and use by Mr. Brooks' in his medical malpractice action.
The peer review privilege, which attaches to the
records of a peer review organization, has its origins in W. Va. Code
§ 30-3C-1, et seq. W. Va. Code § 30-3C-3 (1980) (Repl.
Vol. 1998), which establishes said privilege, directs
that
[t]he proceedings
and records of a review organization shall be confidential and privileged and
shall not be subject to subpoena or discovery proceedings or be admitted as
evidence in any civil action arising out of the matters which are subject to
evaluation and review by such organization and no person who was in attendance
at a meeting of such organization shall be permitted or required to testify in
any such civil action as to any evidence or other matters produced or presented
during the proceedings of such organization or as to any findings,
recommendations, evaluations, opinions or other actions of such organization or
any members thereof: Provided, That information, documents or records otherwise
available from original sources are not to be construed as immune from discovery
or use in any civil action merely because they were presented during proceedings
of such organization, nor should any person who testifies before such
organization or who is a member of such organization be prevented from
testifying as to matters within his knowledge, but the witness shall not be
asked about his testimony before such an organization or opinions formed by him
as a result of said organization hearings: Provided, however, That an individual
may execute a valid waiver authorizing the release of the contents of his file
pertaining to his own acts or omissions, and such waiver shall remove the
confidentiality and privilege of said contents otherwise provided by this
section: Provided, further, That upon further review by any other review
organization, upon judicial review of any finding or determination of a review
organization or in any civil action filed by an individual whose activities have
been reviewed, any testimony, documents, proceedings, records and other evidence
adduced before any such review organization shall be available to such further
review organization, the court and the individual whose activities have been
reviewed. The court shall enter such protective orders as may be appropriate to
provide for the confidentiality of the records provided the court by a review
organization and all papers and records relating to the proceedings had before
the reviewing court.
More
succinctly,
W. Va.
Code, 30-3C-3 [1980] . . . . grants a privilege to all the
records and proceedings of a review organization, but no privilege attaches to
information, documents or records considered by a review organization if the
material is “otherwise available from original sources.”
Syl. pt. 3, in
part, State ex rel. Shroades v. Henry, 187 W. Va. 723, 421 S.E.2d
264 (1992).
In the case sub judice, it is undisputed that
the documents at issue, which were introduced into evidence in the Grant County
proceeding, are records that were generated during the course of CAMC's peer
review of Dr. Wahi. See generally W. Va. Code § 30- 3C-1 (1975)
(Repl. Vol. 1998) (defining “[p]eer review”). What remains to be ascertained,
however, is whether Mr. Brooks is entitled to review and utilize this
information in his lawsuit against Dr. Wahi and CAMC. Inherent in the plain
language (See footnote 12) of the peer
review privilege itself are two mechanisms by which ordinarily privileged peer
review documents are nevertheless amenable to disclosure. First, the privilege
permits a party to “use in any civil action,” W. Va. Code § 30-3C-3,
“information, documents or records otherwise available from original sources,”
id. To the extent that the subject documents sought by Mr. Brooks may be
obtained from sources extraneous to the peer review process, then, he is
entitled to review and use such information in the prosecution of his
malpractice action. See W. Va. Code § 30-3C-3; Syl. pt. 3, in
part, State ex rel. Shroades v. Henry, 187 W. Va. 723, 421 S.E.2d
264. However, insofar as said materials are available solely from the peer
review process, such records are not available to Mr. Brooks. See
W. Va. Code § 30-3C-3; Syl. pt. 3, in part, Shroades, 187
W. Va. 723, 421 S.E.2d 264. In light of the limited record evidence
available to this Court in the instant original jurisdiction
proceeding, (See footnote 13) we direct the
Circuit Court of Kanawha County to determine the availability of the
controverted information from sources other than the peer review process.
Second, the governing statute also permits the
disclosure of otherwise privileged materials if the privilege has been
waived:
[A]n individual may execute a valid
waiver authorizing the release of the contents of his file pertaining to his own
acts or omissions, and such waiver shall remove the confidentiality and
privilege of said contents otherwise provided by this
section[.]
W. Va. Code § 30-3C-3. In this regard, we have held
that
[t]o effect a waiver of the
privilege of confidentiality which attends information and records properly the
subject of health care peer review under West Virginia Code §§ 30-3C-1 to
-3 (1993), the Legislature has required that an individual must formally
indicate his intent to waive this confidentiality by executing a valid
waiver.
Syl. pt. 3, Young v. Saldanha, 189 W. Va. 330, 431
S.E.2d 669 (1993). Cf. Terre Haute Reg'l Hosp., Inc. v. Basden,
524 N.E.2d 1306, 1312 (Ind. Ct. App. 1988) (observing that Indiana's statutory
peer review privilege “provides that waiver of the peer review privilege can be
effectuated only by written waiver” (citations omitted)). Without the ability to
review the trial transcript in the Grant County proceedings, we cannot say with
certainty that Dr. Wahi “formally” waived the peer review privilege as
contemplated by our prior holding. See Syl. pt. 3, Young, 189
W. Va. 330, 431 S.E.2d 669.
Nevertheless, Dr. Wahi's actions in introducing these
materials into evidence, publishing them to the jury, and relying upon them to
prosecute his defamation action against CAMC indicate that he might well have
effectuated an implied waiver of said privilege. See Ara v. Erie Ins.
Co., 182 W. Va. 266, 269, 387 S.E.2d 320, 323 (1989) (“Waiver may be
established by express conduct or impliedly, through inconsistent actions.”
(citations omitted)); Blue v. Hazel-Atlas Glass Co., 106 W. Va. 642,
650, 147 S.E. 22, 25 (1929) (“[A] waiver may be express or it may be inferred
from actions or conduct[.]” (citation omitted)). Ordinarily, in situations such
as the one presently before the Court, the recognition of an implied waiver is
disfavored because of the accompanying infringement upon the right to
confidentiality which the privilege was designed to protect. See, e.g.,
Hoffman v. Wheeling Sav. & Loan Ass'n, 133 W. Va. 694, 713, 57
S.E.2d 725, 735 (1950) (“A waiver of legal rights will not be implied except
upon clear and unmistakable proof of an intention to waive such rights.”
(internal quotations and citation omitted)). See also Franklin D.
Cleckley, I Handbook on Evidence for West Virginia Lawyers § 5-1(B),
at 5-4 (4th ed. 2000) (“By creating privileges we acknowledge that
other societal values_such as privacy, the desire to encourage effective medical
care . . ., or governmental efficiency_sometime take precedence over
the goal of ascertaining the truth in legal proceedings.”). Where, however, a
party entitled to such a privilege avails himself of the allegedly privileged
information in such a way as to reveal its contents to third parties without
regard for maintaining the confidentiality thereof, it may be said that such
party has effectuated an implied waiver thereof. In
effect,
[i]mplied waiver nullifies a privilege
whenever disclosure of a privileged communication threatens to vitiate the
continued “confidentiality” of the privileged material or would, if the
privilege were recognized, be “unfair” to an opposing litigant.
Comment,
Developments in the Law_Privileged Communications, 98 Harv. L.Rev. 1450,
1629-30 (1985). See also Cleckley, supra, § 5-4(C), at 5-76
(“Most courts continue to state the rule of implied waiver in absolute form_any
disclosure of a confidential communication outside a privileged relationship
will waive the privilege as to all information related to the same subject
matter.”). But see 735 Ill. Comp. Stat. Ann. 5/8-2102 (1987) (West Main
Vol. 1992) (indicating that, under Illinois peer review privilege statute,
“[t]he disclosure of any [peer review] information or data, whether proper, or
improper, shall not waive or have any effect upon its confidentiality”);
Mulder v. Vankersen, 637 N.E.2d 1335, 1339-40 (Ind. Ct. App. 1994)
(noting that, pursuant to Indiana peer review privilege statute, under which
“[t]he peer review privilege may only be waived by the execution of a waiver in
writing,” “a breach of confidentiality does not cause the peer review
privilege to be waived” (citations omitted)).
The case presently before us presents a unique
situation. On the one hand, we previously have been reluctant to find anything
other than a “formal” waiver sufficient to overcome the protections of the peer
review privilege. See Syl. pt. 3, Young v. Saldanha, 189
W. Va. 330, 431 S.E.2d 669. On the other hand, the facts of the case sub
judice are radically different than those with which we were faced in
Young. In Young, wherein we required a formal waiver of the peer
review privilege, the physician and the hospital involved therein repeatedly
requested the presiding court to enter protective orders to ensure the peer
review documents at issue retained their confidentiality by remaining under
seal. See Young, 189 W. Va. at 332 & 336, 431 S.E.2d at
671 & 675. To this end, we observed that “five distinct orders were entered
for the purpose of protecting information from public disclosure. Additionally,
. . . both parties to the litigation 'consistently transmitted the
pleadings to the circuit court with notations that the entire file was under
seal.'” Id., 189 W. Va. at 335 n.9, 431 S.E.2d at 674 n.9. In short,
we concluded that the parties asserting the peer review privilege in
Young “did everything in their power to preserve the confidentiality of
the peer review records that were obtained.” Id. Furthermore, there is no
indication that the parties in Young sought to introduce such evidence
during the underlying proceedings or to formally place such documents on the
record therein.
By contrast, the parties in the instant proceeding have not been overtly diligent in seeking to maintain the confidentiality of the challenged documents. During the underlying jury trial, both Dr. Wahi and CAMC introduced these records as exhibits in support of their respective cases; the circuit court admitted them into evidence; and they were published to the jury. But see In re University of Texas Health Ctr. at Tyler, 44 Tex. Sup. Ct. J. 38, 41, 33 S.W.3d 822, 827 (2000) (per curiam) (recognizing that “[a]n involuntary production of [peer review] documents d[oes] not constitute a waiver” of the peer review privilege (citation omitted)); Riverside Hosp., Inc. v. Garza, 894 S.W.2d 850, 857 (Tex. App. 1995) (same). In addition to actively relying on these presumedly confidential materials, the parties actively placed them into the record of the court proceedings, which, to the extent that the information before us permits us to make such an evaluation, were not closed to the public. Furthermore, unlike the parties in the Young case who so diligently and thoroughly sought to preserve the sanctity of the privileged documents by repeatedly requesting and receiving protective orders to keep such records under seal, the parties in the instant proceeding took such few efforts to obtain a protective order that that issue, in itself, is disputed. Rather than having a record replete with written protective orders, and motions therefor, the indicia that a protective order was ever requested, much the less actually issued, in the Grant County proceedings remains sketchy at best and far from definitively certain. (See footnote 14) In the absence of such scrupulous and guarded treatment of the documents claimed to remain under the rubric of the peer review privilege, we are less concerned about enforcing the spirit of this statutory protection when the parties in whom said privilege has been reposed appear to have cast it aside without regard for the consequences of their inaction. Rather, it would seem the more prudent course to follow would be to afford the allegedly privileged documents the same degree of protection that the parties holding said privilege accorded them by failing to exercise the necessary guarded caution requisite to preserving the sanctity of the privileged materials and ensuring that their confidentiality remained intact. Accordingly we direct the Circuit Court of Kanawha County to also resolve the issue of whether Dr. Wahi voluntarily or impliedly waived the peer review privilege attached to the materials at issue herein as that tribunal has before it the record evidence necessary to make a definitive determination thereof. To the extent that Dr. Wahi did effectuate such a waiver, said materials are available to Mr. Brooks for use in his Kanawha County medical malpractice action.
In summary, as to that portion of the governing
statute recognizing that materials subject to the peer review privilege may
nevertheless become available to third parties, we hold that, pursuant to the
plain language of W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 1998),
information, documents, and records ordinarily protected by the peer review
privilege lose their specter of confidentiality and may be accessed by third
parties when (1) said materials are “otherwise available from original sources”
or (2) “an individual [has] execute[d] a valid waiver authorizing the release of
the contents of his file pertaining to his own acts or omissions.” Consequently,
we grant as moulded Mr. Brooks' petition for a writ of prohibition and direct
the circuit court to ascertain whether the subject materials are available from
an original source extraneous to the peer review process or whether Dr. Wahi
waived the peer review privilege attached to the subject materials thereby
rendering them available to Mr. Brooks.
Despite our examination of the manner in which the
protections of the peer review privilege may be obviated, there remains a final
protective mechanism which, if it is in place, would preempt any disclosures
heretofore permitted under the foregoing analysis. In the conclusory sentence of
W. Va. Code § 30-3C-3, the Legislature mandates
that
[t]he court shall enter such
protective orders as may be appropriate to provide for the
confidentiality of the records provided the court by a review organization and
all papers and records relating to the proceedings had before the reviewing
court.
(Emphasis added). Given the plain nature of this
language, (See footnote 15) we hold that
where the privilege encapsulating peer review materials has been lifted because
such information is available from an original source or the privilege has been
waived, such materials may still be rendered inaccessible if the tribunal in
which such information was introduced or reviewed has entered a protective order
in accordance with W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 1998) to
guard against their disclosure.
Thus, the question remains whether such a protective
order was, in fact, entered by the Grant County Circuit Court. In the
above-quoted statutory language, the Legislature directs that the presiding
“court shall enter” a protective order or orders. W. Va. Code
§ 30-3C-3 (emphasis added). Ordinarily, the word “shall” has a mandatory,
directory connotation. See State v. Allen, 208 W. Va. 144,
153, 539 S.E.2d 87, 96 (1999) (“Generally, 'shall' commands a mandatory
connotation and denotes that the described behavior is directory, rather than
discretionary.” (citations omitted)); Syl. pt. 1, Nelson v. West Virginia
Pub. Employees Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982) (“It is
well established that the word 'shall,' in the absence of language in the
statute showing a contrary intent on the part of the Legislature, should be
afforded a mandatory connotation.”). However, the statutory directive thereafter
qualifies its directive to said court by requiring the court to “enter such
protective orders as may be appropriate to provide for the
confidentiality of the” controverted materials. W. Va. Code § 30-3C-3
(emphasis added). Given this permissive language, it is apparent that the
Legislature afforded the tribunal in which the peer review documents were
subject to review some modicum of discretion to determine to what extent a
protective order is warranted and the precise scope and effect thereof. Absent
further guidance from the Legislature in this regard, we will refer to our
customary rules governing the sealing of court proceedings. See Syl. pt.
4, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d
361 (1975) (“'That which is necessarily implied in a statute, or must be
included in it in order to make the terms actually used have effect, according
to their nature and ordinary meaning, is as much a part of it as if it had been
declared in express terms.' Syllabus point 14., State v. Harden,
62 W. Va. 313, 58 S.E. 715 (1907).”). See also Syl. pt. 6, in part,
State ex rel. Cohen v. Manchin, 175 W. Va. 525, 336 S.E.2d 171
(1984) (“Each word of a statute should be given some effect and a statute must
be construed in accordance with the import of its language. Undefined words and
terms used in a legislative enactment will be given their common, ordinary and
accepted meaning.”); Syl. pt. 4, State v. General Daniel Morgan Post No. 548,
V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959) (“Generally the words of
a statute are to be given their ordinary and familiar significance and meaning,
and regard is to be had for their general and proper use.”).
Typically, court records are considered to be public
documents. Thus, “'[u]nless a statute provides for confidentiality, court
records shall be open to public inspection.' Syllabus Point 2, in part,
Richardson v. Town of Kimball, 176 W. Va. 24, 340 S.E.2d 582
(1986).” Syl. pt. 5, State ex rel. Garden State Newspapers, Inc. v. Hoke,
205 W. Va. 611, 520 S.E.2d 186 (1999). This general accessibility to
records of court proceedings is based upon the open courts provision of the West
Virginia Constitution and the interpretation thereof by this Court. See
W. Va. Const. art. III, § 17 (“The courts of this State shall be open,
and every person, for an injury done to him, in his person, property or
reputation, shall have remedy by due course of law; and justice shall be
administered without sale, denial or delay.”); Syl. pt. 4, State ex rel.
Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 520 S.E.2d 186
(“The open courts provision of Article III, Section 17 of the Constitution of
West Virginia guarantees a qualified constitutional right on the part of the
public to attend civil court proceedings.”). From these humble constitutional
origins, various statutes and procedural rules have further recognized the
public's right to access court documents and proceedings. See, e.g.,
W. Va. Code § 29B-1-2(3) (1977) (Repl. Vol. 1998) (defining “judicial
department[]” as “[p]ublic body” subject to the disclosure requirements of the
West Virginia Freedom of Information Act); W. Va. Tr. Ct. R. 10.04
(permitting FOIA access to court files and records that constitute “public
records”). See also Syl. pt. 1, Daily Gazette Co., Inc. v. West
Virginia Bd. of Med., 177 W. Va. 316, 352 S.E.2d 66 (1986)
(recognizing, under W. Va. Code § 30-3-14(o) (1986) (Repl. Vol.
1986), openness of Board of Medicine proceedings where there is made “a
preliminary determination that probable cause exists to substantiate charges of
disciplinary disqualification”).
Nevertheless,
[t]he
qualified public right of access to civil court proceedings guaranteed by
Article III, Section 17 of the Constitution of West Virginia is not absolute and
is subject to reasonable limitations imposed in the interest of the fair
administration of justice or other compelling public policies.
Syl. pt.
6, in part, State ex rel. Garden State Newspapers, Inc. v. Hoke, 205
W. Va. 611, 520 S.E.2d 186.
In order to limit such public access by sealing court
records in a particular proceeding, a special request must be made by the party
seeking such protection, and the presiding tribunal must enter an order to that
effect. Specifically, Rule 10.03(a) of the West Virginia Trial Court Rules
directs that,
[u]pon
motion by either party named in any civil action, the court may limit access to
court files. The order of limitation shall specify the nature of the limitation,
the duration of the limitation, and the reason for the limitation. Upon motion
filed with the complaint, accompanied by a supporting affidavit, limitation of
access may be granted ex parte.
Cf. W. Va. R. Civ. P. 26(c)
(describing procedure by which party may obtain protective order with regard to
discovery matters). This requirement of a definite and specific order is based
upon the longstanding principle recognizing that “a court speaks only through
its orders.” State ex rel. Kaufman v. Zakaib, 207 W. Va. 662, 671,
535 S.E.2d 727, 736 (2000) (citations omitted). See also State v.
White, 188 W. Va. 534, 536 n.2, 425 S.E.2d 210, 212 n.2 (1992)
(“[H]aving held that a court speaks through its orders, we are left to decide
this case within the parameters of the circuit court's order.” (citations
omitted)). In other words, “[c]ourts of record can speak only by their records,
and what does not so appear does not exist in law.” Syl. pt. 3, Hudgins v.
Crowder & Freeman, Inc., 156 W. Va. 111, 191 S.E.2d 443 (1972).
Accord Syl. pt. 4, State ex rel. Mynes v. Kessel, 152 W. Va.
37, 158 S.E.2d 896 (1968). See also Syl. pt. 5, in part, Parkway Fuel
Serv., Inc. v. Pauley, 159 W. Va. 216, 220 S.E.2d 439 (1975) (“A court
of record speaks only through its records[.]”).
In the case sub judice, the parties concede
that there is no written order whereby the Grant County Circuit Court sealed
either the peer review trial exhibits or the jury trial transcript in which such
documents were introduced and otherwise referenced. Mr. Brooks maintains that
because there is no such written order, it may be presumed that no such order
was ever issued and thus, the records he obtained from Grant County were
properly the subject of his FOIA request. Responding to Mr. Brooks' argument,
the respondents represent that, despite the absence of a written directive
sealing the record of the Grant County proceedings, the circuit court
nevertheless issued a verbal order to this effect. Because this Court recently
held in Moats v. Preston County Commission, 206 W. Va. 8, 521 S.E.2d
180 (1999), that a verbal order enunciating a court's ruling is as effective as
if said ruling had been memorialized in a written order, the respondents claim
that the documents which Mr. Brooks seeks to use in his medical malpractice
action against Dr. Wahi and CAMC are sealed, protected from disclosure, and
unavailable to him.
We agree with the respondents' characterization of
our recent holding in Moats. Specifically, we held in that case
that
[a]n oral order has
the same force, effect, and validity in the law as a written order. In other
words, the actual physical possession of a written order is not required to
effectuate said order.
Syl. pt. 2, Moats v. Preston County Comm'n,
206 W. Va. 8, 521 S.E.2d 180. This ruling was based upon our similar
holding that, “[g]enerally, an order is effective when a court announces it.”
Syl. pt. 1, id. Inherent in these rulings are the added considerations
that the parties affected by a verbally-rendered order also be aware of its
existence and the terms thereof. See Moats, 206 W. Va. at
12-13, 521 S.E.2d at 184-85. However, we are not convinced that Moats
definitively resolves the query herein as to whether the Grant County records
were actually sealed. Despite the respondents' representations that the circuit
court entered a verbal order sealing the record of the Grant County proceedings,
Mr. Brooks has submitted an affidavit wherein the court reporter who recorded
the jury trial indicated that the Grant County Circuit Court had not entered a
protective order. In her affidavit, the court reporter
averred
[i]n a
conversation with Judge Frye of Grant County on or about the last week of
October or first week of November of 2002, [I] was advised that any documents
which were a part of the court record were to be considered public records
because there was never any order entered to seal the records or make the[m]
confidential.
Given the original jurisdiction posture of this case,
however, we do not have a complete record before us, and, thus, we cannot review
the transcript of the Grant County proceedings to determine whether Judge Frye
did or did not issue a verbal ruling sealing such proceedings. In light of the
parties' disparate representations as to the existence of such an order and our
inability to resolve this quandary based upon the information at our disposal,
we cannot conclusively find that the Grant County Circuit Court did, or did not,
seal the record of the proceedings held in that court. Accordingly, we grant as
moulded Mr. Brooks' requested writ of prohibition and direct the Circuit Court
of Kanawha County to conduct further proceedings herein to ascertain whether the
documents released to Mr. Brooks pursuant to his FOIA request were protected by
a protective order or by an order sealing such records based upon its
examination of the transcript of the Grant County proceedings. (See footnote 16) In making this
determination, the circuit court should additionally consider the requirements
for the entry of such a protective order set forth in W. Va. Code
§ 30-3C-3 and W. Va. Tr. Ct. R. 10.03.
Before concluding our decision of this case, we wish
to comment upon a final matter that causes us great concern. Although we applaud
the zeal with which counsel has represented petitioner Brooks in this matter and
recognize the predicament they faced in light of the circuit court's stated
refusal to stay the underlying proceedings pending his ruling upon the
respondents' motion for a protective order, we do not wish to give the
impression that we condone counsel's actions in seeking relief from this Court
without affording the circuit court an opportunity to enter an order
memorializing the rulings from which their client now seeks relief. It would
also have been preferable to have permitted the circuit court to have conducted
further proceedings regarding the respondents' motions rather than prematurely
requesting extraordinary relief from this Court, which has resulted in lengthy
and protracted litigation and has necessitated duplicitous efforts by this Court
and the Circuit Court of Kanawha County. In short, “[j]udges are not like pigs,
hunting for truffles,” State v. Honaker, 193 W. Va. 51, 56 n.4, 454
S.E.2d 96, 101 n.4 (1994) (internal quotations and citations omitted), and
neither are the members of this Honorable Court. Thus, future litigants are
encouraged to first exhaust remedies available to them in lower tribunals, if
any so exist, before initiating original jurisdiction proceedings herein.
Writ
Granted as Moulded.