BRYANT GEORGE, M.D. VERSUS 2010-6004 CHRISTUS HEALTH SOUTHWESTERN LOUISIANA Consolidated With BRYANT GEORGE, M.D. VERSUS 2011-2211 CHRISTUS HEALTH SOUTHWESTERN LOUISIANA

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-412

BRYANT GEORGE, M.D., ET AL.

VERSUS

CHRISTUS HEALTH SOUTHWESTERN LOUISIANA

CONSOLIDATED WITH

BRYANT GEORGE, M.D., ET AL.

VERSUS

CHRISTUS HEALTH SOUTHWESTERN LOUISIANA, ET AL.

**********

ON APPLICATION FOR SUPERVISORY WRITS FROM
THE FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NOS. 2010-6004 C/W 2011-2211
HONORABLE RONALD F. WARE, DISTRICT JUDGE

**********

JIMMIE C. PETERS
JUDGE

**********

Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and John E. Conery,
Judges.

WRIT GRANTED IN PART AND DENIED IN PART, AND THE MATTER
IS REMANDED WITH INSTRUCTIONS.

Timothy O’Dowd
921 Ryan Street, Suite D
Lake Charles, Louisiana 70601
(337) 310-2304
COUNSEL FOR PLAINTIFFS/APPLICANTS:
Bryant George, M.D.
Dura Mater, Inc.

Roy C. Cheatwood
Aubrey B. Hirsch, Jr.
Alexander M. McIntyre, Jr.
Baker Donelson Bearman Caldwell & Berkowitz, P.C.
201 St. Charles Avenue, Suite 3600
New Orleans, Louisiana 70170
(504) 566-5200
COUNSEL FOR DEFENDANT/RESPONDENT:
CHRISTUS Health Southwestern Louisiana d/b/a CHRISTUS St.
Patrick Hospital

Marshall J. Simien, Jr.
Simien & St. Mary, LLC
Capital One Tower, Suite 1110
One Lakeshore Drive
Lake Charles, Louisiana 70629
(337) 497-0022
COUNSEL FOR DEFENDANT/RESPONDENT:
CHRISTUS Health Southwestern Louisiana d/b/a CHRISTUS St.
Patrick Hospital

Jeff Landry
Attorney General
David Jeddie Smith, Jr.
Assistant Attorney General
P.O. Box 94005
Baton Rouge, Louisiana 70804-9005
(225) 326-6000
COUNSEL FOR THE STATE:
Office of the Attorney General

Richard T. Simmons, Jr.
Hailey, McNamara, Hall, Lamann & Papale, LLP
One Galleria Blvd, Suite 1400
Metairie, Louisiana 70001
(504) 836-6500
COUNSEL FOR DEFENDANTS:
Kathleen L. DeBruhl & Associates, LLC
Kathleen L. DeBruhl
Gilbert Ganucheau, Jr.

PETERS, J.

Dr. Bryant George and Dura Mater, Inc. filed this application for

supervisory writs with this court seeking to set aside a protective order issued by

the trial court which has the effect of shielding evidence in the possession of

CHRISTUS Health Southwestern Louisiana d/b/a CHRISTUS St. Patrick Hospital

(hereinafter referred to as “the hospital” or “St. Patrick Hospital”) from the

discovery process. For the following reasons, we grant the relief requested by Dr.

Bryant George and Dura Mater, Inc. by setting aside the protective order at issue

and remanding the matter to the trial court with instructions.
1
DISCUSSION OF THE RECORD
2
Dr. George is a neurosurgeon, and Dura Mater, Inc. is a Louisiana

corporation wholly owned by Dr. George. In the spring of 2009, St. Patrick

Hospital, in Lake Charles, Louisiana, recruited Dr. George to relocate his medical
3
practice from southeast Louisiana to Lake Charles. To induce Dr. George to

relocate, St. Patrick Hospital offered to immediately grant him hospital privileges

and make office space and personnel available for his practice. Dr. George

accepted the offer and entered into a contract with St. Patrick Hospital. St. Patrick

Hospital also entered into a contract with Dura Mater, Inc. wherein it agreed to

make office space and personnel available for Dr. George’s practice.

When Dr. George began performing surgery at St. Patrick Hospital in April

of 2009, the hospital provided physician “proctors” to observe and assess his

1 For the purpose of this opinion only, and unless otherwise specifically stated, the
background giving rise to this litigation is derived primarily from the factual allegations set forth
in the pleadings.

2 Dr. George uses the corporation to operate and manage his private medical practice.

3 Dr. George’s pleadings suggest his practice was located in Slidell, Louisiana, while the
hospital asserts that he moved a New Orleans, Louisiana practice to Lake Charles.

competency in surgery as well as his ability to provide for patients’ needs; at no

time between April and September of 2009 did these physicians express any

concerns to Dr. George, or anyone else, concerning his professional performance.

However, soon after he came to work with the hospital, Dr. George came to

believe that the hospital was treating him differently from other similarly situated
4
physicians, particularly with regard to the allotment of the operating facilities.

Because he considered the allotment procedure detrimental to his practice, he

expressed his concerns to the hospital’s administrative officers.

According to Dr. George, his complaints resulted in St. Patrick Hospital

falsely accusing him of being inebriated while in the operating room of the hospital

on September 9, 2009. On the same day this allegation surfaced, the hospital

suspended his hospital privileges; sometime subsequent to this action by the

hospital and on his attorney’s advice, Dr. George voluntarily requested a medical

leave of absence from the hospital. At this point, one of the hospital employees

whose services had been provided to Dura Mater, Inc. started informing Dr.

George’s patients that he had stopped treating patients for an indefinite amount of

time because he was suffering from alcoholism.

At some point in 2010 while he was still on medical leave, and without

seeking any input from him, the St. Patrick Hospital’s Peer Review Committee

voted not to reinstate Dr. George’s hospital privileges. He then formally applied

for reinstatement pursuant to the hospital’s rules, regulations, and bylaws, and the

hospital denied his request.

On December 3, 2010, Dr. George and Dura Mater, Inc. filed the instant

action now before us. In the original pleadings and the supplemental pleadings

4
Dr. George attributed the hospital’s change in attitude toward him to a personality
conflict and the hospital’s disappointment in the amount of revenue he was producing.

2

that followed, Dr. George and Dura Mater, Inc. assert that St. Patrick Hospital

breached its contracts with them and committed unfair trade practices, which
5
caused them damages. They further alleged that St. Patrick Hospital provided

staffing personnel who were not capable of handling their duties and were morally

unfit for the job. Additionally, they assert that on certain days when Dr. George

performed elective surgeries at St. Patrick Hospital, he was not allowed access to

an operating room that was specially equipped for neurosurgery, nor was he

provided competent staff to assist him with the neurosurgeries that he performed.

Furthermore, when Dr. George began to complain about issues which were

interfering with his ability to perform under his contract with the hospital, his

concerns were not addressed and St. Patrick Hospital “set out on a course to get rid

of him[.]”

Dr. George asserts that the personal biases which resulted in him losing his

hospital privileges and destroyed his practice continued after his relationship with

St. Patrick Hospital terminated. Furthermore, he asserts that the hospital’s malice

toward him is evidenced by the way other similarly situated physicians were

treated, specifically within the peer review process. He asserts that he discovered

this divergent treatment through public records identifying physicians with

questions of competency. St. Patrick Hospital denied his malice allegation and

denied treating him differently from other physicians. It is this assertion which

gives rise to the issue now before us.

During the course of discovery, Dr. George and Dura Mater, Inc. sought to

obtain evidence from the hospital to support their position that other doctors

subject to St. Patrick Hospital’s peer review process were found to lack

5
Dr. George and Dura Mater, Inc. have named other parties as defendants in the
litigation, but their involvement in the litigation does not relate to the issue now before us.

3

competence and to be a threat to quality healthcare, but that those doctors were still

granted hospital privileges despite these findings. Specifically, they asserted that

they “wish to determine if these physicians and others associated with [St. Patrick

Hospital] have had their competency reviewed through a peer review process and

determine if they were treated differently (more favorably) than Dr. George due to

prejudices held against Dr. George.”

St. Patrick Hospital responded to discovery addressing these allegations with

a motion for a protective order. In that motion, St. Patrick Hospital asserted that

the peer review materials are protected from disclosure by La.R.S. 13:3715.3 and

La.R.S. 44:7, the Louisiana peer review confidentially statutes. The trial court

agreed and granted the motion for a protective order prohibiting Dr. George and

Dura Mater, Inc. from obtaining discovery on these issues. Subsequent to the grant

of the protective order, Dr. George and Dura Mater, Inc. filed a motion seeking to

have La.R.S. 13:3715.3 and La.R.S. 44:7, or parts thereof, declared

unconstitutional and to have the protective order set aside. Following a hearing,

the trial court denied their motion and they filed the application for supervisory

writs now before this court, arguing that:

The Trial Court erred by refusing to declare La. R.S. 13:3715.3
and La. R.S. 44:7, or parts thereof, unconstitutional and refusing to lift
[its] protective order that completely and forever shields relevant
evidence from the light of day. In “derogation of the search for truth”,
[sic] this, unconstitutionally, resulted in denying the plaintiffs
meaningful access to the courts.

OPINION

Since the question of the constitutionality of a statute has been raised, the

Louisiana Attorney General (attorney general) joined in the litigation and filed a

brief urging that this court affirm the trial court’s determination that the statutes at

4

issue are constitutional. The arguments of all the parties are interrelated and will

be addressed together.

Procedural Issue

Both the attorney general and the hospital argue that the constitutional

claims are not properly before this court. They base this argument on the fact that

Dr. George and Dura Mater, Inc. did not specifically plead the unconstitutionality

of the statutes in their original petition or in any of the three supplemental and
6
amending petitions that followed. While we agree that Dr. George and Dura

Mater, Inc. did not specifically plead the constitutional issue in their petition or

supplemental petitions, we still find no merit in this argument.

In reaching this conclusion, we recognize that “as a general rule a litigant

cannot raise the unconstitutionality of a statute unless its unconstitutionality is

specially pleaded and the grounds particularized.” Johnson v. Welsh, 334 So.2d

395, 396 (La.1976). However, the definition of pleading in a civil action includes

“petitions, exceptions, written motions, and answers.” La.Code Civ.P. art. 852

(emphasis added). Additionally, it has long been settled that “when the

unconstitutionality of a statute is specifically pled, the claim must be raised in a

petition (the original petition, an amended and supplemental petition or a petition

in an incidental demand), an exception, a motion or an answer.” Vallo v. Gayle Oil

Co., Inc., 94-1238, p. 8 (La. 11/30/94), 646 So.2d 859, 865 (emphasis added).

Therefore, we find that the constitutional claims raised by Dr. George and Dura

Mater, Inc. in their motion are properly before this court.

6
The third supplemental and amending petition, which was the last supplementation of
the original petition filed before the trial court’s ruling on protective order, was filed on October
27, 2015. The motion seeking a declaration that the statutes at issue are unconstitutional was
filed by Dr. George and Dura Mater, Inc. on January 25, 2016.

5

Constitutional Issue

Dr. George and Dura Mater, Inc. assert that they became aware of the

disproportionate treatment of Dr. George through public records indicating “that

numerous doctors in this community have suffered significant setbacks that may or

may not be accompanied by questions of competency[,]” and that they wanted to

determine whether these physicians “had their competency reviewed through a

Peer Review process and determine if they were treated differently (more

favorably) than Dr. George due to prejudices held against Dr. George.” They

argue that the evidence sought is relevant evidence as that term is defined in

La.Code Evid. art. 401 and that the trial court’s grant of the protective order denies

them access to the courts of this state by preventing them from accessing evidence

which would show that the actions taken against them by St. Patrick Hospital were

for discriminatory motives and not for the betterment of the healthcare of its

patients. They further assert that the statutes at issue allow hospitals to shield

evidence from a litigant such that “access to the courts is illusory, not adequate, not

effective and not meaningful.”

The right of access to the courts is protected by the First Amendment right to

petition for redress of grievances, as well as the Due Process Clause of the

Fourteenth Amendment and the privileges and immunities provision of U.S. Const.

art. IV. Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983). Additionally,

Louisiana’s guarantee of the right to access the courts is governed by La.Const. art.

1, § 22, which provides that “[a]ll courts shall be open, and every person shall have

an adequate remedy by due process of law and justice, administered without

denial, partiality, or unreasonable delay, for injury to him in his person, property,

reputation, or other rights.”

6

The statutes at issue are extensive in content and do place limitations on

access to certain information generated within a medical care environment.

Because of the extensive nature of the statutes, we will set them out in full while

italicizing the language in the statutes which is pertinent to the issue before us.

Louisiana Revised Statutes 13:3715.3 (emphasis added) reads as follows:

A. Notwithstanding the provisions of R.S. 44:7(D) or any other
law to the contrary, all records, notes, data, studies, analyses,
exhibits, and proceedings of:

(1) Any public hospital committee, medical organization peer
review committee, any nationally recognized improvement agency or
commission, including but not limited to the Joint Commission on
Accreditation of Healthcare Organizations (JCAHO), or any
committee or agency thereof, or any healthcare licensure agency of
the Louisiana Department of Health and Hospitals, public hospital
board while conducting peer reviews, dental association peer review
committee, professional nursing association peer review committee,
extended care facility committee, nursing home association peer
review committee, peer review committee of a group medical practice
of twenty or more physicians, peer review committee of a
freestanding surgical center licensed pursuant to R.S. 40:2131 et seq.,
or health maintenance organization peer review committee, including
but not limited to the credentials committee, the medical staff
executive committee, the risk management committee, or the quality
assurance committee, any committee determining a root cause
analysis of a sentinel event, established under the bylaws, rules, or
regulations of such organization or institution, or

(2) Any hospital committee, the peer review committees of any
medical organization, dental association, professional nursing
association, nursing home association, social workers association,
group medical practice of twenty or more physicians, nursing home,
ambulatory surgical center licensed pursuant to R.S. 40:2131 et seq.,
ambulance service company, health maintenance organization, any
nationally recognized improvement agency or commission, including
but not limited to the Joint Commission on Accreditation of
Healthcare Organizations (JCAHO), or any committee or agency
thereof, or any healthcare licensure agency of the Louisiana
Department of Health and Hospitals, or healthcare provider as defined
in R.S. 40:1299.41(A), or extended care facility committee, including
but not limited to the credentials committee, the medical staff
executive committee, the risk management committee, or the quality
assurance committee, any committee determining a root cause
analysis of a sentinel event, established by the peer review committees
of a medical organization, dental organization, group medical practice
of twenty or more physicians, social workers association, ambulatory
7

surgical center licensed pursuant to R.S. 40:2131 et seq., ambulance
service company, health maintenance organization, or healthcare
provider as defined in R.S. 40:1299.41(A), or private hospital licensed
under the provisions of R.S. 40:2100 et seq., shall be confidential
wherever located and shall be used by such committee and the
members thereof only in the exercise of the proper functions of the
committee and shall not be available for discovery or court subpoena
regardless of where located, except in any proceedings affecting the
hospital staff privileges of a physician, dentist, psychologist, or
podiatrist, the records forming the basis of any decision adverse to the
physician, dentist, psychologist, or podiatrist may be obtained by the
physician, dentist, psychologist, or podiatrist only. However, no
original record or document, which is otherwise discoverable,
prepared by any person, other than a member of the peer review
committee or the staff of the peer review committee, may be held
confidential solely because it is the only copy and is in the possession
of a peer review committee.

B. No employee, physician, dentist, public or private hospital,
organization, or institution furnishing information, data, reports, or
records to any such committee with respect to any patient examined or
treated by such physician or dentist or confined in such hospital or
institution shall be liable in damages to any person by reason of
furnishing such information.

C. No member of any such committee designated in Subsection
A of this Section or any sponsoring entity, organization, or
association on whose behalf the committee is conducting its review
shall be liable in damages to any person for any action taken or
recommendation made within the scope of the functions of such
committee if such committee member acts without malice and in the
reasonable belief that such action or recommendation is warranted by
the facts known to him.

D. Medicaid or Medicare benefits or insurance benefits
provided by a private insurer shall not be denied to any person due to
inability to secure records or proceedings referred to in this Section.

E. Nothing contained herein shall be construed to prevent
disclosure of such data to appropriate state or federal regulatory
agencies which by statute or regulation are otherwise entitled to
access to such data.

F. Nothing herein shall be construed to prevent disclosure of a
patient’s hospital record, as defined by R.S. 40:2144, to the patient or
his duly authorized representative.

G.(1) As used in this Subsection, the following terms shall
mean:

8

(a) “Board” means the Louisiana State Board of Medical
Examiners, Louisiana State Board of Dentistry, Louisiana State Board
of Psychologists, Louisiana State Board of Nursing, Louisiana Board
of Pharmacy, as well as any Louisiana licensing and regulatory board
or agency whose licensees, certificate holders, or registrants are
subject to any form of peer review identified in Subsection A of this
Section.

(b) “Licensee” means an individual who possesses a license,
certificate, or registration duly issued by a board, or an individual who
has made application for such a license, certificate, or registration.

(2) The boards defined in Subparagraph (1)(a) of this
Subsection are hereby designated as appropriate state regulatory
agencies as provided by Subsection E of this Section. Any board
whose licensees are subject to any form of peer review identified in
Subsection A of this Section shall be granted access to such peer
review information, data, reports, or records as that board determines
is necessary to an investigation or an adjudication of an individual
over whom such board has regulatory authority. The board having
access to such peer review information, data, reports, or records shall
receive and maintain that information, data, reports, or records as
confidential and privileged and shall take measures to preserve its
confidentiality, including the assertion of all available evidentiary
privileges and protection of patient identification as specified in R.S.
13:3715.1(J).

(3) When such disclosure is requested and made in a manner
authorized in Paragraph G(4) of this Subsection, the verbal, written or
other disclosure of peer review information, data, reports, or records
by any person, committee, hospital, or other peer review entity
described in Subsection A of this Section to any board conducting
investigation or adjudication functions shall not constitute a waiver of
any legal or evidentiary privilege, nor form the basis of any claim or
suit for damages or injunctive relief of whatsoever kind or nature,
including breach of confidentiality or invasion of privacy or
otherwise, nor deprive the person, committee, hospital, or other peer
review entity making the disclosure of the benefit of the immunities
otherwise provided in Subsections B and C of this Section.

(4) Disclosure is deemed to be authorized in any of the
following circumstances:

(a) An interview of a witness or potential witness conducted by
a duly authorized officer, employee, or attorney on behalf of the
Louisiana board, acting in his or her official capacity, and
accompanied by a validly issued investigatory subpoena or subpoena
duces tecum.

(b) As part of the production of documents in response to a
validly issued investigative subpoena duces tecum by a board.
9

(c) In response to questions or as part of production of
documents at a duly noticed deposition or any other form of discovery
authorized under R.S. 49:956(6) in an adjudication proceeding
pending before such board.

(d) In response to questions or information provided pursuant
to a subpoena or subpoena duces tecum issued in connection with an
adjudication proceeding conducted by a board, which hearing may be
conducted in executive session to preserve confidentiality of peer
review privileged materials, including information, data, reports, and
records.

(e) In response to duly authorized discovery as contemplated
by the Louisiana Code of Civil Procedure, surveys, statements of
deficiencies, and records pertaining to the results of investigations of
surveys conducted by or on behalf of any governmental regulatory
agency may be discoverable and admissible in a civil action against a
healthcare provider if the surveys and related documents are directly
related to the type of injury allegedly sustained by the patient at issue
in the civil action and the deficiencies have either been admitted by
the healthcare provider or have been declared valid through the
appellate process established by the administrative agency in charge
of reviewing surveys. When a party seeks to admit into evidence
surveys, statements of deficiencies, and related documents, any party
to a civil action may request and the court, using its discretion, may
conduct a voir dire of the witness supporting the surveys and related
documents to determine whether the deficiency is based on reliable
evidence.

(5) When one or more of the provisions of Paragraph (4) are
applicable, no committee or entity listed in Subsection A of this
Section and no health care provider or health care institution,
including the involved licensee or person over whom such board has
regulatory authority, shall refuse to provide verbal, written, or
recorded information, data, reports, or records as a witness or
otherwise on the basis of the privilege provided in Subsection A of
this Section or the healthcare provider - patient privilege provided in
Code of Evidence Article 510.

Additionally, La.R.S. 44:7 (emphasis added) provides:

A. Except as provided in Subsections B, C, and E of this
Section and R.S. 44:17, the charts, records, reports, documents, and
other memoranda prepared by physicians, surgeons, psychiatrists,
nurses, and employees in the public hospitals of Louisiana, adult or
juvenile correctional institutions, public mental health centers, and
public schools for the mentally deficient to record or indicate the past
or present condition, sickness or disease, physical or mental, of the
patients treated in the hospitals are exempt from the provisions of this
Chapter, except the provisions of R.S. 44:36 and 39. Nothing herein
shall prevent hospitals from providing necessary reports pursuant to
10

R.S. 22:976, R.S. 29:765, R.S. 40:2019, and R.S. 44:17, nor shall any
liability arise from the good faith compliance therewith.

B. The governing authority of each public hospital, adult or
juvenile correctional institution, public mental health center or public
state school for the mentally deficient, may make and enforce rules
under which these charts, records, reports, documents or other
memoranda may be exhibited, or copied by or for persons legitimately
and properly interested in the disease, physical or mental, or in the
condition of patients.

C. Whenever the past or present condition, sickness or disease,
physical or mental, of any patient treated in any hospital, adult or
juvenile correctional institution, center or school, set forth in
Subsection A of this Section shall be at issue or relevant in any
judicial proceeding, the charts, records, reports, documents and other
memoranda referred to in said Subsection A shall be subject to
discovery, subpoena and introduction into evidence in accordance
with the general law of the state relating to discovery, subpoena and
introduction into evidence of records and documents.

D. The records and proceedings (1) of any public hospital
committee, medical organization committee, or extended care facility
committee established under state or federal law or regulations or
under the bylaws, rules, or regulations of such organization or
institution or (2) of any hospital committee, medical organizational
committee, or extended care facility committee established by a
private hospital licensed under the provisions of R.S. 40:2100 et seq.
shall be confidential and shall be used by such committee and the
members thereof only in the exercise of the proper functions of the
committee and shall not be public records and shall not be available
for court subpoena. No physician; hospital, whether public or private;
organization; or institution furnishing information, data, reports, or
records to any such committee with respect to any patient examined or
treated by such physician or confined in such hospital or institution
shall, by reason of furnishing such information, be liable in damages
to any person. No member of such a committee shall be liable in
damages to any person for any action taken or recommendation made
within the scope of the functions of such committee if such committee
member acts without malice and in the reasonable belief that such
action or recommendation is warranted by the facts known to him.
However, medicaid or medicare benefits or insurance benefits
provided by a private insurer shall not be denied to any person due to
inability to secure records or proceedings referred to in this Section.
Nothing contained herein shall be construed to prevent disclosure of
such data to appropriate state or federal regulatory agencies which by
statute or regulation are otherwise entitled to access to such data.

E. The governing authority of each public hospital, adult or
juvenile correctional institution, public mental health center, or public
state school for the mentally deficient, shall make available for
11

inspection and copying and shall release upon request an abstract of
the patient’s record in which all identifying data has been properly
encoded to assure confidentiality relating to patients treated in such
institutions to the Louisiana cancer registry program established
pursuant to R.S. 40:1229.70 et seq.

F. All records of interviews, health surveys, questionnaires,
laboratory and clinical data, reports, statements, notes, and
memoranda, which contain identifying characteristics of research
subjects, hereinafter referred to as “confidential data”, and which are
procured and prepared by employees of public universities, medical
schools, and colleges for the purpose of research, and acting in
accordance with institutional Internal Review Board policy and
procedures for research involving human subjects, shall be exempt
from the provisions of this Chapter and shall be subject to the
following provisions:

(1) No part of the confidential data shall be available for
subpoena nor shall it be disclosed, discoverable, or be compelled to be
produced in any civil, criminal, administrative, or other proceeding,
nor shall such records be deemed admissible as evidence in any civil,
criminal, or administrative proceeding, or other tribunal or court for
any reason.

(2) Nothing in this Section shall prohibit the publishing of data
that does not identify individuals or groups which have been assured
confidentiality of identification.

(3) Nothing in this Section shall prohibit the publication of
results of the research that maintains the confidentiality of the
identification of the individual or group that is the subject of research
pursuant to this Section.

(4) Nothing in this Section shall prohibit the voluntary
disclosure of identifying characteristics of research subjects provided
the researcher obtains the consent of the individuals so identified prior
to the release of the information.

The supreme court has summarized the purpose of both La.R.S. 13:3715.3

and La.R.S. 44:7 as that of providing “confidentiality to the records and

proceedings of hospital committees[.]” Smith v. Lincoln Gen. Hosp., 605 So.2d

1347, 1348 (La.1992). However, that purpose is not all-inclusive. In Smith, the

supreme court was faced with the question of whether a plaintiff could obtain

information regarding a hospital’s internal studies concerning the percentage of

nosocomial infections per patient admitted to that hospital. The trial court ordered
12

production, and the second circuit court of appeal reversed, finding that La.R.S.

13:3715.3(A) and La.R.S. 44:7(D) provided the hospital blanket immunity from

responding to the discovery request. In reversing the court of appeal decision, the

supreme court stated the following:

The reliance of the court of appeal upon La.R.S. 13:3715.3(A)
and 44:7(D) is partially misplaced. These provisions are intended to
provide confidentially to the records and proceedings of hospital
committees, not to insulate from discovery certain facts merely
because they have come under the review of any particular committee.
Such an interpretation could cause any fact which a hospital chooses
to unilaterally characterize as involving information relied upon by
one of the sundry committees formed to regulate and operate the
hospital to be barred from an opposing litigant’s discovery regardless
of the nature of that information. Such could not have been the intent
of the legislature, especially in light of broad scope given to discovery
in general. La.C.C.P. art. 1422. Further, privileges, which are in
derogation of such broad exchange of facts, are to be strictly
interpreted.

Id.

The supreme court went on to explain that:

This court has already questioned to what extent hospital committee
records are protected by the pertinent statutes and considered that
policy making and personnel areas are within the protected scope.
Smith v. Louisiana Health and Human Resources Admin., 477 So.2d
1118 (La.1985). Nevertheless, when a plaintiff seeks information
relevant to his case that is not information regarding the action taken
by a committee or its exchange of honest self-critical study but merely
factual accountings of otherwise discoverable facts, such information
is not protected by any privilege as it does not come within the scope
of information entitled to that privilege.

This does not mean that the plaintiff is entitled to the entire
study, as such study may contain evidence of policy making, remedial
action, proposed courses of conduct, and self-critical analysis which
the privilege seeks to protect in order to foster the ability of hospitals
to regulate themselves unhindered by outside scrutiny and
unconcerned about the possible liability ramifications their
discussions might bring about. As such, the trial court must make an
in camera inspection of such records and determine to what extent
they may be discoverable.

Id.

13

The supreme court in Gauthreaux v. Frank, 95-1033, p. 2 (La. 6/16/95), 656

So.2d 634, 634, favorably cited its holding in Smith and ordered the trial court “to

re-examine, in camera if necessary, the discovery requests made by plaintiff to

determine whether or not each item of information sought from St. Jude Medical

Center is protected by the privilege created in La.R.S. 13:3715.3.”

In between its decisions in Smith and Gauthreaux, the supreme court

elaborated on the protection afforded committee members under La.R.S.

13:3715.3(C) in Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.

7/5/94), 639 So.2d 730. In doing so, the supreme court made it clear that the

statute did not provide a blanket immunity, but explained that no liability attaches

to a committee member who acts “without malice and in good faith” in performing

his or her functions within the committee. Id. at 746. When the committee

member steps outside the scope of his duties, immunity does not attach. See also

Granger v. Christus Health Cent. La., 12-1892 (La. 6/28/13), 144 So.3d 736.

The common thread of the existing jurisprudence addressing the statutes at

issue in this litigation is the holding that those statutes do not provide a hospital

with total immunity from discovery of anything that occurs within the internal

committee operation of a medical facility. However, in this case, the trial court

reached the opposite conclusion. That being the case, and while we find that Dr.

George and Dura Mater, Inc. are entitled to some relief, we cannot reach the all-

encompassing constitutional issue.

As stated by the supreme court in State v. Brenan, 99-2291, p. 3 (La.

5/16/00), 772 So.2d 64, 67:

It is well established that statutes are presumed to be valid, and
the constitutionality of a statute should be upheld whenever possible.
State v. Griffin, 495 So.2d 1306, 1308 (La.1986) (citations omitted).
Because a state statute is presumed constitutional, the party
challenging the statute bears the burden of proving its
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unconstitutionality. The attack will fail if the court determines that a
reasonable relationship between the law and the promotion or
protection of a public good, such as health, safety or welfare exists.
Theriot v. Terrebonne Parish Police Jury, 436 So.2d 515 (La.1983).

At this point in the litigation, the trial court has yet to examine the discovery

requests to determine whether each item of information sought by Dr. George and

Dura Mater, Inc. is protected by the privilege created in either La.R.S. 13:3715.3 or

La.R.S. 44:7. In light of the supreme court’s rulings in Smith, 605 So.2d 1347, as

well as the other supreme court jurisprudence cited herein, we set aside the trial

court’s protective order and remand for the trial court to re-examine each of the

individual discovery requests, and to do so by an in camera inspection if necessary

to determine whether any of the information sought is protected by the privilege

created by the statutes at issue. If the trial court finds that none is protected, then

such a ruling would render the constitutional issue moot. If the trial court finds

that some or all of the information sought is protected, and Dr. George and Dura

Mater, Inc. disagree with that ruling, they can seek further relief.

DISPOSITION

For the foregoing reasons we grant in part and deny in part the supervisory

writ of Dr. Bryant George and Dura Mater, Inc. We set aside the protective order

rendered by the trial court, but decline to address the constitutionality of La.R.S.

13:3715.3 or La.R.S. 44:7 at this time. We remand the matter to the trial court for

further proceedings consistent with this opinion.

WRIT GRANTED IN PART AND DENIED IN PART, AND THE
MATTER IS REMANDED WITH INSTRUCTIONS.

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