ARNETT v. PEARCE

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Court of Appeal, Sixth District, California.

Dixon ARNETT, as Executive Director, etc., Plaintiff and Appellant, v. Kenneth W. PEARCE, as Chief Executive Officer, etc., Defendant and Respondent.

No. H013143.

Decided: October 02, 1995

Daniel E. Lungren, Attorney General, Alvin J. Korobkin, Sr. Assistant Attorney General, Vivien Hara Hersh, Jane Zack Simon and Thomas Reilly, Deputy Attorneys General, for appellant. Jay D. Christensen and Stephen G. Auer, Pasadena, for respondent. Robert C. Fellmeth, Coronado, and Julianne B. D'Angelo, San Diego, for amicus curiae in support of appellant.

In this appeal we consider the scope of Evidence Code section 1157, which insulates the records of committees and peer review bodies of hospitals and related organizations from discovery.   The Medical Board of California (“Board”) petitioned the trial court to compel production of a hospital's peer review records in the course of investigating allegations of sexual misconduct by a staff psychiatrist.   The trial court ruled that the Board was not entitled to such records and denied the petition.   We hold that the discovery limitation of Evidence Code section 1157 was not intended to encompass pre-accusation investigations by the Board.   Accordingly, we reverse the order.

Background

On July 13, 1993, the Board received a report pursuant to Business and Professions Code section 805,1 notifying it that Dr. B.2 , a psychiatrist, had failed to renew his staff privileges at Oak Creek Hospital (Hospital), a psychiatric facility.   The report described the circumstances preceding his termination:  “Dr. B. was under an investigation by the Medical Executive Committee (MEC) as a result of a complaint against him of sexual harassment.   As part of its investigation, the MEC requested that he undergo a psychiatric evaluation and have the examining psychiatrist submit a written report of the results to the MEC.   Dr. B. failed to cause such a report to be submitted to the MEC.   He did not submit a timely application for reappointment and his appointment terminated on May 15, 1993 when his prior appointment expired.”

The Board began an investigation of the events described in the report.   In August 1993, James McCuen, senior investigator, wrote to the Hospital requesting certain records on Dr. B. under the authority of Business and Professions Code section 805.1.3  In response, Gail Betz, the Hospital's legal counsel, expressed the Hospital and staff's desire to cooperate with the Board.   Betz explained that Dr. B. was “under investigation” by the medical staff for sexual misconduct.   M.S., a former hospital employee, had filed a civil lawsuit against the hospital and Dr. B. alleging sexual harassment.   While the investigation was pending, Dr. B. had failed to reapply for staff privileges before the expiration of his appointment.   No disciplinary proceeding had taken place, however, nor had charges even been filed by the time his appointment terminated.   Consequently, Betz explained, none of the requested documents existed.   Betz further advised McCuen that the Hospital was in the process of determining which of the requested documents came within the attorney-client or work product privilege and those that were protected from disclosure by Evidence Code section 1157.

McCuen interviewed M.S., who reported unwanted touching, kissing, and inappropriate remarks directed at her by Dr. B.   McCuen also reviewed deposition testimony by two of M.S.'s co-workers, who described Dr. B.'s unwelcome sexual advances toward them.

In April 1994 the Board served an administrative subpoena on the hospital, requesting certain documents in the language of Business and Professions Code section 805.1.   Betz explained again that there were no “ ‘statement of charges, documents, medical charts or exhibits in evidence’, nor opinions, findings or conclusions of a disciplinary hearing,” as contemplated by Business and Professions Code section 805.1.

In June 1994, the Board amended its subpoena to request all records of complaints against Dr. B. by employees, co-workers, or patients;  all documentation, including “minutes, notes, reports, findings, recommendations, or evaluations,” produced during any meetings or discussions either about complaints against Dr. B. or about his staff privileges.   In support of the amended subpoena, McCuen mentioned that in early 1993 he had investigated a complaint of inappropriate sexual behavior toward a patient, H.D.

The Hospital provided 23 documents responsive to the subpoena but refused to produce others, again relying on attorney privileges and the protections of Evidence Code section 1157.   The documents submitted included a detailed account of the actions taken and conditions imposed on Dr. B. in response to the reports of his inappropriate conduct at the Hospital.   One of those conditions was that Dr. B. submit to a psychiatric evaluation.   When he failed both to undergo the evaluation and to submit a timely application to renew his staff privileges, his hospital appointment lapsed.

In July 1994, the Board filed a petition in superior court to enforce the subpoena.  (Gov.Code, § 11187.)   After hearing the parties' arguments on the applicability of Evidence Code section 1157, the trial court denied the petition.

Discussion 4

The Hospital Staff

Before discussing the applicability of section 1157 in this case, we briefly review the administrative structure of the Hospital and its staff, as described in Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1224, 23 Cal.Rptr.2d 397, 859 P.2d 96.  “Hospitals have a dual structure.   First, an administrative governing body (often comprised [sic ] of persons other than health care professionals) takes ultimate responsibility for the quality and performance of the hospital.   Second, an ‘organized medical staff’ entity (composed of health care professionals) has responsibility for providing medical services, and is ‘responsible to the governing body for the adequacy and quality of the medical care rendered to patients in the hospital.’   (Cal.Code Regs., tit. 22, § 70703, subd. (a);  see also id., § 70701(a)(1)(F);  Bus. & Prof.Code, § 805.5.)”

Peer review committees are an essential component of staff operations at a hospital.  (Cal.Code Regs., tit. 22, §§ 70703, subd. (d), 70703, subd. (b), 70701, subd. (a)(7).)   These committees are charged with evaluating applicants for staff privileges;  recommending appointment to, curtailment of, or exclusion from privileges;  establishing standards and procedures for patient care, and reviewing surgical and medical practices within the facility.  (Matchett v. Superior Court (1974) 40 Cal.App.3d 623, 628, 115 Cal.Rptr. 317;  People v. Superior Court (Memorial Medical Center ) (1991) 234 Cal.App.3d 363, 372–373, 286 Cal.Rptr. 478.)   An important facet of the committee's responsibility is to “compile records and evaluations and engage in frank discussions about the performance and competence of their peers.   Should the committee find a peer to be incompetent, a report and recommendation is made to administrators, who may then take action to revoke, limit, or deny medical staff privileges.”  (Comment (1984) 24 Santa Clara L.Rev. 661, 670.)

The Board

The Medical Board of California is a 19–member board within the Department of Consumer Affairs.   One of its divisions, the Division of Medical Quality, is responsible for hearing disciplinary actions, carrying out disciplinary restrictions on licensees, suspending and revoking licenses, and generally reviewing the quality of medical practice by physicians under its jurisdiction.  (Bus. & Prof.Code, §§ 2001, 2004.)  “[The Board], in other words, is charged with determining that the conduct of physicians does not fall below the level of professionalism imposed upon them by the State of California.”  (Bonner v. Sisters of Providence Corp. (1987) 194 Cal.App.3d 437, 445, 239 Cal.Rptr. 530.)

In carrying out its duties, the Board is authorized to conduct investigations of “[a]ll matters relating to the business activities and subjects under the jurisdiction of the department.”  (Gov.Code, § 11180, subd. (a).)  These matters may arise out of complaints from the public or another professional that a particular physician is guilty of unprofessional conduct.5  The investigations may entail inspection of books and records and the issuance of subpoenas for the production of documents.  (Gov.Code, § 11181.)   The Board may also require a physician with possible physical or mental impairment to undergo a psychological or physical examination.  (Bus. & Prof.Code, § 820.)   If the Board determines that the physician's ability to practice medicine safely is impaired due to mental illness, it may take appropriate action after formal proceedings conducted according to Government Code section 11500, et. seq.

In this case the subpoena was issued to “ascertain whether or not the physician in question can continue to practice medicine safely and whether the public is endangered by his continued practice.”   More specifically, the Board was attempting to determine whether there was sufficient evidence to compel a physical and psychiatric examination of Dr. B. pursuant to Business and Professions Code section 820, and whether there was “cause for disciplinary action against his license.”   Because the case involved possible sexual harassment of dependent adult patients by a psychiatrist, the Board believed it was especially important to examine all available information about Dr. B.'s conduct.

Applicability of Section 1157

The only question before us is whether Evidence Code section 1157 (hereafter, “section 1157”) limits the Board's access to the Hospital's peer review committee records in the course of the Board's preliminary investigation.   This section provides, in part:  “(a) Neither the proceedings nor the records of organized committees of medical, medical-dental, podiatric, registered dietitian, psychological, or veterinary staffs in hospitals, or of a peer review body, as defined in Section 805 of the Business and Professions Code,6 having the responsibility of evaluation and improvement of the quality of care rendered in the hospital ․ shall be subject to discovery.”   Subdivision (b) of section 1157 provides that no person attending a committee meeting may be compelled to testify as to what transpired at the meeting.   The remaining subdivisions identify specific exceptions to the persons and committees subject to its terms.

The focus of the parties' dispute is the word “discovery” in subdivision (a).   According to the Board, this term refers exclusively to an exchange of information in the course of legal proceedings in preparation for trial;  it does not encompass subpoenas or other methods of investigation by administrative agencies.   The statute was enacted specifically to limit a malpractice plaintiff's access to protected documents of medical staff committees, not to obstruct an agency in performing its duties for the public welfare.   Had an accusation been filed against Dr. B., the Board continues, then he would be entitled to “discovery” pursuant to Government Code section 11507.6.   Before that time, however, neither section 1157 nor any other statutory provision limits the broad investigatory powers of the Board.

The Hospital does not offer a precise definition of “discovery” that comports with its interpretation of the statute.   It does argue, however, that we should apply the term in its “usual, ordinary” sense—meaning, presumably, access to materials by any outside entity.   A broad interpretation is necessary, the Hospital argues, to protect the confidentiality of committee proceedings and encourage candor in reports to and discussions by committee members.   Because the Board is not among those specifically exempted from the reach of section 1157, it is not entitled to the records it seeks.

 To discern the meaning of a statute we look first to the language used by the Legislature.  (Brown v. Superior Court (1984) 37 Cal.3d 477, 485, 208 Cal.Rptr. 724, 691 P.2d 272;  California Eye Institute v. Superior Court (1989) 215 Cal.App.3d 1477, 1481, 264 Cal.Rptr. 83.)   Statutory terms are interpreted according to their usual or ordinary meanings;  but where ambiguity exists, or if a literal interpretation would lead to absurd results or otherwise frustrate legislative intent, we must look beyond the words used to ascertain the purpose of the Legislature in enacting the provision.   (Brown v. Superior Court, supra, 37 Cal.3d at p. 485, 208 Cal.Rptr. 724, 691 P.2d 272.)

The term “discovery” may refer either to the process or act of learning what was previously unknown, or more specifically to the pretrial disclosure of facts, documents, or other materials pertinent to ongoing litigation.   In the context of the entire provision and its manifest protective purpose, the words “shall not be subject to discovery” in section 1157 can only mean that a party to a pending legal proceeding is not entitled to disclosure of the records of hospital staff committees.

 Nevertheless, section 1157 does not expressly limit the types of proceedings in which discovery is precluded.7  In People v. Superior Court (Memorial Medical Center), supra, 234 Cal.App.3d 363, 286 Cal.Rptr. 478, the Second District, Division Seven, concluded that a hospital's committee records are not immune from discovery in criminal actions.  (Contra, Scripps Memorial Hospital v. Superior Court (1995) 37 Cal.App.4th 1720, 44 Cal.Rptr.2d 725 [discovery prohibited by § 1157 when records are sought to impeach defense expert in criminal prosecution].)   We express no view regarding this holding, since the underlying facts are not before us.   Assuming that criminal discovery is excepted from the reach of section 1157, the question remains whether the Legislature contemplated that all proceedings other than criminal actions were to be encompassed in the discovery limitation of the statute, or only civil lawsuits by individual plaintiffs.   The language “subject to discovery” is sufficiently ambiguous to require application of the rules of statutory construction.

 The fundamental principle of statutory construction is to give effect to the Legislature's objective in enacting the law.  (Sand v. Superior Court (1983) 34 Cal.3d 567, 570, 194 Cal.Rptr. 480, 668 P.2d 787.)   In order to ascertain legislative intent, it is appropriate to examine the history of the statute and the circumstances of its enactment.   (Ibid.;  Dyna–Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387, 241 Cal.Rptr. 67, 743 P.2d 1323.)

The legislative history of section 1157 does not illuminate the answer to the question before us.   The Legislative Counsel's Digest of AB 1069 summarized the bill before its passage as follows:  “Provides that neither the proceedings nor records of organized committees of medical staffs in hospitals having responsibility for evaluation and improvement of the quality of care rendered in the hospital nor medical review committees of local medical societies are to be subject to discovery․”  The Senate Committee on the Judiciary described the bill as providing “that the proceedings and records of hospital committees responsible for evaluation and improvement of hospital care ․ shall not be discoverable, nor shall any person in attendance at such meeting be required to testify as to the events therein occurring.”

As the Hospital observes, these comments do not specifically target private lawsuits as the primary focus of legislative concern.   It is generally assumed, however, that section 1157 was enacted in response to the Third District's decision in Kenney v. Superior Court (1967) 255 Cal.App.2d 106, 63 Cal.Rptr. 84.  (See, e.g., Matchett v. Superior Court, supra, 40 Cal.App.3d 623, 115 Cal.Rptr. 317;  Willits v. Superior Court (1993) 20 Cal.App.4th 90, 95, 24 Cal.Rptr.2d 348;  People v. Superior Court (Memorial Medical Center), supra, 234 Cal.App.3d at p. 376, 286 Cal.Rptr. 478;  Alexander v. Superior Court, supra, 5 Cal.4th 1218, 1226, 23 Cal.Rptr.2d 397, 859 P.2d 96;  Arnett v. Dal Cielo, supra, 36 Cal.App.4th 639, 651, 42 Cal.Rptr.2d 712.)   In Kenney a malpractice plaintiff was held to be entitled to discovery of hospital staff records that might have revealed information on the defendant physician's competence in treating a fractured arm.   Later, in Matchett v. Superior Court, supra, 40 Cal.App.3d 623, 115 Cal.Rptr. 317, the Third District suggested that Section 1157 was enacted “upon the theory that external access to peer investigations conducted by staff committees stifles candor and inhibits objectivity.  [Fn. omitted.]   It evinces a legislative judgment that the quality of in-hospital medical practice will be elevated by armoring staff inquiries with a measure of confidentiality.  [¶] This confidentiality exacts a social cost because it impairs malpractice plaintiffs' access to evidence.   In a damage suit for in-hospital malpractice against doctor or hospital [fn. omitted] or both, unavailability of recorded evidence of incompetence might seriously jeopardize or even prevent the plaintiff's recovery.  Section 1157 represents a legislative choice between competing public concerns.   It embraces the goal of medical staff candor at the cost of impairing plaintiffs' access to evidence.  [¶] The statute, then, is aimed directly at malpractice actions in which a present or former hospital staff doctor is a defendant.”  (Id. at p. 629, 115 Cal.Rptr. 317, emphasis added.)

This interpretation has been widely accepted as an accurate representation of the Legislature's objective in enacting section 1157.   In West Covina Hospital v. Superior Court (1986) 41 Cal.3d 846, 852, 226 Cal.Rptr. 132, 718 P.2d 119, the Supreme Court endorsed the Matchett view, adding, “The obvious general purpose of section 1157 is to improve the quality of medical care in the hospitals by the use of peer review committees.   Accomplishment of the purpose requires that doctors be recruited to serve on the committees.   If doctors who serve on such committees were subject in malpractice cases to the burdens of discovery and involuntary testimony on the basis of their committee work, the evidentiary burdens could consume large portions of the doctors' time to the prejudice of their medical practices or personal endeavors and could cause many doctors to refuse to serve on the committees.”  (41 Cal.3d at pp. 851–852, 226 Cal.Rptr. 132, 718 P.2d 119.)

The Fifth District has expressed a similar view of section 1157 in considering a damage action brought by a doctor whose staff privileges were restricted.   In holding that the “inhibiting effect” on peer review committees is at least as strong in such cases as in malpractice actions, the court commented, “Candid and frank participation in peer review proceedings is encouraged by assuring peer review activities will not be put to adverse use in a damage action.   Participation in peer review would be inhibited if a committee member's comments could be discovered in a damage action against a committee member or others.   In Brown v. Superior Court (1985) 168 Cal.App.3d 489, 501, 214 Cal.Rptr. 266, the court stated:  ‘The Legislature must have sought to impose confidentiality on committee proceedings in order to allow committee members to be able to admit and thereafter deal with the faults of staff members without risking an adverse impact from the admission.’ ”   (California Eye Institute v. Superior Court, supra, 215 Cal.App.3d 1477, 1484, 264 Cal.Rptr. 83.)

 Thus, as Matchett and its progeny explain, the Legislature sought to encourage candid participation on peer review committees by protecting the confidentiality of their proceedings and records.   We may presume these cases accurately represent legislative intent “because of the well-established rule that when, as here, the Legislature amends a statute without altering portions of the provision that have been judicially construed, the Legislature is presumed to have been aware of and acquiesced in the prior judicial construction.”  (West Covina Hospital v. Superior Court, supra, 41 Cal.3d at p. 852, 226 Cal.Rptr. 132, 718 P.2d 119.)  Section 1157 has been amended several times since its enactment in 1968, without any indication that the Legislature disapproved prior judicial construction of its purpose.8

 Although, as these cases suggest, the Legislature appears to have contemplated protection of committee records in civil damage actions, the Hospital maintains that the same underlying purpose supports application of the statute in a civil investigation by an administrative agency.   In view of the objectives and interests served by section 1157, however, we are convinced that this statute was not intended to apply to pre-adjudicatory investigations.9

There is no question that peer review committees play an important role in serving the public welfare.   Maintaining the confidentiality of committee members' contributions certainly promotes candor and objectivity in assessing the performance or qualifications of their peers, which in turn necessarily promotes the protection of patient health.  “Although composed of volunteer professionals, these committees are affected with a strong element of public interest.”  (Matchett v. Superior Court, supra, 40 Cal.App.3d at p. 628, 115 Cal.Rptr. 317.)  “Thus, peer review committees serve two critical functions:  first, they provide the health care community with a method of self-policing.   In this way they assure that methods and procedures which have been proven to be most effective may become standardized within the health care facility, thereby improving efficiency.   Second, the peer review process serves the important social interest in public health and safety by continually scrutinizing medical and health care operations in order to correct any potential problems with procedure or staff which might threaten the individual patient with [a] disproportionate risk of danger.”  (People v. Superior Court (Memorial Medical Center), supra, 234 Cal.App.3d at p. 373, 286 Cal.Rptr. 478.)

In People v. Superior Court (Memorial Medical Center), supra, 234 Cal.App.3d 363, 286 Cal.Rptr. 478, the Second District, Division Seven, also emphasized the public interest served by peer review bodies.   In holding that section 1157 was not intended to apply to criminal discovery, the Memorial Medical Center court observed:  “In balancing a plaintiff's concern in obtaining access to peer review committee records versus the public interest in a high-quality health care system, the Legislature drew a distinction between the rights of the individual, and the rights of the many.   The confidentiality bestowed by section 1157, then, has its price:  it denies a plaintiff access to information which could prevent her from recovering in a case against a physician.   Yet it is clearly the judgment of the Legislature that this price is worth paying in order to protect the prospective health of the public as a whole.”  (Id. at p. 373, 286 Cal.Rptr. 478.)

Nevertheless, the Board is not an individual plaintiff whose private interests are cast against those of the public;  it too is charged with safeguarding the public health by investigating and acting upon reports of unprofessional conduct or inadequate performance by practitioners.   Indeed, the Legislature has declared that “[p]rotection of the public shall be the highest priority for the Division of Medical Quality․”  (Bus. & Prof.Code, § 2229.)   We cannot believe the Legislature contemplated the creation of an adversary relationship between two entities that are entrusted with a common goal of protecting the public health.

Moreover, the Board's function goes well beyond that of the peer review committee, which confines its proceedings and disciplinary actions to the facility it serves.   The Board oversees physician conduct and competency throughout the state, and its attention is directed toward the physician's entire practice, not only his or her staff privileges at a particular medical institution.   Furthermore, officers of the Board are not saddled by the same concern for protection of their peers that, according to the Hospital, would engender reluctance by a colleague to share unfavorable information with the committee.

Recently, the First District, Division Four, considered a petition by the Board brought under similar circumstances.   In Arnett v. Dal Cielo, supra, 36 Cal.App.4th 639, 42 Cal.Rptr.2d 712, the Board served an investigational subpoena on a hospital, seeking production of peer review records regarding a physician's drug problem.   The trial court ordered compliance with the subpoena and the hospital appealed.   The appellate court affirmed the order, drawing from the rationale of People v. Superior Court (Memorial Medical Center), supra, 234 Cal.App.3d 363, 286 Cal.Rptr. 478.   Unlike the malpractice situation which involves competing interests between an injured plaintiff and the hospital, here “there is not the distinction between public and private purpose in the functions of the hospital's peer review process and the Board's investigative process that exists between the civil litigant and the hospital.   If the Legislature intended to preclude the Board from obtaining peer review records, it would, in the words of the Memorial court, be balancing its ‘concern in public safety and health against itself.’  (234 Cal.App.3d at p. 374, 286 Cal.Rptr. 478.)”  (Id. at p. 653, 42 Cal.Rptr.2d 712.)

The Hospital maintains, however, that the candor and objectivity that section 1157 was intended to promote in peer review committees would be seriously impaired if Board access were permitted, because staff members would be fearful that disclosure of negative information would end their colleague's career.   We disagree.   If the underlying purpose of peer review is to ensure the quality of medical practice in the hospital, the committee should be willing to cooperate with an agency seeking to protect future patients outside that facility from incompetent or unethical activity.   Furthermore, there is no evidence that the peer review system has been weakened by the judicial exceptions providing access to the People in criminal actions (People v. Superior Court (Memorial Medical Center, supra, 234 Cal.App.3d 363, 286 Cal.Rptr. 478) and permitting voluntary testimony by committee members (West Covina Hospital v. Superior Court, supra, 41 Cal.3d 846, 226 Cal.Rptr. 132, 718 P.2d 119).

The Hospital also expresses concern that the information sought by the Board, though confidential at the investigation stage (Gov.Code, § 11183;  Bus. & Prof.Code, § 828), would become public once the matter proceeds to an administrative hearing.   As a result, argues the Hospital, “allowing public scrutiny of [committee] records and proceedings would irreparably damage peer review activities.”  (Emphasis in original.)   We believe the likelihood of such dire consequences is exaggerated.   As the Board points out, the vast majority of investigations do not result in a public disciplinary hearing.10  Thus, we question the degree to which a pre-accusatory investigation will have a “chilling effect” on staff members' willingness to participate in the peer review process.

The Hospital points out that discovery is permitted in the course of formal administrative proceedings after an accusation by the agency.11  At that point the Board would be entitled to certain information, except “inspection or copying of any writing or thing which is privileged from disclosure by law or otherwise made confidential.”  (Gov.Code, § 11507.6, subd. (f).)  According to the Hospital, these provisions, along with section 1157, should be considered to encompass pre-accusation administrative subpoenas.   Otherwise, the Hospital argues, the Board would be entitled to confidential materials by subpoena during its investigative phase;  but once an accusation is filed those same records would be protected.   As a result of this “anomaly,” the Board could “simply postpone the filing of an accusation while it subpoenaed the peer review committee records, knowing that once the accusation was filed, the records would be protected from subpoena.”

Even assuming this scenario accurately depicts the limits on Board powers, we fail to perceive the injustice claimed by the Hospital.   In order to perform its investigative duty under Government Code sections 11180, et. seq., an agency must develop sufficient information on the person under investigation to know whether to initiate disciplinary proceedings.   The information acquired must be kept confidential.  (Gov.Code, § 11183;  see also Bus. & Prof.Code § 828 [confidentiality and destruction of evidence obtained to determine mental or physical competency].)  “[W]hen government action does not constitute an adjudication, such as when a general fact-finding investigation is being conducted, it is not necessary to use the full panoply of judicial procedures.”  (Smith v. Board of Medical Quality Assurance (1988) 202 Cal.App.3d 316, 328, 248 Cal.Rptr. 704.)   Because the status of the practitioner's license is not immediately threatened before adjudicatory proceedings are commenced, such an investigation does not entail deprivation of due process rights and judicial protection is not required at this stage.   (Ibid.;  see also Alexander D. v. State Bd. of Dental Examiners (1991) 231 Cal.App.3d 92, 98, 282 Cal.Rptr. 201.)

In summary, we conclude that section 1157 does not prevent the Board from examining the records of hospital peer review committees in the course of investigating possible physician misconduct or incompetence.   The Hospital has not objected to the subpoena on the ground that an investigation is unjustified;  on the contrary, it acknowledges that “the Board has more than sufficient evidence already at hand to require Dr. B. to undergo [a physical and psychiatric] examination.”  (Emphasis in original.)   Nor does the Hospital contend that the requested records are immaterial or violative of patients' privacy rights.   Because section 1157 presents no legal impediment to the Board's access to the peer review records, its petition to compel compliance with the administrative subpoena should have been granted.

Disposition

The order is reversed.   Each party shall bear its own costs on appeal.

FOOTNOTES

1.   Business and Professions Code section 805, subdivision (b) requires the chief of staff or other chief executive officer, medical director, or administrator of a peer review body or health care facility to file a report with “the relevant agency” when any of the following occurs:  “(1) A licentiate's application for staff privileges or membership is denied or rejected for a medical disciplinary cause or reason.  [¶] (2) A licentiate's membership, staff privileges, or employment is terminated or revoked for a medical disciplinary cause or reason.  [¶] (3) Restrictions are imposed, or voluntarily accepted, on staff privileges, membership, or employment for a cumulative total of 30 days or more for any 12–month period, for a medical disciplinary cause or reason.”

2.   The parties have referred to the psychiatrist as Dr. B. to protect his privacy.

3.   Business and Professions Code section 805.1 authorizes the Board to inspect and copy certain documents “in the record of any disciplinary proceeding resulting in action which is required to be reported pursuant to Section 805.”

4.   We pause to note that both parties have cogently and responsibly set forth their respective positions on an issue that is susceptible of meritorious policy arguments for each side.   Unfortunately, we do not find the same level of professionalism in the brief of amicus curiae, the Center for Public Interest Law.   It misleadingly and illogically portrays the peer review committee as a “wholly private” self-serving organization of colleagues seeking to oust a competitor from the marketplace.   It raises new arguments on appeal, distorts the issues, relies on incompetent new evidence, and attributes disingenuous self-protective motives to the Hospital, cast in an unnecessarily shrill and hostile tone.   We find the parties' briefs to be entirely adequate for purposes of review, and therefore disregard the brief of amicus curiae.

5.   “Unprofessional conduct” in this context is defined to include gross negligence, repeated negligent acts, incompetence, and dishonest or corrupt acts related to the qualifications, functions or duties of a physician.  (Bus. & Prof.Code, § 2234.)   Any action that “would have warranted the denial of a certificate” is also considered unprofessional conduct.  (Bus. & Prof.Code, § 2234, subd. (f).)

6.   Under Business and Professions Code section 805 a “peer review body” includes a medical or professional staff of any licensed health care facility, a nonprofit medical professional society, or a committee whose function is to review the quality of professional care provided by the members or employees of the entity to which the committee belongs.

7.   The Hospital argues that the statute does not specifically exempt the Board from its reach, nor does it contain a specific exception for an agency's investigative subpoenas.   This argument, however, begs the question:  what is the intended scope of the discovery prohibition before it is qualified by the exceptions?   Thus, if the Legislature intended that section 1157 be applied to “discovery” in the narrower sense of pretrial litigation strategy, then it was not necessary to create a specific exception for administrative subpoenas.  (See Arnett v. Dal Cielo (1995) 36 Cal.App.4th 639, 653, 42 Cal.Rptr.2d 712.)

8.   The letters and reports on proposed amendments to section 1157, offered by the Board in its request for judicial notice, do not further elucidate the intended reach of section 1157.   At best, those materials indicate that at some point during the course of amending the statute, certain legislators and Legislative Counsel have described the existing law with vague reference to “litigation” and “civil proceedings.”By the same token, however, the Hospital's reference to a proposed amendment to section 1157 is also not helpful.   The amendment would have added an exception to the statute to permit discovery of evidence relating to a disciplinary proceeding or investigation by a licensing board.   The rejection of this proposed exception is of little assistance in our analysis;  whereas the deletion of provisions from an act as originally introduced may be of significance, “there is relatively little value in examining an existing statute in light of proposed amendments which have not been approved.”  (Sav-on Drugs, Inc. v. County of Orange (1987) 190 Cal.App.3d 1611, 1623, 236 Cal.Rptr. 100 [emphasis added];  see also Arnett v. Dal Cielo, supra, 36 Cal.App.4th at p. 654, 42 Cal.Rptr.2d 712.)

9.   The Board cites several decisions from other states that are, strictly speaking, inapposite, since they pertained to statutes that expressly provide for discovery immunity in civil actions.  (See, e.g., Mercy Hosp. v. Dept. of Professional Reg. (Fla.App.1985) 467 So.2d 1058;  Com'r. of Health Services v. Kadish (1989) 17 Conn.App. 577, 554 A.2d 1097, 1099;  Unnamed Physician v. Com'n. on Medical Dis. (App.1979) 285 Md. 1, 400 A.2d 396.)   Nevertheless, to the extent that section 1157 was intended to apply specifically to civil actions, those cases do represent the view that administrative investigations are not “civil actions” within the meaning of the discovery restriction.

10.   The record contains the 1992–1993 Annual Report of the Board, which summarizes the complaints received and administrative actions taken during the year.   The Board reported 2,208 investigations opened, 433 referrals to the Attorney General, and 367 administrative filings against physicians.   The report does not indicate how many of these cases were resolved without a public hearing.

11.   Government Code section 11507.6 provides for access to certain information and materials “[a]fter initiation of a proceeding in which a respondent or other party is entitled to a hearing on the merits.”   The entitlement to the enumerated materials in this section “provide[s] the exclusive right to and method of discovery as to any proceeding governed by this chapter.”  (Gov.Code, § 11507.5).

ELIA, Associate Justice.

COTTLE, P.J., and PREMO, J., concur.