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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mat-Su Valley Medical Center, LLC v. Bolinder (9/14/2018) sp-7293

Mat-Su Valley Medical Center, LLC v. Bolinder (9/14/2018) sp-7293

            Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.   Readers  

            are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street,                                   

            Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email                   

            corrections@akcourts.us.  



                         THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



MAT-SU  VALLEY  MEDICAL                                                      )  

CENTER,  LLC,  d/b/a  MAT-SU                                                 )                                            

                                                                                   Supreme Court Nos. S-15920/15969  

REGIONAL  MEDICAL  CENTER,                                                   )     (Consolidated)  

                                                                             )  

                                    Petitioner,                              )                                                                     

                                                                                   Superior Court No. 3PA-11-00963 CI  

                                                                             )  

            v.                                                               )                            

                                                                                   O P I N I O N  

                                                                             )  

DENISE BOLINDER, as personal                                                                                                        

                                                                             )     No. 7293 - September 14, 2018  

representative of the estate of ROBERT  

                                                                             )  

BOLINDER, and JOHN W. ZWIACHER,  

                                                                             )  

M.D.,                                                                        )  

                                                                             )  

                                    Respondents.                             )  

                                                                             )  

                                                                             )  

                                                                             )                                          

MAT-SU VALLEY MEDICAL                                                              Supreme Court No. S-16440  

                                      

CENTER, LLC, d/b/a MAT-SU                                                    )  

                                         

                                                                             )                                                                      

REGIONAL MEDICAL CENTER, and                                                       Superior Court No. 3AN-14-09235 CI  

                                                                  

JOHN W. ZWIACHER, M.D.,                                                      )  

                                              

                                                                             )  

                                    Petitioners,                             )  

                                                                             )  

            v.                                                               )  

                                                                             )  

JON PAUL BRANDT,                                                             )  

                       

                                                                             )  

                                    Respondent.                              )  

__________________________________ )  



                                                                                                                              

                        Original Applications in File Nos. S-15920/15969 from the  

                                                                                                                     

                        Superior Court of the State of Alaska, Third Judicial District,  

                                                                                                                             

                        Palmer, Kari Kristiansen, Judge.  Petition for Review in File  


----------------------- Page 2-----------------------

                                                                                                  

                    No. S-16440 from the Superior Court of the State of Alaska,  

                                                                                                  

                    Third Judicial District, Anchorage, Gregory Miller, Judge.  



                                                                                                         

                    Appearances:           Robert  J.  Dickson,  Atkinson,  Conway  &  

                                                                                            

                    Gagnon, and Roger F. Holmes, Biss & Holmes, Anchorage,  

                                                                                                          

                    for Petitioner Mat-Su Regional Medical Center. Christian N.  

                                                                                          

                    Bataille, Flanigan & Bataille, Anchorage, for Respondents  

                                                                                                 

                    Bolinder and Brandt.   Scott Leuning, Leuning & Renner,  

                                                                                                        

                    LLC, Sioux Falls, South Dakota, and Whitney L. Traeger and  

                                                                                                        

                    Howard  A.  Lazar,  Delaney  Wiles,  Inc.,  Anchorage,  for  

                                                                   

                    Respondent and Petitioner Dr. Zwiacher.  Stephen D. Rose,  

                                                                                                  

                    Garvey  Schubert  Barer,  Anchorage,  for  Amicus  Curiae  

                                                                                                              

                    Alaska  State  Hospital  and  Nursing  Home  Association.  

                                                                                                         

                    Chester D. Gilmore, Cashion Gilmore LLC, Anchorage, for  

                                                                                            

                    Amicus Curiae Providence Health & Services - Washington  

                                                                                              

                    d/b/a   Providence   Alaska   Medical                     Center.          Margaret  

                                                                                                      

                    Simonian,         Dillon       &     Findley,       P.C.,      Anchorage,          and  

                                                                                          

                    William        S.    Cummings,           Friedman         Rubin,       Bremerton,  

                                                                                                        

                    Washington,  for  Amicus  Curiae  Alaska  Association  for  

                    Justice.  



                                                                                                  

                    Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                        

                    and Carney, Justices.  



                                     

                    BOLGER, Justice.  



I.        INTRODUCTION  



                                                                                                                     

                    Alaska's medical peer review privilege statute, AS 18.23.030, protects  



                                                                                                                      

discovery  of  data,  information,  proceedings,  and  records  of  medical  peer  review  



                                                                                                              

organizations, but it does not protect a witness's personal knowledge and observations  



                                                                                                                             

or materials originating outside the medical peer review process. A hospital invoked the  



                                                                                                                   

privilege in two separate actions, one involving a wrongful death suit against a physician  



                                                                                                                          

at the hospital and the other involving both a medical malpractice claim against the same  



                                                                                                                            

physician and a negligent credentialing claim against the hospital.   In each case the  



                                                              -2-                                                        7293
  


----------------------- Page 3-----------------------

 superior   court  compelled   the   hospital   to   disclose   materials   related   to   complaints  



 submitted about the physician and to the hospital's decision to grant the physician                                                                                                                                                                                                                                                                                                                  



medical   staff   membership.     The   hospital   and   the   doctor   sought   our   review   of   the  



discovery orders.                                                                         Because we conclude that these discovery orders compel the hospital                                                                                                                                                                                                                                                    



to disclose information protected by the peer review privilege, we reverse the discovery                                                                                                                                                                                                                                                                                                                



orders in part.                                                              We further hold that the false information exception to the privilege                                                                                                                                                                                                                                                        



provided   in   AS   18.23.030(b)  applies   to   actions   for   which   the   submission   of   false  



information is an element of the claim and thus does not apply here.                                                                                                                                                                                                                                                             



II.                               FACTS AND PROCEEDINGS                                                      



                                                                    Weaddress thesetwo interlocutoryappealsin                                                                                                                                                                                          this consolidated opinion due                                                                                                    



to the similarity of the facts, legal issues, and parties. In the first case, Denise Bolinder,                                                                                                                                                                                                                                                                                                           



in her capacity as the personal representative of the estate of Robert Bolinder, filed a                                                                                                                                                                                                                                                                                                                                                           



claim for wrongful death against Dr. John Zwiacher, alleging that Dr. Zwiacher was                                                                                                                                                                                                                                                                                                                                                  



negligent in treating Robert Bolinder when he was a patient at Mat-Su Regional Medical                                                                                                                                                                                                                                                                                                                          



 Center   (Mat-Su)   in   2009.     In   the   second,   Jon   Brandt   brought   a   claim for                                                                                                                                                                                                                                                                                                                   medical  



malpractice against Dr. Zwiacher and a negligent credentialing claim against Mat-Su                                                                                                                                                                                                                                                                                                                               



 after    Brandt    allegedly    suffered    complications    from    a    September    2012    surgery  



Dr.  Zwiacher   performed   at   Mat-Su.     In   each   case,   Mat-Su   refused   to   respond   to  



discovery    requests    for   materials    related    to    (1)    Mat-Su's    decisions    to    renew  



Dr. Zwiacher's medical staff membership at Mat-Su; and (2) complaints that Mat-Su had                                                                                                                                                                                                                                                                                                                                                   



received   regarding   Dr.   Zwiacher.    Mat-Su   asserted   that,   because   all   the   requested  



materials were acquired or generated by Mat-Su's peer review committees, they were                                                                                                                                                                                                                                                                                                                                              



privileged under the medical peer review statute and not subject to disclosure.                                                                                                                                                                                                                                                                                                                                  



                                                                                                                                                                                                                      -3-                                                                                                                                                                                                        7293
  


----------------------- Page 4-----------------------

             A.	          The Medical Peer Review PrivilegeStatuteAnd                                                  Mat-Su's Peer Review  

                          Committees  



                          Some background on medical peer review generally, and the peer review                                                        



committees at Mat-Su specifically, is necessary.                                                Medical peer review "refers to the        



process hospitals use to oversee medical staff to improve patient care, reduce hospital                                                              



                                                                                                1  

liability, and           lower rates for malpracticeinsurance."                                                                                    

                                                                                                  Generally, the purpose of affording  



                                                                                                                                                       

an evidentiary privilege to peer review materials is to promote candor in peer review  



                                                                                                                                                        

proceedings,  with  the  aim  of  more  rigorous  oversight  of  medical  care  and  lower  



                                            2                                                                                                         3  

                                                                                                                                                           

malpractice premiums.                          Nearly all hospitals employ peer review procedures.                                                         And  



                                                                                                                                                                      

almost all 50 states have adopted laws promoting the effectiveness of peer review by:  



                                                                                                                     

(1) providing immunity from liability for persons serving on or providing information  



                                                                                                                                                              

in good faith to peer review committees, and (2) creating an evidentiary privilege for  



                                                                                                 4  

                                                                                                      

certain materials related to the peer review process. 



                                                                                                                                                      

                         Alaska's medical peer review privilege statute, AS 18.23.030, was enacted  



                                                                                                                                              

in 1976 as part of a broad, comprehensive bill intended to address the lack of malpractice  

                                                                      5  Thestatute restricts discovery of information and  

                                                                                                                                                              

insurance available to Alaska doctors. 



             1            Grandstaff  v.  State,   171  P.3d   1176,   1193  (Alaska  App.  2007).  



             2           Id.  



             3            Charles    David    Creech,    Comment,    The   Medical   Review    Committee  



                                                                                            EV.   179,   179  (1988).  

Privilege:   A  Jurisdictional  Survey,  67  N.C. L. R 



             4           Id.   at   179-180;   see   also   Eric   Scott   Bell,   Comment,   Make   Way:   Why  



Arkansas  and   the  States  Should  Narrow  Health   Care  Peer  Review  Privileges  for   the  

Patient   Safety   and   Quality  Improvement  Act   of   2005,   62   ARK.   L.   REV.   745,   751-52  

(2009).  



             5            STATE  OF  ALASKA,  REPORT  OF  THE  GOVERNOR'S  MEDICAL  MALPRACTICE  



I N S U R A N C E                        C O M M I S S I O N                         5 2 - 5 3               ( O c t .              1 ,         1 9 7 5 ) ,  

                                                                                                                                          (continued...)  



                                                                               -4-	                                                                       7293
  


----------------------- Page 5-----------------------

data acquired by medical peer review organizations, along with the proceedings and                                                                                  



records of those organizations.                               The privilege is subject to certain exceptions, including                                  



materials   "otherwise   available   from   original   sources"   or   information  within   an  



individual's personal knowledge, and materials provided to a peer review organization                                                              



that   are   alleged   to   contain   knowingly   false   information.     Disclosing   privileged  



                                                             6  

information is a misdemeanor.                                    



                          Mat-Su has two committees that it argues are protected by the peer review  

                                                                                                                                                               



privilege.             The  first  committee  is  the  Medical  Staff Peer  Review  Committee  (Peer  

                                                                                                                                                                



Review Committee), which is charged with reviewing all care provided by Mat-Su  

                                                                                                                                                            



physicians  and  maintaining  quality  patient  care  within  Mat-Su.                                                                  The  Peer  Review  

                                                                                                                                                            



Committee conducts professional practice evaluations of physicians, as is required for  

                                                                                                                                          



hospital accreditation.   It consists of various Mat-Su personnel:   the chairs of each  

                                                                                                                                                                  



clinical section, physicians from various specialities, a nursing representative, and an  

                                                                                                                                                                       



administrative  representative.                                   The  second  committee  is  the  Medical  Executive  

                                                                                                                                                      



Committee (Executive Committee), which reviews reports and recommendations from  

                                                                                                                                                                  



the Peer Review Committee regarding any corrective action. The Executive Committee  

                                                                                                                                                      



consists  of  physician  representatives  from  each  specialty  group  at  Mat-Su.                                                                                The  

                                                                                                                                                                  



Executive Committee makes decisions regarding both initial credentialing of health care  

                                                                                                                                                                    



providers  and  renewal  of  credentials,  with  the  Board  of  Trustees  making  the  final  

                                                                                                                                                                  



decision on any matter involving privileges or the loss thereof.  

                                                                                                                              



             5             (...continued)  



http://archives2.legis.state.ak.us/PublicImageServer.cgi?lib/7500360REPORT%20OF  

%20THE%20GOVERNOR%27S%20MEDICAL%20MALPRACTICE%20INSURA  

                                                                                         ALPRACTICE  COMMISSION  REPORT].    

NCE%20COMMISSION.pdf [hereinafter M 



             6            AS 18.23.040.                  



                                                                                   -5-                                                                           7293
  


----------------------- Page 6-----------------------

                               B.                             First Petition In                                                               Bolinder v. Zwiacher                                                                                     



                                                              In January 2009 Dr. Zwiacher performed a diagnostic surgery on Robert                                                                                                                                                                                                                                             



Bolinder to examine an unidentified mass in his lungs and collect tissue samples.                                                                                                                                                                                                                                                                                                  Three  



days after the surgery, Robert began experiencing pain in his left leg, and his wife,                                                                                                                                                                                                                                                                                                  



Denise, called Dr. Zwiacher.                                                                                                            Dr. Zwiacher asked to speak with Robert, but there is a                                                                                                                                                                                                            



dispute regarding what Dr. Zwiacher then said.                                                                                                                                                                                      According to Dr. Zwiacher, he told                                                                                                                       



Robert to go to the emergency                                                                                                                             room.     But Denise claims that Robert told her that                                                                                                                                                                              



Dr. Zwiacher said a pinched nerve likely was causing his pain and advised Robert to rest                                                                                                                                                                                                                                                                                                        



at home.                                  Later that same day, Robert died at home.                                                                                                                                                              An autopsy showed that his death                                                                                                      



was caused                                              by   multiple pulmonary                                                                                            emboli - blood                                                                       clots lodging                                                     in   and   blocking  



arteries in the lungs - that likely came from the leg in which he was experiencing pain.                                                                                                                                                                                                                                                                                                                             



                                                              In   2011  Denise,   as   the   personal   representative   of   Robert's   estate   (the  



Estate), filed a wrongful death claim against Dr. Zwiacher alleging that he negligently   



treated    Robert.       The    Estate    conducted    discovery    to    elicit    information    about  



Dr.   Zwiacher's   background  preceding   his   position   at   Mat-Su,   when   he   practiced  



medicine   in   Wisconsin.     This   information   apparently   suggested   that   Dr.   Zwiacher  



misrepresented his work and disciplinary history on his 2005 application for an Alaska                                                                                                                                                                                                                                                                                          



medical license and his 2006 application for medical staff membership at Mat-Su.                                                                                                                                                                                                                                                                                                                To  



confirm this indication, the Estate moved to compel Dr. Zwiacher to consent to Mat-Su                                                                                                                                                                                                                                                                                        

                                                                                                                                                                                                                                                                                                                        7  After the superior  

(a non-party) releasing his application for medical staff membership.                                                                                                                                                                                                                                                                                                      



court denied the motion in April 2012, the Estate petitioned this court for interlocutory  

                                                                                                                                                                                                                                                                                                                                                    



review.  

                                    



                               7                              In addition to medical                                                                             staffmembership, Dr.                                                                                 Zwiacher also applied for (and                                                                                        



was granted) clinical privileges. To avoid confusion between his clinical privileges and                                                                                                                                                                                                                                                                                                        

the evidentiary privilege at issue here, we refer to Dr. Zwiacher's application as being                            

only for medical staff membership.                                                                                                                                   



                                                                                                                                                                                                  -6-                                                                                                                                                                                     7293
  


----------------------- Page 7-----------------------

                       In 2013 we granted the petition and reversed the denial of the motion to                                                



             8  

compel.                                                                                                                                    

                 We held for the purposes of "this case" that one of the exceptions to the peer  



                                                                                                                                                9  

                                                                                                                           

review  privilege,  excluding  certain  material  alleged  to  contain  false  information, 



                                                                                                                                            

applied.  We concluded that the application was not privileged because the Estate had  



                                                                                                                                      

submitted evidence showing Dr. Zwiacher had lied on his application for an Alaska  



                                                                                                                                               

medical license, which suggested he also provided this false information in applying to  

              10  However, "we d[id] not decide" how this exception to the privilege "should  

Mat-Su.                                                                                                                              



be interpreted or how it may apply in future cases" given the parties' cursory briefing  

                                                                                                                                     

and lack of argument on the scope of the exception.11                                            We thus ordered Mat-Su to  

                                                                                                                 



provide Dr. Zwiacher's application to the Estate.  

                                                                                    



           C.          The Estate's Discovery Requests To Mat-Su  

                                                                                         



                      Following our order, Mat-SuprovidedtheEstatewithDr.Zwiacher'sinitial  

                                                                                                                                         



application for medical staff membership.  Mat-Su also produced documents revealing  

                                                                                                                                   



that Dr. Zwiacher's medical staff membership at Mat-Su had been revoked in April 2014  

                                                                                                                                          



and detailing the disciplinary steps that preceded the revocation.  The Estate amended  

                                                                                                                                   



its complaint to allege that Dr. Zwiacher obtained the privileges necessary to treat Robert  

                                                                                                                                       



by lying about his work history on his application to Mat-Su.  

                                                                                                          



                       The Estate then made several discovery requestsofMat-Su. First the Estate  

                                                                                                                                         



requested  "[a]ll  documents  related  in  any  way  to  the  evaluation  and  granting  of  

                                                                                                                                              



[Dr. Zwiacher's] [medical staff membership] at Mat-Su Regional" and asked to depose  

                                                                                                                                       



           8          Bolinder  v.  Zwiacher,  No.  S-14710  (Alaska  Supreme  Court  Order,  Dec.  4,  



2013)  [hereinafter  Bolinder  Order].   



           9          AS   18.23.030(b).   



           10         Bolinder  Order,  supra  note  8.  



           11         Id.   



                                                                       -7-                                                               7293
  


----------------------- Page 8-----------------------

                                                                                                                        

people knowledgeable about Mat-Su's decision to grant him membership.   Mat-Su  



                                                                                                                        

objected, citing the peer review privilege.   The Estate also sought to depose Mat-Su  



                                                                                                                      

personnel with knowledge of the identity of individuals "likely to possess personal  



                                                                                                                         

knowledge  regarding  [Dr.  Zwiacher's]  professional  credibility,  behavior,  and/or  



                                                                                                                        

conduct" including knowledge of any limitation or revocation of Dr. Zwiacher's medical  



staff membership imposed by Mat-Su.  Mat-Su again objected on the basis of the peer  



                                                                                                                                

review  privilege  to  the  extent  the  request  asked  for  more  than  the  designation  of  



                                                                                                                            

individuals  with  personal  knowledge  of  Dr.  Zwiacher's  credibility.                                      Mat-Su  then  



                                                                                                                       

designated Joan Brodie, the assistant director of quality risk management and provider  



                                                                                                                              

services,  to  testify  on  these  topics.                    Brodie's  job  duties  include  overseeing  the  



                                                                                                                               

credentialing process, addressing regulatory compliance issues, and participating in the  



                                 

peer review process.  



                                                                                                                     

                    At the deposition Brodie provided the names of several general surgeons,  



                                                                                                                  

anesthesiologists, and hospitalists who might have information about Dr. Zwiacher's  



                                                                                                                      

credibility. She also advised the Estate to contact the heads of the nursing and operating  



                                                                                                                               

room staffs to obtain information about others who had worked with him. But, citing the  



                                                                                                                            

peer review privilege, Mat-Su objected to many of the Estate's inquiries, including those  



                                                                                                                                 

asking whether any complaints had been raised about Dr. Zwiacher and the nature of  



                                                                                                                             

Brodie's interactions with him.   Brodie explained that "every contact [she] had with  



                                                                                                                               

[Dr. Zwiacher] was within . . . the course of what [she] do[es]"; therefore she could not  



                                                                                                 

answer such questions because the information was privileged.  



                                                                                                                                     

                    The Estate additionally sought to depose Drs. John Naylor and Bruce Hess.  



                                                                                                                               

Dr. Hess served as the president of the medical staff before Dr. Naylor assumed the  



                                                                                                                     

position.  Dr. Naylor served as the president of the medical staff, chaired the Executive  



                                                                                                                            

Committee, and worked at Mat-Su as an anesthesiologist.  In early January 2015, when  



                                                                                                                               

the deposition was taken, Dr. Naylor had served as president of the medical staff for  



                                                               -8-                                                         7293
  


----------------------- Page 9-----------------------

                                                                                                                         

about nine months.   Though the Estate did ultimately depose Dr. Naylor, it did not  



                            

depose Dr. Hess.  



                                                                                                                                

                    Dr. Naylor testified that, as president of the medical staff, he serves as the  



                                                                                                                              

chair of the Executive Committee. He had also previously served as the chair of the Peer  



                                                                                                                                 

Review Committee.  Dr. Naylor explained that the peer review process is initiated by  



                                                                                                                              

concerns and complaints from Mat-Su staff.  Dr. Naylor confirmed that outside the peer  



                                                                                                                       

review process "nothing ever happened with [him] and Dr. Zwiacher that in any way  



                                                                                                                             

gave [him] concern or raised an issue regarding [Dr. Zwiacher's] patient care with [him]  



                                                                                                                         

personally."  And because his familiarity with Dr. Zwiacher's competency and surgical  



                                                                                                                   

care derived from the peer review process, he could not answer questions about these  



                                                                                                                             

topics.       Mat-Su  objected  to  questions  asking  Dr.  Naylor  to  identify  people  with  



                                                                                                                                

information  related  to  concerns  or  complaints  about  Dr.  Zwiacher  and  asking  for  



                                                                                                                         

"original sources . . . [with] information regarding Dr. Zwiacher's behavior and conduct  



                                                                                                                  

. . . at the hospital."   Dr. Naylor contended he could not divulge such information  



                                                                                                                               

because he had acquired it through his role in the peer review process. He explained that  



                                                                                                                                    

"[a]ny complaint or issue . . . that enters the peer review or quality review system . . .  



                                                                                                                            

falls under the [privilege's] protection" and that this applied to all complaints about  



                        

Dr. Zwiacher.  



                                                                                                                   

                    Following its unsuccessful attempts to elicit information at the depositions,  



                                                                                                                        

the Estate filed two motions to compel disclosure fromMat-Su related to: (1) its decision  



                                                                                                                                 

to  grant  Dr.  Zwiacher  medical  staff  membership  and  (2)  complaints  related  to  



                                                                                                                    

Dr. Zwiacher's competency and credibility, including the identity of people possessing  



                                             

personal knowledge of such information.  



                                                                                                                          

                    The superior court granted both motions in two separate discovery orders.  



                                                                                                                                 

The first discovery order, issued on April 27, 2015, granted the Estate's request to  



                                                                                                                         

discover materials related to the decision to grant Dr. Zwiacher's application for medical  



                                                                -9-                                                         7293
  


----------------------- Page 10-----------------------

                                                                                                                             

staff  membership.              The  superior  court  concluded  that  Mat-Su  must  disclose  such  



                                                                                                                             

materials  because  the  Estate  alleged  that  Dr.  Zwiacher  knowingly  included  false  



                                                                                                                              

information in his application, and thus the materials fell within an exception to the peer  



                                                                                                                      

review privilege.   The first order further permitted the Estate to obtain  all materials  



                                                                                                                             

provided  to  a peer  review  committee that were alleged  to  contain  knowingly  false  



                                        

information, specifically:  



                                                                                                       

                    testimony,   documents,   proceedings,   records,   and  other  

                                                                                                           

                    evidence  adduced  before  a  review  organization  that  are  

                                                                                                              

                    otherwise inaccessible under [the peer review privilege] if  

                                                                                                     

                     [the  Estate]  claims  that  information  provided  to  a  review  

                                                               

                    organization was false and claims that the person providing  

                                                                                               

                    the information knew or had reason to know the information  

                                     

                    was false.  



                                                                                                                         

                    The second discovery order, issued on June 10, 2015, granted the Estate's  



                                                                                                                        

request to obtain complaints that Mat-Su had received about Dr. Zwiacher. The superior  



                                                                                                                      

court concluded that such complaints did not fall within the peer review privilege;  



                                                                                                                              

though they may initiate the peer review process and later become evidence in a peer  



                                                                                                                                

review proceeding, they are not part of such a proceeding.  Thus, subject to requests for  



                                                                                                                                  

in camera review, the court instructed employees and members of the medical staff at  



                                                                                                                                

Mat-Su with "personal knowledge" of such complaints to provide this information to the  



                                                                                                                          

Estate "without regard to whether [they] presented such information to a peer review  



                                                                                                                                  

committee."  It also instructed Mat-Su and Dr. Zwiacher to "produce all documents or  



                                                                                                                              

records . . . regarding complaintsor concerns regarding Dr. Zwiacher's conduct that were  



                                                                                       

not generated by or did not originate with a peer review committee."  



                                                                                                                     

                    Mat-Su filed an original application for review of these two discovery  



                                                                                                                   

orders, which we granted.  Dr. Zwiacher and three amici curiae - Alaska Association  



                                                                                                                   

for  Justice,  Alaska  State  Hospital  and  Nursing  Home  Association,  and  Providence  



                                                               -10-                                                         7293
  


----------------------- Page 11-----------------------

                                                                                                                                                                                                                                                      12  

Alaska Medical Center - also filed briefs.                                                                                                                                                                                                                      While the appeal was pending, the petition                                                                                                                                                                



for interlocutory review in                                                                                                                                Brandt  was filed.   



                                       D.                                     Petition In                                                       Brandt v. Zwiacher                                           



                                                                              Jon Brandt was also a patient of Dr. Zwiacher.                                                                                                                                                                                                                                Dr. Zwiacher performed a                                                                                                                           



laparoscopic small bowel resection surgery on Brandt at Mat-Su in September 2012                                                                                                                                                                                                                                                                                                                                                                                                       



 (when Dr. Zwiacher still had medical staff membership).                                                                                                                                                                                                                                                                                                   During recovery, Brandt                                                                                          



complained of pain; the parties dispute how Dr. Zwiacher addressed Brandt's pain.                                                                                                                                                                                                                                                                                                                                                                                                                                        



Brandt was discharged from Mat-Su four days after surgery, which Brandt alleges was                                                                                                                                                                                                                                                                                                                                                                                                            



involuntary.   Brandt claims that upon discharge, his pain worsened; he returned to Mat-                                                                                                                                                                                                                                                                                                                                                                                                  



 Su approximately eight hours later.                                                                                                                                                                                A CT scan was performed, which Brandt claims                                                                                                                                                                                                               



revealed that Dr. Zwiacher had perforated the left side of his colon during the surgery,                                                                                                                                                                                                                                                                                                                                                                              



resulting in leaking and an infection.                                                                                                                                                                                        According to Brandt, he has undergone seven                                                                                                                                                                                                          



additional surgeries to address the issues stemming from the surgery performed by                                                                                                                                                                                                                                                                                                                                                                                                                    



Dr. Zwiacher.                                                                      



                                                                              In September 2014, while discovery in                                                                                                                                                                                           Bolinder  was still ongoing, Brandt                                                                                                                              



filed suit against Dr. Zwiacher and Mat-Su. Brandt brought a medical malpractice claim                                                                                                                                                                                                                                                                                                                                                                                                



against Dr. Zwiacher, alleging that Dr. Zwiacher misrepresented his skills prior to the                                                                                                                                                                                                                                                                                                                                                                                                            



 surgery, delivered substandard medical care, created false and misleading records of                                                                                                                                                                                                                                                                                                                                                                                                                   



Brandt's medical care following the surgery, and obtained both his medical license and                                                                                                                                                                                                                                                                                                                                                                                                          



his Mat-Su medical staff membership through misrepresentation and non-disclosure.                                                                                                                                                                                                                                                                                                                                                                                                                                        



Brandt  also   brought   a   negligent   credentialing   claim   against   Mat-Su   based   on   the  



                                       12                                     Alaska Association for Justice argues that we should affirm the discovery                                                                                                                                                                                                                                                                                                      



orders; Alaska State Hospital and Nursing Home Association and Providence Alaska                                                                                                                                                                                                                                                                                                                                                                                            

Medical Center argue that we should reverse.                                                                                                                                                                             



                                                                                                                                                                                                                                                -11-                                                                                                                                                                                                                                       7293
  


----------------------- Page 12-----------------------

                                                                                                                                                                                                                                                                                                                                                                       13  

hospital's decision to                                                                                    grant and renew Dr.                                                                                      Zwiacher's staff membership.                                                                                                                                   Brandt  



claimed that, given Dr. Zwiacher's professional troubles in Wisconsin and the litany of                                                                                                                                                                                                                                                                                                                       



complaints regarding his conduct and standard of care while at Mat-Su, Mat-Su failed   



to act with reasonable diligence in vetting Dr. Zwiacher's initial application for medical                                                                                                                                                                                                                                                                                        



 staff membership and in subsequently renewing it.                                                                                                                                                                                               



                                                               Discovery ensued, during which Mat-Su voluntarily disclosed, subject to                                                                                                                                                                                                                                                                        



a protective order, Dr. Zwiacher's entire 443-page credentials file, which contains all of                                                                                                                                                                                                                                                                                                                    



the materials Mat-Su's credentials committee used in granting Dr. Zwiacher's initial                                                                                                                                                                                                                                                                                                       



appointment to the Mat-Su medical staff and all subsequent renewals. The file includes                                                                                                                                                                                                                                                                                          



Dr. Zwiacher's initial application for medical staff membership at Mat-Su (the same                                                                                                                                                                                                                                                                                                          

                                                                                                                                                                                                                                                                                                                   14  The credentials file  

application that had led to the first petition for review in                                                                                                                                                                                                     Bolinder).                                                                                                                             



also contains confidential communications regarding Dr. Zwiacher to the Executive  

                                                                                                                                                                                                                                                                                                                                                                      



Committee written while his initial application was pending.  

                                                                                                                                                                                                                                                                                                



                                13                             A   negligent   credentialing   claim   derives   from   the   theory   of   corporate  



negligence, under which "a hospital owes an independent duty to its patients to use                                                                                                                                                                                                                                                                                                                   

reasonable care to insure that physicians granted hospital privileges are competent, and                                                                                                                                                                                                                                                                                                              

to supervise the medical treatment provided by members of its medical staff."                                                                                                                                                                                                                                                                                                Fletcher  

v.   S. Peninsula Hosp.                                                                                   , 71 P.3d 833, 842 (Alaska 2003) (quoting                                                                                                                                                                            Jackson v. Power                                                                       ,  

743 P.2d 1376, 1378 n.2 (Alaska 1987)).                                                                                                                                                          "A corporate negligence claim requires proof                                                                                                                                                

that the hospital should have known that the physician would act negligently before the                                                                                                                                                                                                                                                                                                                  

negligence at issue occurred."                                                                                                                   Ward v. Lutheran Hosps. & Homes Soc'y of Am., Inc.                                                                                                                                                                                                                  ,  

 963 P.2d 1031, 1033 n.2 (Alaska 1998). Such proof generally consists of "evidence that                                                                                                                                                                                                                                                                                                               

the physician either lacked standard credentials or previously had been the subject of a                                                                                                                                                                                                                                                                                                                          

malpractice suit or disciplinary proceedings."                                                                                                                                                                           Id.   



                                14                             Mat-Suexplainson appealthat it is not conceding that the initial credentials  

                                                                                                                                                                                                                                                                                                                                                                     

 file is not privileged, but given this court's prior order in Bolinder compelling disclosure  

                                                                                                                                                                                                                                                                                                                                                                        

of Dr. Zwiacher's initial application and "the uncertainty surrounding the extent of the  

                                                                                                                                                                                                                                                                                                                                                                                                        

protection afforded [to the file] by [the peer review privilege]," Mat-Su "felt compelled  

                                                                                                                                                                                                                                                                                                                                                                      

in good faith to produce the entire credentials file."  

                                                                                                                                                                                                                         



                                                                                                                                                                                                   -12-                                                                                                                                                                                          7293
  


----------------------- Page 13-----------------------

                                                                     However, the credentials file does not contain any concerns or complaints                                                                                                                                                                                                                                                      



relayed  to   Mat-Su   regarding   Dr.   Zwiacher   after   he   was   granted   medical   staff  



membership or regarding Mat-Su's decision to terminate Dr. Zwiacher's membership.                                                                                                                                                                                                                                                                                                                                                                                 



Mat-Su explained that such materials were not part of the credentials file because the                                                                                                                                                                                                                                                                                                                                                      



Mat-Su   Medical   Staff   Bylaws   delegated   the   decision   to   discipline   or   to   terminate  



Dr. Zwiacher to the Peer Review Committee and the Executive Committee, not the                                                                                                                                                                                                                                                                                                                                                             



credentials    committee.       Accordingly,    "[a]ll    of    the    documents    generated    after  



Dr. Zwiacher's appointment to the medical staff relating to complaints and concerns                                                                                                                                                                                                                                                                                                                          



 about  him   .   .   .   are   outside   the   credentialing   process   and   [are   instead]   reported   to  



the . . . [Peer Review Committee and Executive Committee]."                                                                                                                                                                                                                                                                      



                                                                     After receiving the credentials file, Brandt sent six discovery requests to                                                                                                                                                                                                                                                                                                  



Mat-Su that formthe                                                                                       basis of his appeal. Like                                                                                                   the requests in  Bolinder, Brandt's requests                                                                                                                                 



 can be divided into two broad groups:                                                                                                                                                                  (1) documents related to any complaints made                                                                                                                                                                            



 about Dr. Zwiacher, theidentityofindividualsmakingand reviewing                                                                                                                                                                                                                                                                                           thecomplaints, and                                                              



 any action taken in response; and (2) documents and statements related to Mat-Su's                                                                                                                                                                                                                                                                                                                        



decisions   to   renew   or   terminate   Dr.  Zwiacher's   medical   staff   membership   and   the  



identity of individuals involved in those decisions.                                                                                                                                                            



                                                                     Mat-Su objected to these discovery requests, asserting that each request                                                                                                                                                                                                                                                                         

                                                                                                                                                                                                                                                                                              15  In March 2016 Brandt moved  

 sought information covered by the peer review                                                                                                                                                                                             privilege.                                                                                                                                                                     



                                   15                                Brandt quibbles with Mat-Su's purported failure to produce a privilege log                                                                                                                                                                                                                                                                                             



in refusing to respond to the discovery requests.                                                                                                                                                                                                       However, Brandt represents that Mat-                                                                                                                                       

 Su   ultimately   did   produce   a   privilege   log   that   identified   more   than  1900   pages   of  

privileged materials. This privilege log is not part of the appellate record because it was                                                                                                                                                                                                                                                                                                                                       

produced after the petition for review was granted.                                                                                                                                                                                                                Brandt does not appear to take issue                                                                                                                           

with the adequacy of the privilege log that was ultimately produced; accordingly, we do                                                                                                                                                                                                                                                                                                                                                        

not address this issue.                                                           



                                                                                                                                                                                                                     -13-                                                                                                                                                                                                           7293
  


----------------------- Page 14-----------------------

                                                                                                                                                                                                                                                                                                                                                                                              16  

to compel Mat-Su's responses to the discovery requests.                                                                                                                                                                                                                                                                                                                                                   In its opposition, with respect                                                                                                                          



to the first group of requested information, Mat-Su argued that the identities both of                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              



 individuals reporting complaints about Dr. Zwiacher and of individuals considering the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        



 complaints were privileged.                                                                                                                                                                      It explained that such complaints initiated the peer review                                                                                                                                                                                                                                                                                                       



process and were directed to peer review committee members, and they were thus part                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     



 of the committee proceedings.                                                                                                                                                                                      Regarding the second group of requested information,                                                                                                                                                                             



Mat-Su conceded that it had not produced "the files and meeting minutes of the [Peer                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           



Review Committee] and the [Executive Committee], the purpose of which was to review                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  



the quality of care provided by Dr. Zwiacher at the hospital subsequent to his obtaining                                                                                                                                                                                                                                                                                                                                                                                                                                                          



privileges," but argued these materials were privileged.                                                                                                                                                                                                                                                                                                                                              Mat-Su explained that, other                                                                                                                                             



than the credentials file and this privileged material, it possessed "no other documented                                                                                                                                                                                                                                                                                                                                                                                                                                      



 communication relating to Dr. Zwiacher's renewal or termination."                                                                                                                                                                                                                                                                                                                                                                                                                  



                                                                                             In August 2016 the superior court granted Brandt's motion to compel and                                                                                                                                                                                                                                                                                                                                                                                                                       



 ordered production of all the information sought in the six production requests.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  The  



 court reasoned that the names of the individuals making complaints about Dr. Zwiacher                                                                                                                                                                                                                                                                                                                                                                                                                                                            



 and the content of those complaints were not privileged because they were based on the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       



personal knowledge of individuals not acting in the capacity of peer review committee                                                                                                                                                                                                                                                                                                                                                                                                                                                      



members.   The superior court thus concluded that Mat-Su had failed to meet its burden                                                                                                                                                                                                                                                                                                                                                                                                                                                                             



 of establishing that the discovery requests fell within the scope of the privilege and                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 



 accordingly ordered Mat-Su to produce the requested materials.                                                                                                                                                                                                                                                                                                                                                                                                     The superior court's                                                                           



 analysis appears to have considered only one group of discovery requests (relating to                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               



                                               16                                            In his motion to compel, Brandt argued that by voluntarily producing the                                                                                                                                                                                                                                                                                                                                                                                                                         



 credentialing file, Mat-Su had waived the protection of the peer review privilege as                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              

 applied to any of its files.                                                                                                                                                              However, Brandt does not renew this argument on appeal                                                                                                                                                                                                                                                                                                                    

 (despite Mat-Su mentioning this argument in its brief ); thus we deem it forfeited and do                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

not address it.                                                                                    



                                                                                                                                                                                                                                                                                             -14-                                                                                                                                                                                                                                                                                   7293
  


----------------------- Page 15-----------------------

complaints) and not the other (relating to Mat-Su's credentialing decisions).                                                                                                                                                   However,  



it    ultimately    compelled    disclosure    of    all    requested    information.     Mat-Su    and  



Dr. Zwiacher jointlypetitioned for interlocutory review of the superior court's order, and                                                                                                                                                           



we granted the petition.                                                



III.	               STANDARD OF REVIEW                                     



                                       Wegenerallyreviewdiscoveryrulings                                                                                for abuseofdiscretion,"butwhether                                               



                                                                                                                                                                                                  17  

a privilege applies is a question of law we review independently."                                                                                                                                                                                       

                                                                                                                                                                                                         Here, the scope of  



                                                                                                                    18  

                                                                                                                                                                                                                                                   

the  privilege  is  codified  in  a  statute.                                                                                  When  interpreting  statutes,  we  apply  our  



                                                                     19  

                                                                                                                                                                                                                                                        

independent judgment,                                                      adopting the "rule of law that is most persuasive in light of  



                                                                                           20  

                                                                                                   

precedent, reason, and policy." 



IV.	                DISCUSSION  



                                                                                                                                                                                                                                      

                    A.	                Alaska Statute18.23.030 ProvidesRobustProtectionsForTheMedical  

                                                                                

                                       Peer Review Process.  



                                       This   case   requires   us   to   interpret   the   scope   of   the   medical   peer   review  



privilege   in the context of a wrongful death action and a medical malpractice claim                                                                                                                                                         



against a surgeon, and a negligent credentialing claim against the surgeon's hospital.                                                                                                                                                                            



The privilege, codified in AS 18.23.030, contains two subsections relevant to this case.                                                                                                                                                        



The first, subsection (a), sets out the scope of the privilege and provides a specific                                                                                                                                                 



                    17                 Peterson  v.  State,  280  P.3d  559,  561  (Alaska  2012).   



                    18                 See  AS   18.23.030.  



                    19                 In their  Bolinder briefs, Mat-Su  and  Dr.  Zwiacher  contend that the scope  



of  the  peer  review  privilege   also  presents   a   question of   fact:   when  the  medical  peer  

review  process  begins  at  Mat-Su.   This  framing  impermissibly  invades  the  legislative  

province  by  allowing  a  hospital  to  define  AS   18.23.030's  scope.   The  issue  here  -  the  

scope  of  the  peer  review  privilege  -  presents  only  a  question  of  law.  



                    20                 State  v.  Ketchikan  Gateway Borough,  366  P.3d  86,  90  (Alaska  2016)  

                                                                                                                                                                                                                                            

(quoting Se. Alaska Conservation Council v. State, 202 P.3d 1162, 1167 (Alaska 2009)).  

                                                                                                                                                                                                                                                                  



                                                                                                                          -15-	                                                                                                                 7293
  


----------------------- Page 16-----------------------

limitation on it. The second, subsection (b), outlines two exceptions where the privilege                                                                                      



does not apply.                     Aside from our 2013 limited order, we have never considered the scope                                                                              

of either subsection.                         21  



                                                                                                                                                                                                     

                              This   case   thus   requires   interpretation   of   the   peer   review   statute.  

                                                                                                                 22      In  addition  to  the text,  we also  

                                                                                                                                                                                         

"Interpretation  of a statute begins with  its text." 

consider a statute's legislative history and purpose.23                                                                    In construing a statute, we have  

                                                                                                                                                                                        



adopted a sliding scale approach whereby "[t]he plainer the statutory language is, the  

                                                                                                                                                                                            

more convincing  the evidence of contrary  legislative  purpose or  intent must be."24  

                                                                                                                                                                                                     



Whenever possible "we interpret each part or section of a statute with every other part  

                                                                                                                                                                                          

or section, so as to create a harmonious whole."25   Finally, because Alaska's "civil rules  

                                                                                                                                                                                         



               21             The court of appeals considered whether AS 18.23.030 applied in criminal                                                                           



cases in           Grandstaff v. State                       , 171 P.3d 1176, 1190-97 (Alaska App. 2007).                                                              The court of            

appeals concluded that the privilege applied only in civil cases based on the statute's                                                                                         

plain   language and legislative                                        history.     Id.   at 1194.                           This appeal does not directly                      

implicate the decision in                               Grandstaff.    



               22             City of Kenai v. Friends of The Recreation Ctr., Inc., 129 P.3d 452, 458-59  

                                                                                                                                                                                    

(Alaska 2006).  

                                    



               23             Oels v. Anchorage Police Dep't Emps. Ass'n , 279 P.3d 589, 595 (Alaska  

                                                                                                                                                            

2012).  

                 



               24             State, Dep't  of  Commerce, Cmty. & Econ. Dev., Div.  of Ins. v. Alyeska  

                                                                                                                                                                                 

Pipeline Serv. Co., 262 P.3d 594, 597 (Alaska 2011) (quoting Gov't Emps. Ins. Co. v.  

                                                                                                                                                                            

 Graham-Gonzalez, 107 P.3d 279, 284 (Alaska 2005)).  

                                                                                                           



               25             McDonnell v. State Farm Mut. Auto. Ins. Co., 299 P.3d 715, 721 (Alaska  

                                                                                                                                                                                  

2013)  (quoting  State,  Dep't  of  Commerce,  Cmty.,  &  Econ.  Dev.,  Div.  of  Ins.  v.  

                                                                                                                                                                                              

Progressive Cas. Ins. Co., 165 P.3d 624, 629 (Alaska 2007)).  

                                                                                                                           



                                                                                             -16-                                                                                       7293
  


----------------------- Page 17-----------------------

                                                                                 26  

favor a system of liberal pretrial discovery,"                                       we generally construe an evidentiary           

privilege narrowly.               27  



                        Subsection (a) outlines the scope of the peer review privilege in three  

                                                                                                                                               



sentences. The first sentence protects from discovery "all data and information acquired  

                                                                                                                                         

by a review organization in the exercise of its duties and functions."28                                                       This sentence  

                                                                                                                                         



appearsto includearevieworganization's investigativeprocess. Suchinformationmight  

                                                                                                                                               



include statements made by a doctor under investigation, statements made by other  

                                                                                                                                        

medical staff during an investigation,29  and information acquired to assess a physician's  

                                                                                                                                    

fitness to practice.30                 The second sentence applies to a different step of the review  

                                                                                                                                            



process; it protects what transpired at a meeting of a review organization:  

                                                                                                                                   



            26         Noffke v. Perez             , 178 P.3d 1141, 1150 (Alaska 2008) (quoting                                         Jones v.   



Jennings, 788 P.2d 732, 735 (Alaska 1990)).                        



            27         Langdon v. Champion, 752 P.2d 999, 1004 (Alaska 1988) ("Given our  

                                                                                                                                                  

commitment to liberal pre-trial discovery, . . . the scope of the attorney-client privilege  

                                                                                                                                         

should be strictly construed . . . ." (quoting United Servs. Auto. Ass'n v. Werley, 526 P.2d  

                                                                                                                                                 

28, 31 (Alaska 1974))); Am. Nat'l Watermattress Corp. v. Manville , 642 P.2d 1330,  

                                                                                                                                              

 1333-34 (Alaska 1982) (same); see also United States v. Nixon, 418 U.S. 683, 713  

                                                                                                                                                 

(1974) ("The generalized assertion of a privilege must yield to the demonstrated, specific  

                                                                                                                                           

need for evidence in a pending . . . trial."); Gwich'in Steering Comm. v. State, Office of  

                                                                                                                                                     

the Governor, 10 P.3d 572, 578-79 (Alaska 2000) (noting that this court "narrowly  

                                                                                                                                      

construe[s]" the deliberate process privilege, an exception to the Public Records Act);  

                                                                                                                                               

Russell  v.  Municipality  of  Anchorage,  706  P.2d  687,  693  (Alaska  App.  1985)  

                                                                                                                                            

("Privileges in litigation are not favored and should be narrowly construed.").  

                                                                                                                  



            28         AS  18.23.030(a).  

                                                        



            29         See Grandstaff v. State, 171 P.3d 1176, 1193 (Alaska App. 2007).  

                                                                                                                                 



            30          Cf. John C. Lincoln Hosp. & Health Ctr. v. Superior Court, 768 P.2d 188,  

                                                                                                                                                 

 190 (Ariz. App.  1989) (concluding application for staff privileges and "investigations  

                                                                                                                              

into  [physician's]  background,  work,  and  experience  before  his  association"  with  

                                                                                                                                               

hospital were privileged under Arizona peer review statute).  

                                                                                             



                                                                        -17-                                                                   7293
  


----------------------- Page 18-----------------------

                           [A]  [member of a review organization] may not disclose what                                                    

                           transpired at a meeting of a review organization except to the                                                     

                           extent   necessary   to   carry   out   the   purposes   of   a   review  

                           organization, and the proceedings and records of a review                                                  

                           organization are not subject to discovery or introduction into                                                   

                           evidence   in  a   civil   action   against   a   health   care   provider  

                           arising out of the matter that is the subject of consideration by                                                   

                           the review organization.                         [31]  



                           The final sentence of AS 18.23.030(a) limits the scope of the privilege  

                                                                                                                                                             



defined in the first two sentences; the privilege does not extend to "original sources" or  

                                                                                                                                                                           



to  "matters within  [a] person's knowledge"  even  if the person  served  on a review  

                                                                                                                                                                



organization or testified during a proceeding:  

                                                                                              



                           Information, documents, orrecords otherwiseavailable from  

                                                                                                                                           

                           original sources are not immune from discovery or use in a  

                                                                                                                                                  

                           civil  action  merely  because  they  were  presented  during  

                                                                                                                                     

                          proceedings of a review organization , nor may a person who  

                                                                                                                                            

                           testified before a review organization or who is a member of  

                                                                                                                                                

                           it  be  prevented  from  testifying  as  to  matters  within  the  

                                                                                                                                             

                          person's knowledge , but a witness may not be asked about  

                                                                                                                                         

                           the  witness's  testimony  before  a  review  organization  or  

                                                                                                                                               

                           opinions formed by the witness as a result of its hearings,  

                                                                                                                                 

                           except as provided in (b) of this section.[32]  

                                                                                             



                           Subsection (a) thus sets out three conditions that a piece of evidence must  

                                                                                                                                                                     



satisfy for the privilege to apply.   First, the peer review committee from which the  

                                                                                                                                                                        



evidence is sought must be a "review organization."  The parties in both cases appear to  

                                                                                                                                                                           



concede that the Peer Review Committee and the Executive Committee both fall within  

                                                                                                                                                                  



             31            AS 18.23.030(a).                     



             32  

                                                         

                           Id. (emphases added).  



                                                                                   -18-                                                                             7293  


----------------------- Page 19-----------------------

the statutory definition of "review organization."                                                                                                  33  Dr. Naylor's deposition testimony                                             



regarding   the   Executive   Committee's   role   supports   this   concession,  as  do   the  



descriptions of the roles of the Peer Review Committee and Executive Committee in the                                                                                                                                                                      



Mat-Su Medical Staff Bylaws. Second, the evidence must fall into at least one of the two                                                                                                                                                                



protected categories of information:                                                                           (1) "data and information acquired by a review                                                                               



organization in the exercise of its duties and functions," or (2) "what transpired at a                                                                                                                                                                         



meeting of a review organization [and] . . . the proceedings and records of a review                                                                                                                                                        



organization"   if   this   category   of   information   is   sought   "in   a   civil   action   against   a  



healthcare provider arising out of the matter that is subject of consideration by the review                                                                                                                                                    

                                           34        Third, the evidence must not be "otherwise available from original  

organization."                                                                                                                                                                                                                             



sources" or within an individual's personal knowledge.  

                                                                                                                                                                        



                    33                  Alaska Statute 18.23.070(5)(A) defines "review organization," in relevant                                                                                                                           



part, as "a hospital governing body or a committee whose membership is limited to                                                                                                                                                                            

health care providers and administrative staff . . . and that is established by a hospital . . .                                                                                                                                                               

to gather and review                                         information relating to the care and treatment of patients" for certain                                                                                                            

enumerated purposes, such as improving the quality of healthcare provided, reducing                                                                                                                                                      

mortality,    resolving    disputes    between    patients    and   insurers,    or    acting    on    the  

recommendation of a credential review committee.                                                                        



                    34                  The protection for the first category of information is unqualified; it applies  

                                                                                                                                                                                                                                             

in all cases.  In contrast, the second category of information is protected only in certain  

                                                                                                                                                                                                                                               

cases:  "civil actions against health care providers arising out of the matter that is the  

                                                                                                                                                                                                                                                          

subject of consideration by the review organization." AS 18.23.030(a). Brandt's and the  

                                                                                                                                                                                                                                                           

Estate's suits certainly qualify as a civil action against a healthcare provider; but it is not  

                                                                                                                                                                                                                                                          

clear  that  either  action  "aris[es]  out  of"  the  matter  that  the  review  organization  

                                                                                                                                                                                                                            

considered. The parties did not address this issue in their briefing, and we do not address  

                                                                                                                                                                                                                                             

it here because we conclude that all the material addressed in the discovery orders is  

                                                                                                                                                                                                                                                              

protected under the first category.  To the extent the superior court on remand considers  

                                                                                                                                                                                                                                       

whether material is protected under the second category of information, it must address                                                                                                                                                      

                                                                                                                                             

whether   the   action   arises   out   of   the   matter   under    consideration   by   the   review  

organization.    



                                                                                                                            -19-                                                                                                                     7293
  


----------------------- Page 20-----------------------

                                                                                                                  

                    We   first   consider   whether   the  privilege   established   in   subsection  



                                                                                                                                     

(a) protects any of the materials compelled disclosed by the discovery orders at issue.  



                                                                                                                   

We  then  consider  whether  either  exception  to  the  privilege  outlined  in  subsection  



                   

(b) applies.  



                                                                                                                             

          B.	       Materials Related To Complaints About A PhysicianHeld In The Files  

                                                                                                                            

                    OfAReviewOrganizationArePrivilegedUnderAS18.23.030(a) Even  

                                                                                                            

                    If Those Materials Originate From Outside Sources.  



                                                                                                                    

                    Both  the  Estate  and  Brandt  seek  information  that  Mat-Su  possesses  



                                                                                                                             

regarding complaints about Dr. Zwiacher, including the identities of individuals with  



                                                                                                                             

personal knowledge of such complaints. The superior court in each case compelled Mat- 



                                                                                                                        

Su  to  disclose  this  information.                 In Bolinder  the  superior  court  instructed  Mat-Su  



                                                                                                                   

employees and medical staff members with "personal knowledge" of such complaints  



                                                                                                                             

to provide this information to the Estate"without regard to whether [they] presented such  



                                             

information to a peer review committee."  It also ordered Mat-Su and Dr. Zwiacher to  



                                                                                                                                

"produce  all  documents  or  records  sought  by  the  [Estate]  regarding  complaints  or  



                                                                                                                              

concerns  regarding  Dr.  Zwiacher's  conduct  that  were  not  generated  by  or  did  not  



                                                                                                                       

originate with a peer review committee."   In doing so the court effectively required  



                                                                                                                          

Dr. Naylor to disclose complaints about Dr. Zwiacher that he had received from others  



                                                                                                                              

in his capacity as the Executive Committee president, which counsel for the Estate had  



                                                                                                                               

tried to elicit unsuccessfully during Dr. Naylor's deposition.  Similarly in Brandt, the  



                                                                                                                     

superior court ordered Mat-Su to produce materials relating to complaints regarding  



                                                                                                                  

Dr. Zwiacher's competency and credibility, the identity of the individuals making and  



                                                                                              

reviewing the complaints, and any action taken in response.  In each case the superior  



                                                                                                                     

court  reasoned  that  materials  regarding  such  complaints  fell  outside  the  privilege  



                                                                                                                                 

because, though they may initiate the peer review process and later become evidence in  



                                                              -20-	                                                        7293
  


----------------------- Page 21-----------------------

a peer review proceeding, they are based on observations occurring in the normal course                                                                                                                                                                                                                            



of rendering medical care and preceding the commencement of peer review.                                                                                                                                                                                                                               



                                                   Exercising our independent judgment, we conclude that the plain language                                                                                                                                                                               



of   AS   18.23.030(a)   supports   a   broader   construction   of   the   privilege   that   protects  



complaint-related materials contained in peer review committee files, even if those                                                                                                                                                                                                                                   



materials were not generated by the peer review committee but rather originated outside                                                                                                                                                                                                                          



the peer review process.                                                                      In reaching this conclusion we are mindful that an evidentiary                                                                                                                                     



privilege should be construed narrowly, but we conclude that the text of AS 18.23.030(a)                                                                                                                                                                                                   



does not support a narrower interpretation of the peer review privilege than that which                                                                                                                                                                                                                             



we reach here.                                              



                                                    Complaint-related materials contained in peer review committee files, the                                                                                                                                                                                                   



identities of the individuals reporting and reviewing the complaints, and any internal                                                                                                                                                                                                                        



action taken in response satisfy the requirements for the privilege to apply.                                                                                                                                                                                                                   First, these   



materials   are   "acquired   by   a   review   organization  in   the   exercise   of   its   duties   and  

                                           35           Black's Law Dictionary defines "acquire" as "[t]o gain possession or  

functions."                                                                                                                                                                                                                                                                                                                       

control of; to get or obtain."36  

                                                                                                                                                                                                                                                                                              

                                                                                                                         The use of this broad term implies that all information  



                                                                                                                                                                                                                                                                                                                                 

contained in peer review committee files is privileged, even if it was not generated by the  



                                                                                                                                                                                                                                                                                               

committee but rather originated from an outside source.  And Mat-Su has represented  



                                                                                                                                                                                                                                                                                                                                

that all of the responsive materials in its possession were initially reported to either the  



                                                                                                                                                                                                                                                                                                          

ExecutiveCommitteeor the Peer Review Committee. Accordingly, allofthesematerials  



                                                                                                                                                                         

were acquired by a peer review committee.  



                          35                       Mat-Su also argues that the identities of individuals raising concerns or                                                                                                                                                                                                       



complaints   are   privileged   because   Mat-Su   Medical   Staff   Bylaws   guarantee   such  

individuals confidentiality.                                                                              However this guarantee of confidentiality cannot supplant                                                                                                            

the scope of the peer review privilege set out in the statute.                                                                                                                                                                      



                          36                       Acquire, BLACK 'S  LAW  DICTIONARY  (10th ed. 2014).                                                                                                                                

                                                                                      



                                                                                                                                                               -21-                                                                                                                                                      7293
  


----------------------- Page 22-----------------------

                         Moreover, this acquisition was "in the exercise of [the committees'] duties                                                       



and functions."                One statutorily defined duty and function of a review organization is                                                               

                                                                                                                                                  37   Mat-Su  

"evaluating and improving the quality of health care rendered" in the hospital.                                                                         



employees are instructed to report concerns or complaints about medical staff members  

                                                                                                                                                     



to the Executive Committee when the information implicates patient safety or patient  

                                                                                                                                                         



care, and the Executive Committee and the Peer Review Committee are both tasked with  

                                                                                                                                                              



maintaining the quality of patient care within Mat-Su.  Thus when such complaints are  

                                                                                                                                                                



reported to and reviewed by the Peer Review Committee and Executive Committee, it  

                                                                                                               



is at least in part for the purpose of maintaining the quality of patient care.  

                                                                                                                                     



                          Likewise, complaints and concernsdirectedtoDr.Naylor arealso protected  

                                                                                                                                                    



as information acquired by a review organization.  Dr. Naylor is the president of the  

                                                                                                                                                                



Executive Committee and testified in his deposition that such complaints are the initial  

                                                                                                                                                           



step in the peer review process and initiate that process. Moreover, the Mat-Su Medical  

                                                                                                                                                      



Staff  Bylaws  provide  that  "[a]ny  person"  can  report  to  a  medical  staff  member  

                                                                                                                                                     



"information . . . about the conduct, performance, or competence" of a medical staff  

                                                                                                                                                             



member, and indicate that such reports are the first step in the Executive Committee peer  

                                                                                                                                                              



review process. The president of the Executive Committee then reviews the information  

                                                                                                                                                



and can elect to initiate "an investigation or action" against the medical staff member.  

                                                                                                                                                                        



Accordingly, complaints aboutDr. Zwiacher thatDr.Naylor received fromother Mat-Su  

                                                                                                                                                        



employees  and  medical  staff  members  are  "information  acquired  by  a  review  

                                                                                                                                                       



organization  in  the  exercise  of  its  duties  and  functions"  because  receipt  of  such  

                                                                                                                                                            

information is the preliminary step in commencing the peer review process.38  

                                                                                                                                                     



             37          See  AS 18.23.070(5) (defining "review organization").                        



             38           The  record  contains  sufficient  information  about  Dr.  Naylor's  role  in  

                                                                                                                                                                 

relation to the peer review committees for us to reach this conclusion.  However, there  

                                                                                                                                                            

                                                                                                                                            (continued...)  



                                                                               -22-                                                                         7293
  


----------------------- Page 23-----------------------

                         Brandt and the Estate counter that Mat-Su must nevertheless provide the                                                            



materials  they   seek   because   the   privilege   specifically   excludes   from   protection  



"[i]nformation, documents, or records otherwise available from original sources" or                                                                           



matters within an individual's "person[al] knowledge," even if those materials were                                                                     



                                                                                                                                                              39  

presented during or were the subject of testimony at review organization proceedings.                                                                               



However, this argument views thelimitationon theprivilegein a vacuum, without regard  

                                                                                                                                                      

for the broad privilege outlined in the plain text of the preceding two sentences.40  The  

                                                                                                                                  



first sentence prohibits a review organization from revealing the information and data it  

                                                                                                                                                                



acquires; the second sentence protects a review organization's deliberations.  Reading  



the limitation in the third sentence in conjunction with the broad protection in these first  

                                                                                                                                                           



            38           (...continued)  



                                                                                                                                                    

is a paucity of information in the record about the role that other members of the medical  

                                                                                                                                               

staff may play on the peer review committees and in the peer review process. Therefore,  

                                                                                                                                              

based on this record, we cannot determine whether the privilege extends to complaints  

                                                                                                                                                               

directed to other members of the medical staff or the peer review committees.  There is  

                                                                                                                                                              

also not sufficient information regarding administrator Joan Brodie's role to allow us to  

                                                                                                                                              

determine whether complaints directed to her are privileged.  But we note that to the  

                                                                                                                                                

extent  Brodie  has  observed  personally  Dr.  Zwiacher's  conduct,  these  personal  

                                                                                                                                               

observations are not privileged, contrary to her assertions at her deposition.  We leave  

                                                                                                                                                             

it  to  the  superior  court  to  determine  on  remand  whether  other  individuals  may  be  

                                                                                                                                                         

required to divulge information relating to complaints about Dr. Zwiacher that were  

                                                                                                                                                            

reported to them.   In making these determinations the superior court must apply the  

                                                                                                                                                              

analytical approach and must be guided by the policy considerations that we set forth in  

                         

this opinion.  



            39           AS 18.23.030(a).  

                                                           



            40           See Alaska Airlines, Inc. v. Darrow, 403 P.3d 1116, 1127 (Alaska 2017)  

                                                                                                                                                       

("[W]hen construing a statute, 'we must, whenever possible, interpret each part . . . with  

                                                                                                                                                          

every other part . . . , so as to create a harmonious whole.' " (quoting State, Dep't of  

                                                                                                                                                              

Commerce, Cmty. &Econ. Dev., Div. of Ins. v. Progressive Cas. Ins. Co., 165 P.3d 624,  

                                                                                                                                                          

629 (Alaska 2007))).  

                                         



                                                                             -23-                                                                       7293
  


----------------------- Page 24-----------------------

two   sentences   suggests   that   the   limitation   permits   a   litigant   to   obtain   the   original  



information or personal knowledge only from outside sources.                                                                                                                                                                                                                                                        In other words, it limits                                                          



the avenue of discovering this information to the original source or the individual with                                                                                                                                                                                                                                                                                                                           



personal knowledge.  A contrary interpretation allowing a peer review committee or a   



committee member to be compelled to disclose such original source information would                                                                                                                                                                                                                                                                                                                        



 eviscerate the peer review privilege's protection for all data and information acquired by                                                                                                                                                                                                                                                                                                                                   



the committee and for the committee's deliberations.                                                                                                                                                                                                                 It would also render meaningless                                                                        



the   limitation's   requirement   that   the   materials  be   "otherwise   available"   from other   



 sources.     Therefore, this limitation does not require the peer review committees or                                                                                                                                                                                                                                                                                                                                      



Dr.    Naylor    to    divulge    any    materials    related    to    concerns    or    complaints    about  



Dr. Zwiacher, even if the materials were obtained from an original source outside the                                                                                                                                                                                                                                                                                                                                     



peer review process.                                                                                    



                                                                  Other   jurisdictions   with   peer  review   statutes   like   AS   18.23.030   have  



 similarly construed the privilege so that materials may be obtained only from the original                                                                                                                                                                                                                                                                                                         



 source.    For example, Minnesota's peer review statute contains a limitation allowing                                                                                                                                                                                                                                                                                                      



discovery of original source materials, which is worded nearly identically to Alaska's                                                                                                                                                                                                                                                                                                        

                                                   41           The Minnesota Court of Appeals rejected the argument that this limitation  

limitation.                                                                                                                                                                                                                                                                                                                                                                               



                                 41                               The Minnesota limitation provides:                                                                                                                                              



                                                                  Information, documents or records otherwise available from
                                                                                                                                                                                                                   

                                                                  original sources shall not be immune from discovery or use
                                                                                   

                                                                  in any civil action merely because they were presented during
                                                                                                                                                                                                         

                                                                  proceedings of a review organization, nor shall any person
                                                                                                                                                                                                         

                                                                  who   testified   before   a   review   organization   or   who   is   a
  

                                                                  member   of   it   be   prevented   from   testifying   as   to   matters
  

                                                                  within the person's knowledge, but a witness cannot be asked
                                                                                                                                                                                                              

                                                                  about the witness' testimony before a review organization or
                                                                                                                                                                                                                               

                                                                  opinions formed by the witness as a result of its hearings.
                                                                                                                                                                                 

                                                                                                                                                                                                                                                                                                                                                                         (continued...)  



                                                                                                                                                                                                            -24-                                                                                                                                                                                                   7293
  


----------------------- Page 25-----------------------

required a review                  organization to divulge documents it had acquired from original                                          



               42  

sources.                                                                                                                                           

                   Instead, the Minnesota court interpreted the limitation to allow discovery only  

                                                                                                       43    Similarly, the Minnesota  

                                                                                                                                       

                                                                                    

from the original sources, not the peer review committee. 



Supreme Court - in concluding its peer review statute did not preclude a common law  

                                                                                                                                                    



claim for negligent credentialing - suggested that the statute prevented a party from  

                                                                                                                                                 

obtaining  information  directly  from a  review  organization.44                                                  The  court  noted  that  

                                                                                                                                                   



Minnesota's  peer  review  statute  "preclude[d]  the  discovery  of  what  evidence  was  

                                                                                                                                                  

actually  obtained  by the [peer  review organization] in  the credentialing  process,"45  

                                                                                                             



indicating that the original source limitation does not require the organization to divulge  

                                                                                                                                             



such evidence, even if it was obtained from outside sources.  

                                                                                                              



                        South Carolina's original source limitation is also worded very similarly  

                                                                                                                                          

                                                                  46  The South Carolina Supreme Court has likewise  

to that of Alaska's peer review statute.                                                                                                    

                                                      



            41          (...continued)  



                                            

Minn. Stat.  145.64(1) (2017).  



            42         In re Fairview-Univ. Med. Ctr                         ., 590 N.W.2d 150, 154 (Minn. App. 1999).                         



            43         Id.  ("[D]ocuments available from other sources remain discoverable from                                                   



other sources.").              



            44         Larson v. Wasemiller, 738 N.W.2d 300, 302, 310 (Minn. 2007).  

                                                                                                                               



            45         Id. at 310.  

                                            



            46          South Carolina's limitation provides:  

                                                                          



                        Information,  documents,  or  records  which  are  otherwise  

                                                                                                                

                        available  from  original  sources  are  not  immune  from  

                                                                                                                        

                        discovery or use in a civil action merely because they were  

                                                                                                                          

                        presented during the committee proceedings, nor shall any  

                                                                                                                            

                        complainant or witness before the committee be prevented  

                                                                                                                 

                        from testifying in a civil action as to matters of which he has  

                                                                                                                             

                                                                                                                                  (continued...)  



                                                                         -25-                                                                    7293
  


----------------------- Page 26-----------------------

rejected a litigant's attempt to access original source documents directly from the peer                          



                             47  

review committee.                                                                                                                

                                 The court reasoned that the original source limitation meant that  



                                                                                                                          

information  "available  from  a  source  other  than  the  committee  does  not  become  

                                                                                                48   But a plaintiff seeking  

                                                                                                                           

                                                                               

privileged simply by being acquired by the review committee." 



such information "cannot obtain [it] . . . directly from the [peer review] committee" and  

                                                                                                                                 

instead must obtain it "from alternative sources."49  

                                                                                



                     These cases from jurisdictions with similar peer review statutes bolster our  

                                                                                                                                  



interpretation of the original source limitation in Alaska's peer review statute.   We  

                                                                                                                                



interpret this limitation to permit discovery of original source information only from the  

                                                                                                                                  



original source or the individual with personal knowledge.   The limitation does not  

                                                                                                                                 



require a peer review committee or its members to disclose these materials. Accordingly  

                                                                                                                    



it does not compel Mat-Su's peer review committees to disclose complaints reported to  

                                                                                                                                    



them relating to Dr. Zwiacher, the identities of the individuals reporting or reviewing  

                                                                                                                       



those complaints, or any internal actions taken in response.  We note however that the  

                                                                                                                                  



privilege  does  not  extend  to  an  individual's  personal  observations  and  knowledge  

                                                                                                                     



          46	        (...continued)
  



                                                                                                             

                     knowledge   apart   from   the   committee   proceedings   or
  

                                                                      

                     revealing such matters to third persons.
  



                                                  

S.C. Code Ann.  40-71-20(A) (2018).  



          47	       McGee v. Bruce Hosp. Sys., 439 S.E.2d 257, 260 (S.C. 1993).  

                                                                                                           



          48	       Id.  



          49        Id. ; see also Prince v. Beaufort Mem'l Hosp., 709 S.E.2d 122, 128 (S.C.  

                                                                                                                               

App. 2011) ("To the extent the [peer review committee] obtained documents from other  

                                                                                                                               

sources during the course of its investigation, [the plaintiff] may seek copies of those  

                                                                                                                              

documents from the original sources but not from the [peer review committee] file.").  

                                                                                                                                      



                                                                -26-	                                                         7293
  


----------------------- Page 27-----------------------

derived  outside  the  peer  review  process  even  if  the  individual  serves  on  a  review  

                                                                                                                         



organization or the information relates to a matter under review.  

                                                                                                    



                    Having  established  the  scope  of  the  peer  review  privilege  outlined  in  

                                                                                                                                



AS 18.23.030(a), we now reverse in part the superior court's June 2015 discovery order  

                                                                                                                            



in Bolinder. We affirm the portion of the order requiring Mat-Su medical staff to answer  

                                                                                                                         



questions  based  on  their  personal  knowledge.                            However,  the  Estate  may  not  ask  

                                                                                                                              



questions about staff knowledge of review proceedings.  We reverse the portion of the  

                                                                                                                               



order compelling Mat-Su to provide peer review materials about complaints or concerns  

                                                                                                                       



regarding Dr. Zwiacher's conduct. To the extent that responsive materials are contained  

                                                                                                                     



in peer review committee files, the Estate may not obtain such information from Mat-Su  

                                                                                                                         



even if the materials originated from outside knowledge or were generated based on  

                                                                                                                                



personal knowledge.  

                                  



                    We also reverse the superior court's order in Brandt compelling Mat-Su to  

                                                                                                                                 



respond to Brandt's request for production 2 and interrogatories 3 and 10. Each of these  

                                                                                                                            



three discovery requests similarly seek privileged information regarding complaints  

                                                                                                                   



about Dr. Zwiacher, the identity of individuals reporting and reviewing the complaints,  

                                                                                                                  



documents relating to those complaints, and actions taken in response to the complaints.  

                                                                                                                                     



To the extent all responsive materials and information are contained in peer review  

                                                                                                                         



committee files, this information is privileged.   Brandt may nevertheless attempt to  

                                                                                                                                



obtain this information from original sources outside the peer review process or from  

                                                                                                                            



individuals with personal knowledge of Dr. Zwiacher's conduct.  

                                                                                                    



          C.	       The False Information Exception In AS 18.23.030(b) Does Not Permit  

                                                                                                                         

                    Discovery Of Information Regarding Dr. Zwiacher's Application For  

                                                                                                                              

                    Medical Staff Membership Because It Applies To Actions For Which  

                                                                                                                         

                    The Submission Of False Information Is An Element.  

                                                                                             



                    Alaska Statute 18.23.030(b) provides two exceptions to the peer review  

                                                                                                                         



privilege outlined in subsection (a).  In full, subsection (b) provides:  

                                                                                          



                                                              -27-	                                                        7293
  


----------------------- Page 28-----------------------

                              Testimony,   documents,   proceedings,   records,   and   other  

                              evidence   adduced   before   a   review   organization   that   are  

                              otherwise inaccessible under this section may be obtained                                                                      by  

                              a      health             care          provider                who           claims             that         denial             is  

                              unreasonable    or    may    be    obtained    under    subpoena    or  

                              discovery proceedings brought                                        by a plaintiff who claims                              that  

                              information provided to a review organization was false and                                                                  

                              claims that the person providing the information knew or had                                                                 

                              reason to know the information was false.                                                    [50]  



The parties appear to agree that  the first exception - which grants a "health care  

                                                                                                                                                                                      



provider"  access  to  materials  otherwise  privileged  under  subsection  (a)  when  the  

                                                                                                                                                                                        

provider  "claims that denial is unreasonable"51   - does not apply.                                                                                          But the parties  

                                                                                                                                                                                 



disagree whether the second exception, the false information exception, applies.  Under  

                                                                                                                                                                                  



this exception, "aplaintiff who claims that information provided toareview organization  

                                                                                                                                                                     



was false and claims that the person providing the information knew or had reason to  

                                                                                                                                                                                            



know the information was false" may obtain, by subpoena or discovery proceedings,  

                                                                                                                                                                    

evidence otherwise privileged under subsection (a).52  

                                                                                                            



                              The Estate and Brandt argue that the false information exception applies to  

                                                                                                                                                                                            



exclude from the privilege all materials related to the decision to grant, renew, suspend,  

                                                                                                                                                                             



or revoke Dr. Zwiacher's medical staff membership at Mat-Su and the identities of the  

                                                                                                                                                                                          

individuals involved in the decisions.53  They argue that the exception applies to these  

                                                                                                                     



               50             AS 18.23.030(b) (emphases added).                               



               51            Id.   As relevant here a "health care provider" includes "a physician licensed                                                                    



                                                                                                                                                                                 

under AS 08.64," "a hospital as defined in AS 47.23.900," and "an employee of a health  

care provider acting within the course and scope of employment."                                                                                    AS 18.23.070(3).                          



               52             AS 18.23.030(b).  

                                       



               53             The  Estate  and  Brandt  also  contend  that  a  contrary  construction  of  

                                                                                                                                                                                          

AS 18.23.030(b) would conflict with our previous 2013 order in Bolinder.   But we  

                                                                                                                                                                                         

                                                                                                                                                                  (continued...)  



                                                                                            -28-                                                                                     7293
  


----------------------- Page 29-----------------------

materials   because   the   Estate   and   Brandt   each   allege   that   Dr.   Zwiacher   knowingly  



                                                                                                                                 54  

included false information in his initial application for medical staff membership.                                                  But  



                                                                                                                                      

we conclude that this interpretation of the false information exception is too broad. The  



                                                                                                                          

falseinformationexceptionapplies to plaintiffs bringing claimsfor which thesubmission  



                                                                                                                                      

of  false  information  is  an  element.                      Since  none  of  the  claims  at  issue  contain  the  



                                                                                                                                        

submission of false information as an element, neither the Estate nor Brandt qualifies as  



                                                                                        

a plaintiff within the meaning of the false information exception.  



                                                                                                                                     

                     We  base  our  interpretation  of  the  false  information  exception  on  two  



                                                                                                                                 

aspects of the peer review statute.  First, we must read the exceptions to the peer review  



                                                                                                                                             

privilege in subsection (b) in pari materia with other sections of the peer review statute.  



                                                                                                                             

Under  the  in  pari  materia  canon  of  statutory  construction,  we  construe  statutory  



                                                                                                                               

provisions  "enacted  at  the  same  time,  or  deal[ing]  with  the  same  subject  matter"  

              55   The peer review privilege and its exceptions were enacted in 1976 as part of  

together.                                                                                                                               



           53         (...continued)  



                                                                                                                                     

limited that order to that interlocutory appeal and explicitly refrained from deciding how  

                                                                                                                             

the exception "should be interpreted or how it may apply in future cases."  Bolinder  

                                                                                                                                   

Order, supra note 8.  And this opinion does not alter our limited 2013 order.  That order  

                                                                                                                                      

required Mat-Su to release Dr. Zwiacher's application for hospital privileges to the  

                                                                                                                

Estate, but nothing more.  Id.  Mat-Su has complied with that order.  



           54        In  addition,  in  its  first  petition  for  review,  the  Estate  argued  that  a  

                                                                                                                                         

committee considering an initial credentialing decision is not a "review organization"  

                                                                                                                      

within the meaning of this exception to the peer review statute because it does not serve  

                                                                                                                                   

one of the statutorily defined functions of such an organization.  Neither the Estate nor  

                                                                                                                                      

Brandt renews this argument in this appeal. Because Mat-Su has already provided the  

                                                                                                                                       

initial credentialing file to both the Estate and Brandt, this argument is moot, and we do  

                                                                                                                                        

not consider whether such a committee qualifies as a review organization.  

                                                                                                   



           55        Bullock v. State, Dep't of Cmty. & Reg'l Affairs, 19 P.3d 1209, 1214-15  

                                                                                                                              

(Alaska 2001) (quoting Underwater Constr., Inc. v. Shirley, 884 P.2d 150, 155 (Alaska  

                                                                                                                               

                                                                                                                     (continued...)  



                                                                  -29-                                                             7293
  


----------------------- Page 30-----------------------

                                                                                                                                 56  

 a comprehensive medical malpractice insurance bill.                                                                                   Another provision of the statute,                             



 AS 18.23.010, contains similar language to that of the false information exception in                                                                                                                            



 AS 18.23.030(b).                             Alaska Statute 18.23.010(a) limits when an informant to a review                                                                                      



 organization can be held liable for defamation and similar actions: "A person providing                                                                                                       



 information to a review organization is not subject to action for damages or other relief                                                                                                                



 by reason of having furnished that information                                                                       unless the information is false                                              and  the  



person providing the information knew or had reason to know                                                                                                        the information was                      

                 57     This language tracks the language of the false information exception.  

 false."                                                                                                                                                                                            



                                  Another provision, AS 18.23.020, limits liability for members of a review  

                                                                                                                                                                                                     



 organization. It provides that members are shielded fromliability arising fromthe action  

                                                                                                                                                                                                        



 or  recommendation  of  a  review  organization  as  long  as  they  acted  based  on  "the  

                                                                                                                                                                                                           



 reasonable belief that the action or recommendation is warranted by facts known to the  

                                                                                                                                                                                                               



 person or to the review organization" and took "reasonable efforts to ascertain the facts  

                                                                                                                                                                                                           

 upon which the review organization's action or recommendation is made."58  Reading  

                                                                                                                                                                    



 these provisions of the peer review statute together suggests that the false information  

                                                                                                                                                                   



 exception  was  intended  to  permit  discovery  in  cases  where  submission  of  false  

                                                                                                                                                                                                         



 information is a required element.  

                                                                                       



                                  Second, the legislative history of the peer review statute also supports this  

                                                                                                                                                                                                              



 limitation on the scope of the false information exception.  The legislative history of the  

                                                                                                                                                                                                                



 medical malpractice insurance bill as a whole repeatedly emphasizes the legislature's  

                                                                                                                                                                                        



                 55               (...continued)  



                     

 1994)).  



                 56               See Ch. 102,  40, SLA 1976.  

                                                                                                              



                 57               AS 18.23.010(a) (emphases added).                                      



                 58  

                                                                       

                                  AS 18.23.020.  



                                                                                                       -30-                                                                                               7293
  


----------------------- Page 31-----------------------

concern with the dual goals of (1) increasing the availability of affordable medical                                                         



malpractice   insurance   and   (2)   protecting   those   who   furnish   information   to   review  



organizations from defamation suits.                                   The most detailed piece of legislative history                          



comes from a 1975 report and a supplemental report issued by a committee convened by                                                                    

                                                                                                                                59     The  report  

the   governor   to   study   the   malpractice   insurance   crisis   in   Alaska.                                                             



recommended reforms that ultimately led to the comprehensive medical malpractice  

                                                                                                                                       



insurance bill that included AS 18.23.  

                                                                       



                        The report recognized that the dual goals were intertwined - to decrease  

                                                                                                                                             



the cost and increase the availability of malpractice insurance, there needed to be a  

                                                                                                                                                          

culture of self-policing in the medical profession.60   However, fears of defamation suits  

                                                                                                                                                    



impeded establishing such a culture: "[M]edical practitioners [were] reluctant to divulge  

                                                                                                                                               



information concerning observed negligence or misconduct for fear the practitioner  

                                                                                                                                       



involved w[ould] bring an action for defamation," and, as a result, "more information  

                                                                                                                                       



[was] available from health care providers than [was] . . . made available to the licensing  

                                                                                                                                            

               61    To address these fears, the committee recommended that individuals who  

boards."                                                                                                                                            



provided informationtoapeer reviewcommitteeshould haveimmunityfromdefamation  

                                                                                                                                        



            59          MALPRACTICE  COMMISSION  REPORT,  supra  note 5;                                           See  STATE OF           ALASKA,  



   EPORT   OF   THE   GOVERNOR'S  MEDICAL   MALPRACTICE   INSURANCE   COMMISSION,  

R                                                                                                                                 

S U  P  P  L  E  M  E  N  T                 a t         c r o s s - r e f e r e n c e                            t b l . ,           ( 1 9 7 5 ) ,  

http://archives2.legis.state.ak.us/PublicImageServer.cgi?lib/7500370REPORT%20OF  

%20THE%20GOVERNOR%27S%20MEDICAL%20MALPRACTICE%20INSURA  

NCE%20COMMISSION,%20SUPPLEMENT.pdf.  



            60          MALPRACTICE  COMMISSION  REPORT,  supra  note 5, at 48.                                          



            61  

                                          

                        Id. at 50.  



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                    62  

actions.                  This was the committee's only recommendation specific to what ultimately                                                                                        



became AS 18.23.                



                                   Other   relevant   pieces   of   legislative   history   also   emphasize   limiting  



defamation liability for those who participate in and provide information to review                                                                                                                             



organizations. At the same time, these materials fail to mention any exception to the peer                                                                                                                              



review   privilege.     A   sectional   analysis   of   the   medical   malpractice   insurance   bill  



performed by one of the bill's sponsors includes a brief description of the portion of the                                                                                                                                  



bill that ultimately became AS 18.23. The description simply states that the peer review                                                                                                                          



statute "[l]imits liability for persons providing information to a review organization and                                                                                                                                



for   members   of   a   review   organization"   and   "[p]rovides   that   records   of   a   review  

                                                                                                                                         63       Similarly, a comparison of the  

organization are immune from discovery in a suit."                                                                                                                                                                         



House and Senate versions of the medical malpractice insurance bill prepared by the  

                                                                                                                                                                                                                           



Legislative Affairs Agency mentions the portion that became AS 18.23 only in the  

                                                                                                                                                                                                                           

context of limiting defamation liability.64  

                                                                                  



                                   The legislative history's emphasis on limiting defamation liability and  

                                                                                                                                                                                                                         



decreasing the cost of malpractice insurance - coupled with its silence with regard to  

                                                                                                                                                     



any  exception  to  the  peer  review  privilege  - counsels  in  favor  of  construing  any  

                                                                                                                                                                                                                         



exception to the privilege narrowly.   Although the legislative history of the medical  

                                                                                                                                                                                                              



malpractice insurance bill admittedly contains little information specific to the peer  

                                                                                                                                                                                                                       



review privilege or its exceptions, we conclude that the broad aims of the bill that we  

                                                                                                                                                                                                                            



                  62               Id.  



                  63               RepresentativeTed Smith,SummaryofMedicalMalpracticeInsuranceBill                                                                                                                       



CSHB 574, 9th Leg., 2d Sess. at 2, Alaska Leg. (May 20, 1976).                                                                                                              



                  64               Legislative Affairs Agency, Medical Malpractice Bills in Free Conference  

                                                                                                                                                                                                     

Committee, 9th Leg., 2d Sess. at 2, Alaska Leg. (undated).  

                                                                                                                                                            



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have just distilled should guide our interpretation of this exception. If the legislature had  



                                                                                                                      

intended to establish a widely available exception to the privilege - i.e., one available  



                         

to any plaintiff alleging the provision of false information to a review organization, as  



                                                                                                                             

the Estate and Brandt urge - it is likely that the legislative history would include at least  



                                                                                                                        

some discussion of this exception.  But no such mention appears.  Instead, the drafters  



                                                                                                                         

of the medical malpractice bill focused on shielding participants in the peer review  



                                                                                                                              

process  from liability  in  order  to  foster  a  culture  of  self-policing  and  increase  the  



                                                                                                                        

affordability and availability of malpractice insurance.  Allowing any plaintiff alleging  



                                                                                                                              

the provision of false information to obtain otherwise privileged information under this  



                                                                                                                      

exception would undermine these goals by facilitating malpractice suits and deterring  



                                                                                                                                

candor in peer review proceedings.   The legislative history and other provisions of  



                                                                                                                      

AS 18.23 indicate that the false information exception is available only to plaintiffs  



                                                                                                                                     

bringing the actions for which provision of false information is an element of the claim.  



                                                                                                                        

                    We therefore reverse the April 2015 discovery order in Bolinder and the  



                                                                                                                             

August 2016 order in Brandt. Both orders permit discovery of materials related to Mat- 



                                                                                                                            

Su's  decision  to  grant,  renew,  suspend,  or  terminate  Dr.  Zwiacher's  medical  staff  



                                                                                                                               

membership. The false information exception does not apply in either of these cases and  



                                                                                                                          

thusdoesnot allowdiscovery fromMat-Su's peerreviewcommitteesofmaterials related  



                                                                                                                             

to the decision to grant, renew, suspend, or terminate Dr. Zwiacher's credentials at Mat- 



                                                                                                                            

Su.      But  we  again  note  that  the  Estate  and  Brandt  may  seek  discovery  of  such  



                                                                                                                                

information and materials from alternative sources outside the peer review process.  



V.        CONCLUSION  



                                                                                                                               

                    We REVERSE the April 27, 2015 discovery order in Bolinder  and the  



                                                                                                                               

August 24, 2016 order in Brandt.   We AFFIRM in part and REVERSE in part the  



                                                                                                                          

June 10, 2015 discovery order in Bolinder as detailed above.  We REMAND for further  



                                                                

proceedings consistent with this opinion.  



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