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LEVIN, et al.

June 9, 2000

Record No. 992934




June 9, 2000

Record No. 992935





Leslie M. Alden, Judge

Present: Carrico, C.J., Hassell, Keenan, Koontz, and Kinser,
JJ., and Compton and Stephenson, Senior Justices


In these appeals of a contempt order arising from a defamation
action, we consider the scope and application of the statutory
privilege from disclosure accorded peer review records possessed
by certain medical organizations.

In 1998, Stephen M. Levin, M.D., filed an action for damages
against, among others, WJLA-TV, a television station that
broadcasts in the Washington, D.C., metropolitan area, which
includes Northern Virginia and Maryland. In a second amended
motion for judgment, the plaintiff, who practices medicine in
Northern Virginia, sought recovery against defendants for
defamation, conspiracy, trespass, and the unauthorized use of his
name and picture.

The lawsuit stems from a news story WJLA-TV and the other
defendants disseminated about the plaintiff. A board-certified
orthopedist, the plaintiff alleges the defendants defamed him by
accusing him of sexual assaults upon female patients in
connection with his use of internal pelvic diagnostic
examinations and "intrapelvic stretching techniques,"
when the patients were suffering from "pelvic floor
problems." The plaintiff asserts the techniques he employs
are recognized as "medically appropriate and
effective." The plaintiff alleges defendants characterized
him as the "DIRTY DOC" and the "X-RATED

During discovery proceedings in the pending action, appellants
Reston Hospital Center and Pentagon City Hospital (collectively,
the hospitals) as well as appellant INOVA Health System (INOVA),
received subpoenas duces tecum issued and served at the request
of WJLA-TV. Neither the hospitals nor INOVA are parties to the
litigation; instead, they are third parties whose peer review
records are sought by WJLA-TV in its effort to defend the
plaintiff’s defamation action.

The subpoenas sought, for example, all documents dealing with
any formal or informal complaint made against the plaintiff by
any patient or health care provider; all documents describing any
disciplinary action taken against the plaintiff by any hospital,
medical licensing board, or medical association; and all
documents that refer to any decision to grant, revoke, or suspend
the plaintiff’s hospital privileges. WJLA-TV sought to use the
information in an effort to validate its allegedly defamatory
statements about the plaintiff and to resist plaintiff’s claim
for lost income as the result of the defamation.

The hospitals and INOVA filed motions to quash the subpoenas
duces tecum. Relying on the provisions of Code
? 8.01-581.17, they asserted the documents sought are
privileged, confidential, and not discoverable.

As pertinent, the statute provides that peer review
information kept by hospitals and health-related organizations
"are privileged communications which may not be disclosed or
obtained by legal discovery proceedings unless a circuit court,
after a hearing and for good cause arising from extraordinary
circumstances being shown, orders the disclosure" of such

Following briefing and oral argument on the respective motions
to quash, the trial court denied the motions and ordered the
documents produced. In a letter opinion, the court stated that
Code ? 8.01-581.17 is not "applicable outside the
context of medical malpractice actions"; that the plaintiff
had waived the statutory privilege by filing suit and putting his
reputation at issue; and that, even if the statute is applicable,
WJLA-TV had shown the required "good cause arising from
extraordinary circumstances" because the peer review records
"are clearly relevant to the issue of the truth of the
alleged defamatory statements, as well as the mitigation of
damages suffered by Plaintiff for loss of reputation

Counsel for the hospitals and INOVA advised the trial court
that they were of opinion the discovery order was interlocutory,
that they wished to generate an appealable order, and thus their
clients would not comply with the discovery order. The trial
court, in a November 1999 order, found them in civil contempt of
the disclosure order and assessed each organization a fine of
$150 per day "until such time as each purges itself of the

Pursuant to Code ? 19.2-318, the hospitals and INOVA
appealed the contempt order to the Court of Appeals of Virginia,
which stayed that portion of the trial court’s order imposing
daily fines. Subsequently, and before the matters had been
determined by the Court of Appeals, this Court, in a December
1999 order entered pursuant to Code ? 17.1-409(A) and
(B)(1), certified these cases for review. We determined that the
matters are of such imperative importance as to justify the
deviation from normal appellate practice and to require prompt
decision in this Court.

We awarded the appeals and consolidated them for briefing and
argument. On appeal, a brief amicus curiae has been filed
supporting the appellants by The Virginia Hospital and Healthcare
Association, Medical Society of Virginia, American Medical
Association, and American Hospital Association.

Three questions are presented on appeal. Is the privilege
accorded by Code ? 8.01-581.17 to medical peer review
records applicable only in medical malpractice actions? Does the
statutory privilege belong to and may it be unilaterally waived
by an individual physician who is the subject of peer review? Did
WJLA-TV demonstrate "good cause arising from extraordinary
circumstances," as required by the statute, to justify
disclosure of confidential peer review records? We answer each of
those queries in the negative.

First, the statutory language is clear, unambiguous, and
unqualified. The plain language states that peer review records
"are privileged communications which may not be disclosed or
obtained by legal discovery proceedings." No language of the
statute limits its application to a particular type of suit or

When statutory language is clear and unambiguous, there is no
need for construction by the court; the plain meaning of the
enactment will be given it. Brown v. Lukhard, 229 Va. 316,
321, 330 S.E.2d 84, 87 (1985). Courts must give effect to
legislative intent, which must be gathered from the words used,
unless a literal construction would involve a manifest absurdity.
Abbott v. Willey, 253 Va. 88, 91, 479 S.E.2d 528, 530
(1997). Certainly, it is not manifestly absurd to conclude that
the ? 8.01-581.17 privilege applies to all kinds of
litigation, not just to medical malpractice actions.

WJLA-TV contends that because the statute in issue is codified
in the Medical Malpractice section of Chapter 21.1 of Title 8.01,
the General Assembly necessarily intended that it not apply
outside the medical malpractice context. The trial court
apparently was influenced by the statute’s placement in the Code.

There is no merit to WJLA-TV’s contention. When, as here, the
legislature’s intent is unambiguously expressed in the statute,
recourse to devices of statutory construction, such as comparing
it with other statutes in pari materia or
considering other extraneous circumstances, is not permitted. City
of Richmond v. Sutherland
, 114 Va. 688, 691, 77 S.E. 470, 471

Also, to restrict the privilege, as WJLA-TV urges and as the
trial court ruled, ignores the underlying purpose of the statute.
The obvious legislative intent is to promote open and frank
discussion during the peer review process among health care
providers in furtherance of the overall goal of improvement of
the health care system. If peer review information were not
confidential, there would be little incentive to participate in
the process.

Turning to the second question, we hold, contrary to the trial
court’s ruling, that the statutory privilege does not belong to
the physician who is the subject of peer review and may not be
unilaterally waived by the physician. To allow the subject of
peer review to waive the privilege runs counter to the purpose of
the statute that encourages physicians to participate candidly in
the peer review of other physicians, with the expectation
that the information submitted will remain confidential and
shielded from public disclosure.

Moreover, to allow the peer review subject to waive the
privilege is at odds with the plain language of the statute.
There is no suggestion in the words of the enactment that the
privilege resides in, and may be waived by, the target of peer

Upon the third question, we conclude the trial court erred in
finding WJLA-TV established the required "good cause arising
from extraordinary circumstances" sufficient to warrant
disclosure of the peer review records. As we have stated, the
trial court determined that the information sought by the
subpoenas is "clearly relevant" to the issues of the
truth of the alleged defamation as well as mitigation of damages.
The court said that "WJLA is entitled to pursue all facts
that are relevant to its defense of this action," and thus
WJLA-TV had met the statutory requirement.

However, there is a vast difference between the legal
principle of "relevance" and the term
"extraordinary circumstances." There is nothing
"extraordinary" about the mere need to defend this
lawsuit. Manifestly, the General Assembly did not contemplate a
test for disclosure that is so easily satisfied.

In the present case, WJLA-TV claimed only that it has to
defend itself from defamation based on a news story it decided to
disseminate after it, presumably, had become satisfied of its
truth. The need to establish a defense, which must be made in all
civil actions, is the essence of usual and ordinary, and is not

Consequently, the contempt order will be set aside and the
respective motions to quash the subpoenas duces tecum will be
granted. Additionally, the daily fines will be annulled and
dismissed. See Robertson v. Commonwealth, 181 Va.
520, 538-39, 25 S.E.2d 352, 360 (1943) (disobedience of order to
produce documentary evidence excused if order is erroneous
because defendant refused to divulge privileged information).

Record No. 992934 — Reversed and final

Record No. 992935 — Reversed and final