Beaufort Memorial Hospital (Hospital) appeals from the trial court's decision declaring certain contents of its Quality Assurance Committee (QAC) file discoverable and ordering a new trial. We reverse.
In February 1999, Danny R. Prince was admitted to Hospital's care after suffering a work-related injury. On February 17, 1999, Prince was discovered after falling to the roof of the hospital building, one floor below his room's window. Prince sustained additional injuries but did not remember the incident. Hospital's QAC investigated the incident and maintained a file of the information it assembled.
Prince sued Hospital under the Tort Claims Act for his injuries and sought disclosure of the QAC file. Hospital claimed the contents of the file were confidential pursuant to sections 40-71-10 and -20 of the South Carolina Code (2001 & Supp.2004), and the trial court agreed.
Hospital appealed (Hospital's First Appeal), arguing Prince had failed to preserve his argument that Hospital had waived confidentiality and the trial court had exceeded its authority by ruling on the issue of waiver. This court agreed with Hospital and again remanded the matter to the trial court, instructing the trial court to "set forth the specific portions of the [QAC] file that are subject to discovery as well as the reasons these portions are not confidential under section 40-71-20." See Prince v. Beaufort Mem. Hosp., Op. No.2008-UP-139 (S.C. Ct.App. filed Mar. 3, 2008).
Upon remand from Hospital's First Appeal, the trial court reviewed the contents of the QAC file and found most documents in the file were discoverable under the statute because the information in them was otherwise available from the original sources. The trial court found one document
Following oral arguments in June 2010, this court instructed the parties to brief the following issues:
The parties submitted supplemental briefs, a new record on appeal, and a supplemental record on appeal.
STANDARD OF REVIEW
The decision whether to grant or deny a new trial rests within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. Fields v. J.
I. Trial Court's Review
A. Authority under Remand Order
Hospital argues the trial court erred by exceeding its authority under this court's remand order. We agree.
"[A] trial court has no authority to exceed the mandate of the appellate court on remand." S.C. Dep't of Soc. Servs. v. Basnight, 346 S.C. 241, 250-51, 551 S.E.2d 274, 279 (Ct.App.2001) (citing 5 Am.Jur.2d Appellate Review § 784, at 453 (1995)). The mandate of the appellate court is jurisdictional. Id. The trial court has a duty to follow the appellate court's directions. Ackerman v. McMillan, 324 S.C. 440, 443, 477 S.E.2d 267, 268 (Ct.App.1996).
We reverse the trial court's order requiring Hospital to release the contents of the QAC file to Prince. When we remand a case, the trial court has only the jurisdiction and authority mandated by this court. Basnight, 346 S.C. at 250-51, 551 S.E.2d at 279. Upon remand following the Hospital's First Appeal, this court instructed the trial court to "set forth the specific portions of the [QAC] file that are subject to discovery as well as the reasons these portions are not confidential under section 40-71-20." Prince v. Beaufort Mem. Hosp., Op. No.2008-UP-139 (S.C. Ct.App. filed Mar. 3, 2008). As a result, the trial court's jurisdiction extended only to a review of each document contained in the QAC file in light of the statute.
Instead of reviewing the documents in the QAC file solely in light of the statutory provisions, the trial court based its decision to unseal the QAC file on three factors: (1) the availability of some information from original sources, (2) the conflict of information in Item 15 with Nurse Emerick's trial testimony, and (3) Hospital's apparent use of certain confidential
Furthermore, Prince's arguments to the contrary are unpersuasive. A court may not, as he argues, exceed its authority and assume the role of a second jury. Rather, the appellate court's instructions circumscribe the trial court's authority on remand. Basnight, 346 S.C. at 250-51, 551 S.E.2d at 279. The trial court's duty is to follow the instructions it received from the appellate court. Ackerman, 324 S.C. at 443, 477 S.E.2d at 268.
The trial court's third factor, Hospital's apparent use of documents from the QAC file in answering discovery, was not properly before the trial court on remand. "Matters decided by the appellate court cannot be reheard, reconsidered, or relitigated in the trial court, even under the guise of a different form." Id. In essence, the trial court found Hospital waived any statutory confidentiality by utilizing these documents to prepare discovery responses. However, in Hospital's First Appeal, this court found no issue regarding waiver had been preserved and appealed. Prince, Op. No.2008-UP-139 (S.C. Ct.App. filed Mar. 3, 2008). Specifically, our opinion expressly disagreed with the trial court's holding that the issue of waiver was necessarily so intertwined with the issue of confidentiality as to require concurrent consideration. Instead, we held that "the remand instructions did not authorize the trial court to consider whether Hospital had waived its right to assert the file was confidential." Prince did not seek
B. Analysis of the QAC File's Contents in Light of the Statute
On remand following Hospital's First Appeal, this court directed the trial court to determine whether and, if so, why any documents in the QAC file were discoverable under section 40-71-20. The trial court based the first factor it used in reviewing the contents of the QAC file on section 40-71-20. Hospital originally argued on appeal that the trial court erred by misapplying section 40-71-20. We agree.
Hospital medical staff on a committee conducting peer reviews of patient medical and health records are protected from tort liability for their work if they "act[ ] without malice, [make] a reasonable effort to obtain the facts relating to the matter under consideration, and act[ ] in the belief that the action [they take] is warranted by the facts known to [them]." S.C.Code Ann. § 40-71-10(B) (Supp.2009). Both the information they collect and any investigative documents they generate are confidential:
McGee v. Bruce Hosp. Sys., 312 S.C. 58, 61-62, 439 S.E.2d 257, 259-260 (1993) (internal citations omitted); accord Durham v. Vinson, 360 S.C. 639, 646, 602 S.E.2d 760, 763 (2004).
The trial court's misconstruction of this law supports our decision to reverse as well. Following Prince's Appeal, this court instructed the trial court to "conduct an in camera review of the [QAC] file . . . [and] decide whether the file warrants confidentiality." Prince v. Beaufort Mem. Hosp., Op. No.2005-UP-602 (S.C. Ct.App. refiled Apr. 11, 2006). Following Hospital's First Appeal, this court instructed the trial court "to set forth the evidence in the [QAC] file that is
This court found that the QAC met the qualifications for protection under section 40-71-10 and that "Prince failed to appeal the trial court's refusal to consider his argument that Hospital had waived its protection under section 40-71-20." See id. Neither party appealed these rulings. Therefore, these determinations are the law of the case. See Ables, 378 S.C. at 569, 664 S.E.2d at 448 (holding an unappealed ruling is the law of the case). Section 40-71-10 establishes ground rules for the conduct of the QAC members in performing their duties. Section 40-71-20 confers confidentiality upon information gathered by the QAC "in the exercise of its duties."
Despite this court's instructions upon remand, the trial court omitted any evaluation of Hospital's claims of confidentiality in light of these provisions. The trial court failed to make any finding of fact whether the QAC had acquired the documents in its file "in the exercise of its duties." See § 40-71-20(A). Neither did the trial court evaluate whether, in assembling the information in this file, the QAC members "act[ed] without malice, [ ] made a reasonable effort to obtain the facts relating to the matter under consideration, and act[ed] in the belief that the action [they took was] warranted by the facts known to [them]." See § 40-71-10(B). Accordingly, the trial court erred by failing to conduct the analysis directed by this court prior to unsealing the QAC file and ordering a new trial.
The trial court's first factor represents a misapplication of section 40-71-20(A). Section 40-71-20(A) establishes confidentiality for information gathered by the QAC in the performance of its duties. However, it excepts from this coverage information that is "otherwise available from original sources." In examining this provision, our supreme court stated: "the statute does not protect information if obtained
In summary, the trial court based its ruling upon a comparison of evidence beyond the scope of its authority on remand, an argument this court previously held was not properly before the trial court, and a misconstruction of section 40-71-20. Accordingly, we find the trial court abused its discretion in ordering the QAC file disclosed.
II. New Trial
Hospital next argues the trial court erred in granting a new trial based upon a conflict in evidence. We decline to reach this issue. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (ruling an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal). The trial court's decision to disclose the QAC file was the sole basis for granting a new trial. Our reversal herein of the trial court's decision to disclose the QAC file removes that basis.
III. Prince's Remaining Arguments
Prince advances a number of arguments in his Supplemental Brief and, in a prayer for relief contained in the conclusion of that brief, seeks additional sanctions against Hospital. For the reasons outlined below, we decline to address these arguments and requests.
We decline to address Prince's remaining issues, including attorney's fees for work performed at the trial level, as unpreserved. "It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review." Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998). Because Prince failed to procure a ruling from the trial court on any of these issues, they are unpreserved for appellate review.
For the foregoing reasons, we reverse the trial court's decision disclosing the QAC file and granting Prince a new trial. We reinstate the decision of Judge Gregory.
THOMAS, J., concurs.
I concur in the majority's reasoning and conclusion that the QAC file meets the criteria for confidentiality under the peer-review privilege found in sections 40-71-10 and -20. That question is resolved, and no further inquiry into the QAC file's confidentiality under these sections is necessary.
However, this third appeal brings before our court for the first time a document contained in the QAC file, item 15. Item 15 is a series of notes made by the Hospital risk manager from interviews with Nurse Jennifer Emerick and others, including the statements that Nurse Emerick was afraid of Prince and thought he was at risk for elopement.
I have substantial concerns about what should be done with this newly discovered evidence. The statements, which were revealed to the trial court only after remand from Prince's appeal, served as the basis for the trial court's June 22, 2006 order that the peer-review privilege had been waived. However, the order did not contain the content of item 15.
The central issue in this case is whether Hospital knew or reasonably should have known that Prince posed a danger to himself, and in particular whether Hospital was on notice of any reasonable likelihood of elopement. Nurse Emerick's statements recorded in item 15 relate directly to that central issue. In pretrial discovery, Prince served Hospital with an interrogatory almost identical to the standard interrogatory set forth in Rule 33(b)(7), SCRCP. In response to the interrogatory, Hospital gave a detailed account of Nurse Emerick's involvement with and her observations of Prince. The interrogatory answer does not mention Nurse Emerick being afraid of Prince nor any thought that he was at risk for elopement.
Nurse Emerick's answers to these questions are not consistent with the statement she previously gave to the Hospital risk manager, as recorded in item 15: "Was a little afraid of him. Thought he was at risk for elopement." In the December 1, 2008 order, the trial court called the inconsistency "most troubling." The trial court went on to explain:
After referring to several authorities on the importance of the disclosure of information relating to witness credibility, the trial court stated:
I share the trial court's concern. The peer-review privilege under sections 40-71-10 and -20 protects only the documents in the peer-review file. The existence of a valid privilege does not permit counsel to remain silent when the privilege has protected from disclosure the only evidence available that a witness has testified untruthfully. The peer-review privilege was never intended to allow a party to conceal that a witness has testified untruthfully on the central issue in a case.