                 This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                 2019 UT 9


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                      LEGRAND P. BELNAP, M.D.,
                            Petitioner,
                                       v.
                         BEN HOWARD, M.D.,
                       and STEVEN MINTZ, M.D.,
                             Respondents.


                             No. 20170628
                        Filed February 28, 2019

                 On Appeal of Interlocutory Order

                      Third District, Salt Lake
                   The Honorable Matthew Bates
                          No. 160902832

                                 Attorneys:
     Peter Stirba, Scott G. Higley, Salt Lake City, for petitioners
Francis M. Wikstrom, Juliette P. White, Alan S. Mouritsen, Salt Lake
                      City, for respondents


   CHIEF JUSTICE DURRANT authored the opinion of the Court, in
   which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE
             PEARCE, and JUDGE KATE APPLEBY joined.
Having recused herself, JUSTICE PETERSEN did not participate herein.
           COURT OF APPEALS JUDGE KATE APPLEBY sat.


   CHIEF JUSTICE DURRANT, opinion of the Court:

                               Introduction
    ¶1 Rule 26(b)(1) of the Utah Rules of Civil Procedure
establishes discovery and evidentiary privileges for statements made
and documents prepared as part of a health care provider’s peer
review process. In this case, the parties dispute whether there is an
                         BELNAP v. HOWARD
                        Opinion of the Court

exception to these privileges for information provided in bad faith.
Dr. LeGrand P. Belnap was denied discovery as to allegedly
defamatory statements made by Drs. Ben Howard and Steven Mintz
in peer review meetings. These statements concerned Dr. Belnap’s
application for surgical privileges at Jordan Valley Medical Center
(JVMC). After the district court denied Dr. Belnap discovery, he filed
this interlocutory appeal. Because we find that there is no bad faith
exception to rule 26(b)(1), we affirm.
                            Background
    ¶2 In 2009, Dr. Belnap obtained active staff membership and
full surgical privileges at Salt Lake Regional Medical Center
(SLRMC), a facility owned by Iasis Healthcare Corporation (Iasis). In
2013, SLRMC’s Medical Executive Committee, which included
Dr. Howard, summarily suspended Dr. Belnap’s privileges. The
following month, a hearing was held. SLRMC later vacated
Dr. Belnap’s suspension in full, and he returned to full surgical
privileges.
   ¶3 In September 2013, Dr. Belnap submitted an application to
Jordan Valley Medical Center (JVMC)—also owned by Iasis—for
appointment to the medical staff and for clinical privileges. In the
course of reviewing Dr. Belnap’s application, Jordan Valley’s
Medical Executive Committee (the Executive Committee) solicited
input from physicians with whom Dr. Belnap had previously
worked, including Drs. Howard and Mintz.
    ¶4 In May 2015, “Dr. Belnap’s counsel received a redacted copy
of the minutes from a secret [Executive Committee] meeting held on
January 21, 2015.” In an amended complaint, Dr. Belnap brought
four claims: defamation, tortious interference with prospective
economic relations, state antitrust violations, and intentional
infliction of emotional distress. The amended complaint describes in
specific detail the statements Drs. Howard and Mintz allegedly
made on January 21, 2015.
   ¶5 Drs. Howard and Mintz filed two motions seeking to strike
Dr. Belnap’s amended complaint or to classify it as privileged under
the peer review privilege. The district court denied both motions.
Dr. Belnap then filed a notice of deposition of both Drs. Howard and
Mintz. Drs. Howard and Mintz filed a statement of discovery issues
asking the district court, under Utah Rule of Civil Procedure 26(b)(1)
and Utah Code section 26-25-3, to prohibit the discovery, use, or
admission into evidence of several documents created during the
peer review process and the testimony provided on January 21. The


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                            Opinion of the Court

district court granted the restrictions sought by Drs. Howard and
Mintz in their statement of discovery issues.
    ¶6 Dr. Belnap timely filed a petition for interlocutory appeal in
this court. We have jurisdiction pursuant to Utah Rule of Appellate
Procedure 5 and Utah Code section 78A-3-102(3)(j).
                       Issue and Standard of Review
    ¶7 We must determine whether there is an exception to the
peer review privilege in Utah Rule of Civil Procedure 26(b)(1) for
statements made in bad faith. “The existence of a privilege is a
question of law for the court, which we review for correctness,
giving no deference to the trial court’s determination.” 1 And a
“district court’s interpretation of a rule of civil procedure presents a
question of law that is reviewed for correctness.” 2
                                  Analysis
    ¶8 Dr. Belnap argues that Utah Rule of Civil
Procedure 26(b)(1)’s privilege language is ambiguous and, when
read in conjunction with the legislative note accompanying that rule,
includes a bad faith exception. Because we find that there is no bad
faith exception in the plain language or the legislative note, we
affirm.
             I. There Is No Bad Faith Exception to Rule 26(b)(1)’s
                            Peer Review Privilege
    ¶9 We are asked to interpret the discovery privilege provided
by Utah Rule of Civil Procedure 26(b)(1). “[W]hen construing a
statute, we seek to give effect to the intent of the Legislature.” 3 So we
“begin with the plain language of the provision at issue in our
broader effort to ascertain the intent of the Legislature disclosed by
the language of the act as a whole, the act’s operation, and its
purpose.” 4 “Only when we find ambiguity in the statute’s plain


_____________________________________________________________

   1 Moler v. CW Mgmt. Corp., 2008 UT 46, ¶ 7, 190 P.3d 1250
(quoting Price v. Armour, 949 P.2d 1251, 1254 (Utah 1997)).
   2 Aequitas Enters., LLC v. Interstate Inv. Grp., LLC, 2011 UT 82, ¶ 7,
267 P.3d 923.
   3   State v. Rasabout, 2015 UT 72, ¶ 10, 356 P.3d 1258.
   4   Id.


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                           Opinion of the Court

language need we seek guidance from the legislative history and
relevant policy considerations.” 5
    ¶10 In this case, nothing in the text of rule 26(b)(1) indicates the
existence of a bad faith exception. The rule states, in relevant part:
         Privileged matters that are not discoverable or
         admissible in any proceeding of any kind or character
         include all information in any form provided during
         and created specifically as part of a request for an
         investigation,   the    investigation,   findings,   or
         conclusions of peer review, care review, or quality
         assurance processes of any organization of health care
         providers as defined in the Utah Health Care
         Malpractice Act for the purpose of evaluating care
         provided to reduce morbidity and mortality or to
         improve the quality of medical care, or for the purpose
         of peer review of the ethics, competence, or
         professional conduct of any health care provider. 6
The text of rule 26(b)(1) does not mention a bad faith exception. The
rule prohibits discovery of privileged matters “in any proceeding of
any kind” and includes “all information in any form” provided at any
stage of a peer review, care review, or quality assurance process. 7
This language is certainly broad enough to prohibit even the
discovery of statements made in bad faith as part of a peer review
meeting. 8

_____________________________________________________________
   5World Peace Movement of Am. v. Newspaper Agency Corp., Inc., 879
P.2d 253, 259 (Utah 1994).
   6   UTAH R. CIV. P. 26(b)(1).
   7   Id. (emphases added).
   8 The discovery privilege set out in rule 26(b)(1) applies to both
the care review and the peer review process. The care review
privilege “authorizes, without the risk of liability, certain private
medical information to be provided to select entities” for two
purposes: “(a) study[ing] and advancing medical research, with the
purpose of reducing the incidence of disease, morbidity, or
mortality; or (b) the evaluation and improvement of hospital and
health care rendered by hospitals, health facilities, or health care
providers.” Vered v. Tooele Hosp. Corp., 2018 UT App 15, ¶ 18, 414
P.3d 1004 (quoting UTAH CODE § 26-25-1(3)); see also Benson v. I.H.C.
                                                         (Continued)
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                            Opinion of the Court

   ¶11 The language does reference the definitions in the Utah
Health Care Malpractice Act, but nothing in that act can be read to
create a bad faith exception to rule 26(b)(1). 9 So under the plain
meaning of the text of rule 26(b)(1), there is no bad faith exception to
the discovery privilege at issue here.
       II. The Legislative Note Appended to Rule 26(b)(1) Does Not
                        Create a Bad Faith Exception
    ¶12 Even though nothing in the text of rule 26(b)(1) indicates the
existence of a bad faith exception, Dr. Belnap argues that the term
“privilege” becomes ambiguous when the legislative note is read as
part of the rule, and that the best reading of the note is that it creates
a bad faith exception to the privilege rule. Because we conclude that
the plain meaning of the text of rule 26(b)(1) is unambiguous, it is
questionable whether it is proper to consider the note as part of our
analysis. But because our consideration of the note does not change
our result, we examine it briefly here.
        A. It is questionable whether we should consider the legislative
                     note as part of the text of rule 26(b)(1)
    ¶13 While “it is sometimes appropriate to consider legislative
history when interpreting statutes, we will not do so when a statute
is, as here, unambiguous.” 10 In other words, when the language of a
rule or statute is clear, we do not look to other sources, such as
legislative history, for interpretive guidance. 11 Instead, only when
we find ambiguity do we turn to additional tools to help us
understand the rule. 12



Hosps., Inc., 866 P.2d 537, 539 (Utah 1993). On the other hand, the
peer review privilege “protects reviews undertaken ‘for the purpose
of evaluating any health care provider regarding (a) professional
ethics, (b) medical competence, (c) moral turpitude, or (d) substance
abuse.’” Vered, 2018 UT App 15, ¶ 19 (citation omitted). Because the
alleged defamatory statements here occurred during a peer review
process, much of our opinion focuses on the peer review process.
   9   See UTAH CODE §§ 78B-3-401 to -426.
   10 Allred v. Saunders, 2014 UT 43, ¶ 18, 342 P.3d 204 (interpreting
rule 26 and referencing the accompanying legislative note).
   11   State v. Barrett, 2005 UT 88, ¶ 29, 127 P.3d 682.
   12   Id.


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                            Opinion of the Court

    ¶14 In this case, the legislative note to which Dr. Belnap refers
was enacted together with the rest of the rule amendment. 13 So,
unlike most legislative history, the note is not merely an interpretive
statement added after the passing of the bill. Because the legislature
enacted the note along with the rule, we could view it as part of the
statute, similar to a preamble. And we have held that although
preambles are “not a substantive part of the statute,” they may
provide guidance “as to how the act should be enforced and
interpreted” and “may be used to clarify ambiguities.” 14
    ¶15 We have, however, previously interpreted the note at issue
in this case to be nothing more than legislative history.15 In our 2014
Allred v. Saunders case, we referenced the note accompanying rule 26
and stated that “in no event will we look to unenacted legislative
statements that contradict the plain text of the enactment.” 16 So
alternatively, we could treat the note more like an advisory
committee note. But we generally do not look to advisory committee
notes or other sources of interpretive guidance “when the language
of the statute is plain.” 17 Because the language of rule 26(b)(1) is
plain, if we consider the note to be the equivalent of an advisory
committee note, it would be improper to consider it.
   ¶16 But we need not determine whether we should treat the
note at issue in this case as something akin to a preamble or an
advisory committee note, because we reach the same result
regardless of how we treat it.




_____________________________________________________________
   13   S.J.R. 15, 59th Leg., Gen. Sess. (Utah 2012).
   14   Price Dev. Co., L.P. v. Orem City, 2000 UT 26, ¶ 23, 995 P.2d 1237.
   15 Allred, 2014 UT 43, ¶ 18. Our statement in this case about the
nature of the note may be more a factual observation than a
statement of law, so the precedential effect is unclear. But we need
not reach this question, because even if we assign the note the same
weight as the statutory language, the result is the same. See infra
section II.B.
   16   Id.
   17   Barrett, 2005 UT 88, ¶ 29.


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         B. Even were we to assign the legislative note the same weight
                  as the statutory language, we would still
                          find no bad faith exception
   ¶17 The legislative note at issue in this case states that
rule 26(b)(1) “intended to incorporate long-standing protections
against discovery and admission into evidence of privileged matters
connected to medical care review and peer review into the Utah
Rules of Civil Procedure.” 18 It then states that these “privileges” are
found in “both Utah common law and statute” and “include
Sections 26-25-3, 58-13-4, and 58-13-5” of the Utah Code. 19 Dr. Belnap

_____________________________________________________________
   18 UTAH R. CIV. P. 26, legislative note 1 to 2012 amendment. The
note in its entirety reads:
         The amended language in paragraph (b)(1) is intended
         to incorporate long-standing protections against
         discovery and admission into evidence of privileged
         matters connected to medical care review and peer
         review into the Utah Rules of Civil Procedure. These
         privileges, found in both Utah common law and
         statute, include Sections 26-25-3, 58-13-4, and 58-13-5,
         UCA, 1953. The language is intended to ensure the
         confidentiality of peer review, care review, and quality
         assurance processes and to ensure that the privilege is
         limited only to documents and information created
         specifically as part of the processes. It does not extend
         to knowledge gained or documents created outside or
         independent of the processes. The language is not
         intended to limit the court’s existing ability, if it
         chooses, to review contested documents in camera in
         order to determine whether the documents fall within
         the privilege. The language is not intended to alter any
         existing law, rule, or regulation relating to the
         confidentiality, admissibility, or disclosure of
         proceedings before the Utah Division of Occupational
         and Professional Licensing. The Legislature intends
         that these privileges apply to all pending and future
         proceedings governed by court rules, including
         administrative proceedings regarding licensing and
         reimbursement.
   19   Id.


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                         Opinion of the Court

argues that the incorporation of these statutory provisions creates a
bad faith exception. We disagree.
    ¶18 Section 26-25-3, in conjunction with section 26-25-1,
provides both a discovery and an evidentiary privilege for
information and statements made as part of care and peer review
processes. As we later discuss, this section was held inoperative by
one of our district courts, and was later incorporated into
rule 26(b)(1). 20 Significantly, this rule does not include a bad faith
exception.
    ¶19 In contrast to the discovery and evidentiary privileges in
section 26-25-3, sections 58-13-4 and 58-13-5 create an immunity from
liability in certain circumstances. Section 58-13-4 provides that
individuals participating in a care review process are immune from
liability arising from that process, as long as they participate in good
faith. Section 58-13-5 similarly states that individuals participating in
a peer review process are immune from liability arising from that
process, as long as they participate in good faith.
    ¶20 Dr. Belnap argues that reading section 26-25-3 together with
sections 58-13-4 and 58-13-5 suggests that a bad faith exception
should be incorporated into section 26-25-3, and by extension,
rule 26(b)(1). But our review of the history behind the statutes
referenced in the note leads us to conclude that none of the statutory
provisions Dr. Belnap cites injects a bad faith exception into
rule 26(b)(1).
    ¶21 The legislature enacted the first iteration of Utah Code
section 58-13-4 in 1969. 21 This section provided then and provides
now immunity for health care professionals participating in the care
review process, as long as they do so in good faith. 22 In 1996, the
legislature added a provision similar to section 58-13-4, section 58-
13-5, which provides for the same qualified immunity in the peer
review process. 23

_____________________________________________________________
   20Jones v. Univ. of Utah Health Sci. Ctr., No. 100419242, 2012 WL
602613 (Utah Dist. Ct. Jan. 13, 2012).
   21  1969 Utah Laws 669. When first enacted, section 58-13-4 was
listed as section 58-12-25.
   22   UTAH CODE § 58-13-4.
   23 1996 Utah Laws 1292. When first enacted, section 58-13-5 was
listed as section 58-12-25.5.


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    ¶22 In 1981, the legislature enacted what are now Utah Code
sections 26-25-1 and 26-25-3. 24 The legislature amended
section 26-25-3 in 1994 to include a protection against discovery.25
Prior to that, the section had provided only an evidentiary
protection. 26 These sections now operate together to “protect
information compiled or created during the peer-review . . . process
from both discovery and receipt into evidence.” 27
   ¶23 In 2012, one of our district courts “held that the
Legislature’s 1994 amendment to section 26-25-3 was inoperative”
because it had failed to go through the proper process for amending
a rule of evidence. 28 After this ruling, the Utah legislature properly
amended Rule 26 of the Utah Rules of Civil Procedure to codify
these peer and care review privileges. 29 As part of the 2012
amendment, the legislature included a legislative note with the
enacted bill. 30
    ¶24 Importantly, nothing in the legislative note mentions a bad
faith exception. But the note does reference Utah Code
sections 26-25-3, 58-13-4, and 58-13-5 as the sources of the peer and
care review privileges. 31 Rule 26(b)(1) and Utah Code section 26-25-3
both deal with the protections against discovery. And neither
provision mentions a bad faith exception.
   ¶25 But Utah Code sections 58-13-4 and 58-13-5,        on the other
hand, both provide that individuals participating in      the care and
peer review processes have qualified immunity from        liability. Such
individuals are shielded from liability only when they    participate in
these processes in good faith. 32


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   24   1981 Utah Laws 731–32.
   25   See Jones, 2012 WL 602613.
   26   Id.
   27   Allred, 2014 UT 43, ¶ 9.
   28   Id. ¶ 11 (citing Jones, 2012 WL 602613).
   29   Id. ¶ 12.
   30   S.J.R. 15, 59th Leg., Gen. Sess. (Utah 2012).
   31   UTAH R. CIV. P. 26 legislative note 1 to 2012 amendment.
   32   UTAH CODE §§ 58-13-4, -5.


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                           Opinion of the Court

   ¶26 In other words, the immunity from liability set forth in
sections 58-13-4 and 58-13-5 is subject to a bad faith exception while
the discovery privilege in rule 26(b)(1) and section 26-25-3 is not.
And it is the discovery privilege that is at issue in the case before us.
    ¶27 Dr. Belnap notes, however, that Utah Code section 58-13-4’s
initial enactment predated the initial enactment of sections 26-25-1
and 26-25-3, and there was a good faith requirement in
section 58-13-4 from that initial enactment. Based on this chronology,
he argues that sections 26-25-1 and 26-25-3 incorporate the good faith
requirement from previously enacted section 58-13-4. We do
presume that “whenever the legislature enacts a provision it has in
mind previous statutes relating to the same subject matter.” 33 But we
also seek “to give effect to omissions in statutory language by
presuming all omissions to be purposeful.” 34 Based on this canon,
and given that section 58-13-4 did predate the other sections and did
include good faith language, we may presume that the legislature
intentionally omitted that language in sections 26-25-1 and 26-25-3,
and rule 26. And the fact that section 58-13-4 also predated
section 58-13-5, but the legislature did include the good faith
requirement when it later enacted section 58-13-5, supports this
interpretation. So it is clear that the legislature did not intend to
simply rely on section 58-13-4 to provide a good faith requirement
for all subsequent enactments.
    ¶28 The legislative note makes clear that the legislature’s
intention in amending rule 26 was to maintain the status quo in
codifying the peer and care review privileges as they existed prior to
the district court decision overruling the 1994 amendment to Utah
Code section 26-25-3. 35 Throughout the entire history of these
statutory provisions, there has never been a bad faith exception to
the discovery or evidentiary provisions. Further, the only sections
that have ever included good faith language are those relating to
immunity—sections 58-13-4 and 58-13-5. And the note itself does not
have a bad faith exception. The amendment was “intended to
incorporate long-standing protections against discovery and

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   33   Murray City v. Hall, 663 P.2d 1314, 1318 (Utah 1983).
   34 Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267
P.3d 863.
   35  See UTAH R. CIV. P. 26 legislative note 1 to 2012 amendment; see
also Jones, 2012 WL 602613.


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admission into evidence of privileged matters,” making clear that it
was not meant to alter existing rules regarding discovery.36 So even
if we read the legislative note along with the text of the rule, we find
no bad faith exception to the discovery provision.
    ¶29 We hold that, although there is a bad faith exception to
immunity from liability, there is no such exception to the discovery
privilege. Admittedly, as Dr. Belnap argues, there is significant
tension resulting from the interplay of these two conclusions.
Together, they allow for the potential imposition of liability, but
significantly foreclose the pursuit of discovery to prove that liability.
Other courts in jurisdictions with a similar statutory framework have
noted this tension and offered reasons why their respective
legislatures may have treated immunity differently than document
production. 37 But whatever reasons our legislature may have had for


_____________________________________________________________
   36   UTAH R. CIV. P. 26 legislative note 1 to 2012 amendment.
   37 See, e.g., Marshall v. Planz, 145 F. Supp. 2d 1258, 1271 (M.D. Ala.
2001) (declining to apply a good faith limitation to the peer review
privilege so the “privilege from testifying was not qualified, but
immunity from suit was” qualified); Franco v. Dist. Ct. of Denver, 641
P.2d 922, 930 (Colo. 1982) (“We believe the legislature deliberately
omitted any good faith limitation in the peer review privilege in
order to avoid any chilling effect on the review committee’s statutory
duty . . . .”); Patton v. St. Francis Hosp., 539 S.E.2d 526, 529 (Ga. Ct.
App. 2000) (“Since neither the peer review nor medical review
statutes pertaining to the discovery privilege mention malice, it is
doubtful that the legislature intended to expand the malice exception
to the Code sections affording a discovery privilege to peer review
proceedings.”); Terre Haute Reg’l Hosp., Inc. v. Basden, 524 N.E.2d
1306, 1310 (Ind. Ct. App. 1988) (“Therefore, the information that [the
hospital] refused to disclose based upon the confidentiality and
privilege protection afforded in the Peer Review Statute was not
subject to disclosure due to lack of good faith on the part of the peer
review committee or the participants to the investigation.”); Roy v.
City of Harriman, 279 S.W.3d 296, 301 (Tenn. Ct. App. 2008) (rejecting
an argument that conditional immunity created an implied exception
to the discovery privilege); Irving Healthcare Sys. v. Brooks, 927 S.W.2d
12, 17 (Tex. 1996) (“[T]he statute reflects the Legislature’s conscious
decision to allow an affected physician to bring claims against those
who participate in the peer review process maliciously and without
                                                             (Continued)
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                         BELNAP v. HOWARD
                        Opinion of the Court

its peer review regime, it is clear that the tension we have described
predates the amendment to rule 26. This is significant because it
shows that the legislature has had ample opportunity to resolve it.
Indeed, throughout the history of amendments to the various peer
and care review statutes, this distinction has always existed. The
amendments to the rule merely carried forward this existing tension.
                             Conclusion
   ¶30 The plain language of rule 26(b)(1) includes no bad faith
exception to the application of the peer review discovery privilege.
And even looking to the legislative history, we still find no bad faith
exception. Accordingly, we affirm.




good faith, but nevertheless to maintain the confidentiality of the
peer review process.”).


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