                IN THE SUPREME COURT OF IOWA
                                No. 16–1009

                             Filed April 7, 2017

                        Amended June 22, 2017


DENNIS WILLARD,

      Appellee,

vs.

STATE OF IOWA,

      Appellant.



      Appeal from the Iowa District Court for Johnson County,

Mitchell E. Turner, Judge.



      The State appeals from a district court ruling granting plaintiff’s

motion to compel discovery. REVERSED AND REMANDED.



      Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor

General, and Forrest Guddall (until withdrawal) and Anne Updegraff,

Assistant Attorneys General, for appellant.



      Matt J. Reilly of Eells & Tronvold Law Offices, PLC, Cedar Rapids,

for appellee.



      Erika Eckley, Des Moines, and T. Randall Wright of Baird Holm

LLP, Omaha, Nebraska, for amicus curiae Iowa Hospital Association.
                                   2

     Paul Drey, Jeanine Freeman, and Allison M. Steuterman of Brick

Gentry, P.C., West Des Moines, for amici curiae American Medical

Association and Iowa Medical Society.
                                           3

ZAGER, Justice.

      In this interlocutory appeal, we are asked to determine whether a

hospital’s Patient Safety Net materials are protected under the morbidity

and mortality privilege, and whether this information is discoverable in

this medical negligence action. Dennis Willard was seriously injured in a

motor vehicle accident in Davenport, Iowa.               After initial treatment in

Davenport, Willard was transferred to the University of Iowa Hospitals

and Clinics (UIHC) for further treatment. Because of the seriousness of

his injuries, he was sedated and intubated.               During his treatment at

UIHC, Willard underwent a number of medical examinations and tests,

one of which was an abdominal CT scan. Willard claims that while being

transported to the CT scan and while undergoing the CT scan, UIHC was

negligent in its handling of him. As a result, Willard claims he sustained

an injury to his left shoulder and arm, in addition to his foot. After the

CT scan, an employee of UIHC filed a PSN form about the incident. As

part of his lawsuit for medical negligence against the State of Iowa,1

Willard requested discovery of the PSN and related documents.                  The

State objected to the disclosure of the PSN and related documents,

claiming the documents were privileged.                Willard filed a motion to
compel.   After a hearing and briefing, the district court granted the

motion to compel and ordered the State to produce the documents. The

State applied for an interlocutory appeal and for a stay of the district

court ruling, which we granted.           For the reasons expressed below, we

reverse the district court ruling and conclude the PSN and related

documents are privileged under the morbidity and mortality statute and

are not subject to discovery.

      1UIHC   is owned, operated, and controlled by the State of Iowa.
                                     4

      I. Background Facts and Proceedings.

      Dennis Willard was involved in a head-on motor vehicle accident in

the late hours of November 3, 2011.         Willard sustained significant

injuries from the collision and was initially treated at the Genesis

Medical Center East in Davenport, Iowa.         While at Genesis, Willard

underwent imaging studies and x-rays.         One of the x-rays covered

Willard’s left shoulder and showed no break or dislocation.

      Willard was transferred to the UIHC early in the morning on

November 4. UIHC performed more imaging studies and x-rays, and the

follow-up x-ray of Willard’s left shoulder again showed no break or

dislocation. While at the UIHC, Willard’s condition deteriorated, which

required that he be sedated and intubated. Because the doctors were

concerned that Willard had sustained internal organ damage as a result

of the accident, he underwent an abdominal CT scan on November 6.

Willard remained sedated and intubated during the CT scan. In order to

perform the CT scan, the imaging technologists were required to raise

Willard’s arms above his head.

      When Willard returned to his floor after the CT scan, staff noted

that he exhibited a lack of motor response in his left arm and pain with

range of motion. They requested an orthopedic team consult, and the

orthopedic surgeon ordered more x-rays of Willard’s left shoulder.          At

this point, orthopedic surgeon Dr. Buckwalter diagnosed Willard with an

anterior-inferior dislocation in the left shoulder, and he relocated it.

Willard’s progress notes stated that orthopedics was consulted “regarding

left anterior-inferior shoulder dislocation following a trip to CT for an

abdominal exam.” The next day, Willard’s progress notes again stated

that orthopedics had been consulted “after he sustained a left shoulder

dislocation in an anterior inferior direction while obtaining a CT scan.”
                                         5

      Willard filed a petition at law and jury demand on November 24,

2014, pursuant to the Iowa State Tort Claims Act. 2 The underlying basis

for Willard’s claim is that he was negligently handled while sedated,

causing him to sustain injuries to his left shoulder, arm, and foot. He

argues the State owed him a duty to exercise reasonable care in

transporting him while sedated and the employees of the hospital

breached that duty. He asserts that the x-rays from Genesis and the x-

rays taken at UIHC on November 4 do not show a left shoulder

dislocation.     However, the x-ray taken after the abdominal CT scan

shows a left shoulder dislocation, which indicates his shoulder was

dislocated during the CT scan procedure.

      During the course of discovery, Willard submitted the following

interrogatories:

      INTERROGATORY No. 6: State whether you, your agents or
      attorneys have obtained any statement, either oral or
      written, from any person having knowledge of facts relating
      to the subject matter of this action, and if so, please state:

            (a) the name and address of each person giving such
      statement;

            (b) whether each such statement is written or recorded
      and signed or unsigned;

            (c) the date, time, and place each such statement was
      taken;

            (d) the name and present address of the person taking
      each such statement;

            (e) the name and address of each person having
      custody and control of such statement;

               (f) the substance of each such statement.

      INTERROGATORY No. 16: Was any document withheld
      under any alleged privilege? If the answer was yes, identify

      2Iowa   Code chapter 669 (2015).
                                      6
       each document for which a privilege is claimed, together with
       the following information: date, sender, recipients, recipients
       of copies, subject matter of the document, and the basis
       upon which said privilege is claimed.

Willard also made an initial request for documents seeking copies of any

reports or memoranda relating to him, the incident referenced in his

petition, or the injuries or damages included in his petition.           In a
supplemental request for documents, Willard requested “[a]ny PSN,

unusual incident report or other incident report prepared by any agent or

employee of Defendant in November 2011 that relates to or refers to

Plaintiff.”

       Willard filed the supplemental request for documents after

deposing UIHC senior imaging technologist Cyndie Beaumont, who had

assisted with Willard’s CT scan. During her deposition, Beaumont stated

that she did not recall the CT scan itself, but does remember Willard

because she learned that an incident report had been filed about the

scan the next day.       The incident report that was filed was a Patient

Safety Net (PSN) form.

       A PSN is an electronic form that allows UIHC employees to enter

information about events that raise a safety concern for patients. The

UIHC encourages staff to enter a PSN for any safety concern, and

thousands of PSNs are submitted every year.           UIHC employees are

informed that PSNs are confidential and protected.       A submitted PSN

may be used for a number of purposes, including but not limited to

morbidity and mortality studies, a source for UIHC staff to review events,

a source to determine trends, information to identify topics for research

or conference presentations, and literary reviews.

       Once a PSN is entered, it is submitted to an electronic database

and reviewed by the UIHC quality department.          This initial review is
                                     7

conducted daily, and the department determines where to route each

submitted PSN.     The department may submit the PSN for review to a

quality officer or the safety oversight team. The PSN may also be routed

to the patient safety issues group of a specific department, such as

anesthesiology.

      The safety oversight team is a multidisciplinary group that reviews

PSNs to identify trends and revises hospital policy based on those trends.

A PSN is submitted for review to the safety oversight team if it is a

“serious adverse event” or a “sentinel event.” A serious adverse event is

an event that requires special intervention because the potential for

serious injury is high. A sentinel event is a serious adverse event that

involved death or serious physical or psychological injury, or a serious

adverse event that involved a high risk of death or serious physical or

psychological injury. Once a PSN based on a serious adverse event or a

sentinel event is submitted to the safety oversight team, the team

determines whether a Root Cause Analysis (RCA) is required.

      If an RCA is required, a group of content experts studies the

underlying event and makes conclusions about the event and the

contributing causes.      The group then provides recommendations for

reducing the risk of the same safety issue occurring in the future.

Finally,   the    group   prepares   an   action   plan   based   on   the

recommendations and implements it.

      The PSN system does not track how PSNs are used, so it is

unknown whether Willard’s specific PSN was used for morbidity and

mortality studies, research, an RCA, or quality improvement.
                                         8

       On March 14, 2016, Willard filed a motion to compel the PSN and

related pages. 3      The State acknowledged that it had in its possession

twenty-four pages of materials that included the PSN and related

documents, but it objected to the disclosure of the material. The State

resisted Willard’s motion, arguing that the documents were privileged

under the morbidity and mortality privilege contained in Iowa Code

sections 135.40 through 135.42. See Iowa Code §§ 135.40–.42 (2015).

Further, the State argued the documents were not discoverable under

section 135.42.        The district court held an evidentiary hearing and

ordered the State to produce the PSN and related documents for an in

camera review.

       On June 9, the district court granted Willard’s motion to compel.

The district court found that the State failed to meet its burden to

establish the PSN was subject to the morbidity and mortality privilege

contained in section 135.40. The district court found that the morbidity

and mortality statute was created for situations where data is collected

for a study, but that the State did not meet its burden to establish that

the PSN was created or used for the course of any study for the purpose

of reducing morbidity or mortality.          The district court also found that

section 135.41 did not apply because the case did not involve a third

party. The district court found that section 135.42 dealt with the issue

of admissibility, but not discoverability, of the requested documents. The

district court found that because discovery rules are to be liberally

construed and the information contained in the documents could


       3Originally, the State acknowledged it had possession of a four-page PSN and
associated eight pages. The State later discovered a second four-page PSN and related
eight pages. The State’s discovery response was supplemented to acknowledge that it
had in its possession the twenty-four pages but objected to their disclosure.
                                     9

reasonably lead to admissible evidence, the PSN was subject to discovery.

The district court also found that the attorney–client and work-product

privileges did not apply. The district court ordered the State to produce

the PSN and related documents to the plaintiff within twenty days. It

also ordered Willard not to disclose the documents to anyone except his

expert witnesses.     Any other proposed disclosures would need the

approval of the district court.

      On June 13, the State filed an application for interlocutory appeal

and motion for stay of the district court ruling to produce the PSN and

related documents, which we initially denied. On June 17, the State filed

a motion for review of the denial. We stayed enforcement of the district

court ruling pending our ruling on the motion for review. On June 24,

we granted the application for interlocutory appeal and stayed further

proceedings below.

      II. Standard of Review.

      We review a district court’s discovery decisions for an abuse of

discretion. Jones v. Univ. of Iowa, 836 N.W.2d 127, 139 (Iowa 2013). An

abuse of discretion exists when the district court’s ruling “rests upon

clearly untenable or unreasonable grounds.”        Id. (quoting Lawson v.

Kurtzhals, 792 N.W.2d 251, 258 (Iowa 2010)). “A ground or reason is

untenable . . . when it is based on an erroneous application of the law.”

Sioux Pharm., Inc. v. Eagle Labs., Inc., 865 N.W.2d 528, 535 (Iowa 2015)

(quoting Office of Citizens’ Aide/Ombudsman v. Edwards, 825 N.W.2d 8,

14 (Iowa 2012)). “To the extent we . . . engage in statutory interpretation,

our review is for correction of errors at law.” DuTrac Cmty. Credit Union

v. Hefel, ___ N.W.2d ___, ___ (Iowa 2017).
                                          10

        III. Analysis.

        On appeal, the State argues that the morbidity and mortality

confidentiality privilege applies to the PSNs at issue here pursuant to

Iowa Code sections 135.40–.42. 4 The State further argues that the PSN

and related documents are not subject to discovery based on the specific

language of Iowa Code section 135.42.             When a privilege is statutory,

“the terms of the statute define the reach of the privilege.” Carolan v.

Hill, 553 N.W.2d 882, 886 (Iowa 1996). In order to determine whether

the PSNs are entitled to the privilege, statutory interpretation must be

employed. “The purpose of statutory interpretation is to determine the

legislature’s intent.” State v. Howse, 875 N.W.2d 684, 691 (Iowa 2016)

(quoting Schaefer v. Putnam, 841 N.W.2d 68, 75 (Iowa 2013)).

        A. Background.          In 2000, the Institute of Medicine (IOM)

published a report entitled To Err Is Human: Building a Safer Health

System, which analyzed common medical errors and how to prevent

them. Inst. of Med., To Err Is Human: Building a Safer Health System

(Linda T. Kohn, Janet M. Corrigan, & Molla S. Donaldson eds., 2000)

[hereinafter To Err Is Human]; see also Tibbs v. Bunnell, 448 S.W.3d 796,

800 (Ky. 2014).         The report estimated between 44,000 and 98,0005

people die annually in hospitals as a result of preventable medical errors.

To Err Is Human, at 26. The majority of these preventable errors “were

not the result of personal recklessness but rather resulted from faulty

systems, processes, and conditions.”            Lee Med., Inc. v. Beecher, 312

        4Neither   Willard nor the district court dispute that the statute creates a
privilege.
        5Atthe time the report was published, this would have made preventable
hospital deaths one of the leading causes of death in the United States, with even the
lower number surpassing deaths due to motor vehicle accidents, breast cancer, or
AIDS. To Err Is Human, at 26–27.
                                    11

S.W.3d 515, 534 (Tenn. 2010). The report recommended that hospitals

adopt a four-tiered system to make the health system safer for patients.

To Err Is Human, at 6.       The identified four tiers are (1) enhancing

knowledge of patient safety, (2) identifying medical errors through both

mandatory and voluntary reporting systems, (3) raising performance

standards and expectations for improvement, and (4) adopting safety

systems to ensure patient safety practices. Id.

      Following the publication of the report, Congress enacted the

Patient Safety and Quality Improvement Act of 2005 (PSQIA), Pub. L. No.

109-41, 119 Stat. 424 (codified at 42 U.S.C. 299b-21 to 299b-26 (2012)).

“The Patient Safety Act ‘announces a more general approval of the

medical peer review process and more sweeping evidentiary protections

for materials used therein.’ ” Dep’t of Fin. & Prof’l Regulation v. Walgreen

Co., 970 N.E.2d 552, 557 (Ill. App. Ct. 2012) (quoting KD ex rel.

Dieffenbach v. United States, 715 F. Supp. 2d 587, 595 (D. Del. 2010)).

The purpose of the PSQIA was “to encourage the reporting and analysis

of medical errors and health care systems by providing peer review

protection of information reported to patient safety organizations for the

purposes of quality improvement and patient safety.” Tibbs, 448 S.W.3d

at 801 (quoting H.R. Rep. No. 109–197 (2005)). The protections included

in the Act were intended to apply to documents or communications that

constitute “patient safety work product.” Id.

      The Iowa Legislature originally enacted morbidity and mortality

study statutes in 1963 and amended the statutes in 2006, after the

publication of the IOM report and the enactment of the PSQIA. Compare

Iowa Code §§ 135.40–.42 (1966), with id. §§ 135.40–.42 (2006).        These

provisions provide,
                                    12
      135.40. Collection and distribution of information.

             Any person, hospital, sanatorium, nursing or rest
      home, or other organization may provide information,
      interviews, reports, statements, memoranda, or other data
      relating to the condition and treatment of any person to the
      department, the Iowa medical society or any of its allied
      medical societies, the Iowa osteopathic medical association,
      any in-hospital staff committee, or the Iowa healthcare
      collaborative, to be used in the course of any study for the
      purpose of reducing morbidity or mortality, and no liability
      of any kind or character for damages or other relief shall
      arise or be enforced against any person or organization that
      has acted reasonably and in good faith, by reason of having
      provided such information or material, or by reason of
      having released or published the findings and conclusions of
      such groups to advance medical research and medical
      education, or by reason of having released or published
      generally a summary of such studies.

            ....

      135.41. Publication.

            The department, the Iowa medical society or any of its
      allied medical societies, the Iowa osteopathic medical
      association, any in-hospital staff committee, or the Iowa
      healthcare collaborative shall use or publish said material
      only for the purpose of advancing medical research or
      medical education in the interest of reducing morbidity or
      mortality, except that a summary of such studies may be
      released by any such group for general publication. In all
      events the identity of any person whose condition or
      treatment has been studied shall be confidential and shall
      not be revealed under any circumstances. A violation of this
      section shall constitute a simple misdemeanor.

      135.42. Unlawful use.

             All information, interviews, reports, statements,
      memoranda, or other data furnished in accordance with this
      division and any findings or conclusions resulting from such
      studies shall not be used or offered or received in evidence in
      any legal proceedings of any kind or character, but nothing
      contained herein shall be construed as affecting the
      admissibility as evidence of the primary medical or hospital
      records pertaining to the patient or of any other writing,
      record or reproduction thereof not contemplated by this
      division.

Id. §§ 135.40–.42 (2015).
                                    13

      B. Iowa Code Section 135.40. The first issue we must address is

whether the PSN qualifies as a morbidity and mortality study under Iowa

Code section 135.40.    The statute provides that an organization “may

provide information, interviews, reports, statements, memoranda, or

other data relating to the condition and treatment of any person . . . to be

used in the course of any study for the purpose of reducing morbidity or

mortality.” Id. § 135.40. The State argues the statute is broad enough to

encompass the PSN documents. Willard argues that there is no evidence

in the record that the PSN was actually used in the course of any study

for the purpose of reducing morbidity and mortality, and therefore it is

not protected under the statute.

      When we interpret a statute, we apply well-settled principles of

statutory interpretation:

      The purpose of statutory interpretation is to determine the
      legislature’s intent.   We give words their ordinary and
      common meaning by considering the context within which
      they are used, absent a statutory definition or an established
      meaning in the law. We also consider the legislative history
      of a statute, including prior enactments, when ascertaining
      legislative intent. When we interpret a statute, we assess the
      statute in its entirety, not just isolated words or phrases.
      We may not extend, enlarge, or otherwise change the
      meaning of a statute under the guise of construction.

DuTrac, ___ N.W.2d at ___ (quoting Howse, 875 N.W.2d at 691).           We

construe a statute “liberally with a view to promoting its objects and

assisting the parties in obtaining justice.” Star Equip., Ltd. v. State, 843

N.W.2d 446, 455 (Iowa 2014) (quoting Lennox Indus., Inc. v. City of

Davenport, 320 N.W.2d 575, 578 (Iowa 1982)).

      Morbidity and mortality are not defined by statute. Morbidity can

be defined as “a diseased state or symptom,” “the incidence of disease :

the rate of sickness,” or as a collection of statistics on an illness.

Morbidity, Webster’s Third New International Dictionary (unabr. ed. 2002).
                                     14

Mortality can have a number of meanings, including “the death of large

numbers : a heavy loss of life (as by war or disease),” either the whole

sum of deaths or a proportion of deaths per population, or a “rate of loss

or failure in a field of human endeavor.” Mortality, Webster’s Third New

International Dictionary. Taken together with their common meanings, a

morbidity and mortality study can be interpreted broadly to mean a

collection of statistics or a study regarding the rates of illnesses,

diseases, or death among a patient population.

      Further, the morbidity and mortality statute has an expansive

scope, which is demonstrated throughout the text of section 135.40. See

Iowa Code § 135.40. The statute relies on a broad range of organizations

to provide information—“[a]ny person, hospital, sanatorium, nursing or

rest home, or other organization.”      Id. § 135.40 (emphasis added).    It

allows these groups to provide a wide array of information—“information,

interviews, reports, statements, memoranda, or other data relating to the

condition and treatment of any person.” Id. (emphasis added). It allows

a wide number of organizations to be the recipient of this information—

“the [public health] department, the Iowa medical society or any of its

allied medical societies, the Iowa osteopathic medical association, or any

in-hospital staff committee, or the Iowa healthcare collaborative.”      Id.

(emphasis added). It allows the information provided and collected “to be

used in the course of any study for the purpose of reducing morbidity

and mortality.” Id. (emphasis added).

      Hospitals are required to have ongoing, hospital-wide quality

improvement programs in place that allow them to assess clinical patient

care and nonclinical and patient-related services within the hospital, and

to develop remedial action if necessary. Iowa Admin. Code § 481—51.3.

Hospitals are required to have a written quality improvement plan which,
                                    15

among other things, may address the “accessibility and confidentiality of

materials relating to, generated by, or [included as] part of the quality

improvement process.”      Id. § 481—51.3(4)(g).      All of this indicates a

legislative intent to encourage a wide number of individuals and

organizations to report incidents and concerns about patient care, in a

wide variety of formats.

      A PSN clearly falls within the legislative intent of “any study for the

purpose of reducing morbidity or mortality.” Iowa Code § 135.40. The

PSN system allows the UIHC to keep track of patient incidents and to

route them to the appropriate department for resolution.            The PSN

system can also result in revised policies for the hospital as a whole or

for use in studies, reports, and presentations. Similar to the purposes of

the PSQIA, the purpose of section 135.40 is “to encourage the reporting

and analysis of medical errors and health care systems by providing peer

review protection of information reported to patient safety organizations

for the purposes of quality improvement and patient safety.” Tibbs, 448

S.W.3d at 801 (quoting H.R. Rep. No. 109–197 (2005)). We find that the

PSN and related documents are afforded a privilege as morbidity and

mortality information to be used in a study as defined in Iowa Code

section 135.40.

      C. Iowa Code Section 135.41.           The second issue we must

address is whether Iowa Code section 135.41 has any applicability to the

privilege asserted here. The district court found that the State failed to

establish a privilege under this section because the case does not involve

a third party being asked to produce records, but rather Willard himself

requesting the documents.     The district court found that the privilege

only protects against disclosures to third parties.
                                    16

      Iowa Code section 135.41 governs the publication of studies that

include material regarding morbidity and mortality. Id. § 135.41. The

language of the statute is limiting.     It limits the use of morbidity and

mortality information with mandatory language. Id. The organizations

authorized to use the information “shall use or publish said material only

for the purpose of advancing medical research or medical education in

the interest of reducing morbidity or mortality.” Id. (emphasis added).

The statute also includes a permissive clause; however, this language is

still limiting. The organizations that publish material in the interest of

reducing morbidity or mortality may release a summary of the study for

general publication. Id. We found in Burton v. University of Iowa Hosps.

& Clinics that the hospital has the discretion to determine whether to

produce these summaries. 566 N.W.2d 182, 187–88 (Iowa 1997).

      The statute does not make a distinction between a third party

request for information and Willard’s request for information, and we

decline to read such a distinction into the statute. Furthermore, Willard

is not requesting a summary of any morbidity and mortality study, but

the PSNs themselves. We find that the release of the PSN is not required

by section 135.41.

      D. Iowa Code Section 135.42.           The final question we must

answer is whether the PSN is subject to discovery under section 135.42.

The statute provides that information obtained under the morbidity and

mortality statutes “shall not be used or offered or received in evidence in

any legal proceedings.”    Iowa Code § 135.42.      The State argues this

should be interpreted to mean morbidity and mortality information

cannot be used in any legal proceedings, including discovery. Because

“shall not be . . . offered or received in evidence” already covers

information utilized during trial, the State argues that any other
                                     17

definition would render the words “shall not be used” superfluous, and

therefore it should be interpreted to include discovery. Willard argues

that while the statute provides that the documents may not be used,

offered, or received in evidence, it does not preclude the documents from

being discoverable.

       The district court has wide discretion in rulings on discovery.

Carolan, 553 N.W.2d at 886.      We construe discovery rules liberally in

order to assist in the disclosure of all relevant and material information.

Id.   However, Iowa Rule of Civil Procedure 1.503 limits the scope of

discovery to “any matter, not privileged, which is relevant to the subject

matter involved in the pending action.” Iowa R. Civ. P. 1.503 (emphasis

added). A party may resist discovery by demonstrating that the material

sought is privileged, but the party resisting has the burden of

demonstrating both that the privilege exists and that it applies. Carolan,

553 N.W.2d at 886. We construe asserted privileges narrowly because a

privilege is an exception to our generally liberal rules regarding discovery.

Id. When a party asserts a privilege that is based on a statute, the words

of the statute define the reach of the privilege. Id. Here, the State has

demonstrated that the materials are privileged as morbidity and

mortality information under Iowa Code section 135.40.          Because the

privilege is statutory, the words of section 135.42 define the reach of the

privilege. Id.

       Under the doctrine of last preceding antecedent, a qualifying word

or phrase only refers to the immediately preceding antecedent unless the

language of the statute clearly demonstrates a contrary legislative intent.

Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v.

Shell Oil Co., 606 N.W.2d 376, 380 (Iowa 2000).          “[E]vidence that a

qualifying phrase is supposed to apply to all antecedents instead of only
                                        18

to the immediately preceding one may be found in the fact that it is

separated from the antecedents by a comma.” State v. Gen. Elec. Credit

Corp. of Del., 448 N.W.2d 335, 345 (Iowa 1989) (quoting 2A Sutherland,

Statutes and Statutory Construction § 47.33 (4th ed. 1984)).

      Under this doctrine, the phrase “in evidence” only applies to the

word “received” because it is the only word immediately preceding the

phrase “in evidence” and there are no commas separating the words

“used,” “offered,” and “received” in the statute. Iowa Code § 135.42. In

applying the doctrine to the statute, we find the legislature has precluded

the   use   of   morbidity   and       mortality   information   under      three

circumstances. The studies or information may not be: (1) used in any

legal proceeding, (2) offered in any legal proceeding, or (3) received in

evidence in any legal proceeding. See id.

      Additionally, when a statute is ambiguous, we may consider the

“consequences    of   a   particular     construction”   in   determining    the

legislature’s intent. Id. § 4.6(5). Here, there are relevant public policy

issues to be considered.      The rationale underlying the protection of

privileged communication from discovery “is the protection of interests

and relationships, which rightly or wrongly, are regarded as of sufficient

social importance to justify some sacrifice of availability of evidence

relevant to the administration of justice.” 8 Tom Riley & Peter C. Riley,

Iowa Practice SeriesTM, Civil Litigation Handbook, § 29:1 (2016 ed.)

(quoting McCormick on Evidence § 72 (4th ed.)).

      The overall statutory scheme regarding morbidity and mortality

information and studies is broad. As discussed earlier, section 135.40

encompasses a wide number of individuals and organizations that may

provide information and a wide number of organizations that may receive

information. Iowa Code § 135.40. It provides that information used in
                                    19

the course of any study intended to reduce morbidity and mortality rates

is subject to its protection. Id. Section 135.41 is similarly broad in its

protection of information related to morbidity and mortality.            Id.

§ 135.41. Only a summary of the studies may be released, but within

the discretion of the organization producing the study. Id.; Burton, 566

N.W.2d at 187–88.

      We likewise find that the legislature intended section 135.42 to

broadly cover “any legal proceeding.”      Iowa Code § 135.42 (emphasis

added).    There are a number of public policy objectives underlying

morbidity and mortality statutes.        Preventable medical errors are a

pervasive issue in hospitals across the country and decreasing the

number of these errors is of the utmost importance. To Err Is Human, at

26–27.    The information utilized in morbidity and mortality studies is

collected from hospital employees and is intended to track adverse

events; sentinel events; safety issues; and any other concerns regarding

the health, care, and safety of patients. The objective of collecting this

information is to study adverse incidents in order to create new systems

and methods to prevent patient safety issues in the future.              The

information provided is supplied by employees about their peers or

supervisors. Morbidity and mortality studies are protected so employees

are forthcoming with their concerns, issues, and criticisms.

      We considered similar public policy considerations in Carolan. 553

N.W.2d at 886. Although Carolan dealt with the confidentiality of peer

review records, see 553 N.W.2d at 886, we nevertheless find the rationale

similarly persuasive in the context of PSNs and related documents. We

noted that confidentiality was imperative because

      [p]eer review privileges encourage an effective review of
      medical care. If such records were privileged only when
      directed at a specific licensee, hospitals would have difficulty
                                     20
      conducting reviews of their health care departments.
      Without the broad protections, physicians would be very
      reluctant to participate, knowing the information could
      easily be revealed in a court of law.

Id. at 886–87.

      The same is true for PSNs and the related documents. There is a

strong public policy argument for interpreting section 135.42 broadly.
The protection afforded by the confidentiality privilege allows hospital

staff to feel comfortable reporting any and all safety concerns because

those reports will remain confidential and not be subject to discovery in a

legal proceeding. This confidentiality allows hospitals to utilize PSNs to

reduce adverse patient safety events based on preventable medical

errors.    The   protection   is   intended   to   apply   to   documents   or

communications that constitute “patient safety work product.” We find

that Iowa Code section 135.42 extends to prevent discovery of PSNs and

related documents.

      IV. Conclusion.

      For the above reasons, we reverse the decision of the district court.

We find that the PSN and related documents are the type of information

covered by the morbidity and mortality statute and are therefore

privileged under Iowa Code section 135.40.          We find that Iowa Code

section 135.41 does not apply because Willard does not seek a summary

of the morbidity or mortality study but rather the PSN and related

documents themselves. Finally, we find that based upon the language

contained in section 135.42, the PSN and related documents are not

subject to discovery.

      REVERSED AND REMANDED.
