__________________________________ 

Notice: This opinion is subject to correction before publication in the PACIFIC 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 

REGIONAL MEDICAL CENTER, 

Petitioner, 

v. 

DENISE BOLINDER, as personal 

representative of the estate of ROBERT 

BOLINDER, and JOHN W. ZWIACHE

M.D., 

Respondents. 

MAT-SU VALLEY MEDICAL 

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

REGIONAL MEDICAL CENTER, and 

JOHN W. ZWIACHER, M.D., 

Petitioners, 

v. 

JON PAUL BRANDT, 

Respondent. 

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Supreme Court Nos. S-15920/15969 

(Consolidated) 

Superior Court No. 3PA-11-00963 CI 

O P I N I O N 

No. 7293 – September 14, 2018 

Supreme Court No. S-16440 

Superior Court No. 3AN-14-09235 CI 

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 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 

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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. 

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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 

liability, and lower rates for malpracticeinsurance.”1 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 

malpractice premiums.2 Nearly all hospitals employ peer review procedures.3 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 

certain materials related to the peer review process.4 

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 

insurance available to Alaska doctors.5 Thestatute restricts discovery of information and 

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

2 Id. 

3 Charles David Creech, Comment, The Medical Review Committee 

Privilege: A Jurisdictional Survey, 67 N.C. L. REV. 179, 179 (1988). 

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...) 

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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 

information is a misdemeanor.6 

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 

NCE%20COMMISSION.pdf [hereinafter MALPRACTICE COMMISSION REPORT]. 

6 AS 18.23.040. 

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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 

(a non-party) releasing his application for medical staff membership.7 After the superior 

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. 

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

compel.8 We held for the purposes of “this case” that one of the exceptions to the peer 

review privilege, excluding certain material alleged to contain false information,9 

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 

Mat-Su.10 However, “we d[id] not decide” how this exception to the privilege “should 

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. 

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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 

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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 

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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 

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Alaska Medical Center — also filed briefs.12 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 MatSu 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. 

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hospital’s decision to grant and renew Dr. Zwiacher’s staff membership.13 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 

application that had led to the first petition for review in Bolinder).14 The credentials file 

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.” 

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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 

sought information covered by the peer review privilege.15 In March 2016 Brandt moved 

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 MatSu 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. 

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to compel Mat-Su’s responses to the discovery requests.16 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. 

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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 

a privilege applies is a question of law we review independently.”17 Here, the scope of 

the privilege is codified in a statute.18 When interpreting statutes, we apply our 

independent judgment,19 adopting the “rule of law that is most persuasive in light of 

precedent, reason, and policy.”20 

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)). 

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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. 

“Interpretation of a statute begins with its text.”22 In addition to the text, we also 

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)). 

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favor a system of liberal pretrial discovery,”26 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). 

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[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). 

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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 

organization.”34 Third, the evidence must not be “otherwise available from original 

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. 

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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 MatSu 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 

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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 

functions.”35 Black’s Law Dictionary defines “acquire” as “[t]o gain possession or 

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). 

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Moreover, this acquisition was “in the exercise of [the committees’] duties 

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

“evaluating and improving the quality of health care rendered” in the hospital.37 Mat-Su 

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...) 

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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 

presented during or were the subject of testimony at review organization proceedings.39 

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))). 

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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 

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

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

sources.42 Instead, the Minnesota court interpreted the limitation to allow discovery only 

from the original sources, not the peer review committee.43 Similarly, the Minnesota 

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 

to that of Alaska’s peer review statute.46 The South Carolina Supreme Court has likewise 

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...) 

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

review committee.47 The court reasoned that the original source limitation meant that 

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

privileged simply by being acquired by the review committee.”48 But a plaintiff seeking 

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.”). 

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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: 

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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...) 

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

included false information in his initial application for medical staff membership.54 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” 

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

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...) 

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a comprehensive medical malpractice insurance bill.56 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 

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

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. 

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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 

the governor to study the malpractice insurance crisis in Alaska.59 The report 

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 

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

provided informationtoapeer reviewcommitteeshould haveimmunityfromdefamation 

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

REPORT OF THE GOVERNOR’S MEDICAL MALPRACTICE INSURANCE COMMISSION, 

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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actions.62 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 

organization are immune from discovery in a suit.”63 Similarly, a comparison of the 

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 MatSu’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 MatSu. 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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