Present: Carrico, C.J., Hassell, Keenan, Koontz, and Kinser, 

JJ., and Compton and Stephenson, Senior Justices 

HCA HEALTH SERVICES OF VIRGINIA, 

INC., D/B/A RESTON HOSPITAL 

CENTER, ET AL. 

v. Record No. 992934 

STEPHEN M. LEVIN, M.D., ET AL. 

 OPINION BY 

SENIOR JUSTICE A. CHRISTIAN COMPTON 

INOVA HEALTH SYSTEM June 9, 2000 

v. Record No. 992935 

STEPHEN M. LEVIN, M.D., ET AL. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Leslie M. Alden, Judge 

 In these appeals of a contempt order arising from a 

defamation action, we consider the scope and application of the 

statutory privilege from disclosure accorded peer review records 

possessed by certain medical organizations. 

 In 1998, Stephen M. Levin, M.D., filed an action for 

damages against, among others, WJLA-TV, a television station 

that broadcasts in the Washington, D.C., metropolitan area, 

which includes Northern Virginia and Maryland. In a second 

amended motion for judgment, the plaintiff, who practices 

medicine in Northern Virginia, sought recovery against 

defendants for defamation, conspiracy, trespass, and the 

unauthorized use of his name and picture. 
 The lawsuit stems from a news story WJLA-TV and the other 

defendants disseminated about the plaintiff. A board-certified 

orthopedist, the plaintiff alleges the defendants defamed him by 

accusing him of sexual assaults upon female patients in 

connection with his use of internal pelvic diagnostic 

examinations and "intrapelvic stretching techniques," when the 

patients were suffering from "pelvic floor problems." The 

plaintiff asserts the techniques he employs are recognized as 

"medically appropriate and effective." The plaintiff alleges 

defendants characterized him as the "DIRTY DOC" and the "X-RATED 

DOCTOR." 

 During discovery proceedings in the pending action, 

appellants Reston Hospital Center and Pentagon City Hospital 

(collectively, the hospitals) as well as appellant INOVA Health 

System (INOVA), received subpoenas duces tecum issued and served 

at the request of WJLA-TV. Neither the hospitals nor INOVA are 

parties to the litigation; instead, they are third parties whose 

peer review records are sought by WJLA-TV in its effort to 

defend the plaintiff's defamation action. 

 The subpoenas sought, for example, all documents dealing 

with any formal or informal complaint made against the plaintiff 

by any patient or health care provider; all documents describing 

any disciplinary action taken against the plaintiff by any 

hospital, medical licensing board, or medical association; and 

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all documents that refer to any decision to grant, revoke, or 

suspend the plaintiff's hospital privileges. WJLA-TV sought to 

use the information in an effort to validate its allegedly 

defamatory statements about the plaintiff and to resist 

plaintiff's claim for lost income as the result of the 

defamation. 

 The hospitals and INOVA filed motions to quash the 

subpoenas duces tecum. Relying on the provisions of Code 

§ 8.01-581.17, they asserted the documents sought are 

privileged, confidential, and not discoverable. 

 As pertinent, the statute provides that peer review 

information kept by hospitals and health-related organizations 

"are privileged communications which may not be disclosed or 

obtained by legal discovery proceedings unless a circuit court, 

after a hearing and for good cause arising from extraordinary 

circumstances being shown, orders the disclosure" of such 

information. 

 Following briefing and oral argument on the respective 

motions to quash, the trial court denied the motions and ordered 

the documents produced. In a letter opinion, the court stated 

that Code § 8.01-581.17 is not "applicable outside the context 

of medical malpractice actions"; that the plaintiff had waived 

the statutory privilege by filing suit and putting his 

reputation at issue; and that, even if the statute is 

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applicable, WJLA-TV had shown the required "good cause arising 

from extraordinary circumstances" because the peer review 

records "are clearly relevant to the issue of the truth of the 

alleged defamatory statements, as well as the mitigation of 

damages suffered by Plaintiff for loss of reputation income." 

 Counsel for the hospitals and INOVA advised the trial court 

that they were of opinion the discovery order was interlocutory, 

that they wished to generate an appealable order, and thus their 

clients would not comply with the discovery order. The trial 

court, in a November 1999 order, found them in civil contempt of 

the disclosure order and assessed each organization a fine of 

$150 per day "until such time as each purges itself of the 

contempt." 

 Pursuant to Code § 19.2-318, the hospitals and INOVA 

appealed the contempt order to the Court of Appeals of Virginia, 

which stayed that portion of the trial court's order imposing 

daily fines. Subsequently, and before the matters had been 

determined by the Court of Appeals, this Court, in a December 

1999 order entered pursuant to Code § 17.1-409(A) and (B)(1), 

certified these cases for review. We determined that the 

matters are of such imperative importance as to justify the 

deviation from normal appellate practice and to require prompt 

decision in this Court. 

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 We awarded the appeals and consolidated them for briefing 

and argument. On appeal, a brief amicus curiae has been filed 

supporting the appellants by The Virginia Hospital and 

Healthcare Association, Medical Society of Virginia, American 

Medical Association, and American Hospital Association. 

 Three questions are presented on appeal. Is the privilege 

accorded by Code § 8.01-581.17 to medical peer review records 

applicable only in medical malpractice actions? Does the 

statutory privilege belong to and may it be unilaterally waived 

by an individual physician who is the subject of peer review? 

Did WJLA-TV demonstrate "good cause arising from extraordinary 

circumstances," as required by the statute, to justify 

disclosure of confidential peer review records? We answer each 

of those queries in the negative. 

 First, the statutory language is clear, unambiguous, and 

unqualified. The plain language states that peer review records 

"are privileged communications which may not be disclosed or 

obtained by legal discovery proceedings." No language of the 

statute limits its application to a particular type of suit or 

action. 

 When statutory language is clear and unambiguous, there is 

no need for construction by the court; the plain meaning of the 

enactment will be given it. Brown v. Lukhard, 229 Va. 316, 321, 

330 S.E.2d 84, 87 (1985). Courts must give effect to 

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legislative intent, which must be gathered from the words used, 

unless a literal construction would involve a manifest 

absurdity. Abbott v. Willey, 253 Va. 88, 91, 479 S.E.2d 528, 

530 (1997). Certainly, it is not manifestly absurd to conclude 

that the § 8.01-581.17 privilege applies to all kinds of 

litigation, not just to medical malpractice actions. 

 WJLA-TV contends that because the statute in issue is 

codified in the Medical Malpractice section of Chapter 21.1 of 

Title 8.01, the General Assembly necessarily intended that it 

not apply outside the medical malpractice context. The trial 

court apparently was influenced by the statute's placement in 

the Code. 

 There is no merit to WJLA-TV's contention. When, as here, 

the legislature's intent is unambiguously expressed in the 

statute, recourse to devices of statutory construction, such as 

comparing it with other statutes in pari materia or considering 

other extraneous circumstances, is not permitted. City of 

Richmond v. Sutherland, 114 Va. 688, 691, 77 S.E. 470, 471 

(1913). 

 Also, to restrict the privilege, as WJLA-TV urges and as 

the trial court ruled, ignores the underlying purpose of the 

statute. The obvious legislative intent is to promote open and 

frank discussion during the peer review process among health 

care providers in furtherance of the overall goal of improvement 

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of the health care system. If peer review information were not 

confidential, there would be little incentive to participate in 

the process. 

 Turning to the second question, we hold, contrary to the 

trial court's ruling, that the statutory privilege does not 

belong to the physician who is the subject of peer review and 

may not be unilaterally waived by the physician. To allow the 

subject of peer review to waive the privilege runs counter to 

the purpose of the statute that encourages physicians to 

participate candidly in the peer review of other physicians, 

with the expectation that the information submitted will remain 

confidential and shielded from public disclosure. 

 Moreover, to allow the peer review subject to waive the 

privilege is at odds with the plain language of the statute. 

There is no suggestion in the words of the enactment that the 

privilege resides in, and may be waived by, the target of peer 

review. 

 Upon the third question, we conclude the trial court erred 

in finding WJLA-TV established the required "good cause arising 

from extraordinary circumstances" sufficient to warrant 

disclosure of the peer review records. As we have stated, the 

trial court determined that the information sought by the 

subpoenas is "clearly relevant" to the issues of the truth of 

the alleged defamation as well as mitigation of damages. The 

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court said that "WJLA is entitled to pursue all facts that are 

relevant to its defense of this action," and thus WJLA-TV had 

met the statutory requirement. 

 However, there is a vast difference between the legal 

principle of "relevance" and the term "extraordinary 

circumstances." There is nothing "extraordinary" about the mere 

need to defend this lawsuit. Manifestly, the General Assembly 

did not contemplate a test for disclosure that is so easily 

satisfied. 

 In the present case, WJLA-TV claimed only that it has to 

defend itself from defamation based on a news story it decided 

to disseminate after it, presumably, had become satisfied of its 

truth. The need to establish a defense, which must be made in 

all civil actions, is the essence of usual and ordinary, and is 

not "extraordinary." 

 Consequently, the contempt order will be set aside and the 

respective motions to quash the subpoenas duces tecum will be 

granted. Additionally, the daily fines will be annulled and 

dismissed. See Robertson v. Commonwealth, 181 Va. 520, 538-39, 

25 S.E.2d 352, 360 (1943) (disobedience of order to produce 

documentary evidence excused if order is erroneous because 

defendant refused to divulge privileged information). 

Record No. 992934 — Reversed and final judgment. 

Record No. 992935 — Reversed and final judgment. 

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