author: WHITE, Judge.

text:
    C. A. MORRIS, M. D., Appellant, v. Bonita HOFFMAN, Appellee.
    Court of Appeals of Kentucky.
    March 4, 1977.
    Rehearing Denied April 8, 1977.
    Discretionary Review Denied June 8, 1977.
    Frank V. Benton, III, Benton, Benton & Luedeke, Newport, for appellant.
    Gary L. Gardner, Eubanks, Gardner & Lorenz, Louisville, for appellee.
    Before WHITE, HOGGE and PARK, JJ.
   WHITE, Judge.

This appeal arises out of a medical malpractice action when one and one-half cc’s of procaine penicillin were injected into plaintiff’s left buttock by the defendant. A jury found for the plaintiff in the amount of $69,222.90, and the defendant appeals.

At the time of trial appellant was a seventy-nine year old physician involved in general practice in Covington, Kentucky. The appellee is a thirty-one year old female of slight build. During the month of February, 1972, she visited the appellant’s office on several occasions and received a total of seventeen injections of various medications. All of these injections were given in either her left or right buttock. The last injection was administered February 26, 1972, in her left buttock while she was seated on a stool. Appellee testified that she experienced immediate pain in her left leg and hip upon insertion of the needle. When she complained the next day of pain in her inflamed left buttock, she testified the defendant said, “I probably hit a small blood vessel and started it hemorrhaging. Sometimes they do that. Get in bed and keep a hot water bottle to your hip.”

Appellee testified that again on February 28, 1972, appellant told her, “I hit a small blood vessel. It happens occasionally. You hit a small blood vessel and it starts hemorrhaging and they react that way. Go home and continue the hot water bottle on your hip.” Appellant’s medical records of February 28, 1972, substantiate appellee’s complaint of inflammation of the left buttock in these words: “L. Hip, bursting, swollen, last shot, from last shot.”

The appellee was hospitalized on March 2, 1972, and was placed under the care of Dr. Vernon Lee, a surgeon. She remained in the hospital ninety-two days and Dr. Lee performed four operations on her left buttock to remove five to six centimeters in thickness of necrotic tissue and slough.

The question before us on this appeal is: was there sufficient evidence for the court below to submit to the jury whether or not the appellant’s breach of the standard of care, if any, was the proximate cause of appellee’s injuries? Appellee’s burden of proof at the trial is greater than merely proving a negligent act followed by injury. There must be proof that the negligent act was the proximate cause of the injury. Negligence in medical malpractice cases must be established by expert testimony unless negligence and injurious results are so apparent that a layman with general knowledge would have no difficulty recognizing it. Johnson v. Vaughn, Ky., 370 S.W.2d 591 (1963). As for proximate cause, it has been held that because of the difficulty in proving causation in malpractice cases, circumstantial evidence may in some cases be sufficient. Johnson v. Vaughn, supra. However, the rule is that ordinarily expert evidence is necessary to support the conclusion of causation in malpractice actions- and the medical testimony must be that the causation is probable and not merely possible. Jarboe v. Harting, Ky., 397 S.W.2d 775 (1965).

So that we may more intelligently test the two principal issues, viz: negligence, if any, and proximate cause; we will examine each issue individually in the light of the testimony as presented here and see if there was sufficient expert evidence for the judge to submit the case to the jury on both issues.

Standard of Care

In order to define those areas of the buttocks where injections are normally given, each buttock is divided into quadrants. All the expert witnesses, including the appellant, agreed that the upper outer quadrant (quadrant 2) is the site of proper choice. This area is preferred because injections in any of the other quadrants can cause damage to the sciatic nerve or to the gluteal blood vessels. Appellee contends that the last injection was given in the upper inner quadrant (quadrant 1) of her left buttock and she pointed out the exact location to both the jury and the judge. Appellant testified that the injection was given in the upper outer quadrant (quadrant 2).

The appellant, Dr. C. A. Morris, testified as follows at T.E. 143-144 when asked as to the location of the injury:

Q. 299. Will you refer to plaintiff’s Exhibit 4 in conjunction with Plaintiff’s Exhibit 5 and tell us where the area of injury lies as represented by the photograph and as compared to the drawing of Plaintiff’s Exhibit 5, in which quadrant?
A. I would answer that, Mr. Gardner and your honor, in saying that most of this area here is where this would be in the internal of quadrant number one, the majority is in this quadrant here, in the quadrant number one.

Dr. A. John Anlyan, testified by deposition as plaintiff’s expert medical witness. In response to a hypothetical question, his answer was as follows (Deposition at 15, 16):

. [D]o you now have an opinion as to whether or not the manner of injection and the site selection for this injection would be consistent with good medical practice and within the realm of the standard of care that this physician owed this hypothetical patient?
A. by “the manner of injection,” I gather you mean while the patient was sitting up?
Q. Yes, Doctor.
A. I feel that that is improper. As to the site of injection, again I repeat that this black eschar covers a wide area of the left buttock, and it is difficult for me to pinpoint the exact point of entry of a needle in this area.
It is probably valid, however, that the injection occurred at the center of this eschar, which would place this injection, as I stated before, in the upper medial quadrant of the left buttock.
Q. Doctor, would the selection of that site, if in fact that was the site of injection, be consistent with good medical practice and within the realm of the standard of care that this physician owed this hypothetical patient?
A. No.

Dr. James F. Siles, one of appellant’s expert witnesses, testified as follows on cross-examination (T.E. at 194-195):

Q. 12. Is it not also true, there is a profusion of arteries and veins in that quadrant number one in the area of the sciatic nerve?
A. Yes, sir.
Q. 13. And is it not also true that one of the reasons why you don’t give an injection in quadrant number one, which would be in the upper inner quadrant of the left buttock area, in addition to not irritating or hitting the sciatic nerve is because of the possible penetration of the injected substance in the veins and arteries of that area?
A. That is true.
Q. 14. So can we conclude, Doctor, from this and based on your experience and training in the field of medicine that to inject procaine penicillin in the area of quadrant number one would not be consistent with good medical practice in your opinion?
A. Yes, sir, that is true.
Q. 15. And it would be a deviation from the standard of medical care to make such an injection for the reasons that we have just gone over?
A. I would think so, yes.

We conclude from this evidence that a jury could reasonably believe the appellee’s testimony as to the exact location of the injection. When coupled with Dr. Anlyan’s and Dr. Siles’ expert testimony as to a breach of the standard of care, the jury could find the defendant negligent. There was no error by the trial court in submitting this issue to the jury.

Proximate Cause

Plaintiff’s expert witness, Dr. Anlyan, testified in response to a hypothetical question regarding the cause of the injury as follows (Deposition at 10-11):

THE WITNESS: I believe the pictures shown to me of this patient’s condition are due to the injection of foreign material into this area. This could be due to irritative and caustic substance injected from without, or a infected substance introduced, or a hematoma caused by the injection which subsequently created this slough of this area.
Q. What is a hematoma, Doctor?
A. A hematoma is a blood clot.

Later, at pages 22-23 of his deposition, Dr. Anlyan elaborates:

Q. And the hematoma caused by injection: How does that occur? You hit a small vein, something of that sort?
A. Either a vein or an artery.
Q. Or an artery. And that causes localized bleeding?
A. It causes bleeding.

At page 28 of his deposition, Dr. Anlyan responds to this question:

Q. Doctor, in your opinion, within the realm of medical probability, could Mrs. Hoffman’s condition have been caused by the injection of the foreign substance and in this instance, penicillin, into an artery or vein?
A. It could have.

On page 15 of his deposition, Dr. Anlyan was asked a question incorporating the plaintiff’s testimony as to pain she felt in her left hip and throughout her leg:

Q. Now, based upon those further facts, Doctor, would you continue.
A. From the facts enumerated, it seems that there was sciatic nerve irritation at the time of injection.

One of appellant’s expert witnesses, Dr. Roy J. Moser, was asked the following question (T.E. at 216):

Q. 12. What if an injection of procaine penicillin ... I ask you to assume these facts ... an injection of procaine penicillin is given in quadrant number one and an artery or vein is penetrated and the procaine penicillin along with the blood that is escaping from the vein or artery permeates out into the tissue around quadrant number one and causes inflammation and swelling and then dry heat is applied in constant quantities, what would you expect, Doctor?
A. Well, I would expect . . . as I mentioned, dry heat to an inflamed area can intensify the destruction of the tissue. That is what I would expect, destruction of surface tissue, perhaps in addition to the deeper tissue destruction. I don’t think deeper tissues would be affected, but just the surface skin aind maybe immediately under the skin. These areas could be affected adversely.

The appellant, Dr. C. A. Morris, was asked what would happen if penicillin was injected into a vein (T.E. at 114):

Q. 188. What is the problem when it goes in a vein, Doctor? What is the difference?
A. The vein ... no, penicillin shouldn’t be injected in the vein.
Q. 189. What will happen if it is, Doctor?
A. It could form an abscess.

In examining this expert testimony as to proximate cause, we should remember that while medical-opinion evidence must be founded on probability and not on mere possibility or speculation, the realities of the problem of semantics must be taken into account. Therefore, substance should prevail over form, and the expert testimony should be examined in its total meaning, rather than word-by-word. Young v. Davidson, Ky., 463 S.W.2d 924 (1971).

Dr. Anlyan’s testimony was that Bonita Hoffman’s condition was caused by an injection of a foreign substance such as procaine penicillin, into the area. No allegations were made, and no evidence was introduced, that the injury was the result of an irritative and caustic substance, or an infected substance.

The only allegations made were that Dr. Morris had injected procaine penicillin into a vein or an artery, and thereby caused the injury. When Dr. Anlyan’s testimony, considered as a whole, that the condition was caused by a hematoma after injection, is coupled with the defendant’s admission that, “I hit a small blood vessel.”, there was sufficient expert testimony as to proximate cause.

When buttressed by the above testimony of Dr. Roy J. Moser and the appellant, we conclude that this issue was likewise properly submitted to the jury.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: WINTERSHEIMER, Judge.

license: Public Domain

text:
    Charles F. YOUNG, and Pigg Insurance Agency, Inc., Appellants, v. Conway WHITE, Individually, and d/b/a Conway’s Tire Service, and Westchester Fire Insurance Company, Appellees. Conway WHITE, Individually, and d/b/a Conway’s Tire Service, Appellant, v. WESTCHESTER FIRE INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    March 11, 1977.
    Discretionary Review Denied June 8, 1977.
    Boyd F. Taylor, Hamm, Taylor, Milby & Farmer, London, for appellants, Charles F. Young and Pigg Insurance Agency, Inc.

      C. R. Luker, Jr., London, for appellee, Conway White d/b/a Conway’s Tire Service.
    W. R. Patterson, Jr., Landrum, Patterson & Dickey, Lexington, for appellee, West-chester Fire Insurance Co.
    Before WINTERSHEIMER, MARTIN and WILHOIT, JJ.
   WINTERSHEIMER, Judge.

The original action was initiated by the Plaintiff/Appellant against the Defendants/Appellees, Charles F. Young, Pigg Insurance Agency, Inc., and Westchester Fire Insurance Company, on November 24, 1971, seeking to recover the sum of $20,000.00 arising out of a fire loss sustained by the Plaintiff. All parties moved for summary judgments and the trial court sustained a motion of the Defendant Westchester, dismissed the Plaintiff’s complaint against Westchester and also sustained a motion of the Plaintiff for a summary judgment against the Defendants, Young and Pigg. The summary judgments were made final on January 28, 1974. It is from the judgment dismissing the complaint against Westchester that White appeals and it is from the judgment against Young and Pigg that they appeal. Notices of appeal were filed February 18, 1974. The two appeals were consolidated for joint review. The Supreme Court transferred this to the Court of Appeals on October 8, 1976. This Court affirms the summary judgment in favor of Westchester Fire Insurance Company and reverses the summary judgment against Young and Pigg.

Conway White, the Plaintiff/Appellant, suffered a fire loss at his tire recapping building on February 2, 1971. Charles Young is the president of Pigg Insurance Agency, Inc., and an active agent for that corporation. Pigg Insurance Agency had a contractual relationship with Westchester Fire Insurance Company which authorized Young to bind Westchester for certain types of insurance coverage as set out in their Agency-Company Agreement. Young also had similar agreements with nine other companies. Young had known White for about sixteen years and had sold him insurance on several occasions. White had experienced four separate fire losses in twenty-two years in the tire recapping business. One of White’s previous fire losses had been covered by a policy written by Young. On July 20, 1970, Young wrote two $10,000.00 policies on the building, one with Westches-ter and one with The Federal Insurance Company. On September 22, 1970, Young endorsed each policy for an additional $10,-000.00 contents coverage. On October 26, 1970, Young received a letter from West-chester indicating that it did not desire contents coverage, but was willing to retain the original $10,000.00 coverage on the building if Young would eliminate the contents coverage from the policy. The required endorsement reducing the coverage was never obtained by Young from White. On December 2,1970, Westchester cancelled the entire policy, both building and contents, in the amount of $20,000.00. Notice was sent and received by the mortgagee of White’s building and Young also received notice. White testified that he never received the mailed notice, but that the mortgagee notified him of the cancellation. White telephoned Young who assured him that he would take care of it. Later in a conversation on the street, Young advised White that he had renewed the policy. There is a conflict between the depositions of White and Young as to this conversation.

After the conversation, Young did nothing about reissuing the policy. Westchester refunded White’s premium later in December. The fire loss occurred about two months thereafter on February 2, 1971.

The questions presented are as follows:
1. Whether the trial court committed reversible error in awarding a summary judgment to Westchester?
2. Whether the trial court erred in awarding a summary judgment against Young and Pigg?

In considering the liability of Westchester, it is necessary to determine whether the verbal exchange between White and agent Young created an oral contract sufficient to bind Westchester on the coverage of White’s building. Kentucky has long held that an oral contract of insurance must include agreement on such matter, the risk insured, the premium rate, duration of the risk, amount of insurance and the identity of the parties. Campbell v. Aetna Insurance Co., Ky., 269 S.W.2d 292 (1954). The parties must understand that they are entering a binding contract. Svea Fire & Life Insurance Co. v. Foxwell, 234 Ky. 95, 27 S.W.2d 675 (1930) and Rabb v. Public National Insurance Co., 243 F.2d 940 (6 Cir. 1957). The conversation does not contain the necessary elements to pass this test. White already knew that Young represented at least two insurance companies and there was no indication as to who was to issue the policy. No mention of the amount of insurance was made. There is conflict as to the amount of insurance involved. No mention is made of the duration of the policy or the amount of the premium. Considering White’s version of the contract and the conversation, the parties did not enter into an oral contract of insurance sufficiently definite enough to hold Westchester. If there was any contract established by the conversation, it is only based on a promise by Young to obtain or to attempt to obtain the insurance for White.

Following the conversation, Young did nothing to obtain even a written binder and he did not inform Westchester of any new insurance liability. As a businessman of twenty-two years experience, White himself remained naive, at best, in the absence of any written policy or even a binder confirming the insurance coverage for more than two months. Considering it at its best, the conversation could produce only an oral contract of temporary insurance lasting only until the company had the opportunity to accept or reject the application. Moreover, the fire loss which occurred took place almost two months after the alleged contract. Therefore, the Appellant’s citation to Travelers Fire Insurance Co. v. Bank of Louisville, Ky., 243 S.W.2d 966 (1951) does not apply since the time lapse is so substantial and no efforts were made by either White or Young to put the alleged oral contract into effect.

Therefore, there does not appear to be a genuine issue of fact raised and the trial court was correct in issuing a summary judgment in favor of the Westchester Fire Insurance Company.

This Court must then turn to the question of the summary judgment granted in favor of Westchester against the local insurance agent Young and the Pigg Agency. A review of the record in this ease indicates that Young represented nine different insurance companies. The parties had dealt with each other and known each other for sixteen years. The street-side conversation between Young and White indicates that Young said “it’s taken care of, I renewed it for you” according to White’s deposition. It is clear that between Young and White there is a sharp difference of opinion.

The purpose of the rule providing for summary judgments is to promote the expeditious disposition of cases and to avoid unnecessary trials when no genuine issues of fact are raised. CR 56.01, Clay’s Kentucky Practice 3d Ed. 2. In the instant case, the Defendants, Young and Pigg, in an answer dated January 4,1972, demanded a jury trial. The summary judgment rule should be cautiously invoked; it does not authorize adjudication of factual issues, but only authorizes the court to discover and determine whether there is an issue of fact to be tried. Rowland v. Miller’s Adm’r, Ky., 307 S.W.2d 3 (1957). It is entirely proper for the trial court to enter a summary judgment on part of the questions presented and reserve for trial any remaining factual issues. CR 54.02. It would appear that the trial court should permit a jury to consider the validity of the conflicting statements made by Young and White in regard to the crucial conversation on the street.

Accordingly, the judgment of the trial court as it applies to Westchester Fire Insurance Company is affirmed, and the summary judgment granted in favor of Appel-lee White against Appellants Young and Pigg is hereby reversed and the matter remanded to the trial court for a disposition consistent with this opinion.

All concur.


author: PARK, Judge.

text:
    BOARD OF EDUCATION OF McCREARY COUNTY, Kentucky, et al., Appellants, v. Ralph W. NEVELS, Superintendent, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    March 11, 1977.
    Discretionary Review Denied June 8, 1977.

      Robert L. Wilson, Jamestown, for appel-lees.
    Brown, Sledd & McCann, Lexington, for appellants.
    Before GANT, HOWERTON and PARK, JJ.
   PARK, Judge.

This appeal is the latest in a series of battles over the office of superintendent of the McCreary County Schools which have been fought since the decision in Bell v. Board of Education of McCreary County, Ky., 450 S.W.2d 229 (1970). A rather detailed chronology of events since that decision is necessary to an understanding of the issues raised by this appeal.

In November, 1972, an election was held for three of the five positions on the McCreary County Board of Education. The election was for four year terms which would have run from the first Monday in January, 1973, until the first Monday in January, 1977. On February 1, 1973, the appellee, Ralph W. Nevels, was granted a contract as school superintendent for a term ending June 30,1976. On January 23, 1975, a judgment was entered by the McCreary Circuit Court declaring the election of November 1972 to be null and void because of flagrant violations of the election laws.

In November 1975 a special election was held to fill the vacancies created by the invalidation of the 1972 election. Nevels was the main issue in this campaign. At the election held November 4, 1975, two anti-Nevels candidates, Jimmy V. Neal and J. W. Perry, were elected. In addition, one pro-Nevels candidate, Vina Brown, was certified as having defeated the anti-Nevels candidate, Roger Worley. This resulted in an apparent pro-Nevels majority of three to two on the school board. However, on November 13, 1975, Worley filed an action in the McCreary Circuit Court challenging the election of Vina Brown.

On December 5, 1975, a special meeting of the McCreary County Board of Education was held. This meeting must be discussed in detail, but at this point it is sufficient to say that the board purported to grant Nevels a new four year contract commencing July 1, 1976, and ending June 30, 1980. On January 4, 1976, a judgment was entered by the McCreary Circuit Court setting aside the election of Brown, and declaring Worley the winner. This judgment was appealed. While the appeal was pending, another special meeting of the board of education was held on January 21, 1976, at which time Nevels was elected secretary of the board of education for a four year term to begin July 1,1976, and to extend to June 30, 1980. On February 6, 1976, the mandate of the Supreme Court issued affirming the judgment of the circuit court declaring Worley to be the winner of the election. This left the anti-Nevels forces with a three to two majority on the school board.

On February 12, 1976, Worley took his place on the board, and the board voted to rescind the new contracts granted to Nevels at the December 5 and January 21 meetings. On March 11 and May 12, 1976, the board attempted to grant the appellant, Phillip Carter, a contract as school superintendent for a three year term commencing July 1,1976, and ending June 30,1979. The board did not fix a salary for Carter. On June 25, 1976, Nevels and the two remaining pro-Nevels members of the board, W. R. Davis and Judson S. Harmon, Sr., filed a declaratory judgment action in the McCreary Circuit Court against the board of education, the three anti-Nevels members, and Carter. On August 19, 1976, a judgment was entered by the McCreary Circuit Court upholding the validity of the contracts granted December 5, 1975, and January 21,1976, to Nevels for the office of superintendent and secretary for the term ending June 30, 1980. The judgment also held that the subsequent attempts by the board to revoke the contracts were invalid and that the attempted appointment of Carter as superintendent was null and void.

On August 31, 1976, the board, the three anti-Nevels members, and Carter appealed from the judgment of the McCreary Circuit Court. While this appeal was pending, an election was held for the three seats on the board of education whose terms expired the first Monday of January, 1977. At that election, two of the three anti-Nevels members were defeated. As now constituted, the board of education has a four to one pro-Nevels majority. Based upon a resolution adopted by the board of education on January 12,1977, the board of education, as now constituted, seeks to dismiss the appeal.

QUESTIONS PRESENTED

In determining the validity of the various acts of the McCreary County School Board with respect to the office of school superintendent and secretary to the school board, essentially five issues are raised: (1) In December, 1975, did the McCreary County School Board have the power to appoint a school superintendent for a term commencing July 1, 1976? (2) Was the meeting of December 5, 1975, invalid because of inadequate notice? (3) Can the votes cast by Vina Brown as a de facto officer during the pendency of the action challenging her election be counted in determining whether Ralph W. Nevels was legally appointed school superintendent and secretary of the school board? (4) Not counting the vote of Vina Brown, was Ralph W. Nevels lawfully appointed school superintendent at the meeting of December 5, 1975? (5) Not counting the vote of Vina Brown, was Ralph W. Nevels lawfully appointed secretary of the school board at the meeting of January 21, 1976?

Other issues are raised by the parties but it is not necessary to reach those issues in light of our disposition of the questions enumerated.

POWER OF SCHOOL BOARD TO APPOINT SCHOOL SUPERINTENDENT IN DECEMBER 1975 FOR TERM COMMENCING JULY 1, 1976

The term of Ralph W. Nevels as school superintendent was scheduled to expire on June 30, 1976. The pro-Nevels school board members, Harmon and Davis, had been duly elected in 1974 for four year terms extending through December 1978. The election of November 4, 1975, was held for the purpose of filling three unexpired terms on the school board created by the invalidation of the 1972 election. The three persons elected in November 1975 were to serve out the balance of the four year terms which commenced in January 1973 and which were to extend through December 1976. Thus, all five terms of the McCreary County School Board would have extended beyond the expiration of Nevels’ term as school superintendent on June 30, 1976. It has long been the rule in Kentucky that there can be a valid appointment to an office in advance of the time the vacancy actually occurs. Prospective appointments to office are generally deemed to be valid. Only one exception exists to that rule. If the term of the appointing body or officer will expire prior to the time that the vacancy will occur, then no power of prospective appointment exists. Maynard v. Allen, 276 Ky. 485, 124 S.W.2d 765 (1939); Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26 (1930); Dixon v. Caudill, 143 Ky. 623, 136 S.W. 1043 (1911). Furthermore, there may be changes in the membership on the board. In holding that a prospective appointment of a school superintendent must be made by the same board that would be authorized to act when the vacancy actually occurred, the court in Maynard v. Allen, supra, stated:

“This does not mean that the personnel of the board must remain the same, but that the terms of the members in office at the time the appointment is made must extend beyond the date when the term of the appointed officer begins.” 124 S.W.2d, at 768.

In the present case, the term of no member of the school board was scheduled to expire prior to the expiration of Nevels’ old contract on June 30, 1976.

At one time, there was a statutory prohibition against appointing the school superintendent prior to April 1 of the year in which his term was to begin. However, that statute was repealed, and in Maynard v. Allen, supra, the court held that there was no prohibition against the appointment of a school superintendent prior to the first day of April. In support of the argument that a school superintendent cannot be appointed prior to January 1 of the year in which his term begins, the appellants rely on a single sentence from the opinion in Maynard v. Allen:

“* * * a county superintendent of schools may be appointed prior to the first day of April in the year in which his term begins, provided that the appointment is made by the same board that is authorized to act when the vacancy actually occurs.” 124 S.W .2d at 768 (Emphasis added).

The appellant’s argument would, in effect, re-write that portion of the opinion to read: “A county superintendent of schools may be appointed prior to the first day of April but only in the year in which his term begins.”

This court does not accept such a strained construction of the opinion in Maynard v. Allen. The phrase “in the year in which his term begins” modifies the “first day of April” rather than the power of appointment. Prior to the decision in Maynard v. Allen, it was not clear whether an appointment could be made prior to the first day of April in the year in which the superintendent’s term began. The court was doing no more than holding that a board of education need not wait until the first day of April before making the appointment.

The circuit court did not err in holding that the board of education could appoint a school superintendent prior to the first day of January. There is nothing in the statute authorizing the appointment of a school superintendent, KRS 160.350, which would justify such a limitation on the authority of the school board. Perhaps there should be such a limitation on school boards, but any such limitation should be by legislative rather than judicial amendment.

VALIDITY OF NOTICE OF DECEMBER 5, 1975, MEETING

The school board attempted to grant Ralph W. Nevels a new contract at a special meeting of the board held on December 5, 1975. The notice to the board members from the chairman states:

“The purpose of this meeting will be to review preliminary plans of the new school (our architect will have a representative here), enter into agreement with the State Department of Education to purchase new school buses, employ personnel and to consider any other business that may properly come before us.”

Respecting special meetings, KRS 160.-270(1) provides:

“Each member of the board shall have timely notice of each meeting and the nature, object and purpose for which it is called.”

All five members of the board appeared at the meeting of December 5, 1975, including the three who had been certified as winners in the November election. When there has not been legal notice of a special meeting of the school board, the action taken at the special meeting is invalid if one of the members of the board is absent. Brown v. Turman, 264 Ky. 407, 94 S.W.2d 1010 (1936). When all of the members of the board are present and have an opportunity to participate in all of the actions taken at the special meeting, the validity of the action taken at the special meeting is not affected by the form of the notice, cf. Tandy & Fairleigh Tobacco Co. v. City of Hopkinsville, 174 Ky. 189, 192 S.W. 46 (1917). The records of the meeting of December 5,1975, do not reflect that any objection was made to the notice of the special meeting or that any objection was made to any action taken at the meeting on the grounds that it was not included within the notice. This court concludes that the action taken at the December 5, 1975, special meeting was not invalidated because of the form of the notice of the meeting.

MAY THE VOTES OF A DE FACTO OFFICER BE COUNTED IN DETERMINING WHETHER NEVELS WAS VALIDLY APPOINTED SCHOOL SUPERINTENDENT AND SECRETARY TO THE SCHOOL BOARD?

At the special meeting held on December 5, 1975, the school board purportedly appointed Nevels to a new term as school superintendent commencing July 1, 1976. Prior to the meeting of December 5, Vina Brown had been certified as the winner of the November 4 election and she had taken all steps necessary to qualify as a school board member. However, there was then pending in the McCreary Circuit Court an action by Roger Worley challenging her election. On January 21, 1976, the school board purportedly appointed Nevels as its secretary for a four year term commencing July 1, 1976. Prior to the special meeting of January 21, 1976, the circuit court had entered a judgment declaring Worley to be the winner of the election. However, the case was on appeal, and the mandate affirming the judgment declaring Worley the winner was not issued by the Supreme Court until February 6, 1976.

The circuit court held that Vina Brown was a de facto officer at the time of the two special meetings. The election commissioners had certified that Vina Brown had been elected. She took the oath of office and assumed all of the responsibilities of that office. Until the certification of her election was finally set aside, she was entitled to retain possession and perform the duties of a school board member without interference. Petrey v. City of Hazard, Ky., 346 S.W.2d 534 (1961); Powers v. Commonwealth, 110 Ky. 386, 22 Ky.L.Rptr. 1807, 61 S.W. 735, 53 L.R.A. 245 (1901). However, the question is not whether she was a de facto officer, the question presented is whether a de jure officer can be appointed by a de facto officer.

In holding that the vote of Vina Brown, as a de facto officer, should be counted, the circuit court relied on the decision in Commonwealth ex rel. Breckinridge v. Win stead, Ky., 430 S.W.2d 647 (1968). In that case, quo warranto proceedings were instituted for the ouster of certain members of the Crittenden County Board of Education. While the proceedings were pending, the movants sought a temporary injunction to prevent the school board members from participating in the appointment of a school superintendent. In overruling the motion for temporary injunction, the Court of Appeals held that “in the absence of extraordinary circumstances” an officer should not be enjoined from performing his duties pending the outcome of an ouster proceeding. The court further held that it was not an extraordinary circumstance that the school superintendent’s contract was about to expire and that a new contract was to be made. Even if the school board members had become ineligible after taking office, the Court of Appeals held that they remained de facto officers until actually ousted. Although not necessary to the decision to deny the motion for temporary injunction, the Court of Appeals clearly indicated that a contract made by the school board pending the ouster proceedings would not be retroactively invalidated if it depended on the vote of a member who was ultimately ousted. The court expressed great fear for revenue bond issues if a contrary rule was applied.

The appellant seeks to distinguish Win-stead on two grounds. First, the school board members in the Winstead case had been duly elected. In this case, it was finally determined that Vina Brown had not been elected to the school board. Second, the appellants argue that there are extraordinary circumstances in this case. There was no compelling necessity for appointing Nevels in December to a new term as school superintendent and in January to a new term as secretary to the school board except to avoid the possible outcome of the challenge to Vina Brown’s election. This court concludes that the peculiar facts of this case make it distinguishable from the Winstead decision.

It is the general rule that a public officer appointed by a public body, the membership of which includes a de facto member whose vote is necessary to make the appointment, is not a de jure officer. Von Nieda v. Bennett, 117 N.J.L. 231, 187 A. 629, 106 A.L.R. 1320 (Ct.Err. & App. 1936); State ex rel. Roush v. Board of Education of Mason County, 128 W.Va. 150, 35 S.E.2d 850 (1945); State ex rel. Scanes v. Babb, 124 W.Va. 428, 20 S.E.2d 683 (1942); Application of Stephan, 2 Misc.2d 6, 150 N.Y.S.2d 359 (Sup.Ct.1956). One who is appointed to an office by a de facto officer can himself be no more than a de facto officer. As between themselves, the ap-pointer and the appointee stand upon the same footing. The only decision found by this court which does not follow the rule laid down in Von Nieda v. Bennett, supra, is a lower court decision in State ex rel. James v. Deakyne, 5 Terry 217, 44 Del. 217, 58 A.2d 129 (Sup.Ct.1948). The Delaware court was concerned for the protection of officers who accepted appointment in good faith without knowledge of any impediment of the appointing authorities. In this case, Nevels acknowledged that he was aware of the pendency of the circuit court action challenging the election of Vina Brown.

When an election contest is pending and an officer is appointed by one whom it is ultimately determined is only a de facto officer, justice and reason support the conclusion that the person so appointed is only a de facto officer. Any other rule would be calculated to defeat the will of the people as expressed at the polls. Consequently, the circuit court erred in holding that the vote of Vina Brown should be counted in determining whether Nevels was validly appointed to a new term as school superintendent and as secretary to the school board.

WAS NEVELS VALIDLY APPOINTED SCHOOL SUPERINTENDENT . WITHOUT THE VOTE OF VINA BROWN?

At the December 5, 1975, meeting, four members were present other than Vina Brown. When the motion was made to appoint Nevels to a new four year term as superintendent commencing July 1, 1976, board members Harmon and Davis voted “yea” and board member Perry voted “nay”. Board member Neal did not vote although the minutes of the meeting state: “Chairman Harmon asked Member Neal three times for his vote, but he did not vote.” The appellees contend that Neal should be counted as voting in favor of the appointment of Nevels as school superintendent. We agree.

The applicable rule was stated in Payne v. Petrie, Ky., 419 S.W.2d 761, 763 (1967):

“In Pierson-Trapp Co. v. Knippenberg, Ky., 387 S.W.2d 587, 588, it was written: ‘The rule is that when a quorum of a governing body is present those members who are present and do not vote will be considered as acquiescing with the majority.’ We adhere to that rule, but amplify it to point out that the word ‘majority’ as used in the rule does not mean a numerical majority of the entire elected membership of the board, but means a majority of those present and voting.”

In this case, Perry, Davis, Harmon and Neal constituted a quorum of the board. Of those who voted (Perry, Davis and Harmon) the “yea” votes cast by Davis and Harmon constituted a majority. Consequently, Neal must be considered as having voted “yea” with Davis and Harmon. Thus, disregarding the vote of Vina Brown, Nevels was still appointed school superintendent for the new term by a three to one vote.

The circuit court did not err in holding that Nevels was validly appointed to a new term as school superintendent. It follows that the board could not revoke his appointment on February 12, 1976, after the mandate had issued from the Supreme Court and Worley had qualified as a member of the board. Board of Education of Boyle County v. McChesney, supra.

DISREGARDING THE VOTE OF VINA BROWN, WAS NEVELS VALIDLY APPOINTED SECRETARY OF THE SCHOOL BOARD FOR A NEW TERM COMMENCING JULY 1, 1976?

On January 21, 1976, the school board purportedly appointed Nevels secretary of the board for a four year term commencing July 1, 1980, pursuant to KRS 160.440. All members of the board were present. Disregarding the vote of Vina Brown, there would have been a tie vote on the motion to appoint Nevels secretary. Harmon and Davis voted “yea”, and Neal and Perry voted “nay”. This court concludes that Nevels was not validly appointed secretary. For the reason stated earlier in this opinion, the vote of Vina Brown should not be counted on this issue. The circuit court had already declared that Wor-ley was the winner of the election. Although the case was on appeal, it should have been apparent that the mandate from the Supreme Court would be forthcoming in a relatively short time. There was no immediate need to appoint a secretary since Nevels’ term did not expire until June 30, 1976.

The circuit court erred in holding that Nevels was lawfully appointed secretary to the school board. Because the record does not indicate that the board appointed another person as secretary after Worley had qualified, it follows that the office of secretary is vacant and can be filled by the present board.

As he was not appointed secretary, Carter may have no standing to question Nevels’ appointment. The Board has moved to dismiss the appeal. However, Jimmy V. Neal is a named appellant, and he remains a member of the board. He clearly has standing to question the Nevels’ appointment as secretary.

CONCLUSION

That portion of the judgment of the circuit court upholding the validity of the appointment of Nevels as school superintendent is affirmed; that portion of the judgment of the circuit court upholding the appointment of Névels as secretary is reversed.

All concur.


text:
    SIZEMORE MINING COMPANY, Appellant, v. Winston TACKETT and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    March 18, 1977.
    Discretionary Review Granted June 8, 1977.
    William G. Francis, Francis, Kazee & Francis, Prestonsburg, for appellant.
    C. G. Perry, Paintsville, for appellee.
    Before WINTERSHEIMER, MARTIN and WILHOIT, JJ.
   WINTERSHEIMER, Judge.

This appeal was taken from a judgment of the Floyd Circuit Court entered July 6, 1976, confirming a Workmen’s Compensation Board award of 100% occupational disability to Plaintiff/Appellee Winston Tack-ett. The claim is made by a thirty-two year old man with ah eighth grade education and three dependents, who injured his back on October 31, 1974, when he fell against a coal loading machine while working in an underground mine. Four physicians examined the claimant. Dr. Kim, the treating physician, sent him back to work on December 9, 1974. Dr. Musgrave stated that he was totally disabled for heavy labor. Dr. Potter assessed a 30% functional disability. Dr. Miller, an orthopedic surgeon, found no objective evidence of any disability to prevent the claimant from working.

The issue presented is whether the record indicates that sufficient testimony was presented to show that the claimant is totally disabled or that his future earning capacity is reduced or impaired, and whether the Workmen’s Compensation Board made a proper determination based upon all of these factors.

The leading case in Kentucky in this regard is Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), which states that the real consideration is to what extent has earning capacity been impaired. This involves evaluation of the kind of work normally available on the local market which the claimant is capable of performing by his qualifications and training prior to the injury as compared to his post injury opportunity. There is no reason that Kentucky Alma Coal Co. v. Kirk, Ky., 497 S.W.2d 52 (1974) should not be applied in this case.

The Finding of Fact in this matter is exceptionally sketchy. The Board’s Rulings of Law consist of bare citations to five statutes and the Osborne case. It appears to this Court that the Finding of Fact No. 1 indicates that the Board’s opinion does not conform to the principles of Pennington v. Winburn, Ky., 537 S.W.2d 167 (1976).

It is the opinion of this Court that the Workmen’s Compensation Board has failed to make a proper finding relating to the future earning capacity of a claimant being impaired considering the nature of his injury, his age and other relevant factors as to job training and the local employment market.

The judgment of the trial court is reversed and remanded to the Floyd Circuit Court with instructions to return the case to the Workmen’s Compensation Board to make a proper determination consistent with this opinion.

All concur.


author: WILHOIT, Judge.

text:
    Glenn Kenneth BEAVER, Appellant, v. Pearl F. BEAVER, Appellee.
    Court of Appeals of Kentucky.
    May 6, 1977.

      Byron L. Hobgood, Franklin, Gordon & Hobgood, Madisonville, for appellant.
    William Donan, Mills, Mitchell, Turner & Donan, Madisonville, for appellee.
    Before MARTIN, C. J„ and WILHOIT and WINTERSHEIMER, JJ.
   WILHOIT, Judge.

Glenn Kenneth Beaver appeals from a decree and judgment in a divorce proceeding, awarding costs and an attorney’s fee to Pearl F. Beaver. The amount of the attorney’s fee to be paid by Mr. Beaver was set at $1,696.70, and the trial court ordered that this amount be paid to William D. Donan, Mrs. Beaver’s attorney.

Mr. Beaver argues that both parties have adequate financial resources, therefore it is a clear abuse of discretion to award costs and a fee to his former wife’s attorney against him. Before addressing the merits of the appeal, however, it is necessary to consider an issue raised by appellee, Mrs. Beaver, in her brief, namely, whether appellant has failed to perfect his appeal because of untimely designation of the record. Mr. Beaver filed timely his notice of appeal on August 20, 1976. On October 7, 1976, Mrs. Beaver filed in the trial court a motion to dismiss the notice of appeal and appeal on the ground that he had failed to designate the record within the prescribed time, pursuant to CR 75.01. On the same day, October 7,1976, Mr. Beaver filed his designation of the record on appeal. On October 19,1976, the trial court entered an order denying the motion to dismiss the notice of appeal on the ground that there had been “substantial compli-ahce” with CR 75.01. Mrs. Beaver now argues in her brief that the appeal should fail for noncompliance with CR 75.01.

Kentucky Rule of Civil Procedure 75.01 provides:

Within 10 days after filing the notice of appeal the appellant must serve upon the appellee and file with the trial court a designation of such portions of the evidence or proceedings stenographically reported as he wishes to be included in the record on appeal, unless the appellee has already served and filed a designation.

It has been held that strict compliance with CR 75.01 is required, Timmons v. Allen, Ky., 449 S.W.2d 27 (1969); Commonwealth v. Black, Ky., 329 S.W.2d 192, 193 (1959). Clearly, failing to file a designation of the record until some 48 days after filing the notice of appeal constitutes noncompliance with CR 75.01. Our rules provide that:

. the court for cause shown may, at any time in its discretion, (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. CR 6.02

This enlargement provision applies to CR 75.01. Montfort v. Archer, Ky., 477 S.W.2d 143 (1970); Motorists Mutual Insurance Co. v. Mercer, Ky., 462 S.W.2d 188 (1970). Appellant did not, however, move for an enlargement during the 10-day period nor allege any grounds for a finding of excusable neglect; the trial court did not on its own motion enlarge the time during the 10-day period.

Despite the obvious noncompliance in appellant’s designation of the record this issue is not properly before this Court. There has been no motion to dismiss made in the Court of Appeals nor any appeal from the order of the trial court which denied the motion to dismiss made in that court. The unsuccessful attack in the trial court not having been appealed and no motion to dismiss having been filed in this Court, it is impermissible for Mrs. Beaver to argue in her brief that the appeal should not be considered. Pipelines, Inc. v. Muhlenberg County Water District, Ky., 465 S.W.2d 927 (1971). Any objection Mrs. Beaver had to Mr. Beaver’s failure to designate timely the record has been waived. See Elam v. Acme Well Drilling Co., Ky., 411 S.W.2d 468 (1967), Bardill v. Bird Well Surveys, Inc., Ky., 310 S.W.2d 265 (1958).

The matter of costs and attorney’s fees is governed by KRS 403.220, which provides:

The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.

With respect to the fee awarded to Mrs. Beaver’s attorney, the appeal must fail because the appellant did not name his former wife’s attorney a party to the appeal. It has been held that the attorney must be made a party to the appeal whether the fee is adjudged to be paid directly to him or is allowed to one of the parties to the divorce and ordered to be included as a court-cost item. Tyler v. Bryant, Ky., 394 S.W.2d 454, 455 (1965). This rule has been specifically held to apply in marriage-dissolution cases under KRS 403.220. Wilhelm v. Wilhelm, Ky., 504 S.W.2d 699, 701 (1973).

The only remaining matter, therefore, that may be considered here on appeal is that of the allocation of liability for court costs to Mr. Beaver. The governing statute has been interpreted as follows:

If there had ever been any doubt regarding the discretionary authority of the trial court to allocate court costs and award an attorney’s fee KRS 403.220 laid that doubt to rest once and for all. As matters now stand, an allocation of court costs and an award of an attorney’s fee are entirely within the discretion of the court. Wilhoit v. Wilhoit, Ky., 521 S.W.2d 512, 514 (1975).

Having examined the entire record in this proceeding, we find no abuse of discretion by the trial court in ordering Mr. Beaver to pay all of the court costs incurred in this action.

The judgment of the trial court is affirmed.

All concur.


author: LESTER, Judge.

text:
    JEFFERSON COUNTY BOARD OF EDUCATION et al., Appellants, v. The COURIER-JOURNAL et al., Appellees.
    Court of Appeals of Kentucky.
    May 6, 1977.

      Jo M. Ferguson, Grafton, Ferguson, Fleischer & Harper, E. Preston Young, Louisville, for appellants.
    Edgar A. Zingman, Jon L. Fleischaker, Wyatt, Grafton & Sloss, Louisville, for ap-pellees.
    Before HOWARD, LESTER and WIL-HOIT, JJ.
   LESTER, Judge.

The Courier-Jour nal and Louisville Times in its suit against the Jefferson County Board of Education alleged that the Board, in holding a closed meeting on June 2,1975, had violated the open meetings of public agencies law, KRS 61.805, et seq., and requested the court to declare all action taken at the meeting void and to enjoin the Board from holding future closed sessions on certain topics discussed at the meeting. After a consideration of the stipulations, the court granted the injunction and declared all final action void and the remainder of the proceedings voidable with the exception of discussions relating to pending litigation. The Board has appealed.

The main points of contention in this appeal have centered on the adequacy of notice required by KRS 61.815 before a closed session can be held on select topics and the coverage of certain of the enumerated exceptions to open meetings in KRS 61.810. The appellants have also raised as an issue the propriety of the relief granted.

In response to the open meetings law, the Board, on October 28, 1974, adopted a resolution which announced that due to the quantity of work that it discharged, the Board would on the fourth Monday of each month go into closed session. The Board in attempting to comply with its understanding of the notice the law required as to the matters which it would discuss, drafted the resolution to basically restate the exceptions to open meetings provided for in KRS 61.810 and gave the reasons for the closed sessions in equally general terms. On June 2, 1975 during the course of a regular meeting, the Board acted affirmatively on a motion to hold a closed meeting “to discuss property and negotiations.” We can briefly state what took place at that session. Ron Barber, Associate Superintendent of Personnel, reported on contract negotiations between the Board and the two associations representing the teachers, the Jefferson County Teachers Association and the Louisville Education Association. He referred to the proposed merger of the two associations and recommended to the Board that negotiations take place so that all the employees would have an in-put. The Board then discussed the possible sale of Channel 15. E. Preston Young, counsel for the Board, advised that the operating corporation, Kentuckiana Public Television, could not be dissolved until the corporation paid all its debts which included certain debts involved in litigation between the corporation and Adams House. The Board also agreed that a letter be sent to employees of Channel 15 informing them that their position would be eliminated at the next meeting if the Board should vote to cut off funding for KPTC. Finally, the Board considered a proposal by the University of Louisville to purchase or lease the Omar Carmichael Elementary School property and decided to ask authorized officials of the University of Louisville to meet with them on June 23,1975, to discuss the sale of the property. The closed meeting adjourned and the meeting reconvened in open session.

Some forty-seven jurisdictions have adopted the so-called open meeting or sunshine statutes which are designed to require governmental agencies to conduct the public’s business in such a way that the deliberations and decisions are accomplished in an atmosphere wherein the public and the media may be present. Although a minority of the states require that all meetings of every public body shall be “open” without regard to subject matters and providing for no closed sessions, Kentucky has elected to take the approach of enumerating exceptions to disclosure.

Prom the standpoint of legal development, open meeting laws are relatively new to American Jurisprudence and we are not afforded the benefit of ample precedent from within or without the Commonwealth. There are no legislative committee reports, no studies by the Legislative Research Commission and but one published opinion, City of St. Matthews v. Voice of St. Matthews, Ky., 519 S.W.2d 811 (1974) dealing with the sunshine statutes. Nevertheless, we will attempt to fulfill our function in interpreting the law, limiting ourselves therein to analyzing and applying what the legislature has said without psychoanalyzing that body and applying what it may have meant to say. Apache Coal Co. v. Fuller, Ky., 541 S.W.2d 933, 935 (1976).

Among the exceptions to the open meetings law set forth in KRS 61.810 are subsections (2), acquisition or sale of real property when value would be affected; (5), collective bargaining negotiations, and (6), hearings which might lead to the appointment, discipline or dismissal of an individual employee or member if the employee or member does not request a public hearing. In order to conduct a closed meeting concerning the preceding exceptions, a public agency such as the appellant Board of Education, must give notice thereof in regular open meeting of the general nature of the business to be discussed and the reason therefor, KRS 61.815(1), after the adoption of a duly carried motion for that purpose made in open, public session, KRS 61.815(2). These are conditions precedent to holding the executive meeting. As the court below determined, there is no requirement that the corporate appellant and its governing body give notice of an executive session in order to confer with their attorneys concerning proposed or pending litigation. This is expressly excluded by the terms of the statute and moreover, this involves the attorney-client relationship. However, nothing said herein should be construed as to mean that anytime the public agency has its attorney present that it can go into closed session. The appellant contends that under KRS 61.810(6) the discussion in private meeting of terminating the expenditure of funds on the educational television station operated by appellant and the attendant potential dismissal of all Channel 15 employees should be excepted from the open meetings law. The discussion, however, dealt only with a general personnel matter and accordingly, was not the proper subject of a closed session.

In reference to subsection (2) allowing discussions of future acquisition or sale of real property, we observe that the drafters of KRS 61.810 provided that this type of deliberation could be held only when publicity would be likely to affect the value of a specific piece of property and we know of no instance where publicity would not have a possible effect upon realty values but in the instant case, it is at once apparent that the notice given in the open meeting preparatory to the closed session was merely “property and negotiations.” This falls short of subsection (1) of KRS 61.815, for the term “property” fails to reveal whether it is real or personal, for purchase or for sale or whether publicity would affect its value. In order to fully comply with the two statutes, the notice should have contained information that the Board of Education intended to conduct an executive session for the purpose of discussing the sale or acquisition (in this instance a potential sale or lease) of real property and that the reason for privacy was due to the fact that publicity at the deliberation stage might be likely to affect the value.

The scope of coverage of KRS 61.-810(5) which allows confidential meetings for collective bargaining negotiations between public employers and their employees does not embrace everything tangential to the topic. Collective bargaining negotiations means the settling of disputes by negotiation between employer and the representatives of the employees. United Construction Workers v. Haislip Baking Co., 223 F.2d 872, 877 (4th Cir. 1955). We do not believe that the legislature intended “reports” or status briefings on labor negotiations to be held in privacy and that is exactly what the record herein indicates, namely, that Associate Superintendent Ron Barber reported on the status of a proposed contract between the Board and two teachers associations and further “recommended to the Board that negotiations should take place It is at once evident that appellant was not in the process of negotiations and that that segment of the meeting was not an exception as contemplated by KRS 61.-810(5). On the other hand, whenever a public agency is formulating its demands or position preparatory to collective bargaining negotiations, either by way of deliberations or instructions to its advocates, then we believe these types of sessions are within the purview of KRS 61.810(5). See Rec-chie and Chernoski, Government In The Sunshine: Open Meeting Legislation In Ohio, 37 Ohio State LJ. 497, 511 (1976).

Appellants contend that the notice that they would discuss “property and negotiations” given immediately before the closed session when viewed in the context created by the broader notice contained in the Resolution of October 28th, substantially complied with KRS 61.815 and that KRS 61.830 makes substantial compliance sufficient. We note at the outset that KRS 61.830 refers to when formal action becomes voidable and does not limit the court from granting other appropriate relief under KRS 61.845 nor does it sanction avoidance of any of the statutory procedures. It would thwart the thrust of the legislative direction on open meetings to allow a one time notice for periodic closed sessions. Such a notice, as in this case, could only parrot the language of the statutory exceptions and for the most part, this would not be adequate to give “the general nature of the business to be discussed . . . and the reason for the closed session”. Also, a regularly scheduled closed meeting avoids the clear implication of KRS 61.810 and 61.815 that a private gathering of members of a public agency such as a school board should be the exception. We hold therefore, that KRS 61.815 instructs that notice must come prior to every closed session in regular open meeting and supply the general nature of the business to be considered and the reason for the secrecy.

We can see no reason to greatly disturb the remedy the trial court fashioned. The court enjoined the appellants from violations of the law based on its findings. Therefore, in light of that court’s findings, the injunction prohibits the Board and its members from conducting or participating in a closed session to discuss the purchase of the Omar Carmichael School property by the University of Louisville without complying with KRS 61.815, disposition of Channel 15 with the exception of pending litigation in the case of Stephens v. Adams House and any other matter which relies on the October 28th Resolution to provide the correct notice. The court remained within the authority supplied it by KRS 61.845 in granting this type of relief. So long as the Board and its members make a good faith effort to obey, they need not fear contempt. To the extent that the lower court would have allowed a closed conference for status reports not preparatory to collective bargaining negotiations, we reverse. The court also voided all final action taken by the Board at the closed session of June 2, 1975, while adjudging all other actions voidable. Although we have some difficulty in discerning the action set aside, since nothing of consequence occurred at the meeting, it will not be necessary for us to explore this point. We believe this opinion will furnish the parties with sufficient guidance on the issues raised.

We affirm the judgment in so far as it is consistent with this opinion.

All concur.


author: PER CURIAM.

text:
    REPUBLIC BANKERS LIFE INSURANCE COMPANY, Petitioner, v. B. L. JAEGER, Respondent.
    No. B-6155.
    Supreme Court of Texas.
    Nov. 17, 1976.
    Beard & Kultgen, Pat Beard, Waco, for petitioner.
    Stephen Perel & Associates, W. Timothy Lewis, Houston, for respondent.
   PER CURIAM.

ON MOTION FOR REHEARING OF APPLICATION FOR WRIT OF ERROR

Our Per Curiam opinion of October 13, 1976, is withdrawn and the following substituted therefor:

In 1974, B. L. Jaeger applied for benefits under a disability insurance policy issued to him by Republic Bankers Life Insurance Company. Jaeger contended that he had injured his back while at work and, as a result, was totally and continuously disabled. He claimed that he was entitled to benefits of $300.00 per month for 60 months, the maximum recovery allowed under the policy. When Republic refused to pay, Jaeger brought suit.

After trial but prior to judgment, Jaeger was granted leave to file a trial amendment which alleged for the first time a cause of action based on Republic’s repudiation of the policy. The trial court, sitting without a jury, concluded that Republic had repudiated the policy and thus rendered judgment for Jaeger. In his findings of fact the trial judge found that the “present value of all benefits under the contract of insurance is $18,000.00 including unaccrued installments.”

Republic appealed to the court of civil appeals, contending that the trial court incorrectly applied the measure of damages for repudiation of an insurance policy. The court of civil appeals affirmed the trial court’s award. Republic Bankers Lite Insurance Co. v. Jaeger, 537 S.W.2d 503 (Tex.Civ.App. — Houston [14th Dist.] 1976).

The measure of damages in an action for breach of contract by repudiation is the total of all accrued payments plus interest, plus the present value of all unac-crued payments that the plaintiff would have received if the contract had been performed. Universal Life & Accident Insurance Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405 (1937), citing Pollack v. Pollack, 39 S.W.2d 853 (Tex.Com.App., holding approved), aff’d on rehearing, 46 S.W.2d 292 (1932). The “present value” is not merely the sum of all future contract payments for which the defendant will be liable. Rather it gives the breaching party the benefit of the earning power of his money. Therefore the proper measure of damages in a case such as this is a sum which, if invested at a reasonable rate of interest, will yield an annual income from both principal and interest, during the policyholder’s disability equal to the monthly benefits which Republic would have paid if it had not repudiated the policy. The amount actually awarded will be less than the sum of all future payments because it includes a discount which approximates the earning capacity of Republic’s money. See Pollack v. Pollack, supra, 39 S.W.2d at 858. The trier of fact is required to determine the reasonable rate of interest which is then applied as a discount.

In the instant case, Jaeger sought to recover for a total and continuous disability. Such a disability would entitle him to the maximum recovery under the policy— $300.00 per month for 60 months, a total of $18,000.00. The trial court found that Jae-ger would be totally disabled for at least 60 months. Fifteen of these months had accrued at the time of judgment. Jaeger was thus entitled to recover the full value of the payments covering these months plus interest. The trial court was then required to compute a discounted lump sum representing the remaining unaccrued 45 months. When the trial court found the value of all benefits under the policy to be $18,000.00, it could not have applied the correct measure of damages because the total recovery including the discount would be less than this.

We regard the opinion of the court of civil appeals as being in conflict with Universal Life & Accident Insurance Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405 (1937), and its approval of Pollack v. Pollack, supra. Therefore, under Rule 483, Texas Rules of Civil Procedure, after granting the application for writ of error and without hearing oral argument, the judgment of the court of civil appeals is reversed and the cause remanded to the district court in order that damages may be awarded in accordance with this opinion.

Motion for rehearing is overruled.


text:
    Truman O’NEIL, Individually and d/b/a Mesa Mack Sales, Petitioner, v. MACK TRUCKS, INC., and Mack Financial Corporation, Respondents.
    No. B-5869.
    Supreme Court of Texas.
    March 9, 1977.
    Clark, Thomas, Winters & Shapiro, Barry K. Bishop and Donald S. Thomas, Jr., Austin, W. Dean Hester, El Paso, for petitioner.
    Stubbeman, McRae, Sealy, Laughlin & Browder, Harrell Feldt and David K. Brooks, Midland, for respondent.
   PER CURIAM.

It has been called to our attention by Motion to Recall Mandate filed by Mack Trucks, Inc., and Mack Financial Corporation, Respondents, that the mandate recites that the judgments of the District Court and of the Court of Civil Appeals are reversed, and judgment rendered for Petitioner Truman O’Neil, Individually and d/b/a Mesa Mack Sales.

This recitation is in error; the motion is granted and the mandate is recalled.

As stated in the opinion delivered by this Court on September 29, 1976, the only matter brought forward by Petitioner O’Neil in his application for writ of error was the severed cause involving the award by the trial court of foreclosure of a lien on a 4.09 acre tract of land claimed by O’Neil as his business homestead. As to this severed cause, the Court of Civil Appeals had reversed the judgment of the trial court and remanded the cause. 533 S.W.2d 832. Pursuant to Petitioner O’Neil’s application for writ of error, this Court reversed the judgments of the trial court and of the Court of Civil Appeals in this severed cause and rendered judgment for Petitioner O’Neil. 542 S.W.2d 112.

The judgment of the trial court was otherwise affirmed by the Court of Civil Appeals and this portion of the judgment of the Court of Civil Appeals was not before this Court. There was not, and could not have been, any adjudication by this Court with respect to its validity or effect.

Accordingly, the Motion of Mack Trucks, Inc. and Mack Financial Corporation to recall the mandate issued by this Court under date of November 15,1976 is granted. The mandate will be reissued to correctly reflect the action of this Court pursuant to its opinion delivered September 29, 1976, namely, that of reversing the judgments of the trial court and of the Court of Civil Appeals in the severed cause brought forward by writ of error involving the foreclosure of a lien on a 4.09 acre tract of land claimed by O’Neil as his business homestead. As to this, judgment was rendered for Petitioner O’Neil. In all other respects the judgment of the trial court affirmed by the Court of Civil Appeals is unaffected.


author: REAVLEY, Justice. McGEE, Justice. JOHNSON, Justice.

text:
    TEXARKANA MEMORIAL HOSPITAL, INC. d/b/a Wadley Hospital, Relator, v. Honorable Guy JONES, Judge, et al., Respondents.
    No. B-6279.
    Supreme Court of Texas.
    April 20, 1977.
    Rehearing Denied May 18, 1977.
    Atchley, Russell, Waldrop & Hlavinka, Victor F. Hlavinka, Texarkana, for relator.
    Bader, Wilson, Menaker, Cox & Branson, Frank L. Branson, Dallas, Kronzer, Abraham & Watkins, W. James Kronzer and James Edward Robinson, Houston, for respondents.
   REAVLEY, Justice.

Texarkana Memorial Hospital seeks a writ of mandamus to compel Honorable Guy Jones, Judge of the 202nd Judicial District, to withdraw his discovery order which requires the Hospital to produce the minutes of meetings of various Hospital groups. The question presented is the applicability and scope of Article 4447d, section 3, Vernon’s Ann.Civ.St. Hospital asserts that this statute precludes discovery of all of the meeting minutes which it has been ordered to produce. Elton Tracy Reppond et al., plaintiffs in the suit where the discovery of the records has been ordered, argues that this statutory provision does not apply to documents relevant to the issues of a personal injury or wrongful death suit, or that if the statute is applicable, an exception provided in the statute permits discovery as ordered by the District Judge. We agree with the Hospital.

The Repponds instituted suit against Hospital and two doctors of the Hospital staff for injuries suffered by Elton Wayne Reppond, their infant son. The infant was born several weeks premature and was taken to Hospital where he allegedly was rendered blind due to prolonged overdoses of oxygen. The Repponds, pursuant to Rule 167, Texas Rules of Civil Procedure, sought discovery of the following items:

“I. The minutes of all Pediatric Section Meetings from;
(a) January 1, 1971 to August 10, 1973;
(b) August 10, 1973 to July 30, 1975;
(c) July 30, 1975 to present time.
“II. The minutes of any- other section meeting in which discussions occurred relative to blindness caused by excessive oxygen, the blood gas machine, or pertaining to drawing blood from patients in the nursery.
“HI. The minutes of any other Pediatric Section meetings in which discussion occurred relative to the events which transpired during the treatment of Elton Wayne Reppond.
“IV. The minutes from the meetings of the General Medical Staff from:
(a) January 1, 1971 to August 10, 1973;
(b) August 10, 1973 to July 30, 1975;
(c) July 30, 1975 to present time.
“V. The minutes of the Board of Directors meetings concerning the purchase of equipment and facilities in the nursery.”

The trial court, after a hearing and in-camera inspection of the materials, found that the items were records made by the medical staff of Hospital in accordance with hospital policy and were records maintained in the regular course of business. The trial court also found that Art. 4447d § 3 did not make the items privileged so as to preclude discovery. In conclusion the trial court stated that it was of “the opinion that in the case at bar such items are not protected from discovery and that the need for the production of said items, documents and things is of sufficient gravity and concern so as to justify a determination by the appellate court as to their discoverability.

Article 4447d, § 3 (Acts 1969, 61 St.Leg., p. 1719, ch. 568) provides as follows:

Sec. 3. The records and proceedings of any hospital committee, medical organization committee or extended care facility committee established under state or federal law or regulations or under the bylaws, rules or regulations of such organization or institution shall be confidential and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee and shall not be public records and shall not be available for court subpoena; provided, however, that nothing herein shall apply to records made or maintained in the regular course of business by a hospital or extended care facility. No physician, hospital, organization, or institution furnishing information, data, reports, or records to any such committee with respect to any patient examined or treated by such physician or confined in such hospital or institution shall, by reason of furnishing such information, be liable in damages to any person. No member of such a committee shall be liable in damages to any person for any action taken or recommendation made within the scope of the functions of such committee if such committee member acts without malice and in the reasonable belief that such action or recommendation is warranted by the facts known to him.

The Repponds argue that this 1969 enactment of the Legislature should be given a construction limited by the purpose of the statute which it amended. Article 4447d is entitled “Providing State Department of Health with Data on Condition and Treatment of Persons.” Sec. 1 of that statute authorizes the release of information on the condition and treatment of patients to the State Department and other medical organizations for use in the study of diseases or for identification of persons needing immunization. It protects those persons providing this information from common law liability for unauthorized disclosure of information pertaining to the patients. Sec. 2 of the statute requires the organizations receiving the information to publish it only for the purpose of advancing medical research or education, and the identity of any person whose condition or treatment has been studied is to be confidential except for the purpose of identifying those persons who may be in need of immunization. It follows, according to the argument of the Repponds, that the restriction of Sec. 3 was intended by the Legislature to serve only a very limited purpose: the Legislature intended to exempt medical organizations from liability to the individual patient about whom information is collected while those organizations are engaged in medical research and education. For purposes of research and education the medical organizations are free to use the information and may not be forced to disclose it in a manner that would be objectionable to the individual patient. The Repponds conclude that there is no prohibition in this statute against a patient discovering information from the staff and committee deliberations which might be relevant to his grievances against the medical facility or its staff.

We do not read the provisions of the 1969 amendment (Sec. 8) as being applicable only to the manner and purpose of dissemination of information among medical organizations. The purposes of medical research and education, and the improvement of medical treatment, in any particular hospital or medical care facility is served by the free and uninhibited discussion of all events and experiences within the hospital or facility. The Legislature by this amendment must have intended to protect and encourage open and thorough review and investigation by making the records and proceedings of any such committee confidential and by expressly providing that they “shall not be available for court subpoena.”

The Repponds also contend that the documents sought to be discovered come within the exception of Sec. 3 which allows discovery of “records made or maintained in the regular course of business.” It is undisputed that the minutes of standing committees, clinical sections, general staff, and Board of Directors of Hospital are kept by the custodian of Hospital’s records in the same manner as all other records. This construction asserted by the Repponds would have the Legislature specifically forbidding discovery of committee proceedings and then allowing their discovery because these minutes are kept with other records of the Hospital. It is not necessary to construe the enactment of the Legislature to be self-defeating. The clinical charts and other records made or kept for the individual patient can be easily distinguished from the minutes of Hospital committees.

We see it to be our responsibility to apply this statute exactly as the Legislature has written it. If the “records and proceedings of any hospital committee” are confidential and beyond the reach of court subpoena, then the deliberations of every group of persons constituted by the rules and bylaws of the hospital in its service is placed behind the veil. This includes the clinical departments, the standing committees, the general medical staff, and the Board of Directors. The proviso which permits discovery of “records made or maintained in the regular course of business” applies to the records kept in connection with the treatment of the individual patients as well as the business and administrative files and papers apart from committee deliberations. Hood v. Phillips, 537 S.W.2d 291 (Tex.Civ.App.1976, writ granted); Karp v. Cooley, 493 F.2d 408 (5th Cir. 1974); Hall, Hospital Committee Proceedings and Reports: Their Legal Status, 1 American Journal of Law and Medicine, 245, 274 (1975). The writing to the contrary in French v. Brodsky, 521 S.W.2d 670, 676 (Tex.Civ.App.1975, writ ref’d n. r. e.) is disapproved.

Nothing that is said in the statute or in this opinion would prevent the proof or discovery of matters otherwise permitted over the objection that such evidence has been previously presented to the Hospital committee. The presentation of evidence or opinion to a Hospital committee during its deliberations does not thereby make that evidence or opinion privileged if offered or proved by means apart from the record of the committee. The effect of the statute is simply to prevent the discovery and use of the records and proceedings of the committee.

We therefore hold that the statute prevents discovery of all of the items within the order of the trial court. The order must therefore be withdrawn. No writ need be issued unless the trial court fails to comply with this order.

McGEE and JOHNSON dissent with opinions.

DISSENTING OPINION

McGEE, Justice.

I respectfully dissent.

The primary question presented in this case is the applicability and scope of Texas Revised Civil Statutes Annotated article 4447d, section 3, in precluding discovery of records kept by hospital organizations. Texarkana Memorial Hospital (Hospital) asserts that article 4447d, section 3, precludes discovery of such materials. Reppond, the plaintiff who is seeking the records, argues that section 3 is inapplicable in this situation or that if section 3 is applicable, the materials fall within an exception provided in section 3 and are discoverable. I would hold that article 4447d, section 3, precludes discovery of any records or minutes kept by hospital review organizations and precludes the discovery of any review organization reports or discussion of these reports appearing in any of the hospital records. I would hold, however, that the organizations from which the minutes are sought in this case are not review organizations.

The determination of what materials sought to be produced are discoverable requires a determination of what hospital organizations were included in the words “any hospital committee” as contained in article 4447d. I am aware that Webster’s New International Dictionary, (2d ed.), defines committee as “a body of persons appointed or elected to consider, investigate, or take action upon, and usually to report concerning some matter of business, as by a court, legislative body or a number of persons.” I do not believe the Texas Legislature intended to give relief from discovery to every hospital organization that could fit within the definition of a committee.

The limited judicial construction of section 3 is conflicting. In Karp v. Cooley, 493 F.2d 408 (5th Cir. 1974), cert. denied, 419 U.S. 845, 95 S.Ct. 79, 42 L.Ed.2d 73 (1975), the fifth circuit held that the reports and documents of a Baylor University College Investigating Committee were protected from court subpoena by section 3. The court stated that section 3 “protects from subpoena ‘the records and proceedings’ of any medical organization.” 493 F.2d at 425. Two Texas courts of civil appeals have reviewed section 3 with conflicting results. In French v. Brodsky, 521 S.W.2d 670 (Tex.Civ.App. — Houston [1st Dist.] 1975, writ ref’d n. r. e.), the court held that the records of the advisory board of a hospital were discoverable. The court stated that “the provisions of that statute, when read in their entirety, show that the purpose of the legislation is to restrict unauthorized use of data pertaining to patients examined or treated by physicians, hospitals or other institutions or organizations covered by the Act.” 521 S.W.2d at 676. It is important to note that in French the court also relied on the fact that the custodian of the hospital records made no assertion of a privilege under article 4447d, section 3. In Hood v. Phillips, 537 S.W.2d 291 (Tex.Civ.App.— Beaumont 1976, writ granted), the court held that records possessed by a doctor of earlier surgeries on other patients and records of the Board of Censors of the Harris County Medical Society were protected by article 4447d, section 3. The court stated that the evidence requested was not available, quoting article 4447d, section 3, and citing Karp v. Cooley, 537 S.W.2d at 295. The present case is distinguishable from these cases, and I do not consider them to be controlling of our question.

The legislative history of section 3 indicates what the Legislature intended by “any hospital committee.” A bill analysis prepared by the sponsor of section 3 accompanied the section when it was passed by the Texas Legislature. The bill analysis states in pertinent part:

“Background:
At present, records kept by governing boards of hospitals in establishing admission to practice in such hospitals and insuring adequate staff organization to review professional practices not be [sic] kept since they are subject to subpoena by courts.
“Purpose of the Bill:
The purpose of this Bill is to make records of hospital review committees immune from court subpoena.
“Section by Section Analysis:
Section 1: This section amends Chapter 372, Acts of the 58th Legislature, Regular Session, 1963, by adding a new Section 3 which relates:
Section 3: This section provides that records kept by hospital review boards on evaluating the adequacy of their staff and its professional practices shall be kept confidential and immune from court subpoena.” [Emphasis added].

I consider the language of the statute controlling and use the bill analysis only to assist in determining the legislative intent.

Careful reading of section 3 and the bill analysis discloses that the legislative intent in passing section 3 was two-pronged. First, the Legislature sought to encourage hospitals to keep detailed records of individuals admitted to practice in hospitals and records insuring adequate staff organization for review of practices by individuals on the hospital staff. Second, the Legislature sought to encourage and protect the free exchange of ideas and opinions in the organizations responsible for review of the staff and its professional practices. Considering the purposes sought to be promoted by the Legislature in passing section 3,1 would hold that the Legislature intended “any hospital committee” to apply to any hospital organization established exclusively for purposes of review. The minutes and reports of these review organizations and discussions of their reports are protected from discovery even if the reports or records are located in the minutes of other hospital organizations.

Records and minutes were sought from several different organizations of Hospital. It is necessary to review the responsibilities of the different inner-hospital organizations to determine what organizations were established exclusively for review purposes. Examination of the by-laws, rules and regulations of Hospital reveals that Hospital is organized into several different divisions with specific, if somewhat overlapping, responsibilities. Two of the most important divisions are the “clinical departments” or sections and the standing committees. The clinical departments are composed of general medicine, general surgery, obstetrics, gynecology, pediatrics and psychiatry. The clinical departments or sections are not review organizations but are divisions in Hospital’s staff based on doctors’ specialties or fields of expertise. The standing committees, however, are organized not by areas of study or expertise but are organized according to areas of hospital problems or review which span the entire spectrum of medical practice in Hospital. These committees consist of the executive-credentials committees, joint conference committee, medical records-tissue audit committee, emergency room committee, infection committee, sterilization committee, nominating committee, pharmacy-library-supply committee and utilization committee. The composition of each committee is too voluminous to detail but the committees are comprised of members of different clinical departments to insure staff-wide consideration of each problem area in Hospital. These standing committees are charged with the review of other staff members, their professional practices and review of various problems encountered in all aspects of providing health care. The standing committees are the type of review organizations given protection by article 4447d, section 3; therefore, the records and proceedings of these committees should not be discoverable.

Discovery of the minutes of the general staff meetings was also sought. The general medical staff of Hospital consists of all the member-doctors of the active medical staff. In the meetings of the general medical staff ordinary business matters are discussed but reports of standing and special committees are also given, as well as a hospital analysis, review of problems relating to the care of particular patients, problems referred from clinical sections, and discussions and improvements of professional practices. The minutes of the general medical staff should be discoverable because it is not an organization established exclusively for review of hospital problems. Discovery of all the minutes of the general staff meetings would frustrate the previously announced legislative intent of keeping proceedings of review organizations secure from court subpoena. Reports of any hospital organization established exclusively for review given in the meetings of the general staff should not be subject to discovery. The discussions of problems directly engendered by these reports should also not be discoverable.

The trial court allowed discovery of the records of the Board of Directors of Hospital, as they pertain to the purchase of equipment and facilities in the nursery. The function of the Board of Directors is to establish the business policies of Hospital. The only review function performed by the Board of Directors is when the Board reviews the removal of a doctor’s privileges at Hospital. The Board’s review is of the determination by a standing committee that a doctor’s privileges should be removed. The records or minutes of the Board pertaining to this review function would be protected because this would be a discussion engendered by the report of a standing review organization. Here the minutes sought of the Board of Directors should be discoverable if the discussion concerning the purchase of equipment for the nursery does not arise from a report or recommendation made to the Board by a review organization.

The Repponds urge this court to construe article 4447d as a whole and allow very broad discovery of hospital materials. They contend that the statute applies only to restrict the unauthorized use of data pertaining to patients treated in organizations covered by the Act. French v. Brodsky, 521 S.W.2d 670, 676 (Tex.Civ.App. — Houston [1st Dist.] 1975, writ ref’d n. r. e.). Like the majority, I cannot ignore the language of section 3 which states that the records of any hospital committee “shall not be available for court subpoena. . . .”

The Repponds also contend that broad discovery should be allowed because materials sought to be discovered would come within the exception of section 3 which allows discovery of “records made or maintained in the regular course of business.” It is undisputed that the minutes of standing committees are kept in Hospital by the custodian of Hospital’s records in the same manner as all other records. I agree that it would violate our prior interpretation of the legislative intent to hold that minutes and records of review organizations are records “made or maintained in the regular course of business.” The construction asserted by the Repponds would have the Legislature, in the same sentence, specifically forbidding discovery of organization records then allowing their discovery because the records are kept by Hospital. I agree that the records of review organizations are not the kinds of records covered by the exclusion.

Hospital has argued that the materials sought to be discovered are minutes of committees organized under the by-laws, rules and regulations of Hospital and are protected from discovery by article 4447d, section 8. Prior discussion has disclosed that the organizations from which the minutes are sought are not organizations established exclusively for review but are clinical sections or administrative bodies of Hospital performing various other functions. Article 4447d, section 3, applies to organizations performing functions in addition to review only in situations where reports of review organizations are given and discussed in the meetings of these multi-purpose organizations.

I recognize that construction and application of the article in question involves important policy considerations urged by both Hospital and the Repponds. The minutes of any group organized exclusively for reviewing problems in the hospital should be protected, thereby insuring the free exchange of ideas. I believe the minutes of the meetings of the various clinical sections and the general staff should be discoverable with the exception of review organization reports and discussions of those reports. This would allow the discovery of material which would otherwise be unavailable. This approach would allow the free exchange of ideas so as to promote better health care facilities but not prevent plaintiffs from being able to establish a cause of action.

Specifically, I would allow discovery of the minutes of the pediatrics section meetings and the minutes of other clinical sections because none of the clinical sections are organizations established exclusively for review. (Item I, II and III). I would also hold that the minutes from the meetings of the general staff and the Board of Directors are discoverable because neither exclusively performs review functions. (Items IV and V). There are hospital organizations whose exclusive function is that of review. Reports or discussions of reports or problems presented by these review organizations in meetings of the clinical sections, general staff, or Board of Directors meetings should be protected from discovery. This would allow hospital-wide input into the problems reported by review organizations without fear of the discussions being subpoenaed by a court.

In conclusion, I agree with the majority that the trial court should be ordered to prohibit from discovery the minutes and reports of any hospital organization charged exclusively with the function of review. This prohibition should also extend to minutes of other hospital organizations only in the sense that reports of review organizations are given and discussed. However, I would hold and order that the trial judge permit the discovery of any records and minutes of hospital agencies or boards which did not exclusively perform review functions.

DISSENTING OPINION

JOHNSON, Justice.

This dissent is respectfully submitted.

The statute in controversy, Article 4447d, Texas Revised Civil Statutes Annotated, contains three sections. The Article, in full, provides as follows:

“Section 1. Any person, hospital, sanito-rium, nursing or rest home, medical society, cancer registry, or other organization may provide information, interviews, reports, statements, memoranda, or other data relating to the condition and treatment of any person to the State Department of Health, persons or organizations making inquiries pursuant to immunization surveys conducted under the auspices of the State Department of Health, medical organizations, hospitals and hospital committees, to be used in the course of any study for the purpose of reducing morbidity or mortality, or for the purpose of identifying persons who may be in need of immunization, and no liability of any kind or character for damages or other relief shall arise or be enforced against any person or organization 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.
“See. 2. The State Department of Health, medical organizations, hospitals and hospital committees 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. The identity of any person whose condition or treatment has been studied shall be confidential and shall not be revealed under any circumstances except in the case of immunization surveys conducted under the auspices of the State Department of Health for the purpose of identifying persons who may be in need of immunization. With the exception of immunization information, all information, interviews, reports, statements, memoranda, or other data furnished by reason of this Act and any findings or conclusions resulting from such studies are declared to be privileged.
“Sec. 3. The records and proceedings of any hospital committee, medical organization committee or extended care facility committee established under state or federal law or regulations or under the bylaws, rules or regulations of such organization or institution shall be confidential and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee and shall not be public records and shall not be available for court subpoena; provided, however, that nothing herein shall apply to records made or maintained in the regular course of business by a hospital or extended care facility. No physician, hospital, organization, or institution furnishing information, data, reports, or records to any such committee with respect to any patient examined or treated by such physician or confined in such hospital or institution shall, by reason of furnishing such information, be liable in damages to any person. No member of such a committee shall be liable in damages to any person for any action taken or recommendation made within the scope of the functions of such committee if such committee member acts without malice and in the reasonable belief that such action or recommendation is warranted by the facts known to him.” [Emphasis added.]

As stated in City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273, 278 (1951), “[t]he fundamental rule controlling the construction of a statute is to ascertain the intention of the Legislature expressed therein. That intention should be ascertained from the entire act, and not from isolated portions thereof.”

Viewing Article 4447d as a whole, it is clear that its purpose was to provide for the receipt of medical and health-related information by the State Department of Health and other similar organizations for the purpose of medical research and education in the area of immunization. In order to protect the privacy of those individuals whose medical records were studied, the Legislature declared that the data gathered would remain confidential. Therefore, reading the three sections of Article 4447d together leads to the conclusion that the phrase “records and proceedings . . . shall not be available for court subpoena” contained in Section 3 means that the protected “records and proceedings” are those which relate to the information supplied or gathered under Section 1 and Section 2 of Article 4447d. French v. Brodsky, 521 S.W.2d 670, 676 (Tex.Civ.App. — Houston [1st Dist.] 1975, writ ref’d n.r.e.). Indeed, Section 3, itself, employs the phrase “such information” in an obvious reference to the data supplied pursuant to Section 1 and Section 2.

Thus, this writer would deny discovery only of the “information, interviews, reports, statements, memoranda, or other data furnished by reason of this Act and any findings or conclusions resulting from such studies . . . .” None of the information sought in the instant case appears to fall within this category and, accordingly, the writ of mandamus prohibiting discovery should be denied.