Northern Arizona v. Bickham

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

NORTHERN ARIZONA HEALTHCARE CORPORATION, an Arizona
non-profit corporation, Petitioner,

v.

MATTHEW SHANE BICKHAM, a single male, Respondent.

No. 1 CA-SA 26-0132
FILED 08-13-2026

Petition for Special Action from the Superior Court in Coconino County
No. S0300CV202400608
The Honorable Roberta J. McVickers, Judge Pro Tempore

JURISDICTION ACCEPTED; RELIEF GRANTED IN PART AND
DENIED IN PART

COUNSEL

Broening Oberg Woods & Wilson, P.C., Phoenix
By Jay A. Fradkin, Patrick D. White, Kelley M. Jancaitis
Counsel for Petitioner

Miller, Pitt, Feldman & McAnally, P.C., Phoenix
By Zubin M. Kottoor
Counsel for Respondent

NORTHERN ARIZONA v. BICKHAM
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Daniel J. Kiley delivered the decision of the Court, in which
Judge D. Steven Williams and Judge Cynthia J. Bailey joined.

K I L E Y, Judge:

¶1 Petitioner Northern Arizona Healthcare Corporation
(“NAH”) seeks special action relief from an order compelling the disclosure
of certain documents to Respondent Matthew Shane Bickham. For the
following reasons, we accept jurisdiction, grant relief in part, and deny
relief in part.

FACTS AND PROCEDURAL HISTORY

¶2 In October 2022, Bickham underwent outpatient surgery at
NAH’s facility in Flagstaff. After his discharge, he was injured when he fell
while attempting to move from a wheelchair into a curbside vehicle outside
of the facility. Alleging that he fell because Kelsey Glassberg, the NAH
technician who was helping him out of the wheelchair, unexpectedly
“detached her grip and let go of [him,]” Bickham filed negligence and other
claims against NAH.

¶3 Shortly after the incident, Glassberg prepared a written
account, known as “the Glassberg Report,” that she entered into NAH’s
remote data entry system. At a later deposition, Glassberg testified that she
“limited” her account to “the facts of what occurred[.]” An NAH risk
manager met with Glassberg to take her statement about the incident,
taking notes while asking her questions. NAH risk management personnel
then exchanged emails and other written communications among
themselves. These notes and written communications are known as “the
Additional Materials.”

¶4 Bickham sought disclosure of the Glassberg Report and the
Additional Materials. NAH objected, asserting that the materials were
statutorily privileged. See A.R.S. §§ 36-445.01, -2403; Patient Safety and
Quality Improvement Act of 2005 (“PSQIA”), 42 U.S.C. §§ 299b-21 to 299b-
26. When the parties were unable to resolve their dispute, NAH moved for
a protective order.

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¶5 After full briefing and argument, the court denied NAH’s
motion for a protective order. The court found that the Glassberg Report
and the Additional Materials were not privileged under John C. Lincoln
Hosp. and Health Ctr. v. Superior Court, 159 Ariz. 456 (App. 1989), and further
found that they were not protected by PSQIA because they were created
pursuant to Arizona regulatory requirements. The court therefore ordered
NAH to disclose the Glassberg Report and the Additional Materials.

¶6 NAH seeks relief from the ruling by special action.

DISCUSSION

¶7 Special action jurisdiction is appropriate when there is no
“equally plain, speedy, or adequate” remedy by appeal. Ariz. R.P. Spec.
Act. 12(a). Because NAH lacks an adequate remedy by appeal to challenge
the court’s order compelling the disclosure of documents over its privilege
objection, we accept special action jurisdiction here. Ariz. R.P. Spec. Act.
12(b)(2); see also Sun Health Corp. v. Myers, 205 Ariz. 315, 317, ¶ 2 (App. 2003)
(“Because an appeal offers no adequate remedy for the prior disclosure of
privileged information, special action jurisdiction is proper to determine a
question of privilege.”).

¶8 NAH asserts that the Glassberg Report and the Additional
Materials are privileged under federal and state law.

¶9 “Privilege statutes are strictly construed because they
impede the truth-finding function of the courts.” Azore, LLC v. Bassett, 236
Ariz. 424, 427, ¶ 9 (App. 2014) (citation modified). The party claiming the
privilege bears the burden to “make a prima facie showing that [the
privilege] applies to each contested item.” Naranjo v. Sukenic, 254 Ariz. 467,
476, ¶ 34 (2023) (citation modified). “Upon a prima facie showing of
privilege, the party contesting the privilege must demonstrate a good faith
basis” to believe “that an in camera review would reveal waiver of the
privilege or establish an applicable exception.” Id. (citation modified).
“Whether a privilege exists is largely a question of law, which we therefore
review de novo.” Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 254, ¶ 10
(2003). We likewise review the interpretation of statutes de novo. Huber v.
Ariz. Naturopathic Physicians Med. Bd., 261 Ariz. 43, 47, ¶ 11 (App. 2025).

I. Arizona Statute

¶10 NAH argues, first, that the superior court erred by
determining that the Glassberg Report and the Additional Materials were

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not protected by A.R.S. §§ 36-445 et seq. and 36-2401 et seq. (collectively,
“Arizona’s Privilege Statutes”).

¶11 Section 36-445 requires hospitals and outpatient surgical
centers to “review the professional practices within” the institution to
“reduc[e] morbidity and mortality” and improve “the care of patients[.]”
A.R.S. § 36-445. Section 36-445.01 exempts records and materials prepared
in connection with these mandatory peer reviews from disclosure in civil
litigation. The statutory confidentiality requirement “protects the peer
review process itself—the discussions, exchanges and opinions found in the
committee minutes,” Yuma Reg’l Med. Ctr. v. Superior Court, 175 Ariz. 72, 75
(App. 1993) (citation omitted), to encourage candor in peer review
proceedings. See Humana Hosp. Desert Valley v. Superior Court, 154 Ariz. 396,
400 (App. 1987) (observing that the “confidentiality of peer review
committee proceedings is essential to achieve complete investigation and
review of medical care” because the committees’ “deliberations would
terminate if they were subject to the discovery process”).

¶12 Section 36-2402 requires hospitals and outpatient surgical
centers to conduct “quality assurance activities[,]” including “activities or
proceedings” to “improv[e] the quality of health care” under “a process
adopted by” the institution under “written standards and criteria.” A.R.S.
§§ 36-2401(3), -2402. Section 36-2403(A) provides that “[q]uality assurance
information shall be confidential and is not subject to subpoena or order to
produce” except in licensing, disciplinary, or peer review proceedings.
Under Section 36-2403(E), however, “information that is otherwise
discoverable does not become confidential based solely on its submission
to or consideration by a health care entity conducting confidential quality
assurance activities.”

¶13 In applying Arizona’s Privilege Statutes, we are guided by
our decision in John C. Lincoln Hospital. In that case the plaintiff, who was
admitted to the defendant hospital after a car accident, unexpectedly
experienced organ failure resulting in permanent injury. 159 Ariz. at 457. In
the ensuing lawsuit, the trial court granted the plaintiff’s request to compel
the production of the hospital’s incident report and minutes from certain
trauma/critical care committee meetings that were held during her
hospitalization. Id. at 458. Noting that “[o]ne of the purposes of A.R.S. § 36-
445” is to “free” internal reviews “from the inhibiting concern” that candid
communications would be used against the providers in subsequent
litigation, the John C. Lincoln Hospital court had no trouble finding the
minutes of the committee meetings “within the statutory ambit” and
therefore exempt from disclosure. Id.

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¶14 The Court reached a different conclusion, however, with
respect to the incident report. While “discussions, exchanges and opinions”
relating to peer reviews are statutorily protected from disclosure, the Court
noted, that statutory protection did not extend to “raw factual information”
merely because it “may trigger such discussions, exchanges and opinions.”
Id. The statutory privilege does not, in other words, cloak “otherwise
discoverable factual information” from discovery merely because that
information may be submitted for use in a peer review proceeding.
Id. (citation omitted). Incident reports, the Court observed, are prepared “in
the regular course of providing medical care . . . whenever there is an
unusual occurrence of any kind.” Id. at 459. Although incident reports
“sometimes precipitate peer review,” the Court held, “they do not always
do so,” and “are not made solely for that purpose.” Id. Because the incident
report at issue was not made “solely” in connection with the peer review
process, the John C. Lincoln Hospital court held that the incident report was
not statutorily exempt from discovery. Id. The John C. Lincoln Hospital court
therefore affirmed the trial court’s order compelling disclosure of the
incident report. Id.

¶15 The record shows that the Glassberg Report constitutes an
eyewitness account of Bickham’s fall. The record indicates, and NAH does
not dispute, that the Glassberg Report contains no information other than
Glassberg’s own recollection of her observation of the events. As such, the
Glassberg Report constitutes the type of “raw factual information” that
Arizona’s Privilege Statutes do not exempt from disclosure. See id. The
superior court did not err in determining that Arizona’s Privilege Statutes
do not shield the Glassberg Report from disclosure. See also Yuma Regional,
175 Ariz. at 76 (“[T]he peer review privilege does not protect information
that originated outside the peer review process and that is discoverable
from alternative sources.”).

¶16 The Additional Materials present a more difficult question.
The record does not indicate that the superior court conducted an in camera
review of the Additional Materials, and the record is insufficient to enable
us to determine whether the Additional Materials fall, in whole or in part,
within the protection of Arizona’s Privilege Statutes. Emails and other
communications exchanged by NAH risk personnel are privileged if, for
example, they reveal peer-review deliberations. See Takieh v. O’Meara, 252
Ariz. 51, 59, ¶ 27 (App. 2021) (“[T]he internal workings and deliberative
process of peer-review committees are immune from discovery.” (citation
modified)); see also Yuma Regional, 175 Ariz. at 77 (“[A] plaintiff is not
entitled to engage in a fishing expedition to ascertain what information was

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considered by the peer review committee where such information might
reveal the deliberative process of the participants.”).

¶17 On the other hand, the risk manager’s contemporaneous
notes of her post-incident interview with Glassberg are not privileged to
the extent they reflect factual statements made by Glassberg about the
incident. John C. Lincoln Hospital, 159 Ariz. at 459 (holding that peer-review
privilege did not extend to “raw factual information”); see also Yuma
Regional, 175 Ariz. at 77 (noting that “basic factual information” that “does
not reveal anything about the internal workings or deliberative process of
the peer review proceeding” is “not protected by the peer review
privilege”). The extent to which the Additional Materials include the type
of “raw factual information” that falls outside the scope of Arizona’s
Privilege Statutes is a matter that can only be determined by an in camera
review of the Additional Materials.

II. PSQIA

¶18 NAH next argues that, in any event, the Glassberg Report and
the Additional Materials are privileged under PSQIA. In view of our
holding above, we need only address whether PSQIA protects what
Arizona’s Privilege Statutes do not: the Glassberg Report and any purely
factual information about the incident that is contained within the
Additional Materials.

¶19 PSQIA established “a voluntary, confidential, non-punitive
system of data sharing of health care errors for the purpose of improving
the quality of medical care and patient safety.” Charles v. So. Baptist Hosp. of
Florida, Inc., 209 So.3d 1199, 1204 (Fla. 2017). The act allows healthcare
providers to voluntarily share patient safety information with federally
certified groups known as “patient safety organizations,” which analyze
the data and recommend strategies to improve patient safety. Daley v.
Teruel, 107 N.E.3d 1028, 1031-32 (Ill. App. 2018), citing 42 C.F.R. pt. 3.; see
also Baptist Healthcare System, Inc. v. Kitchen, 727 S.W.3d 362, 367 (Ky. 2025)
(“Under the PSQIA, medical providers may . . . report medical errors to a
patient safety organization, which then uses the collected information in an
endeavor to learn from those errors and thereby improve the safety of
healthcare.”). To encourage healthcare providers to disclose patient safety
information to patient safety organizations without fear that their
disclosures may be used against them in civil litigation, PSQIA provides
confidentiality and privilege protections to “patient safety work product”
(“PSWP”). 42 U.S.C. § 299b-22; see also Kitchen, 727 S.W.3d at 367 (“[T]he
PSQIA privileges [PSWP] from discovery in order to incentivize providers

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to participate in the program.”). PSWP is broadly defined to include “data,
reports, records, memoranda, analyses . . . or oral or written statements”
that are:

(1) “assembled or developed by a [healthcare] provider for
reporting to a patient safety organization” and which are, in
fact, so reported;

(2) “developed by a patient safety organization” for the
purpose of “improv[ing] patient safety, health care quality, or
health care outcomes”; or

(3) “identify or constitute the deliberations or analysis” of a
patient safety evaluation system.

42 U.S.C. § 299b-21(7)(A). “[I]nformation that is collected, maintained, or
developed separately, or exists separately, from a patient safety evaluation
system” is not PSWP and therefore not protected by the privilege. 42 U.S.C.
§ 299b-21(7)(B)(ii); 42 U.S.C. § 299b-22. The term “patient safety evaluation
system” is defined as “the collection, management or analysis of
information for reporting to or by a patient safety organization.” 42 U.S.C.
§ 299b-21(6); see also Daley, 107 N.E.3d at 1037, ¶ 34 (“A provider’s overall
process of collecting [PSWP] in order to report the information to a patient
safety organization is considered a ‘patient safety evaluation system.’”).

¶20 Here, in determining that PSQIA did not protect the
Glassberg Report and the Additional Materials from disclosure, the
superior court found that NAH had an obligation to compile them under
Arizona Administrative Code (“A.A.C.”) §§ R9-10-203(C)(1)(m) and R9-10-
204(B)(1)(a). The former requires hospitals to “establish[], document[], and
implement[]” “[p]olicies and procedures” that, inter alia, “[c]over quality
management, including incident report and supporting documentation.”
A.A.C. § R9-10-203(C)(1)(m). The latter requires hospitals to “establish[],
document[], and implement[] . . . an ongoing quality management
program” that includes a “method to identify, document, and evaluate
[patient safety] incidents[.]” A.A.C. § R9-10-204(B)(1)(a). Because the
Glassberg Report and the purely factual portions of the Additional
Materials constitute documentation of a patient safety incident within the
meaning of those administrative rules, we agree with the superior court
that the Glassberg Report and the purely factual portions of the Additional
Materials fall within the scope of these provisions, and therefore are not
protected by PSQIA. See Kitchen, 727 S.W.3d at 369-70 (holding that PSQIA
did not protect from disclosure incident report of a hospital patient’s fall

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because incident report was created to comply with hospital’s “regulatory
obligation to track incidents at its facility . . . rather than as part of
[hospital’s] patient safety evaluation system”); Charles, 209 So.3d at 1215
(holding that PSQIA did not protect from disclosure adverse incident
reports because “Florida statutes and administrative rules require
providers to create and maintain them,” and thus the reports constituted
“information collected, maintained, or developed separately . . . from a
patient safety evaluation system”); see also HHS Guidance Regarding
Patient Safety Work Product and Providers’ External Obligations, 81 Fed.
Reg. 32655, 32657 (2016) (“[PSQIA] was intended to spur the development
of additional information created through voluntary patient safety activities
and to provide privilege and confidentiality protections for such new
information. It was not intended to protect records generated or maintained
as part of providers’ existing mandatory information collection activities.”
(emphasis in original)).

¶21 In support of its position, NAH cites In re BayCare Med. Group,
Inc., 101 F.4th 1287 (11th Cir. 2024) for the proposition that PSQIA’s
protection extends to information that was created in part for non-PSQIA
related purposes. In BayCare, a doctor who was fired after committing
surgical errors filed an employment discrimination suit against her former
employer, BayCare, and sought disclosure of BayCare’s “internal
documents about the performance of other doctors who were not fired
despite also committing errors.” Id. at 1288. The district court compelled the
disclosure of the documents on the grounds that PSQIA did not apply
because BayCare created the documents not “solely” for the purpose of
reporting to a patient safety organization, but also for “internal safety
analysis and peer review[.]” Id. at 1290. The Eleventh Circuit Court of
Appeals granted relief to BayCare on writ of mandamus, holding that the
fact that BayCare created and used the disputed documents for multiple
quality assurance purposes, and not solely PSQIA-related purposes, did not
take the documents outside the scope of PSQIA’s protection. And, of
particular significance here, the BayCare court expressly noted that the
disputed documents were not used to “satisf[y] state reporting
requirements[,]” nor were they “created or maintained separately to meet
any external obligations[.]” Id. at 1292. The BayCare court’s holding that
information is not outside the scope of PSQIA’s protection merely because
it was created for multiple internal quality assurance purposes provides no
support to NAH’s position here because, unlike the disputed documents in
BayCare, the Glassberg Report and the purely factual portions of the
Additional Materials were created pursuant to an external obligation
imposed by state regulatory requirements. A.A.C. §§ R9-10-203(C)(1)(m),
R9-10-204(B)(1)(a).

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¶22 Because the Glassberg Report is not privileged or confidential
under either Arizona’s Privilege Statutes or PSQIA, we affirm the superior
court’s order compelling its disclosure. Likewise, to the extent that the
Additional Materials contain “raw factual information” about the incident
(such as the risk manager’s notes reflecting Glassberg’s statements about
the incident), such information, too, would fall outside the protection of
Arizona statute and PSQIA. An in camera review of the Additional Materials
will, therefore, be necessary to determine if it contains information that is
subject to disclosure. In all other respects, we grant relief and vacate the
order compelling the disclosure of the Additional Materials other than
purely factual information contained therein.

CONCLUSION

¶23 We accept jurisdiction, grant relief in part, deny relief in part,
and remand for further proceedings consistent with this decision.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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