Gutierrez et al v. Santa Rosa Memorial Hospital et al
Filing
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ORDER DENYING DEFENDANTS' MOTION FOR PROTECTIVE ORDER 41 . (Illston, Susan) (Filed on 3/14/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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CYNTHIA GUTIERREZ, et al.,
Plaintiffs,
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Case No. 16-cv-02645-SI
ORDER DENYING DEFENDANTS'
MOTION FOR PROTECTIVE ORDER
v.
SANTA ROSA MEMORIAL HOSPITAL, et
al.,
Re: Dkt. No. 41
United States District Court
Northern District of California
Defendants.
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Defendants’ motion for a protective order is scheduled for a hearing on March 17, 2017.
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Pursuant to Civil Local Rule 7-1(b), the Court determines that this matter is appropriate for
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resolution without oral argument and VACATES the hearing. For the reasons set forth below, the
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Court DENIES defendants’ motion.
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The first amended complaint alleges claims for violations of the federal Emergency
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Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd, and negligence.
Plaintiffs have noticed the deposition of “the person(s) most knowledgeable re all peer review
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proceedings pertaining to the events regarding CYNTHIA GUTIERREZ involving her care and
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treatment and lack thereof at SANTA ROSA MEMORIAL HOSPITAL.” In conjunction with this
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notice, plaintiffs have also made a request for production of documents seeking writings,
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recordings, and reports that are part of the peer review process.
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Defendant seeks a protective order preventing plaintiff from taking the noticed deposition
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and obtaining the peer review documents on the ground that the discovery is prohibited by the
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privilege set forth in California Evidence Code § 1157. Section 1157 provides that “[n]either the
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proceedings nor the records of organized committees of medical . . . staffs in hospitals . . . having
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the responsibility of evaluation and improvement of the quality of care rendered in the hospital . . .
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shall be subject to discovery.” Pomona Valley Hosp. Med. Ctr. v. Superior Court, 209 Cal. App.
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4th 687, 693-94 (2012) (quoting Cal. Evid. Code § 1157(a)). The peer review privilege (also
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referred to as the self-critical analysis privilege) “embodies the [California] Legislature’s belief
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that external access to peer investigations conducted by staff committees stifles candor and
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inhibits objectivity and that the quality of in-hospital medical practice is improved by insulating
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staff investigations with confidentiality.” Id. (quotations omitted).
Pursuant to Federal Rule of Evidence 501, federal common law generally governs claims
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of privilege. “Where there are federal question claims and pendent state law claims present, the
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federal law of privilege applies.” Agster v. Maricopa County, 422 F.3d 836, 839 (9th Cir. 2005).
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United States District Court
Northern District of California
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In Agster, the Ninth Circuit considered whether an Arizona state peer review privilege prohibited
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the disclosure of a “mortality review” regarding the death of a prisoner. The court noted that “[n]o
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case in this circuit has recognized the [medical peer review] privilege.” The court declined to
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create a federal common law peer review privilege, finding it significant that “Congress has twice
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had occasion and opportunity to consider the privilege and not granted it either explicitly or by
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implication.” Id.; see also Leon v. Cnty. of San Diego, 202 F.R.D. 631, 635-36 (S.D. Cal. 2001)
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(“In the context of other federal question cases, courts have found that section 1157’s absolute bar
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on discovery is in conflict with the more liberal policy of discovery inherent in the Federal
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Rules.”); Love v. Permanente Med. Gp., No. C-12-05679 DMR, 2013 WL 4428806, at *3-4 (N.D.
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Cal. Aug. 15, 2013) (discussing cases addressing peer review privilege and holding that California
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privilege did not apply in case involving federal and state claims).
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Defendant urges the Court to adopt the reasoning of several district courts which have held
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that state peer review privileges barred peer review discovery where the material sought was
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relevant only to state negligence claims and not to EMTALA claims. See, e.g., Bennett v. Kent
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County Mem. Hosp., 623 F. Supp. 2d 246 (D.R.I. 2009); Guzman-Ibarguen v. Sunrise Hosp. &
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Med. Ctr., No. C-10-1228 PMP-GWF, 2011 WL 2149542 (D. Nev. June 1, 2011). However, the
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Court cannot reconcile those decisions with binding Ninth Circuit authority holding that federal
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privilege law applies to both federal and pendent state law claims in cases in which subject matter
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jurisdiction is based on federal question jurisdiction. See Agster, 422 F.3d at 839. Further, based
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upon the present record, the Court cannot conclude that the discovery sought is irrelevant to the
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EMTALA claim.
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Accordingly, the Court DENIES defendant’s motion for a protective order.
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IT IS SO ORDERED.
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Dated: March 14, 2017
______________________________________
SUSAN ILLSTON
United States District Judge
United States District Court
Northern District of California
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