Gutierrez et al v. Santa Rosa Memorial Hospital et al

Filing 44


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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CYNTHIA GUTIERREZ, et al., Plaintiffs, 8 9 10 11 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. 12 13 Defendants’ motion for a protective order is scheduled for a hearing on March 17, 2017. 14 Pursuant to Civil Local Rule 7-1(b), the Court determines that this matter is appropriate for 15 resolution without oral argument and VACATES the hearing. For the reasons set forth below, the 16 Court DENIES defendants’ motion. 17 The first amended complaint alleges claims for violations of the federal Emergency 18 19 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 20 proceedings pertaining to the events regarding CYNTHIA GUTIERREZ involving her care and 21 treatment and lack thereof at SANTA ROSA MEMORIAL HOSPITAL.” In conjunction with this 22 notice, plaintiffs have also made a request for production of documents seeking writings, 23 recordings, and reports that are part of the peer review process. 24 Defendant seeks a protective order preventing plaintiff from taking the noticed deposition 25 and obtaining the peer review documents on the ground that the discovery is prohibited by the 26 privilege set forth in California Evidence Code § 1157. Section 1157 provides that “[n]either the 27 proceedings nor the records of organized committees of medical . . . staffs in hospitals . . . having 28 1 the responsibility of evaluation and improvement of the quality of care rendered in the hospital . . . 2 shall be subject to discovery.” Pomona Valley Hosp. Med. Ctr. v. Superior Court, 209 Cal. App. 3 4th 687, 693-94 (2012) (quoting Cal. Evid. Code § 1157(a)). The peer review privilege (also 4 referred to as the self-critical analysis privilege) “embodies the [California] Legislature’s belief 5 that external access to peer investigations conducted by staff committees stifles candor and 6 inhibits objectivity and that the quality of in-hospital medical practice is improved by insulating 7 staff investigations with confidentiality.” Id. (quotations omitted). Pursuant to Federal Rule of Evidence 501, federal common law generally governs claims 9 of privilege. “Where there are federal question claims and pendent state law claims present, the 10 federal law of privilege applies.” Agster v. Maricopa County, 422 F.3d 836, 839 (9th Cir. 2005). 11 United States District Court Northern District of California 8 In Agster, the Ninth Circuit considered whether an Arizona state peer review privilege prohibited 12 the disclosure of a “mortality review” regarding the death of a prisoner. The court noted that “[n]o 13 case in this circuit has recognized the [medical peer review] privilege.” The court declined to 14 create a federal common law peer review privilege, finding it significant that “Congress has twice 15 had occasion and opportunity to consider the privilege and not granted it either explicitly or by 16 implication.” Id.; see also Leon v. Cnty. of San Diego, 202 F.R.D. 631, 635-36 (S.D. Cal. 2001) 17 (“In the context of other federal question cases, courts have found that section 1157’s absolute bar 18 on discovery is in conflict with the more liberal policy of discovery inherent in the Federal 19 Rules.”); Love v. Permanente Med. Gp., No. C-12-05679 DMR, 2013 WL 4428806, at *3-4 (N.D. 20 Cal. Aug. 15, 2013) (discussing cases addressing peer review privilege and holding that California 21 privilege did not apply in case involving federal and state claims). 22 Defendant urges the Court to adopt the reasoning of several district courts which have held 23 that state peer review privileges barred peer review discovery where the material sought was 24 relevant only to state negligence claims and not to EMTALA claims. See, e.g., Bennett v. Kent 25 County Mem. Hosp., 623 F. Supp. 2d 246 (D.R.I. 2009); Guzman-Ibarguen v. Sunrise Hosp. & 26 Med. Ctr., No. C-10-1228 PMP-GWF, 2011 WL 2149542 (D. Nev. June 1, 2011). However, the 27 Court cannot reconcile those decisions with binding Ninth Circuit authority holding that federal 28 privilege law applies to both federal and pendent state law claims in cases in which subject matter 2 1 jurisdiction is based on federal question jurisdiction. See Agster, 422 F.3d at 839. Further, based 2 upon the present record, the Court cannot conclude that the discovery sought is irrelevant to the 3 EMTALA claim. 4 Accordingly, the Court DENIES defendant’s motion for a protective order. 5 6 IT IS SO ORDERED. 7 8 9 10 Dated: March 14, 2017 ______________________________________ SUSAN ILLSTON United States District Judge United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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