Soto v. United States Department of Health and Human Services et al

Filing 26

ORDER resolving 21 Joint Motion Regarding Plaintiff's Request for Production of Documents. Court concludes that each of the documents identified in Dft's privilege log are medical quality assurance records that are confidential and privilege pursuant to 25 USC 1675. Pla's request to compel production of the documents is denied. Signed by Magistrate Judge David H. Bartick on 9/22/2014. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MELISSA SOTO,

Civil No.

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Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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13-cv-2359-BAS (DHB)

ORDER RESOLVING JOINT
MOTION REGARDING
PLAINTIFF’S REQUEST FOR
PRODUCTION OF DOCUMENTS
[ECF No. 21]

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On August 28, 2014, the parties filed a joint motion regarding Defendant the

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United States of America’s responses to Plaintiff Melissa Soto’s requests for production

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of documents. (ECF No. 21.) As part of Defendant’s responses to the document

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requests, Defendant produced a privilege log identifying eleven documents as being

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privileged under the quality assurance privilege found in 25 U.S.C. § 1675. Plaintiff

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contends that all, or at least some, of the documents fall outside the scope of the quality

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assurance privilege. The parties have met and conferred in an effort to resolve this

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dispute. However, they have been unable to reach agreement as to whether Defendant

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must produce the documents at issue. Thus, the parties seek the Court’s assistance in

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resolving this dispute. For the reasons set forth below, the Court finds that all of the

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documents listed in Defendant’s privilege log are indeed privileged pursuant to the

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quality assurance privilege set forth in 25 U.S.C. § 1675, and that Defendant is not

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required to produce them.
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I. BACKGROUND

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Plaintiff alleges in her First Amended Complaint (ECF No. 10) that Dr. Rocio D.

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Guzman, D.M.D., committed dental malpractice on February 1, 2012, when he

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negligently severed Plaintiff’s right lingual nerve while performing a surgical extraction

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of two of Plaintiff’s teeth. Plaintiff alleges Dr. Guzman, an employee of the Southern

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Indian Health Council, Inc. (“SIHC”), which is itself deemed part of the Public Health

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Service of the United States Department of Health and Human Services, failed to

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adequately explain to Plaintiff the risks associated with the surgery. Plaintiff further

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alleges that as a result of the severed lingual nerve, she has lost all sensation in the right

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side of her tongue, including her ability to taste.
II. LEGAL STANDARD

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As noted, by withholding the disputed documents, Defendant relies on the quality

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assurance privilege contained in 25 U.S.C. § 1675. This statute defines “medical quality

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assurance program” as:

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any activity carried out before, on, or after the date of enactment of the
Indian Health Care Improvement Reauthorization and Extension Act of
2009 [enacted March 23, 2010] by or for any Indian health program or
urban Indian organization to assess the quality of medical care, including
activities conducted by or on behalf of individuals, Indian health program
or urban Indian organization medical or dental treatment review committees,
or other review bodies responsible for quality assurance, credentials,
infection control, patient safety, patient care assessment (including treatment
procedures, blood, drugs, and therapeutics), medical records, health
resources management review, and identification and prevention of medical
or dental incidents and risks.
25 U.S.C. § 1675(a)(2).

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The statute defines “medical quality assurance record” as “the proceedings,

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records, minutes, and reports that (A) emanate from quality assurance program activities

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described [above]; and (B) are produced or compiled by or for an Indian health program

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or urban Indian organization as part of a medical quality assurance program.” 25 U.S.C.

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§ 1675(a)(3). Medical quality assurance records under the statute are “confidential and

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privileged” and, subject to certain exceptions which the Court finds inapplicable here,

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they “may not be disclosed to any person or entity.” 25 U.S.C. § 1675(b). Further,
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subject to certain exceptions which, again, do not apply here, medical quality assurance

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records cannot “be subject to discovery or admitted into evidence in any judicial or

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administrative proceeding.” 25 U.S.C. § 1675(c)(1).
III. DISCUSSION

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A.

Parties’ Arguments

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As noted above, the parties dispute whether various documents identified in

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Defendant’s privilege log fall within the Quality Assurance privilege. The documents,

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which have been provided to the Court for an in camera review1, consist of emails,

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handwritten notes, information printed from an internet site, and reports.

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Plaintiff first contends that the emails, handwritten reports, and the information

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obtained from the internet do not qualify as privileged under 25 U.S.C. § 1675 because,

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under the doctrine of expression unius est exclusio alterius, it is presumed that “when a

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statute designates certain persons, things, or manners of operation, all omissions should

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be understood as exclusions.” Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 885

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(9th Cir. 2005) (quoting Boudette v. Barnette, 923 F.2d 754, 756-57 (9th Cir. 1991)).

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The statute defines privileged medical quality assurance records as “proceedings, records,

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minutes, and reports.” 25 U.S.C. § 1675(a)(3). According to Plaintiff, this list is

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exclusive and does not identify communications, notes, or information found on an

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internet site as being privileged.

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Plaintiff next contends that the remaining documents, which consist of three

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reports, should not qualify under the quality assurance privilege because it is not clear

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from the privilege log whether the reports “emanate” from medical quality assurance

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program activities as contemplated by the statute or whether one of the three reports even

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involves anyone related to SIHC’s quality assurance program.

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Notwithstanding the statute’s prohibition of disclosure of privileged documents,
in camera review by the Court is appropriate to determine whether the documents are
privileged. See Smith v. United States, 193 F.R.D. 201, 207 (D. Del. 2000) (“[T]here is
27 a long tradition of federal courts conducting an in camera review of potential evidence,
even in the face of a[n] evidentiary privilege asserted by the government.”). In addition,
28 the parties agreed that in camera review is appropriate in this case. (See ECF No. 21 at
5:13-6:8, 11:2-5.)
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Defendant contends that Plaintiff incorrectly argues that the definition of a medical

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quality assurance record necessarily excludes emails, handwritten documents, and

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information obtained from the internet. Rather, Defendant argues, any “record” that

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emanates from quality assurance program activities and is produced or compiled as part

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of a medical quality assurance program is privileged under the statute. Defendant also

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points out that the statute’s definition of a medical quality assurance program consists of

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“any activity . . . to assess the quality of medical care.” 25 U.S.C. § 1675(a)(2) (emphasis

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added). Further, Defendant contends that the declarations of Dr. Guzman and Meghan

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Lenaghan (ECF Nos. 25, 24), SIHC’s quality control coordinator, demonstrate that all of

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the documents listed in Defendant’s privilege log emanated from SIHC’s quality

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assurance program activities and were produced or compiled by SIHC as part of its

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medical quality assurance program.

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B.

Analysis

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Upon review of the lodged documents, the parties’ arguments and the relevant case

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law, the Court concludes that all of the documents in question are privileged medical

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quality assurance records within the meaning of 25 U.S.C. § 1675 and should not be

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produced by Defendant.

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As an initial matter, SIHC is an Indian health program within the meaning of the

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statute. Moreover, it is clearly evident based on the Court’s review of Ms. Lenaghan’s

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declaration and the lodged documents that SIHC carries out a medical quality assurance

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program and that, following Plaintiff’s February 1, 2012 procedure, SIHC’s medical

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quality assurance program assessed the quality of Plaintiff’s dental care for purposes of

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its quality assurance review and to identify and prevent future incidents and risks.

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Moreover, all of the disputed documents emanated from SIHC’s quality assurance

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program activities and were produced or compiled as part of the medical quality

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assurance program. The documents clearly are the types of documents that a medical

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institution would produce and compile to assess its quality of patient care. Moreover, the

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documents all relate to SIHC’s review and assessment of Plaintiff’s visit, the details of
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her procedure, and correspondence involving Ms. Lenaghan, SIHC’s quality control

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coordinator.

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Thus, the only question left unanswered is whether the documents fall within the

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statute’s definition of medical quality assurance records, meaning that they are

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“proceedings, records, minutes, [or] reports.” 28 U.S.C. § 1675(a)(3). The Court finds

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that all of the documents fall within the scope of this definition.

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First, the Court recognizes there are no recorded judicial decisions citing 25 U.S.C.

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§ 1675. Thus, the scope of the statute’s definition of medical quality assurance records

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is an issue of first impression.

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Second, under the plain language of 25 U.S.C. § 1675(a)(3), the three documents

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identified as “reports” in Defendant’s privilege log are medical quality assurance records

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subject to the protection of the quality assurance privilege. The Court’s review of these

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three documents confirms that they are indeed reports entitled to protection.

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Third, with respect to the email communications and the information obtained from

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the internet, the Court finds no basis to interpret “records” as narrowly as Plaintiff

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suggests. Rather, in light of the statute’s policy of encouraging medical institutions to

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improve their level of patient care and make appropriate corrective or preventative

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measures, the Court views the definition of “records” broadly in a manner that

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encompasses the correspondences between the quality assurance staff and the medical

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staff. The Court also interprets the definition to include information obtained to facilitate

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the quality assurance program’s review, whether that information be obtained from the

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internet, as occurred in this case, or some other source.

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The Court’s conclusion is supported by judicial interpretation of a virtually

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identical statute, 10 U.S.C. § 11022, which sets forth a quality assurance privilege related

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The Fifth Circuit has recognized that in enacting 10 U.S.C. § 1102, “Congress
recognized that ‘medical quality assurance programs are the primary mechanism by
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to Department of Defense beneficiaries,’” and that Congress enacted the statute in 1986
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certain limited instances” due to Congress’ “then-current fear [that] ‘release of committee
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to medical care provided to Department of Defense beneficiaries. The quality assurance

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privilege in 10 U.S.C. § 1102 is virtually identical to that contained in 25 U.S.C. § 1675,

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including the definitions of medical quality assurance program and medical quality

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assurance record. Thus, 10 U.S.C. § 1102 provides significantly persuasive authority as

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to the scope of 25 U.S.C. § 1675.

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In Maynard v. United States, 133 F.R.D. 107, 108 (D. N.J. 1990), the court was

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tasked with determining whether certain documents were confidential and privileged

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under 10 U.S.C. § 1102. In that case, where a patient’s parent alleged negligence against

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an army hospital, the court found that a memorandum from a quality assurance

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coordinator to the chief of the nursing department, a report of unusual occurrence, and

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a portion of the minutes of a risk management committee were all medical quality

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assurance reports protected from disclosure.

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McNaughton, 742 F. Supp. 587, 588, 591 (W.D. Okla. 1990), the court found that several

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letters generated as part of an army hospital’s quality assurance review constituted

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confidential and privileged medical quality assurance records under 10 U.S.C. § 1102.

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Just as the Maynard and Cole decisions concluded that communications fall within the

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definition of medical quality assurance records under 10 U.S.C. § 1102, the Court

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concludes that the communications identified in Defendant’s privilege log are medical

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quality assurance records protected under 25 U.S.C. § 1675.

Id. at 108.

Similarly, in Cole v.

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The Court finally addresses a provision in 25 U.S.C. § 1675 that might be

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interpreted, albeit incorrectly, as permitting a medical quality assurance program to

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insulate from discovery documents originating outside the quality assurance program,

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such as a patient’s medical records. That provision, found at 25 U.S.C. § 1675(I), states:

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Nothing in this section shall be construed as limiting access to the
information in a record created and maintained outside a medical quality

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records . . . through discovery in litigation . . . [results in] beneficiaries . . . receiv[ing]
less than the high quality care they deserve.’” In re United States, 864 F.2d 1153, 1154
(5th Cir. 1989) (quoting S. REP. NO. 331 (1986), reprinted in 1986 U.S.C.C.A.N. 6413,
28 6440). These same policies apply to recipients of health care services at Indian health
programs, as contemplated by 25 U.S.C. § 1675.
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assurance program, including a patient’s medical records, on the grounds
that the information was presented during meetings of a review body that
are part of a medical quality assurance program.

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An identical provision, found in 10 U.S.C. § 1102(h), was analyzed in a case

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involving a plaintiffs’ request for information contained in military-wide databases:

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After reviewing the language of this statute, the Court now finds that
§ 1102(h) does not limit the confidentiality and privilege afforded by
§ 1102(a) to information maintained solely within, or originating from, a
quality assurance program. Rather, § 1102(h) provides that information
existing or originating outside of a quality assurance program does not
become confidential and privileged merely by incorporating it into a quality
assurance record. In other words, nothing in § 1102 precludes the disclosure
of a patient’s medical files by a hospital, even if those files have been
incorporated into a medical quality assurance record . . . . Section 1102(h)
merely stands for the proposition that a hospital or other entity may not
insulate a non-privileged, non-confidential document from disclosure by
filtering it through a quality assurance program. This does not mean,
however, that § 1102(h) authorizes the disclosure of a patient’s medical files
from a medical quality assurance record. To the contrary, § 1102(a) renders
such quality assurance records exempt from disclosure. Section 1102(h), on
the other hand, makes clear that an individual is not precluded from
obtaining those files from an outside source (i.e., a source other than the
quality assurance program) simply because they may have been
incorporated into a quality assurance record.

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Dayton Newspapers, Inc. v. Dep’t of the Air Force, 107 F. Supp. 2d 912, 917-18 (S.D.

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Ohio 1999).

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Similarly, the Court finds that Plaintiff is not prevented from obtaining from other

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sources certain documents that are found in SIHC’s quality assurance file. For example,

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Plaintiff is not prevented from obtaining a copy of Dr. Lester Machado’s operative report

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that was attached to Ms. Lenaghan’s April 23, 2010 email to Dr. Guzman. (See ECF No.

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24 at ¶ 14.) While the body of the email is privileged, Plaintiff’s medical records from

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Dr. Machado, an outside source who Plaintiff consulted for treatment following the

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allegedly negligent surgical procedure at SIHC, are not privileged. In addition, Plaintiff

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is not precluded from locating the online information from Drugs.com addressing

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Septocaine. The mere fact that these documents are found in SIHC’s quality assurance

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file does not insulate them from discovery. However, Plaintiff must obtain these outside

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documents from sources other than Defendant because the entirety of SIHC’s quality

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assurance file is privileged under 25 U.S.C. § 1675.
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IV. CONCLUSION

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For the foregoing reasons, the Court concludes that each of the documents

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identified in Defendant’s privilege log are medical quality assurance records that are

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confidential and privileged pursuant to 25 U.S.C. § 1675. Plaintiff’s request to compel

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production of the documents is, therefore, DENIED.

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IT IS SO ORDERED.
DATED: September 22, 2014

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DAVID H. BARTICK
United States Magistrate Judge

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