Etter et al v. Bibby et al
Filing
75
ORDER granting in part and denying in part 52 Plaintiffs' Motion to Compel Documents from Defendant Delta County Memorial Hospital District. By Magistrate Judge Craig B. Shaffer on 11/02/2011. (cbslc1)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-00557-JLK-CBS
JOHANNA ETTER, and
ARTHUR ETTER,
Plaintiffs,
v.
CHARLES KING BIBBY, JR., M.D.,
TIMOTHY CARTER MEILNER, M.D., and
DELTA COUNTY MEMORIAL HOSPITAL DISTRICT,
Defendants.
_____________________________________________________________________
MEMORANDUM OPINION AND ORDER
_____________________________________________________________________
Magistrate Judge Craig B. Shaffer
This civil action comes before the court on “Plaintiffs’ Motion to Compel Documents
from Defendant Delta County Memorial Hospital District” (filed June 22, 2011) (Doc. # 52).
Pursuant to the Order of Reference dated August 2, 2011 (Doc. # 64) and the memorandum
dated August 2, 2011 (Doc. # 65), this matter was referred to the Magistrate Judge. The
court has reviewed the Motion, Defendant Delta County Memorial Hospital District’s (“Delta
Hospital”) Response (filed July 20, 2011) (Doc. # 56), Plaintiffs’ Reply (filed August 1, 2011)
(Doc. # 63), the arguments presented at the hearing held on August 29, 2011, the entire case
file, and the applicable law and is sufficiently advised in the premises.
I.
Statement of the Case
Plaintiffs are the parents of Gabrielle Etter, who died on March 23, 2008, as a result of
pneumonia and infection. (See “Stipulated Scheduling and Discovery Order” (Doc. # 37 at 1
of 14)). Two days before her death, on March 21, 2008, Plaintiff Johanna Etter took Gabrielle
1
to the North Folk Medical Clinic in Paonia, Colorado, because she had become quite ill. See
Id. Early on the morning of March 22, 2008, Johanna Etter took Gabrielle to Delta Hospital
emergency room. (See id. at 1-2 of 14). Gabrielle was discharged later the same day. (See
id. at 2 of 14). On March 23, 2008, Gabrielle returned to Delta Hospital, was transferred to
Children’s Hospital in Denver by air flight, and died shortly after arrival. (See id. at 2 of 14).
Plaintiffs assert four claims: negligence against Defendant Dr. Bibby; (2) negligence against
Delta Hospital based on deficient nursing care; (3) violation of the Emergency Medical
Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395(dd), by Delta Hospital; and
(4) negligence against Defendant Dr. Meilner. (See First Amended Complaint (Doc. # 2 at 510 of 11)). This court has subject matter jurisdiction over the Third Claim pursuant to 28
U.S.C. § 1331 based on EMTALA, under which federal law creates a cause of action, and
supplemental jurisdiction over the First, Second, and Fourth Claims pursuant to 28 U.S.C. §
1367.
In their Third Claim for violation of EMTALA, Plaintiffs allege that when Gabrielle was
discharged from the emergency department on March 22, 2008, she had an emergency
medical condition that the Hospital was required to screen for and stabilize before it
discharged her. (See Doc. # 2 at 6 of 11). In Plaintiffs’ First Set of Discovery Requests,
Requests for Production of Documents, Plaintiffs requested that Delta Hospital produce the
following documents:
3. Produce any reports, files or reviews that refer or relate to Gabrielle Etter’s care on
March 22, 2008, including, but not limited to, any quality assurance reports, peer review
reports and morbidity/mortality reports. . .
7. Produce any and all reports or files relating to Dr. Bibby, including, but not limited to,
credentialing files, peer review files, quality assurance reports, morbidity/mortality reports,
hospital privileges, and any reports relating to the deaths of patients under his care.
2
(See Delta Hospital’s “Responses to Plaintiff’s First Set of Discovery Requests” (Exhibit B to
Motion) (Doc. # 52-2) at 7-8 of 9). Delta Hospital objected to Request Nos. 3 and 7. (See
id.). The court has since approved the parties’ stipulated Protective Order and Delta Hospital
has produced documents from Dr. Bibby’s credentialing file. (See Docs. # 47, Exhibit B to
Response (Doc. # 56-2)). Delta Hospital continues to object to the production of the peer
review documents, as privileged pursuant to the Colorado Peer Review Act, C.R.S. §
12-36.5-101, et. seq., and C.R.S. § 12-36.5-104.4(2)(b). (See Response (Doc. # 56)). Delta
Hospital provided copies of the peer review documents in dispute under seal for the court’s in
camera review. (See Docs. # 57, # 58).
II.
Analysis
A.
EMTALA
Plaintiffs assert one claim under EMTALA for failure to “afford the patient an
appropriate screening in order to determine if she had a[n] emergency medical condition” and
for discharging her “without first stabilizing her emergency condition.” (See Doc. # 2 at 8 of
11). Plaintiffs also assert three negligence claims under Colorado law.
“Congress enacted EMTALA in 1986 to address the problem of hospitals ‘dumping,’ or
refusing to treat, emergency room patients who did not have adequate medical insurance or
who could not otherwise pay for medical services.” Zinn v. Valley View Hosp., 2010 WL
301860 (E. D. Okla. 2010) (citing Ingram v. Muskogee Regional Medical Center, 235 F.3d
550, 551 (10th Cir. 2000)). See also Bryant v. John D. Archibold Memorial Hospital, 2006 WL
1517074, at * 2 (M.D. Ga. 2006) (“The act was intended to protect patients by prohibiting
hospitals from engaging in patient dumping, the practice of refusing to examine or treat
3
patients who came into the emergency room of the hospital but might be unable to pay.”)
(internal quotation marks and citation omitted); Moses v. Providence Hospital and Medical
Centers, Inc., 2007 WL 1806376, at * 1 (E.D. Mich. 2007) (“The EMTALA statute was passed
by Congress to address the problem of patient dumping, a practice whereby hospitals either
send a patient in need of medical care to another facility (most often a public hospital) or
simply turn the patient away due to the patient’s inability to pay.”) (internal quotation marks
and citation omitted). “Violations of EMTALA can be redressed under 42 U.S.C. §
1395dd(d)(2)(A), which grants a private right of action to ‘[a]ny individual who suffers
personal harm as a direct result of a participating hospital's violation of a requirement of this
section.’” “EMTALA is not, however, a federal malpractice statute.” Id. (citations omitted).
“A hospital governed by EMTALA is faced with two basic requirements.” Ingram, 235
F.3d at 551. “First, the hospital must provide for an appropriate medical screening . . . to
determine whether or not an emergency medical condition . . . exists.’ ” Id. (quoting 42
U.S.C. § 1395dd(a)). See also Guzman-Ibarguen v. Sunrise Hospital and Medical Center,
2011 WL 2149542, at * 9 (D. Nev. 2011) (“The EMTALA statute imposes two duties on
hospital emergency rooms. The first duty is to screen a patient for an emergency medical
condition, and if an emergency condition is found, the hospital has a duty to stabilize the
patient before transferring him to another medical facility or discharging him.”) (citation
omitted). “A patient who presents at an emergency room for medical assistance must receive
an examination to determine whether the patient suffers from an emergency medical
condition that, without immediate medical attention, could reasonably be expected to place
the patient's health in serious jeopardy or cause serious impairment to bodily functions or
dysfunction of any organ or body part.”). Bennett v. Kent County Memorial Hospital, 623 F.
4
Supp. 2d 246, 250-51 (D. R.I. 2009) (citing 42 U.S.C. § 1395dd(e)) (internal quotation marks
omitted).
“Second, EMTALA also requires that ‘[i]f an individual at a hospital has an emergency
medical condition which has not been stabilized . . ., the hospital may not transfer the
individual unless’ certain conditions are met.” Ingram, 235 F.3d at 551 (quoting 42 U.S.C. §
1395dd(c)(1)). The stabilization requirement of EMTALA provides in relevant part:
If any individual (whether or not eligible for benefits under this subchapter)
comes to a hospital and the hospital determines that the individual has an
emergency medical condition, the hospital must provide either -(A) within the staff and facilities available at the hospital, for such further
medical examination and such treatment as may be required to stabilize the
medical condition, or
(B) for transfer of the individual to another medical facility in accordance with
subsection (c).
42 U.S.C. § 1395dd(b)(1). EMTALA defines transfer in relevant part as: “the movement
(including the discharge) of an individual outside a hospital's facilities at the direction of any
person employed by (or affiliated or associated, directly or indirectly, with) the hospital.” 42
U.S.C. § 1395dd(e)(4). “Subsection (c) delineates the standards for making an appropriate
transfer and sets forth procedures for transferring patients who are not stabilized.” Ingram,
235 F.3d at 551 (quoting 42 U.S.C. § 1395dd(c)).
The Tenth Circuit has interpreted the phrase “appropriate medical screening” in the
context of an EMTALA claim under section 1395dd(a) as “hospital-specific, varying with the
specific circumstances of each provider,” rejecting an interpretation that would impose a
uniform or national standard to medical screening of emergency room patients. Zinn, 2010
WL 301860, at * 3 (citing Repp v. Anadarko Municipal Hospital, 43 F.3d 519, 522 (10th Cir.
1994)). “We believe that a hospital defines which procedures are within its capabilities when
it establishes a standard screening policy for patients entering the emergency room. . . Thus,
5
a hospital violates section 1395dd(a) when it does not follow its own standard procedures.”
Repp, 43 F.3d at 522. “Consequently, when evaluating an EMTALA claim under subsection
1395dd(a), the relevant inquiry is not whether the emergency room procedures were
adequate, but only whether the hospital adhered to its own procedures.” Repp, 43 F.3d at
522 (internal quotation marks and citation omitted). “A court should ask only whether the
hospital adhered to its own procedures, not whether the procedures were adequate if
followed.” Repp, 43 F.3d at 522 n. 4. See also Moses, 2007 WL 1806376, at * 1 (“[T]he
measure is not the outcome of the examination, but whether or not the examination
performed was considered standard procedure by the hospital.”).
“Courts which have addressed the issue of what constitutes appropriate treatment of
an emergency room patient agree that [a] hospital fulfills its statutory duty to screen patients
in its emergency room if it provides for a screening examination reasonably calculated to
identify critical medical conditions that may be afflicting symptomatic patients and provides
that level of screening uniformly to all those who present substantially similar complaints.”
Bennett, 623 F. Supp. 2d at 251 (internal quotation marks and citation omitted). “The essence
of an EMTALA claim is that the plaintiff-patient is treated differently from the way other
similarly situated patients are treated.” Bennett, 623 F. Supp. 2d at 251 (citation omitted).
“[I]n order to succeed on an EMTALA claim against a hospital for failure to provide an
appropriate medical screening, a plaintiff must show that the hospital in question treated him
or her differently than other patients with similar conditions.” Bryant, 2006 WL 1517074, at *
2 (citation omitted).
B.
Colorado’s Peer Review Privilege
The Colorado Medical Board (CMB) is charged by the Colorado Professional Review
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Act (CPRA), C.R.S. §§ 12-36.5-101 to -203, with protecting “the people of this state from . . .
unprofessional conduct by persons licensed to practice medicine. . . .” C.R.S. § 12-36.5-101.
Colorado’s General Assembly authorized the CMB to utilize and allow professional review
committees to assist it in meeting its responsibilities. C.R.S. § 12-36.5-103(1). A
professional review committee, the majority of whom must be licensed physicians, may be
established by a licensed hospital to review and evaluate the quality and appropriateness of
patient care provided by any licensed physician. C.R.S. §§ 12-36.5.104(1), (2) and (4)(a). In
enacting the CPRA, the General Assembly’s stated goals were to encourage physicians to
engage in peer review and to provide immunity to the physicians that provide their services
so that they may “exercise their professional knowledge” and judgment without undue fear of
litigation. C.R.S. §§ 12-36.5-103(2), 12-36.5-103(3)(b). As part of the CPRA the Colorado
General Assembly created a statutory privilege to ensure that peer review records would not
be discoverable. See C.R.S. §12-36.5-104(10) (“The records of a professional review
committee, a governing board, or the committee on anticompetitive conduct shall not be
subject to subpoena or discovery and shall not be admissible in any civil suit brought against
a physician who is the subject of such records.”).
As required by its Medical Staff Bylaws and Medical Staff Rules and Regulations,
Delta Hospital created clinical service committees to evaluate the quality and appropriateness
of its physicians’ care. (See Affidavit of Jeanine Finnell, Exhibit C to Response (Doc. # 563)). As a physician practicing in the Emergency Department, Dr. Bibby is evaluated by the
Delta Hospital Emergency/Trauma Review Committee (ETSC). (See id.). The ETSC
members identify cases for review and appoint an emergency service physician other than
the physician involved in the care to review the case and report back to the ETSC. (See id.).
Based on the report, the ETSC reaches a conclusion regarding the quality and
7
appropriateness of the care, makes a recommendation and develops an action plan for
implementing the recommendation. (See id.). Plaintiffs seek production of the ETSC’s peer
reviews of Dr. Bibby.
C.
Production of Peer Review Materials
“Discovery in federal courts is generally governed by the Federal Rules of Civil
Procedure regardless of whether federal jurisdiction is based on a federal question or
diversity of citizenship.” Moses, 2007 WL 1806376, at * 2 (citing Atteberry v. Longmont
United Hosp., 221 F.R.D. 644 (D. Colo. 2004); Everitt v. Brezzel, 750 F. Supp. 1063, 1065
(D. Colo. 1990). Fed. R. Civ. P 26(b)(1) broadly defines the scope of evidence that is subject
to discovery.
Unless otherwise limited by court order, the scope of discovery is as follows:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense – including the existence, description,
nature, custody, condition, and location of any documents or other tangible
things and the identity and location of persons who know of any discoverable
matter. For good cause, the court may order discovery of any matter relevant to
the subject matter involved in the action. Relevant information need not be
admissible at the trial if the discovery appears reasonably calculated to lead to
the discovery of admissible evidence.
Fed. R. Civ. P 26(b)(1) (emphasis added). Therefore, in order for information to be subject to
discovery at all, it must be relevant or reasonably calculated to lead to relevant, admissible
evidence.
“Where federal law provides the governing substantive law in a lawsuit, the federal
common law of privileges will govern.” Moses, 2007 WL 1806376, at * 2 (internal quotation
marks and citation omitted). Rule 501 of the Federal Rules of Evidence provides that federal
privilege law controls in cases proceeding under federal question jurisdiction.
Except as otherwise required by the Constitution of the United States or
8
provided by Act of Congress or in rules prescribed by the Supreme Court
pursuant to statutory authority, the privilege of a witness, person, government,
State, or political subdivision thereof shall be governed by the principles of the
common law as they may be interpreted by the courts of the United States in
the light of reason and experience. However, in civil actions and proceedings,
with respect to an element of a claim or defense as to which State law supplies
the rule of decision, the privilege of a witness, person, government, State or
political subdivision thereof, shall be determined in accordance with State law.
Fed. R. Evid. 501.
Here, federal law provides the rule of decision for the EMTALA claim but not the state
law negligence claims. Plaintiffs argue that Delta Hospital’s objection to production of the
peer review documents is contrary to the federal law governing privileges, which applies
when a plaintiff asserts a federal claim, as there is no applicable federal statutory or common
law privilege to the requests at issue. Delta Hospital argues that the peer review documents
are irrelevant to the EMTALA claim, the only federal claim in the case, and therefore federal
law requires recognition of the state law privilege established in C.R.S. § 12-36.5-101 et seq.
and 12-36.5-104.4(2)(b). The court perceives two issues regarding whether the peer review
documents must be produced: (1) are they relevant to the subject matter, and (2) are they
otherwise privileged?
1.
Relevance
“[T]he key requirement of a hospital's duty under § 1359dd(a) [sic] is that a hospital
apply its standard of screening uniformly to all emergency room patients, regardless of
whether they are insured or can pay.“ Gonzalez v. Choudary, 2009 WL 1025543, at * 3
(D.N.J. 2009) (internal quotation marks and citations omitted). “A plaintiff must therefore
present evidence that the hospital treated the plaintiff differently than any other patient who
came to the emergency department with similar injuries and symptoms.” Gonzalez, 2009 WL
9
1025543, at * 3. “In meeting this burden, a plaintiff may “look to sources other than the
express standard policies of [the hospital] in attempting to show that the screening [the
hospital] gave . . . was different than the screening it would have offered to other patients.”
Gonzalez, 2009 WL 1025543, at * 3. “Since a relevant inquiry to Plaintiff's EMTALA claim is
whether Plaintiff was screened differently than other patients, . . . a discovery request seeking
medical records of patients presenting to the emergency department with similar injuries and
symptoms” may be appropriate under Fed. R. Civ. P. 26(b)(1). Gonzalez, 2009 WL 1025543,
at * 3 (citing Southard v. United Reg'l Health Care Sys., Inc., 245 F.R.D. 257, 260 (N.D. Tex.
2007) (“Necessarily, a comparison must be made between or among the symptoms
presented by [the patient], the tests run and the diagnoses made as compared to other
patients. . . .)).
2.
Privilege
Rule 501 is not clearly instructive whether the federal courts should apply state law
privileges when a single lawsuit presents claims arising under both federal and state law.
The Advisory Committee’s comments to Rule 501 provide that “federal law should not
supersede that of the States in substantive areas such as privilege absent a compelling
reason. The Committee believes that in civil cases in the federal courts where an element of
a claim or defense is not grounded upon a federal question, there is no federal interest strong
enough to justify departure from State policy.”
“The Supreme Court has acknowledged that ‘there is disagreement concerning the
proper rule in cases . . . in which both federal and state claims are asserted in federal court
and relevant evidence would be privileged under state law but not under federal law,’ but it
declined to decide the issue because it had not been raised and was not necessary for the
10
resolution of the case.” Bennett, 623 F. Supp. 2d at 251 (quoting Jaffee v. Redmond, 518
U.S. 1, 17 n. 15 (1996)). See also Guzman v. Mem. Hermann Hosp. Sys., 2009 WL 427268
at *3 (S.D. Tex. Feb. 20, 2009) (acknowledging that issue of what privilege law should apply
in federal question cases with supplemental state law claims remains unresolved).
“Neither the United States Supreme Court nor the Tenth Circuit Court of Appeals has
recognized a medical peer review or medical risk management privilege under federal
common law.” Atteberry, 221 F.R.D. at 647 (citation omitted). See also Jenkins v. DeKalb
County, Georgia, 242 F.R.D. 652, 655 (N.D. Ga. 2007) (“The Supreme Court has never
recognized a federal medical peer review privilege and there are no circuit court cases
recognizing such a privilege.”). Nor has Congress created a federal privilege for peer review
materials. The Health Care Quality Improvement Act of 1986 (“HCQIA”), 42 U.S.C. § 11101,
et seq., provided qualified immunity from suit to officials who conduct peer reviews, but did
not protect documents created in the peer review process. See Atteberry, 221 F.R.D. at 648
(noting that “[a]lthough presented with the opportunity to do so when enacting the federal
Health Care Quality Improvement Act, the Congress failed to create an analogous federal
privilege”). See also Singh v. Pocono Medical Center, 2010 WL 2521039, at * 3-4 (M.D. Pa.
2010) (“Although Congress has had two occasions to consider whether to extend the peer
review privilege to materials produced by medical peer reviews: once in 1986, when the
HCQIA was enacted, and again in 1987 when the statute was amended, Congress declined
to do so on both occasions.”). Nevertheless, “all fifty states and the District of Columbia have
recognized some form of medical peer review privilege.” Virmani v. Novant Health Inc., 259
F.3d 284, 290 (4th Cir. 2001). “[T]he decision to accord privileged status to peer review
materials, in at least some states, appears to have been based on the policy decision that the
interest in promoting candor among medical personnel outweighs the interest in providing
11
access to evidence in medical malpractice actions.” Id. (citations omitted). “[A] plaintiff's
claim in a medical malpractice case arises from actions that occurred independently of the
review proceedings.” Id. (citation omitted).
Federal courts have concluded that where medical peer review materials are relevant
only to state law negligence claims and not to an EMTALA claim, state privilege law applies
and peer review materials are privileged. See Bennett, 623 F. Supp. 2d at 255 (peer review
information sought by plaintiff was not relevant to EMTALA issue of disparate treatment). “To
preclude . . . the peer-review privilege in this case would jeopardize the confidentiality
necessary for the peer-review process without assisting the plaintiff in prosecuting her
EMTALA claim.” Id. See also Guzman-Ibarguen, 2011 WL 2149542, at * 13 (“This Court
agrees . . . that a federal district court should not refuse to apply state law privileges where
the information sought is relevant only to a claim or defense to which state law supplies the
rule of decision.”); Guzman, 2009 WL 427268, at * 9 (“[b]ecause the peer review documents
are relevant only to the state-law negligence claims and not the federal EMTALA claim, state
privilege law applies.”).
Plaintiffs cite federal cases holding that federal privilege law applies even if the
evidence sought is relevant only to supplemental state law claims. The court finds these
cases either distinguishable or unpersuasive. In Burrows v. Redbud Community Hospital
District, the plaintiffs brought EMTALA and pendent state law claims and sought discovery of
peer review materials based on allegations that defendants conspired in peer review
meetings to falsify and destroy the decedent’s medical records. 187 F.R.D. 606, 610-11
(N.D. Cal. 1998). No part of the claims in the instant case arose out of the peer review
meetings. In Smith v. Botsford General Hospital, the court compelled production of an
incident report prepared by an ambulance driver that was not generated during any peer
12
review process. No. 00-71549 (E.D. Mich. 2000) (Exhibit C to Motion (Doc. # 52-3)).
Plaintiffs cite Gianzero v. Wal-Mart Stores, Inc., 2011 WL 1740624 (D. Colo. 2011), and
Dataworks, LLC v. Commlog, LLC, 2011 WL 66111 (D. Colo. 2011), in support of the general
rule that federal privilege law applies even if the evidence sought is relevant only to
supplemental state law claims. In Gianzero, the court denied a protective order, finding
“medical evidence and records” generally relevant to the plaintiffs’ claims under Fed. R. Civ.
P. 26. 2011 WL 1740624, at * 4. In neither Gianzero nor Dataworks did the court analyze
federal privilege law as it applies to peer review records. In Atteberry, the plaintiffs asserted
an EMTALA claim against a hospital as well as negligence claims against the emergency
department physician for discharging the plaintiff’s son in an unstable condition. 221 F.R.D.
644, 646 (D. Colo. 2004). The plaintiff made the identical requests for production of
documents as Plaintiffs did here.1 The court determined generally that federal common law
governed where the evidence sought may be relevant to state law claims that were
supplemental to a federal EMTALA claim. See id. at 646–47. The court further concluded
“[n]or is it clear that the state law privileges would apply to these facts,” noting that there was
no evidence that the records sought were related to a peer review process. Id. at 648.
Whether Gabrielle Etter received an appropriate screening examination and stabilizing
treatment can be established from the medical records, Delta Hospital’s policies and
1
“The discovery at issue here involves requests for production seeking the following
materials:
1.
Any reports, files or reviews that refer or relate to Scott Atteberry’s care on April
28, 2001, including, but not limited to any quality assurance reports, peer review reports and
morbidity/mortality reports.
7.
Any and all reports relating to Dr. Leonard, including, but not limited to,
credentialing files, peer review files, quality assurance reports, morbidity/mortality reports,
hospital privileges, and any reports relating to the deaths of patients under his care.”
Atteberry, 221 F.R.D. at 646.
13
procedures, and deposition testimony. See Guzman, 2009 WL 427268, at * 9 (whether
plaintiff and other emergency room patients exhibiting the same or similar symptoms were
treated consistent with “emergency room policy can be determined by medical records,
deposition testimony, and [hospital’s] policies and procedures”). See also Moses, 2007 WL
1806376, at * 2 (applying state privilege law to medical peer review materials, as “[t]he sole
issue in this EMTALA claim is whether Mr. Howard was diagnosed with an emergency
medical condition, a fact which can be established from the medical records, . . .”).2
The court finds that Plaintiffs’ request for production of the peer review records of
Gabrielle Etter and other patients presenting at the emergency department with similar
symptoms and conditions may be relevant to the EMTALA claim. The court is not persuaded
that any additional peer review documents would be relevant to the subject matter of
Plaintiffs’ EMTALA claim. The other peer review documents sought by Plaintiffs do not
inform the query relevant to EMTALA liability, that is, how Delta Hospital treated other
patients with similar symptoms. Any additional peer review documents are not likely to lead
to admissible evidence regarding the EMTALA claim, as “EMTALA does not guarantee that
the hospital’s emergency room personnel will correctly diagnose a patient’s condition as a
result of the emergency room screening.” Moses, 2007 WL 1806376, at * 3. Failure to
properly diagnose a medical condition cannot serve as the basis for a violation of EMTALA’s
requirements. Id. See also Keitz v. Virginia, 2011 WL 4737080, at * 4 (W.D. Va. 2011) (“the
only relevant inquiry under EMTALA's stabilization requirement is whether [emergency room]
personnel properly stabilized the condition from which they perceived the plaintiff as
2
Plaintiffs have disclosed an expert witness, Dr. Michael Jobin, who has already
concluded without reviewing the peer review documents that Delta Hospital violated
EMTALA. (See Exhibit A to Plaintiffs’ Motion (Doc. # 52-1)).
14
suffering.”) (citing Vickers v. Nash General Hosp., Inc., 78 F.3d 139, 145 (4th Cir. 1996) (“On
its face, [EMTALA's stabilization] provision takes the actual diagnosis as a given, only
obligating hospitals to stabilize conditions that they actually detect. . . . [EMTALA] does not
hold hospitals accountable for failing to stabilize conditions of which they are not aware, or
even conditions of which they should have been aware.”) and Baber v. Hospital Corp. of
America, 977 F.2d 872, 883 (4th Cir. 1992) (concluding that EMTALA's stabilization
requirement is not triggered unless a hospital actually determines that a patient suffers from
an emergency medical condition as this term is defined by the statute)). Given the limited
relevance the peer review materials have to Plaintiffs’ EMTALA claim and Fed. R. Evid. 501’s
recognition of state law privilege when state law provides the rule of decision, the court
determines that Plaintiffs are entitled to production of the peer review records limited to
Gabrielle Etter and other patients presenting at the emergency department with similar
symptoms and conditions.
3.
In Camera Review
The court has reviewed in camera the tendered peer review documents that are
responsive to Plaintiffs’ Requests for Production of Documents Nos. 3 and 7. In light of the
analysis set forth above, the court determines that pages DCMHD – 0084, DCMHD – 0085,
and DCMHD – 0098 (Docs. # 58-3 at 27, 28, and 41 of 56) are properly produced to
Plaintiffs.
Accordingly, IT IS ORDERED that “Plaintiffs’ Motion to Compel Documents from
Defendant Delta County Memorial Hospital District” (filed June 22, 2011) (Doc. # 52) is
GRANTED IN PART AND DENIED IN PART. Pages DCMHD – 0084, DCMHD – 0085, and
15
DCMHD – 0098 (Docs. # 58-3 at 27, 28, and 41 of 56) are properly produced to Plaintiffs. In
all other respects, Plaintiffs’ Motion is denied.
Advisement to the Parties
Within fourteen days after service of a copy of a Magistrate Judge’s order, any party
may serve and file written objections to the order. Fed. R. Civ. P. 72(a). “A judge of the court
may reconsider any pretrial matter . . . where it has been shown that the magistrate judge’s
order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). See also Fed. R.
Civ. P. 72(a) (“The district judge in the case must consider timely objections and modify or set
aside any part of the order that is clearly erroneous or is contrary to law.”). Failure to make
timely objections to the Magistrate Judge’s order(s) may bar review by the District Judge and
will result in a waiver of the right to appeal. See Fed. R. Civ. P. 72(a) (“a party may not
assign as error a defect in the order not timely objected to”); S.E.C. v. Merrill Scott &
Associates, Ltd., 600 F.3d 1262, 1269 (10th Cir. 2010) (failure to object to Magistrate Judge’s
order “strips us of jurisdiction to review the challenged order”) (quoting Hutchinson v. Pfeil,
105 F.3d 562, 566 (10th Cir. 1997) ("[p]roperly filed objections resolved by the district court
are a prerequisite to our review of a magistrate judge's order under 28 U.S.C. §
636(b)(1)(A)")); Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1114 (10th Cir. 2004) (“If
the parties fail to make timely objection, they ‘waive[ ] appellate review of both factual and
legal questions.’ “) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).
DATED at Denver, Colorado, this 2nd day of November, 2011.
BY THE COURT:
s/Craig B. Shaffer
United States Magistrate Judge
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