Blatchley et al v. Cunningham et al

Filing 213

ORDER by Magistrate Judge Nina Y. Wang on 04/18/16 GRANTING 157 Motion for Protective Order; and GRANTING IN PART AND DENYING IN PART 165 Motion to Amend/Correct/Modify Scheduling Order. The deadline for completing fact discovery is extended fr om April 25, 2016 up to and including May 25, 2016; and(6) Consistent with the Order overruling Plaintiffs Objection [#206], the Parties will submit a proposed Protective Order for the courts consideration no later than April 28, 2016, that includes terms that provide for the treatment of documents designated as confidential, with any disputed terms highlighted for the courts consideration and disposition. (nmarb, ) (Additional attachment(s) added on 4/18/2016: # 1 Exhibit) (nmarb, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00460-WYD-NYW
JODY BLATCHLEY, and
DELFINA BLATCHLEY,
Plaintiffs,
v.
RICHARD CUNNINGHAM, M.D.,
PETER JANES, M.D.,
MATTHEW CAIN, PA-C,
TIMOTHY SMITH, PA-C,
CAMERON YOUNGBLOOD, PA-C,
ST. ANTHONY SUMMIT MEDICAL CENTER,
VAIL-SUMMIT ORTHOPAEDICS, P.C., and
GREGORY POULTER, M.D.,
Defendants.

ORDER OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Nina Y. Wang
This matter is before the court on Defendant St. Anthony Summit Medical Center’s (“St.
Anthony Summit”) Motion for Protective Order Regarding Privileged Documents Identified in
Defendant’s Amended Privilege Log for Second Supplemental Disclosures Pursuant to F.R.C.P.
26(A)(1) (“Motion for Protective Order”) [#157, filed January 28, 2016]. Also before the court
is Plaintiffs’ Motion to Amend the Civil Scheduling Order to Expand the Discovery Limitations
to “Per Party” and to Extend the Fact Discovery Cutoff Date (“Motion to Amend”) [#165, filed
February 8, 2016]. The Motion for Protective Order was referred to this Magistrate Judge
pursuant to 28 U.S.C. § 636(b), the Order of Reference dated March 5, 2015 [#4], and the

memoranda dated January 28, 2016 [#159] and February 9, 2016 [#166].

This court has

reviewed the Motions, as well as the Responses thereto [#175, #176, #177, #178, #189], and
subsequent Replies [#185, #187, #191], the applicable case law, and the comments offered
during oral argument on March 24, 2016 [#204]. For the reasons stated in this Order, this court
GRANTS the Motion for Protective Order and GRANTS IN PART and DENIES IN PART the
Motion to Amend.
BACKGROUND
The background of this case has been discussed in detail in other court orders, see, e.g.,
[#94], and accordingly, the court will focus on the circumstances relevant to the disposition of
the instant Motion for Protective Order. Plaintiffs Jody and Delfina Blatchley (collectively,
“Plaintiffs” or “the Blatchleys”) initiated this personal injury action against Defendants. As part
of discovery in this action, the Blatchleys have sought “any and all information regarding
Plaintiff Jody Blatchley created by or for any professional review, peer review or quality control
or management from Defendant [St. Anthony Summit].” [#189 at 2]. St. Anthony Summit
objected to producing the requested information on the basis of multiple privileges, and filed the
instant Motion for Protective Order on the basis of Colorado’s Peer Review Privilege. The
Blatchleys oppose the entry of a Protective Order. They argue that, “[c]omparison of statements
outside of the record and those in the record yield conflicting accounts of Plaintiff Jody
Blatchley’s medical condition and treatment.” [#189 at 2]. They seek “the factual information
used during peer review activities undertaken by Defendant [St. Anthony Summit], and assert
that “[n]one of the claimed privileges provide a basis to withhold the factual information
provided to, and considered by the review board in this case.” [#189 at 2]. In Reply, St.
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Anthony Summit agreed with Plaintiffs that the court’s in camera inspection of the documents
withheld on the basis of privilege would be appropriate. [#191 at 3]. On April 11, 2016, St.
Anthony Summit provided approximately fifty documents for this court’s in camera review.1
ANALYSIS
I.

Applicable Law
A.

Pre-Trial Discovery Generally

The Federal Rules of Civil Procedure allow for discovery of “any nonprivileged matter
that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R.
Civ. P. 26(b)(1). The party resisting discovery based on a privilege carries the burden of
establishing that the privilege applies. Zander v. Craig Hosp., 743 F. Supp. 2d 1225, 1231-32
(D. Colo. 2010) (citation omitted) (“Zander II”).

In establishing the applicability of the

privilege, the resisting party must expressly assert the claim and describe the nature of the
documents, ordinarily through maintenance of a privilege log. Id. The determination of whether
information is discoverable must be assessed by the parties and the court on a case-by-case basis.
See Fed. R. Civ. P. 26(b)(1 (eff. Dec. 1, 2015).2 “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,” Etter v. Bibby, No. 10-CV-00557-JLKCBS, 2011 WL 5216855, at *4 (D. Colo. Nov. 2, 2011) (citation omitted); however, where

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These documents have been docketed under Level 3 restriction, to reflect the in camera nature
of the submission.
2

Consistent with 28 U.S.C. § 2074(a) and the Orders of the United States Supreme Court dated
April 28, 2015, this court finds that it is just and practicable, and therefore, applies the Federal
Rules of Civil Procedure effective December 1, 2015 to this instant Motion.
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federal jurisdiction is based solely on diversity, such as here, state law controls the determination
of privileges. Zander II, 743 F. Supp. 2d at 1230.
B.

Rule 26(c) Protective Orders

Rule 26(c) of the Federal Rules of Civil Procedure provides that a court may, for good
cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense. Fed. R. Civ. P. 26(c). The party seeking a protective order bears the
burden of establishing its necessity, Centurion Indus., Inc. v. Warren Steurer & Assoc., 665 F.2d
323, 325 (10th Cir. 1981), but the entry of a protective order is left to the sound discretion of the
court. See Rohrbough v. Harris, 549 F.3d 1313, 1321 (10th Cir. 2008). As part of the exercise
of its discretion, the court may also specify the terms for disclosure. Fed. R. Civ. P. 26(C)(1)(B).
The good cause standard is highly flexible, having been designed to accommodate all relevant
interests as they arise. See Rohrbough, 549 F.3d at 1321.
C.

Colorado Professional Review Act

The Parties do not dispute that Colorado privilege law governs in this case.

The

Colorado General Assembly enacted the Colorado Professional Review Act (“CPRA”) in
recognition of the importance of upholding the standards of quality, standards of professional
conduct, and standards of appropriate care for the practice of medicine and nursing, and to
encourage professional peer review in the health care industry. Colo. Rev. Stat. § 12-36.5-103.
See also Ryskin v. Banner Health, Inc. No. 09-CV-01864-MEH-KMT, 2010 WL 2742710, at *1
(D. Colo. July 9, 2010). A licensed hospital may establish a professional review committee to
review and evaluate the quality and appropriateness of patient care provided by any licensed
physician. Colo. Rev. Stat. §§ 12–36.5.104(1), (2) and (4)(a). In furtherance of the CPRA’s
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goals to encourage physicians to engage in peer review and to provide immunity to the
physicians who participate in the peer review so that they may “exercise their professional
knowledge” and judgment without undue fear of litigation, the General Assembly created a
statutory privilege to ensure that peer review records would not be discoverable. See id. at § 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.”).
See also Etter, 2011 WL 5216855, at *4; Center For Legal Advocacy v. Hammons, 323 F.3d
1262, 1264 n.2 (10th Cir. 2003).
A professional review committee includes a governing board, a hearing panel appointed
by a governing board to conduct a hearing under section 12-36.5-104(7)(a), and an independent
third party designated by a governing board under section 12-36.5-104(8)(b). Colo. Rev. Stat. §
12-36.5-102. To qualify as a professional review committee, the majority of the committee
members must be licensed physicians who are actively engaged in the practice of medicine in
Colorado. Id. at 12-36.5-104(2). For the Peer Review privilege to apply, the records of a
professional review committee “must be derived from an investigation ‘conducted in conformity
with written bylaws, policies, or procedures’ adopted by the committee’s governing board.”
Atteberry v. Longmont United Hosp., 221 F.R.D. 644, 648 (D. Colo. 2004) (citing Colo. Rev.
Stat. § 12-36.5-104(6)(b)). The following does not qualify as “records” under the CPRA:
“written, electronic, or oral communications by any person that are otherwise available from a
source outside the scope of professional review activities, including medical records and other
health information.” Colo. Rev. Stat. § 12-36.5-102(7)(b). In considering the application of the

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law, courts have found that documents that reflect the policies and procedures of the peer review
process itself are also not privileged. See Zander v. Craig Hosp., 267 F.R.D. 653 (2010).
Original source documents, i.e. documents that are created outside of the peer review process,
even if utilized in the peer review process, are not protected by the privilege. Zander II, 743 F.
Supp. 2d at 1231.
II.

Application
A.

Discovery Requests

Against this backdrop, this court considers St. Anthony Summit’s Motion for Protective
Order. The Blatchleys requested in discovery, “[a]ll written bylaws, policies, procedures, and
other DOCUMENTS, if any, adopted by YOU for quality control, peer review, grant of surgical
privileges, and any other oversight of Defendant in place at the time of the INCIDENT.” [#157
at 2]. While St. Anthony Summit objected to this request on the basis that “[q]uality and peer
review documents are privileged and are not calculated to lead to the discovery of admissible
evidence,” subject to the objection, it produced “the policies and bylaws” requested by Plaintiffs.
[Id.] The Blatchleys also sought:
Any and all DOCUMENTS pertaining to or mentioning Plaintiff Jody Blatchley,
created by or for any professional review, peer review, or quality control or
management committee. This request includes but is not limited to any and all
minutes or other records of any investigation, examination, hearing, meeting, or
any other proceeding of any professional review committee governing body, or
quality management committee in connection with Plaintiff Jody Blatchley.
[#157 at 2-3]. St. Anthony Summit objected to this request, “as it seeks information which is
privileged under the Colorado Peer Review Statute pursuant to Colo. Rev. Stat. §13-21-110 and

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§25-3-109, and the Healthcare Quality Improvement Act of 1986, 42 U.S.C. §11101, et seq.,”
and provided a privilege log for the documents subject to this request. [Id. at 3].
St. Anthony Summit argues in the Motion for Protective Order that it maintains a
“Trauma Executive Peer Review Committee,” which meets the definition of a “professional
review committee” under the CPRA. [#157 at 7; #157-4 at ¶ 2]. St. Anthony Summit further
argues that the documents identified in its privilege log constitute “records” protected by the Peer
Review Privilege because “they are written, electronic, or oral communications arising from the
activities of [St. Anthony Summit’s] professional review committee.” [#157 at 8; #157-4 at ¶
10]. More specifically, the records include “the testimony and written reports of witnesses,
documents and other material presented to the Trauma Executive Peer Review Committee, the
Committee's notes, memoranda, minutes, reports, analyses, and other records relating to its
investigatory function.” [#157 at 9; #157-4 at ¶ 11]. Shelly Almroth, a Trauma Program
Manager with St. Anthony Summit, attests that these documents were generated during an
investigation that was conducted in conformity with the written bylaws, policies, and procedures
adopted by the governing board of St. Anthony Summit’s professional review committee. [#157
at 9; #157-4 at ¶ 12; #191-2 at ¶¶ 4-7]. The Blatchleys do not dispute that St. Anthony Summit’s
Trauma Executive Peer Review Committee constitutes a professional review committee as
defined by the CPRA. Rather, the Blatchleys contend that the documents they seek in these
discovery requests contain the factual basis for the peer review, and thus do not qualify as
“records” under the CPRA. [#189 at 11].

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B.

In Camera Review

As an initial matter, the court addresses Plaintiffs’ concern that the documents as
reflected in the Fourth Amended Privilege Log were not, in fact, generated as part of a peer
review process. From the in camera review of the documents, this court determined that the peer
review process related to Mr. Blatchley was associated with a unique identifier. Based on the
use of that unique identifier, the peer review process associated with Mr. Blatchley’s care was in
place no later than March 21, 2013. Plaintiffs contend that letters to Dr. Geddes falls outside the
definition of records and the claim of privilege cannot stand. [#189 at 14]. After review of such
letters, this court respectfully disagrees. Dr. Geddes’s correspondence with various individuals
involved with Mr. Blatchley’s care, and those individuals’ responses to him, amount to “written
communications by any person arising from any activities of a professional review committee,
including interviews or statements, reports, memoranda, assessments, and progress reports
developed to assist in professional review activities.” Colo. Rev. Stat. §12-36.5-102(7)(a)(III).
Similarly, Plaintiffs’ concerns that St. Anthony Summit is improperly withholding
original source medical records are not borne out by this court’s review. While the peer review
committee certainly considered information derived from medical records, no original source
documents are contained as part of the privileged document set.

Rather, as Ms. Almroth

explained, documents such as timelines were created as part of the peer review process from
information contained in the medical records. [#191-2 at ¶¶ 8-9].
C.

Discoverability of Facts Contained in Peer Review Documents

Plaintiffs contend that even if the documents themselves are peer review records, any
facts embedded in them, separate from information about the deliberation of the peer review
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committee, are discoverable. It is clear that facts, to the extent they are reflected in another
source (e.g., the original medical records and informal discussions between physicians outside
the peer review process), are not protected from discovery simply because they were utilized
within the peer review process. See Zander, 267 F.R.D. at 659-60. Nevertheless, nothing within
the CPRA or its interpreting case law suggests that (1) a distinction is made between facts and
deliberation under the CPRA’s shield against subpoenas or discovery, or (2) facts are
discoverable from records generated as part of the peer review process. See Zander, 267 F.R.D.
at 659 (citing Doe v. UNUM Life Ins. Co. of America, 891 F. Supp. 607, 611 (N.D. Ga. 1995)
(applying Georgia law and holding that “documents that would have existed regardless of
whether the committee may have considered them in an investigation are discoverable, but only
from their original source”)).
This conclusion is consistent with the Colorado Supreme Court’s decision in Colorado
Medical Bd v. Office of Administrative Courts, 333 P.3d 70 (2014). In that case, a doctor who
had been denied a medical license sought information that she believed was relevant in Letters of
Concern, which are private letters sent from the Board to licensed doctors concerning errant
conduct that could lead to serious consequences if not corrected. Id. at 72. In finding that such
Letters of Concern were not discoverable based on the construction of the statute, the Colorado
Supreme Court made no distinction between the facts contained in the Letters of Concern, versus
any information reflecting the “deliberative process.” Rather, the Colorado Supreme Court
found that the Letters of Concern were peer review records, and as such, were immune from
subpoena or discovery.

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This conclusion is also entirely consistent with the purpose of the CPRA, which is “to
encourage discipline and control of the practice of health care rendered by physicians by
committees made up of physicians licensed to practice in this state.” Colo. Rev. Stat. § 12-43.5101. The statute goes on to provide “[i]t is the duty of such committees to openly, honestly, and
objectively study and review the conduct of practice by members of the profession, including the
quality of service…” Id. As the Colorado Supreme Court previously held,
It would be unreasonable to impose upon committee members a statutory duty to
“openly, honestly, and objectively study and review” the conduct of practicing
members of the medical profession if the records of their study and review were
available for discovery in subsequent litigation seeking money damages against
the hospital, its review committees and the individual members thereof for
disciplinary action imposed in the peer review process. In addition, members of
the medical profession cannot be expected to initiate or willingly participate in a
peer review investigation if their testimony and reports may be subjected to
discovery in subsequent civil litigation involving issues far beyond a meaningful
judicial review of the committee's action.
Franco v. Dist. Court In & For City & Cty. of Denver, 641 P.2d 922, 928-29 (Colo. 1982).
From a practical point of view, the facts considered by the peer review committee appear
inextricably intertwined with the investigation by and deliberation of the committee. Further, the
mere circumstance that the peer review committee considered certain facts, and not others, does
not appear particularly salient to the core inquiry in this case, i.e., whether Defendants breached
their respective duties to Mr. Blatchley by failing to diagnose his compartment syndrome earlier
in the treatment process. Therefore, this court declines to read an exception into the CPRA that
provides for the discovery of facts reflected in records generated as part of a peer review process.
To the extent, however, that St. Anthony Summit has not produced the source medical records
from which the peer review records were created, it should proceed to do so immediately.

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D.

Discovery to Individual Defendants

In so ruling, this court acknowledges that it may be important for Plaintiffs to discover
the communications regarding Mr. Blatchley’s treatment, which occurred outside of the peer
review process. This court agrees that Plaintiffs should be permitted to propound some limited,
additional discovery to the individually named Defendants, in part to determine whether there
were communications exchanged, photos taken, or documents created outside the peer review
process that may be discovered. To that end, this court will amend the Scheduling Order to
permit Plaintiffs collectively to propound an additional three (3) interrogatories, three (3)
requests for production, and three (3) requests for admissions to each of the individually named
Defendants (thus excluding St. Anthony Summit and Vail Orthopaedics). While this court finds
that Plaintiffs’ request seeking records of other, unrelated patient files is not supported by Rule
26(b)(1), the court otherwise leaves to Plaintiffs the discretion to identify the appropriate topics
for these additional discovery requests. This court respectfully declines to deem as proper
Plaintiffs’ discovery requests that, when served, exceeded their allotment. Plaintiffs improperly
served these requests prior to seeking leave to expand the discovery limitations. To the extent
Plaintiffs wish to pursue the previously-sought discovery, they must re-serve those requests
consistent with this Order.
CONCLUSION
Therefore, for the foregoing reasons, IT IS ORDERED that:
(1)

Defendant St. Anthony Summit Medical Center’s Motion for Protective Order

Regarding Privileged Documents Identified in Defendant’s Amended Privilege Log for Second
Supplemental Disclosures Pursuant to F.R.C.P. 26(A)(1) [#157] is GRANTED;
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(2)

The Clerk of the Court is DIRECTED to file the documents delivered to this

court for in camera review as Level 3 Restricted;
(3)

Plaintiffs’ Motion to Amend the Civil Scheduling Order to Expand the Discovery

Limitations to “Per Party” and to Extend the Fact Discovery Cut-Off [#165] is GRANTED IN
PART and DENIED IN PART;
(4)

Plaintiffs collectively may propound an additional three (3) interrogatories, three

(3) requests for production, and three (3) requests for admissions to each of the individually
named Defendants (but not St. Anthony Summit or Vail Orthopaedics);
(5)

The deadline for completing fact discovery is extended from April 25, 2016 up to

and including May 25, 2016; and
(6)

Consistent with the Order overruling Plaintiffs’ Objection [#206], the Parties will

submit a proposed Protective Order for the court’s consideration no later than April 28, 2016,
that includes terms that provide for the treatment of documents designated as “confidential,” with
any disputed terms highlighted for the court’s consideration and disposition.

DATED: April 18, 2015

BY THE COURT:

s/ Nina Y. Wang
United States Magistrate Judge

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