Grenier v. Stamford Hospital et al
Filing
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ORDER denying Plaintiff's 41 Motion to Compel. See attached Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 7/20/2016. (Nadler, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MARC J. GRENIER,
AS ADMINISTRATOR OF THE
ESTATE OF LAURA D. SHEEHAN,
Plaintiff,
v.
THE STAMFORD HOSPITAL
STAMFORD HEALTH SYSTEM,
INC., AND EMERGENCY MEDICINE
PHYSICIANS OF FAIRFIELD,
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CIVIL ACTION NO.
3:14-cv-0970 (VLB)
July 20, 2016
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Defendants.
:
MEMORANDUM OF DECISION DENYING PLAINTIFF’S FIRST MOTION TO
COMPEL [Dkt. #41]
Plaintiff Marc Grenier (“Grenier”), in his capacity as administrator of the
estate of Laura D. Sheehan (“Sheehan”), brings a claim against Defendants
Stamford Hospital and Stamford Health System, Inc. (collectively the “Stamford
Defendants”) under the Emergency Medical Treatment and Active Labor Act
(“EMTALA”), 42 U.S.C. § 1395dd., et seq., and a medical malpractice claim against
the Stamford Defendants and Defendant Emergency Medicine Physicians of
Fairfield (“EMP”) under Connecticut law, for injuries and the ultimate death of
Sheehan while in the care of Defendants.
I.
Background
On November 27, 2015, Plaintiff filed a motion to compel the production of
a host of documents and responses to interrogatories. See [Dkt. #41]. On
January 8, 2016, the Court held a hearing regarding the parties’ outstanding
discovery dispute. See [Dkt. #53]. At the hearing, the Court took the motion
1
under advisement as the parties attempted to resolve some of the issues that
were in dispute at the time. See [Dkt. #55]. On January 29, 2016, the Court held a
follow-up telephonic hearing. See [Dkt. #53]. At the hearing, the parties
represented that they had made significant progress resolving their dispute, and
that the sole remaining issue was whether and to what extent the Defendants
could rely upon the Connecticut peer review statute, Conn. Gen. Stat. § 19a-17b,
which they invoked in support of their refusal to produce peer review materials
concerning the care of Plaintiff’s decedent. The Plaintiff explained that he seeks
the peer review materials to see if they contain any admission of wrongdoing on
the part of hospital staff, or violations of EMTALA. The Court now resolves this
dispute.
II.
Discussion
A.
Federal Privilege Law Governs the Issues in this Case
Plaintiff brings an EMTALA claim and a pendant state law medical
malpractice claim. EMTALA was enacted in 1986 in response to a growing
concern of “‘patient dumping,’ the practice of refusing to provide emergency
medical treatment to patients unable to pay, or transferring them before their
emergency conditions are stabilized.” Hardy v. New York City Health & Hosps.
Corp., 164 F.3d 789, 792 (2d Cir. 1999). To prohibit such discrimination, hospital
emergency rooms are subject to two obligations under the EMTALA: (i) to
perform an appropriate medical screening and (ii) to stabilize the patient. The
screening and stabilization requirements are two separate and distinct
obligations. Brown v. St. Mary’s Hosp., No. 3:14-cv-228 (DJS), 2015 WL 144673, at
2
*2 (D. Conn. Jan. 12, 2015). Thus, to state a claim under the EMTALA, a plaintiff
must allege that he “(1) went to the Defendant’s emergency room (2) suffering
from an emergency medical condition, and that the Hospital either (3) failed to
adequately screen him to determine whether he had such a condition or (4)
discharged or transferred him before the emergency condition was stabilized.”
Eads v. Milford Hosp., No. 3:10-cv-1153 (VLB), 2011 WL 873313, at *2 (D. Conn.
Feb. 23, 2011) (citing Hardy, 164 F.3d at 792).
The Amended Complaint raises both failure to screen and stabilize claims.
See [Dkt. #10, Am. Compl. at ¶ 5]. To prevail on a failure to screen claim, a
plaintiff must identify a “departure from standard screening procedures” the
hospital otherwise applies to patients. Fisher v. New York Health & Hosps. Corp.,
989 F. Supp. 444, 449 (E.D.N.Y. 1998). To succeed on a failure to stabilize claim
under EMTALA, a plaintiff must show that the hospital failed to provide “medical
treatment of the condition as may be necessary to assure, within reasonable
medical probability, that no material deterioration of the condition is likely to
result . . . .” 42 U.S.C. § 1395dd(e)(3)(A); see also Brown, 2015 WL 144673, at *2
(“[I]t has been determined by some courts that ‘the stabilization requirement is
not met by simply dispensing uniform stabilizing treatment, but rather, by
providing the treatment necessary to ‘assure within reasonable medical
probability, that no material deterioration of the condition is likely to result . . . .’”)
(quoting Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1259 n. 3 (9th Cir.1995)).
Under Connecticut law, malpractice is “the failure of one rendering
professional services to exercise that degree of skill and learning commonly
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applied under all the circumstances in the community by the average prudent
reputable member of the profession with the result of injury, loss, or damage to
the recipient of those services.” Jarmie v. Troncale, 306 Conn. 578, 587-88 (Conn.
2012) (quotations, emphasis, and citation omitted). Malpractice “presupposes
some improper conduct in the treatment or operative skill [or] . . . the failure to
exercise requisite medical skill.” Id. at 588 (quotations and citation omitted).
Accordingly, “[t]o prevail in a medical malpractice action, the plaintiff must prove
(1) the requisite standard of care for treatment, (2) a deviation from that standard
of care, and (3) a causal connection between the deviation and the claimed
injury.” Id. (quotations and citation omitted).
As a general rule, federal law governs the existence of a privilege in a civil
action in which federal law supplies the rules of decision, and state law governs
the existence of a privilege where state law supplies the rule of decision. See
Fed. R. Evid. 501. However, in a civil case such as this, where there is both a
federal EMTALA claim and a state medical malpractice claim and where the facts
necessary to prove both claims overlap, a single rule applies, and that rule is
federal privilege law. von Bulow v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987)
(stating that in mixed claim case where evidence sought “is relevant to both the
federal and state claims . . . courts consistently have held that the asserted
privileges are governed by the principles of federal law”) (applying federal
privilege law to both federal and pendant state law claims); see also Brown v. St.
Mary’s Hosp., No. 3:14-cv-00228 (DJS), ECF No. 71, at 3 (D. Conn. filed Feb. 25,
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2014) (applying federal privilege law to action that “raises both federal (EMTALA)
and state (negligence) claims”).
B.
The Facts of this Case Warrant Recognition of a Peer Review
Privilege
1. Courts have recognized a federal peer review privilege in the
EMTALA context.
As the Plaintiff correctly points out, “neither the Supreme Court nor the
Second Circuit . . . has recognized [a peer review privilege] as applicable in
federal EMTALA actions.” [Dkt. #41, Pl.’s Mot. to Compel at 4]; see also Francis v.
United States, No. 09 Civ. 4004 (GBD) (KNF), 2011 WL 2224509, at *4 (S.D.N.Y. May
31, 2011) (“Neither the Supreme Court nor the Second Circuit has ruled on the
existence of a peer review privilege in the context of a medical . . . malpractice
action.”). This does not, however, resolve the issue. This is because Rule 501 of
the Federal Rules of Evidence affords district courts “flexibility to develop rules
of privilege on a case-by-case basis.” Francis, 2011 WL 2224509, at *4 (quoting
Univ. of Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990)). In determining whether
to adopt a new federal privilege in a given case, “a district court must consider:
(1) whether the privilege serves private and public interests; (2) the evidentiary
benefit that would result from denial of the privilege; and (3) recognition of the
privilege among the States.” Id. (citing Jaffee v. Redmond, 518 U.S. 1, 9 (1996)).
Before applying these factors, the Court first notes that, “[a]lthough there
appears to be consensus among lower courts and in other circuits that no federal
privilege protects medical peer review materials in civil rights or antitrust actions
. . . no such consensus has developed in medical or dental malpractice actions.”
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Id. at *4 (citing cases).1 This distinction makes sense, as federal laws which
touch upon medical malpractice, like EMTALA and the Federal Tort Claims Act
(FTCA), incorporate state law. Indeed, courts have noted “EMTALA’s intended
purpose of supplementing, rather than supplanting, state medical malpractice law
. . . .” NRP Holdings LLC v. City of Buffalo, No. 11-CV-472S, 2015 WL 9463199, at
*4 (W.D.N.Y. Dec. 28, 2015). Thus, it is not surprising that multiple courts have
recognized state peer review privileges under federal law when presented with
EMTALA or FTCA claims in addition to state law negligence claims. See, e.g.,
Brown, No. 3:14-cv-00228 (DJS), ECF No. 71, at 3 (recognizing federal peer review
privilege in connection with EMTALA claims); Tep v. Southcoast Hosps. Grp.,
Inc., No. 13-11887-LTS, 2014 WL 6873137, at *5 (D. Mass. Dec. 4, 2014) (same);
Francis, 2011 WL 2224509, at *5 (recognizing federal peer review privilege in
FTCA context); Sevilla v. United States, 852 F. Supp. 2d 1057, 1068-69 (N.D. Ill.
2012) (same); KD ex rel. Dieffenbach v. United States, 715 F. Supp. 2d 587, 597-98
(D. Del. 2010) (same). Several others, including the courts in both cases cited by
the Plaintiff, have stopped short of recognizing a federal peer review privilege,
but they nevertheless applied the state law privilege to the plaintiff’s state law
1
Indeed, all but two of the cases Plaintiff cites in opposition to the privilege
concern federal civil rights claims. See [Dkt. #41, Pl.’s Mot. to Compel at 4
(citing Jenkins v. Dekalb Cnty., Georgia, 242 F.R.D. 652, 655 (N.D. Ga. 2007)
(declining to apply state medical peer review privilege to § 1983 claim) and
Gargiulo v. Baystate Health, Inc., 826 F. Supp. 2d 323, 325 (D. Mass. 2011)
(declining to apply state peer review privilege to state law and federal
discrimination claims under the ADA and ADEA)); Dkt. #51, Pl.’s Opp’n to Defs.’
Mot. for Protective Order at 3 (citing Johnson v. Cook Cnty., No. 15 C 741, 2015
WL 5144365, at *8 (N.D. Ill. Aug. 31, 2015) (holding PSQIA did not apply and
refusing to apply state medical peer review privilege to prisoner’s § 1983
claim)].
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claims. See Bennett v. Kent Cnty. Mem. Hosp., 623 F. Supp. 2d 246, 255 (D. R.I.
2009) (applying peer review privilege to bar discovery of information “relevant
only to plaintiff’s state law claims”); Sellers v. Wesley Med. Ctr., LLC, No. 11-1340JAR-KGG, 2012 WL 5362977, at *3 (D. Kan. Oct. 31, 2012) (holding that “evidence
relating only to Plaintiff’s pendant state law cause of action will be subject to the
privilege to the extent it was adequately asserted by Defendant”); Etter v. Bibby,
No. 10-cv-00557-JLK-CBS, 2011 WL 4216855, at *7 (D. Colo. Nov. 2, 2011) (same).2
2. Recognition of a medical peer review privilege would serve public and
private interests.
The Connecticut peer review statute provides that:
The proceedings of a medical review committee conducting a peer
review shall not be subject to discovery or introduction into evidence
in any civil action for or against a health care provider arising out of
the matters which are subject to evaluation and review by such
committee, and no person who was in attendance at a meeting of
such committee shall be permitted or required to testify in any such
civil action as to the content of such proceedings . . . .
Conn. Gen. Stat. § 19a-17b. A peer review is “the procedure for evaluation
by health care professionals of the quality and efficiency of services ordered or
performed by other health care professionals . . . .” Conn. Gen. Stat. § 19a17b(a)(2). “[A] privilege protecting peer review records from disclosure in
medical or dental practice would promote the interests of health care
practitioners, health care facilities and the public, by encouraging self-evaluation
and improving the quality of care.” Brown, No. 3:14-cv-00228 (DJS), ECF No. 71,
at 5 (quoting Francis, 2011 WL 2224509, at *16); see also Tep, 2014 WL 6873137,
2
This approach is inapplicable here, because the peer review material Plaintiff
seeks is plainly relevant to both his federal and state law claims.
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at *4 (statutory medical peer review privileges “arise from a general
understanding that ‘encouraging physician candidness by eliminating the fear
that peer review information will be used against them in subsequent litigation’ is
essential to promoting patient health and safety”) (quoting KD, 715 F. Supp. 2d at
594).
This Court holds that there is a peer review privilege under the facts of this
particular case. “To err is human,” observed Alexander Pope, and “[t]he instinct
of self-preservation in human society, acting almost subconsciously, as do all
drives in the human mind, is rebelling against the constantly refined methods of
annihilation and against the destruction of humanity.” Bertha von Suttner, Nobel
Lecture, The Evolution of the Peace Movement (Apr. 18, 1906), available at
http://www.nobelprize.org/nobel_prizes/peace/laureates/1905/suttner-lecture.html.
The professional and financial ramifications of medical malpractice claims are
severe and trigger the natural human instinct of self-preservation, the impulse to
withhold information which could conceivably be perceived as a wrongful act or
omission. The peer review process is designed to give physicians a safe place to
fully disclose their conduct and analyze it together with their peers, with the
benefit of 20/20 hindsight, in a constructive setting. Its purpose is to improve the
medical standard of care, and in so doing, patient care and outcomes. The
confidentiality of the peer review process would relieve physicians from the fear
of reprisals and the self-preserving instinct to withhold information necessary to
achieve the goals of peer review. It would engender candid and probing
reflection and collaborative critical evaluation of not only the attending
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physicians' actions, but of the hospital's policies and procedures as well. The
Supreme Court recognized the critical value of trust in the medical setting in
Jaffee, where it reasoned that the confidentiality of communications between a
patient and their psychologist promotes confidence and trust necessary for
effective therapy. Jaffee, 518 U.S. at 10-11. The peer review privilege is even
more compelling than the doctor-patient privilege because the peer review
privilege has a greater impact. It not only improves the treatment of individual
patients, but because of its collaborative nature, it affects hundreds, if not
thousands, of patients served by the institution. Without a confidential peer
review process, human nature dictates that the human instinct of selfpreservation will subvert the search for the truth and thwart discoveries which
invariably lead to advancements in the quality of medical care and service, a vital
public interest.
Having determined that the peer review privilege at issue here fosters this
vital public interest, the Court turns to the facts of this case to determine whether
the privilege permits the Defendants to withhold the particular peer review
material Plaintiff seeks.
3. Any evidentiary benefit Plaintiff would likely obtain from denial of the
privilege would be minimal.
Plaintiff has presented no evidence that the peer review materials sought
contain relevant information which he has not and cannot obtain from other
sources. Plaintiff postulates that these materials may contain affirmative
admissions of wrongdoing by the Defendants, but he offers no evidence to
support this assertion. Beyond this claim, Plaintiff identifies document requests
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in response to which the Defendants have raised the Connecticut peer review
privilege. These requests seek numerous categories of documents across multiyear periods regarding relatively broad topics, including the decedent’s physical
and medical condition, EMTALA compliance, the diagnosis or treatment of
ischemic stroke, staffing and patient levels, and subsequent corrective action
plans. See [Dkt. #41, Pl.’s Mot. to Compel at 5-20]. Plaintiff’s medical records,
together with non-privileged hospital and third party records, would appear to
provide Plaintiff with a host of information on each of these topics, and Plaintiff
does not identify any relevant information unique to the peer review materials
that he would otherwise be without.
For instance, Plaintiff submitted to the Court records from the Connecticut
Department of Public Health, which appear to contain much of the information
Plaintiff seeks, including evidence regarding Defendant Stamford Hospital’s
policies and procedures and the extent to which the Defendants complied with
them. See [Dkt. #59-2 at 1 (stating that the Connecticut Department of Public
Health’s Facility Licensing and Investigations Section was “able to validate noncompliance with federal/state laws within the jurisdiction of the Department”);
Dkt. #59-1 at 3 (stating that “documentation and interviews failed to reflect that
[Plaintiff’s decedent] had continued comprehensive medical oversight . . .
[Emergency Department] policies that govern medical management and . . . that
the case was formally reviewed in hospital Quality Assurance Performance
Improvement (QAPI) process to ensure quality improvement and patient safety”),
14-26 (enclosing Defendant Stamford Hospital’s Plan of Correction which
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addresses current and proposed screening and Emergency Department patient
management policies and procedures)]. Plaintiff has not proffered any evidence
to suggest that the peer review materials he seeks contain any relevant
information beyond that appearing in the documents produced by the Defendants
and third parties, such as the Connecticut Department of Public Health.
Accordingly, these materials sufficiently mitigate the risk that application of the
peer review privilege in this EMTALA case would “exclude[] reliable and
probative evidence.” Brown, No. 3:14-cv-00228 (DJS), ECF No. 71, at 5 (quoting
Jaffee, 518 U.S. at 18-19 (Scalia, J., dissenting)); see also Tep, 2014 WL 6873137,
at *5 (noting that “the facts necessary to develop Tep’s EMTALA claim have been
disclosed in other documents contained in the relevant medical files, as the
events central to Tep’s EMTALA claim occurred outside the peer review
process”).
4. The peer review privilege is widely recognized.
First, “[a]ll 50 States and the District of Columbia recognize some form of
medical peer review privilege.” Francis, 2011 WL 2224509, at *6. In addition, in
2005, Congress passed the Patient Safety and Quality Improvement Act
(“PSQIA”), which holds as privileged documents provided to a “patient safety
organization,” which the statute defines as “a private or public entity or
component thereof that is listed by the Secretary [of Health and Human Services]
pursuant to section 299b-24(d) of [Title 42].” 42 U.S.C. § 299b-21(4).
The Plaintiff correctly contends that the PSQIA was “not intended to
provide blanket protections for all quality control purposes,” and its scope is
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limited to “‘patient safety work product’ as defined by the PSQIA.” [Dkt. #51, Pl.’s
Opp’n to Defs.’ Mot. for Protective Order at 5-6]; see also Schlegel v. Kaiser
Found. Health Plan, No. CIV 07-0520 MCE KJM, 2008 WL 4570619, at *3 (E.D. Cal.
Oct. 14, 2008) (stating that PSQIA “carves out a narrow peer review privilege for
work product prepared by a patient safety organization or prepared for, and
reported to, a patient safety organization”). However, the Defendants do not
contend that the PSQIA privilege directly applies to the documents at issue.
Instead, they urge the Court to follow those which have relied upon the existence
of the PSQIA as further evidence warranting the recognition of a federal peer
review privilege. See [Dkt. #46-1, Defs.’ Mot. for Protective Order at 12-14]; see
also Brown, No. 3:14-cv-00228 (DJS), ECF No. 71, at 8; Francis, 2011 WL 2224509,
at *6; Tep, 2014 WL 6873137, at *5 (noting that “since Congress enacted the
PSQIA, at least three federal courts have recognized some form of a medical peer
review privilege under federal common law”).
Turning to the legislative history of the PSQIA, it is noteworthy that its
purpose was to promote “a ‘culture of safety’ that focuses on information
sharing, improved patient safety and quality and the prevention of future medical
errors . . . by providing for broad confidentiality and legal protections of
information collected and reported voluntarily . . . .” KD, 715 F. Supp. 2d at 595
(quoting S. Rep. No. 108-196 at **2-3 (2003)). Moreover, the language of the Act
reflects its broader scope vis-à-vis the Health Care Quality Improvement Act
(HCQIA), on which previous courts have relied in declining to find a federal peer
review privilege. Id. (noting that “[w]hile the HCQIA applies only to peer review
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actions affecting individual physicians, the PSQIA protects all ‘patient safety
work product,’ a term defined expansively”). In light of these facts, the Court
agrees with those which have found that the PSQIA constitutes a “‘shift in
congressional policy’ aimed at providing broad protection for peer review work
product in an effort to improve patient safety and quality of care.” Tep, 2014 WL
6873137, at *5 (quoting KD, 715 F. Supp. 2d at 596).3
Finally, it is notable that many of the courts which have declined to
recognize a federal medical peer review privilege in the years following the
passage of the PSQIA have either been subject to binding precedent declining to
recognize such a privilege or constrained by authority within their respective
Circuit against such a privilege. See, e.g., Love v. Permanente Med. Grp., No. C12-05679 DMR, 2013 WL 4428806, at *2 (N.D. Cal. Aug. 15, 2013) (noting that the
Ninth Circuit, in Agster v. Maricopa Cnty., 422 F.3d 836, 839 (9th Cir. 2005),
“declin[ed] to find or create a federal peer review privilege”); Guzman-Ibarguen v.
Sunrise Hosp. & Med. Ctr., Nos. 2:10-cv-1228-PMP-GWF, 2:10-cv-1983-PMP-GWF,
2011 WL 2149542, at *7 (D. Nev. Jun. 1, 2011) (same); Awwad v. Largo Med. Ctr.,
No. 8:11-cv-1638-T-24TBM, 2012 WL 1231982, at *1 (M.D. Fla. Apr. 12, 2012)
(finding that it was “bound by the decision in Adkins v. Christie, 488 F.3d 1324
3
Tellingly, in neither of the unpublished EMTALA opinions Plaintiff cites did the
court consider the PSQIA when it declined to recognize a federal peer review
privilege. The Sellers court appears not to have considered any federal
legislation, and relied exclusively on the fact that “no such privilege has been
recognized by the Tenth Circuit or U.S. Supreme Court.” Sellers, 2012 WL
5362977, at *3. The court in Etter did consider Congress’ treatment of peer
review materials, but only the more limited privilege established by the HCQIA,
which predated the PSQIA by nearly two decades. See Etter, 2011 WL 5216855,
at *6.
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(11th Cir. 2007)” which precluded consideration of a medical peer review privilege
in federal discrimination cases); Levans v. Saint Francis Hospital-Bartlett, No. 15cv-2142-SHL-TMP, 2015 WL 11017962, at *3 (W.D. Tenn. Sept. 8, 2015) (stating that
“[t]he weight of authority in the Sixth Circuit and elsewhere is that no medical
peer review privilege exists under federal common law”) (citation and quotation
omitted). Neither circumstance is present here.
Given the significant public and private interests a peer review privilege
supports, as evidenced by its unanimous adoption by the States and Congress’
passage of the PSQIA, and the minimal, if any, impact that application of the peer
review privilege would have on the Plaintiff’s ability to make out his EMTALA
claim, this Court joins the growing trend among courts in this Circuit and
throughout the country by recognizing a federal peer review privilege in this
EMTALA case.
III.
Conclusion
For the reasons set forth above, the Court recognizes a federal medical
peer review privilege in this case. Accordingly, Plaintiff’s Motion to Compel
documents and information subject to this privilege is DENIED.
IT IS SO ORDERED.
________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: July 20, 2016
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