Awwad v. Largo Medical Center, Inc.

Filing 65

ORDER granting in part and denying in part 42 Plaintiff's Motion to compel; granting in part and denying in part 32 Defendant's Motion for protective order. Signed by Magistrate Judge Thomas B. McCoun III on 4/12/2012. (JDE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

ABRAHAM I. AWWAD,
Plaintiff,
v.

Case No. 8:11-cv-1638-T-24TBM

LARGO MEDICAL CENTER, INC.,
Defendant.
/

ORDER
THIS MATTER is before the court on Defendant’s Motion for Protective Order
(Doc. 32) and Dr. Awwad’s opposition (Doc. 38). By the motion, Defendant Largo Medical
Center, Inc. (LMC) seeks an order protecting it from having to produce credentialing and peer
review files and other related information on grounds that such information as is requested is
privileged and largely irrelevant and the numerous requests impose oppressive and onerous
burdens upon it.1 Should the court compel any production of such matters, it seeks permission
to redact out patient information, and the identity of participants. Further, it seeks relief from
any obligation to file a privilege log. Plaintiff has filed a response in opposition urging that
there is neither a peer review privilege nor a self-critical analysis privilege to bar discovery of
the information he seeks, and the information sought as to himself, Drs. Steinhoff and

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The motion addresses only a portion of the requests made by Plaintiff in his First
Request to Produce, chiefly those related to peer review and credentialing files and minutes
from related committee meetings.

Feinman, and all other physicians disciplined for disruptive conduct is relevant to his claims
for discrimination and breach of contract. He also urges that Defendant should not be relieved
of its obligation to file an adequate privilege log.
Also before the court is Plaintiff Dr. Awwad’s Motion to Compel Responsive
Documents and Adequate Privilege Log to Plaintiff’s First Request for Production and
Motion for Attorneys’ Fees and Costs (Doc. 42) and Defendant’s opposition (Doc. 47). By
this motion, the Plaintiff seeks an order compelling responses or more complete responses to
request Nos. 2-5, 7-10, 16-22, 24-27, 29-30, 32-35, 37-59, 61-63 of his first request for
production and an award of fees and costs for the motion. Upon consideration, the respective
motions are granted in part and denied in part as set forth hereafter.
Regarding the motion for protective order, Defendant makes certain broad assertions
in opposition to the discovery of peer review and credentialing files and related committee
meeting records. These objections are overruled. Initially, while acknowledging Eleventh
Circuit precedent holding that the medical peer review privilege does not apply in federal
discrimination cases, Defendant urges this court revisit the issue of the applicability of the
peer review privilege in this case and requests that on the basis of the privilege, the court deny
much of this discovery.2 The court respectfully declines to do so on this Order. By my

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Defendant cites Adkins v. Christie, 488 F.3d 1324 (11th Cir. 2007), cert. denied 552
U.S. 1131 (2008), acknowledging the Eleventh Circuit’s holding that the medical peer review
privilege does not apply in federal discrimination cases. In short, it urges that Adkins should
be revisited in light of the Congress’ 2005 enactment of the Patient Safety Quality
Improvement Act (PSQIA), at 42 U.S.C. § 299b-21 et seq., as such created a broad federal
privilege for patient safety work product, including peer review materials.
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consideration, this court is bound by the decision in Adkins v. Christie, 488 F.3d 1324 (11th
Cir. 2007), which squarely holds that there is no medical peer review privilege for documents
related to such proceedings in federal discrimination cases. Even if it were appropriate for
this court to reconsider Adkins, any privilege created by the PSQIA appears inapplicable to the
circumstances of this case. Defendant also claims that the HIPAA and Fla. Stat. § 395.3025
too prohibit the discovery of peer review and credentialing files and minutes from hospital
committee meetings. I disagree. Here, the court has already approved an agreed HIPPA
qualified protective order which limits the use and dissemination of such discovery (Docs. 20,
22), and the provisions of § 395.3025 do not govern the instant dispute. Next, Defendant
urges that the sought-after files of Plaintiff, Drs. Steinhoff and Feinman, and all other
physicians accused of disruptive conduct may contain documents constituting self-critical
analysis of a physician or the hospital. It urges the court find a self-critical analysis privilege
which bars the discovery of such matters as reflect on the hospital’s analysis of its own
performance as opposed to Plaintiffs. Here, I adopt the well-reasoned opinion and rationale of
Judge Jones in Johnson v. United Parcel Service, Inc., 206 F.R.D. 686 (M.D. Fla. 2002), and
hold that the self-critical analysis privilege is not applicable to bar discovery in this
discrimination claim.3

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While the court declines to find a blanket self-critical analysis privilege applicable to
this discrimination claim, Defendant’s discovery obligations remain only to produce
documents made relevant by the claims and defenses in this suit. Thus, to the extent that the
hospital conducted self-critical analysis of its own performance or the performance of other
doctors or health providers on matters outside those identified or complained of by Plaintiff,
such need not be produced absent further order of the court.
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Substantively, Defendant contends that the requests for peer review and credentialing
files, and committee meeting minutes for himself, Drs. Steinhoff and Feinman, and all other
physicians accused of disruptive behavior are overbroad, unduly burdensome and not likely to
reveal relevant evidence. By its argument, Defendant did not revoke Dr. Awwad’s staff
membership and clinical privileges because of concerns with his disruptive behavior or quality
of care (as he alleges), but rather, it was Dr. Awwad’s failure to comply with two simple,
inexpensive, and non-punitive requirements of counseling and education on anger
management and attending continuing medical education seminars on fluid and electrolyte
management and sodium/water balance that lead to the revocation. The request for wideranging review of peer review and credentialing files as sought by Plaintiff is a fishing
expedition and not likely to lead to the discovery of relevant evidence.
Additionally, Defendant urges that the requirements of preparing a privilege log
should be deferred or excused until the court determines whether the requested information is
otherwise discoverable. To the extent the court is inclined to allow the discovery, Defendant
seeks to redact patient information and the identity of the individuals conducting the doctors’
peer review.
In response and by its motion, Plaintiff urges the contrary and seeks to obtain the
peer review and credentialing files of all physicians accused of disruptive conduct and quality
of care concerns from 2000 to present which is essentially the same time frame in which Dr.
Awwad worked at LMC. In support, he urges that his Complaint specifically identifies Drs.
Steinhoff and Feinman as having engaged in similarly “disruptive” conduct and engaged in

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significant quality of care issues and thus the hospital’s treatment of them is relevant to his
suit. He further urges that the files of any other physicians similarly accused of disruptive
conduct and quality of care concerns from 2000 forward are appropriate for his discovery and
may lead to relevant evidence. Additionally, he argues that to the extent that Defendant
should have already claimed a privilege and it has failed to do so, the privilege should be
deemed waived and in any event, Defendant should be required to produce a privilege log for
all such matters as it claims a privilege on.
By my consideration, the unredacted peer review and credentialing files of Plaintiff
(Request Nos. 37-38) are relevant for discovery as well as any related hospital committee
meeting minutes (Request Nos. 42-43). Plaintiff’s discovery may extend to any other files
kept by the hospital related to an investigation of Plaintiff (Request No. 52). As for Drs.
Steinhoff and Feinman (Request Nos. 48-51), I reach the same conclusion at least for the
period from January 1, 2006, to the present and insofar as such relate to behavioral issues and
quality of care issues. Patient identities may be redacted. As for the peer review and
credentialing files of any other physician accused of disruptive behavior from January 2000 to
the present (Request Nos. 56-57), I find the requests onerous and unduly burdensome.
However, to the extent that such evidence as may exist may be relevant to the discrimination
claim, Defendant shall permit Plaintiff to review the “trending logs” referenced in the motion
for protective order4 and obtain copies of any peer review or credentialing files related to those
listed on the logs. As for these files, at least initially, the Defendant may redact out the

4

Defendant suggests that it has “maintained trending logs of reported behavioral issues
from 2006 to the present” identifying more than 100 physicians. (Doc. 32 at 21).
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identities of any patients referenced therein as well as the identities of the persons conducting
the review. Any further discovery along these lines shall be addressed by subsequent motion.
As for the particular disputes identified in Plaintiff’s motion to compel, Defendant’s
response indicates that a number of objections have been waived and that production will be
made as to Request Nos. 2-3, 5, 16-19. It is so ordered. In addition to those requests
addressed above, Plaintiff’s motion to compel is granted as to all non-privileged matters
responsive to Request Nos. 7-10 insofar as such matters relate to the peer review of Plaintiff;
Request Nos. 21-22; Request Nos. 24-25; Request Nos. 26-27, 41; Request No. 30 insofar as
it relates to communications concerning the peer review and termination of Plaintiff; Request
No. 46; Request No. 47 insofar as such relates to Plaintiff’s peer review and termination;
Request No. 62 insofar as LMC corporate bylaws address medical staff privileges; and
Request No. 63 related to the 1/1/2006 document retention policy. As for all other requests,
the motion is, at present, denied, essentially for the reasons set forth in Defendant’s
opposition.
The Defendant’s request that it be excused from the requirements of producing a
privilege log is also denied. Any party withholding information otherwise discoverable on the
basis of privilege shall comply with the provisions of Fed. R. Civ. P. 26 (b)(5). To the extent
that either party has withheld documents from matters already produced on the basis of
privilege but has failed to comply with the requirements of Rule 26, it shall produce a
privilege log or other such notice for such matters within fourteen (14) days from the date of
this Order.

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Production required hereby shall be made within fourteen (14) days from the date of
this Order or as otherwise agreed by counsel.
Done and Ordered in Tampa, Florida, this 12th day of April 2012.

Copies furnished to:
Counsel of Record

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