ANDREWS et al v. RAM MEDICAL INC et al

Filing 58

ORDER granting 44 Motion to Quash as to Request 6 of the subpoena. Ordered by Judge Hugh Lawson on 6/20/2012. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
SHAWN ANDREWS and CONSTANT
ANDREWS,
Plaintiffs,
v.

Civil Action No. 7:11-CV-147 (HL)

RAM MEDICAL, INC., MEDLINE
INDUSTRIES, INC., C.R. BARD, INC., and
DAVOL, INC.,
Defendants.

ORDER
Before the Court is non-party Tift Regional Medical Center’s (“Tift
Regional”) Motion to Quash. For the reasons stated below, the Motion is granted
as to Request 6. The arguments regarding the remaining nine subpoena
requests are found to be moot based on the parties’ agreement as to those
requests.
I.

BACKGROUND

This is a products liability case that revolves around the implantation of
allegedly counterfeit surgical mesh in Plaintiff Mrs. Shawn Andrews. In October
2009, Mrs. Andrews went to the South Georgia Surgical Clinic for a hernia repair,
and during this procedure, she was implanted with allegedly counterfeit mesh. As
a result, she claims to have suffered numerous health complications. She and
her husband, Mr. Constant Andrews, filed this suit against Defendants RAM

Medical, Inc. and Medline Industries Inc., both distributors of medical products,
as well as CR Bard, Inc. and Davol, Inc., both manufacturers of medical
products.
Non-party Tift Regional Medical Center (“Tift Regional”) filed this Motion to
Quash in opposition of a subpoena served on it by Defendant Medline Industries,
Inc. (“Medline”). Medline served Tift Regional with a subpoena listing ten
requests for documents. Tift Regional filed this Motion to Quash, objecting to
almost all of Medline’s requests. However, in a telephone conference call held on
May 10, 2012,1 the parties informed the Court that many of the issues raised by
Tift Regional in its Motion to Quash were resolved by the parties without Court
involvement. Only two issues were left remaining: (1) whether any of the
requests listed in the subpoena potentially violate HIPAA and (2) whether the
peer review or medical review privilege applies to Request 6 of the subpoena,
which seeks information about hospital-acquired infections at Tift Regional.
These issues are addressed below.
II.

DISCUSSION
a. Potential HIPAA Violations

In the telephone conference call, Medline stated that it does not
intentionally seek any HIPAA-protected information. Thus, the Court orders Tift
Regional to produce any documents that are responsive to Medline’s requests,

1

The parties to the telephone conference call were the Court, Medline, Tift
Regional, and Plaintiffs Shawn and Constant Andrews.
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and if a potential HIPAA violation is discovered, the document should be
redacted to exclude patient information before disclosing the document to
Medline.
b. Request 6: Information regarding Tift Regional’s HospitalAcquired Infection Rate
Request 6 of Medline’s subpoena asks Tift Regional to produce “statistics
and records created and/or generated regarding hospital acquired infections at
Tift Regional Medical Center from 2008-2011.” Tift Regional argues that this
information should be considered privileged under the peer review statute,
O.C.G.A. §§ 31-7-130, et seq. and/or the medical review statute, O.C.G.A. §§ 317-140, et seq. These two statutes have been recognized as placing “an
exceedingly wide blanket of confidentiality over information generated by health
care providers concerning the quality and efficiency of medical care.” Doe v.
UNUM Life Ins. Co. of Am., 891 F. Supp. 607, 609 (N.D. Ga. 1995). In Emory
Clinic v. Houston, 258 Ga. 434, 434, 369 S.E.2d 913, 913 (1988), the Supreme
Court of Georgia noted that the Georgia General Assembly has placed an
“absolute embargo” upon the discovery and use of all proceedings, records,
findings, and recommendations from peer review groups and medical review
committees. The court in UNUM Life Insurance stated that
committee proceedings – in all respects – are inviolate and
nondiscoverable. The actual documents presented to the
committee are privileged if they are sought from the committee. If
the committee considered documents or testimony from outside
sources …, then discovery of that information must come from the
outside sources. In short, the peer review statutes confer upon
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peer review organizations the qualities of a black hole; what goes
in does not come out, and, unless the information exists in
duplicate in the surrounding orbit, nothing that went in is
discoverable.
891 F. Supp. at 610.
The peer review and medical review privileges protect two types of
information. UNUM Life Ins., 891 F. Supp. at 611. First, there is material that
relates directly to a peer review or medical review investigation. Id. This material
is always non-discoverable. Id. Second, there is information that would exist
regardless of the peer review or medical review investigation, and this
information is discoverable on a limited basis. Id. It cannot be discovered from
the review group, but can be accessed from another source. Id.
In this case, Medline seeks information about hospital-acquired infections
at Tift Regional. Tift Regional argues that this information should receive
absolute protection under the peer review privilege because it was collected at
the request of a peer review group. Medline argues that the information sought
about infection rates is factual data from original hospital records, and should not
be considered the product of a medical or peer review investigation. Medline
relies on Cobb Co. Kennestone Hosp. Authority v. Martin, 208 Ga. App. 326, 430
S.E.2d 604 (1993), for the proposition that factual data is not subject to the peer
review privilege.
Despite Medline’s argument, the Court agrees with Tift Regional that the
information regarding infection rates should be protected under the peer review
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privilege. The information about infection rates sought by Medline is generated
by Mary Key, a Certified Infection Control Registered Nurse at Tift Regional.
(Joint Stipulation of Fact (“JSF”), Doc. 56, p. 7.) Nurse Key serves as a
registered nurse and infection preventionist, as well as a member of the Tift
Regional Clinical Monitoring Committee (the “Committee”). (JSF, p. 7.) This
Committee, which consists of professional health care providers, including
licensed physicians, nurses, and hospital administrators, was created to evaluate
and improve the quality and efficiency of the health care services provided by Tift
Regional. (JSF, p. 3.) According to the bylaws of the Committee, the Committee
is considered to perform peer review and medical review functions within the
meaning of O.C.G.A. §§ 31-7-130 et seq. and §§ 31-7-140 et seq. (JSF, p. 3.)
At the request of the Committee, Nurse Key creates a spreadsheet on a
monthly basis, detailing information about infection rates at Tift Regional. The
spreadsheet tracks infection trends and above-average infection rates. (JSF, p.
5.) It is reviewed and approved by the Committee on a quarterly basis (JSF, p. 5)
and is used to develop and implement remedial measures to address concerns
about the infection rate (JSF, p. 6).
To create the spreadsheet, Nurse Key reviews lab reports and medical
records, and occasionally confers with patient health care providers. (JSF, p. 5.)
If there is some indication that a patient has had an infection, Nurse Key, using
her own experience, as well as guidelines developed by the Centers for Disease
Control, makes a determination on whether the infection is hospital acquired.
5

(JSF, p. 5.) Nurse Key’s initial findings and analysis are first set out in a
worksheet, and then compiled into a spreadsheet at the end of each month.
(JSF, p. 5.) The parties agree that “[t]here is no raw data compiled to produce the
spreadsheet. There is also no raw data which shows rates of hospital acquired
infections that exists apart from Nurse Key’s work sheets and the spreadsheet.”
(JSF, p. 8.)
Based on the evidence presented in this case, the Court finds that the
information sought by Medline is protected by the peer review privilege. The
spreadsheet created by Nurse Key is generated at the request of the Committee
and is prepared specifically for Committee review. Information is gathered from
patient charts and independently analyzed by Nurse Key, a Committee member
who works at the behest of the Committee. There is no raw data that is used to
compile the spreadsheet. Without Nurse Key’s analysis and evaluation, the
spreadsheet and the information contained therein would not exist. Therefore,
the information prepared by Nurse Key relating to infection rates, is privileged.
Tift Regional’s Motion to Quash in reference to Request 6 of the subpoena
is granted. The other nine subpoena requests have been resolved by the parties
without Court intervention, and do not require any further analysis.
SO ORDERED, this 20th day of June, 2012.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE

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