Pettit v. United States of America

Filing 82

OPINION AND ORDER AFFIRMING the Magistrate Judges denial of the Motion to Compel re 53 Appeal of Magistrate Judge Decision to District Court filed by Harold Pettit. Signed by Judge William C Lee on 6/10/15. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAROLD PETTIT,

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Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

CIVIL NO. 2:13cv253

OPINION AND ORDER
This matter is before the court on an “Appeal of Magistrate Judge Decision”, filed on
September 2, 2014, by the plaintiff, Harold Pettit (“Pettit”). The United States of America
(“Government”) filed is response brief on September 26, 2014, to which Pettit replied on October
2, 2014.
On December 29, 2014, this court granted Pettit’s request for an in camera review of
certain documents. The Government submitted documents on January 28, 2015. However, after
determining that the submission did not cover all the documents requested, the court, on
February 17, 2015, ordered the Government to submit additional documents. The Government
submitted these documents on March 19, 2015.
After reviewing the documents the court has determined that Pettit’s appeal will be
denied and the decision of the Magistrate Judge will be affirmed.
Discussion
This case arises under the Federal Tort Claims Act (“FTCA”), as a result of Pettit’s fall at
the Jesse Brown Veterans Affairs Medical Center (JBVAMC) in Chicago in July 2012. Pettit
requested documents relating to his fall, which the Government withheld on the basis of a

privilege created by 38 U.S.C. § 5705. Pettit filed a motion to compel, which the Magistrate
Judge denied, prompting this appeal. The Government claims that the documents are privileged
because they are quality assurance documents. Pettit argues that the Government is abusing the
privilege to shield fact witnesses. Pettit states he needs the documents because the witnesses the
Government has identified have forgotten important facts and he believes the contemporaneous
witness statements may reveal both forgotten facts and additional undisclosed witnesses.
As noted in the order denying the motion to compel, the first document is titled “Patient
Fall Report” and is described as “containing the report of Harold Pettit’s fall on June 8, 2012
prepared by two medical professionals who assisted Harold Pettit during the shift in which
Harold Pettit fell.” The second document is described on the privilege log as a “‘Report of an
Adverse Event,’ containing an aggregate summary of the events surrounding Harold Pettit’s fall
on June 8, 2012 prepared by medical professionals not involved with Harold Pettit’s care based
on medical records and interviews with medical professionals who assisted Harold Pettit after his
fall.” The remaining documents are retrospective critical assessments of the circumstances
surrounding Plaintiff’s fall and are based on the factual information contained in the Patient Fall
Report and interviews conducted for the Report of an Adverse Event. Pettit has requested
disclosure of only the first two documents, either in whole or in redacted form, as he believes that
the withheld documents may contain facts and witness names that have not otherwise been
provided in his medical records.
38 U.S.C. § 5705, which creates the quality-assurance privilege, provides: “Records and
documents created by the Department [of Veterans Affairs] as part of a medical quality-assurance
program . . . are confidential and privileged and may not be disclosed to any person or entity
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except” in specific circumstances. 38 U.S.C. § 5705(a). It defines a “medical quality-assurance
program” as “a Department systematic health-care review activity designated by the Secretary to
be carried out by or for the Department for [the purpose of improving the quality of medical care
or improving the utilization of health-care resources in Department health-care facilities].” 38
U.S.C. § 5705(c)(2). The statute also instructs the VA Secretary to create regulations to
implement the statute, including specifying which types of VA activities constitute medical
quality-assurance programs under the statute. 38 U.S.C. § 5705(d)(1).
The implementing regulations create four classes of “healthcare quality assurance review”
activities that are designated as medical quality-assurance programs. 38 C.F.R. § 17.501(a). The
relevant class is “Monitoring and evaluation reviews conducted by a facility”, which includes a
subclass of “Reports of special incidents (VA Form 10–2633 or similar forms) and follow-up
documents”. 38 C.F.R. § 17.501(a)(1). The regulations further delegate authority to the Under
Secretary for Health, regional directors, and facility directors to describe, in advance and in
writing, the specific quality assurance activities that fall into the four classes created by the
regulations. 38 C.F.R. § 17.501(b). At the individual facility level, each facility director can
specify those activities in a written facility policy document. Id.
The Government relies on two policy documents that were created by the director of the
JBVAMC to specify the quality assurance activities that fall into the four classes created by the
regulations. In a declaration, the current Director states that the disputed documents, the Patient
Fall Report and the Report of an Adverse Event, were produced as part of a Adverse Event and
Close Call Reporting review. According to Memorandum 00-68-15, Adverse Event and Close
Call Reporting activities fall into the “Monitoring and evaluation reviews conducted by a
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facility” class of medical quality-assurance programs created by the regulations. The
Memorandum explicitly states that Adverse Event and Close Call Reporting activities include the
creation of Patient Incident Reports, fact-based incident report that must be submitted whenever
an employee becomes aware of “incidents involving patients that cause harm or have the
potential for causing harm.”
The goal of the VA’s medical quality-assurance programs is to improve care at VA
facilities by facilitating frank, critical peer review of that care. See S. Rep. No. 96-876, at 31
(1980) (stating that quality assurance programs have “had significant beneficial impact on the
quality of health-care provided in the VA facilities by acting as a continuing check on such health
care”). The quality-assurance privilege recognizes that meaningful quality-assurance peer review
would be impossible if critical opinions were subject to disclosure to former patients who might
use the opinions against the VA in litigation. See S. Rep. No. 96-876, at 31 (1980) (providing
that Congress created the privilege because it was “concerned that, unless the physicians and
other health professionals participating in the program can be assured that their remarks and
evaluations . . . will be kept confidential, the necessary level of candor will be lost”); Mem’l
Hosp. for McHenry Cnty. v. Shadur, 664 F.2d 1058, 1062 (N.D. Ill. 1981) (stating, in discussing
an analogous state-law privilege that “[c]onstructive professional criticism cannot occur in an
atmosphere of apprehension that one doctor’s suggestion will be used as a denunciation of a
colleague’s conduct in a malpractice suit.”)
In deciding the motion to compel, the Magistrate Judge noted that the VA privilege is
statutory, not judicially-created or subject to refinement by the courts over the years, and the
authors of 38 U.S.C. § 5705 and the corresponding regulations and facility policies have already
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considered these competing interests. The fact that the regulations and VA policy explicitly
include Patient Incident Reports, which will by their nature be primarily factual, indicates that
the VA determined, in exercising its discretion provided by Congress, that the value of the
privilege in promoting critical analysis of its care outweighs the potential that the privilege will
be abused to hide facts. The Magistrate Judge then declined to second-guess that determination
and denied the motion to compel.
On appeal, the Government indicated, inter alia, that Pettit had received all the
information he requested by way of other documents that were produced. The Government has
advised the court that it has provided Pettit with thousands of pages of documents, and withheld
only 40 pages of privileged quality assurance records. As noted earlier, this court granted Pettit’s
motion for in camera review of the withheld documents. The court also directed the Government
to submit to the court the documents the Government asserted provided equivalent information to
Pettit. The court has now carefully reviewed all the documents submitted by the Government.
Although Pettit seems concerned that the Government is hiding fact witnesses, there is no
evidence of this in the documents provided. The documents simply do not lists names of
witnesses, other than the persons of which Pettit is already aware. As the documents are quality
assurance review documents, they emphasize the facts as known to the VA hospital, and do not
discuss specific nurses or doctors and what they did or did not do with respect to Pettit’s fall.
Nor are the facts detailed with any more specificity than in the documents already submitted to
Pettit. Hence the court agrees with the Government that the records already disclosed to Pettit
are equivalent to the records he seeks to compel. Accordingly, the court will affirm the
Magistrate Judge’s denial of the motion to compel.
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Conclusion
On the basis of the foregoing, the decision of the Magistrate Judge denying Pettit’s
motion to compel, is hereby AFFIRMED.

Entered: June 10, 2015.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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