Duffy v. Lawrence Memorial Hospital

Filing 157

MEMORANDUM AND ORDER granting 142 Defendant/Counterclaimant Lawrence Memorial Hospital's Motion to Modify Discovery Order (Doc. 133) Directing Defendant/Counterclaimant Lawrence Memorial Hospital to Respond to Document Request Nos. 40, 41, 43 and 58 and for Protective Order, or, in the Alternative, Motion for Extension of Time to Respond. Signed by Magistrate Judge Teresa J. James on 3/31/2017. (byk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MEGEN DUFFY,
Relator/Plaintiff,
v.
LAWRENCE MEMORIAL HOSPITAL,
Defendant.

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Case No. 2:14-cv-2256-SAC-TJJ

MEMORANDUM AND ORDER
This matter is before the Court on Defendant/Counterclaimant Lawrence Memorial
Hospital’s Motion to Modify Discovery Order (Doc. 133) Directing Defendant/Counterclaimant
Lawrence Memorial Hospital to Respond to Document Request Nos. 40, 41, 43 and 58 and for
Protective Order, or, in the Alternative, Motion for Extension of Time to Respond (ECF No.
142). Pursuant to Federal Rule of Civil Procedure 26(c), Defendant asks the Court to enter a
protective order directing it to produce a random sampling of 252 patient records, along with five
spares, in order to respond to Plaintiff’s Document Requests Nos. 40, 41, 43 and 58. Plaintiff
opposes the motion. As set forth below, Defendant’s motion is granted.
I.

Relevant Background
In its order dated February 7, 2017, this Court ordered Defendant to produce within 14

days documents responsive to certain of Plaintiff’s requests in her Second Request for
Production of Documents.1 Plaintiff acknowledges Defendant produced the documents in
question with the exception of those which are the subject of the instant motion, i.e. those
responsive to RFP No. 40, 41, 43 and 58. The relevant requests are as follows:
REQUEST 40: All records for LMH Emergency Department patients 18 years
1

ECF No. 133.
1

and older, presenting with complaints of chest pain or acute myocardial infarction
from October 1, 2010 to the present, which reflect or indicate the time such
patients first had contact with Emergency Department personnel during such
visits.
REQUEST 41: All electrocardiogram (ECG or EKG) printouts, strips, and other
paper or electronically stored records, for patients 18 years and older presenting in
the LMH Emergency Department between October 1, 2010 and the present with
complaints of chest pain or acute myocardial infarction, reflecting or indicating
the time an electrocardiogram was performed.
REQUEST 43: All nurse notes, cheat sheets, time stamps, and other
electronically stored or paper notes or records used by Emergency Department
employees to note the time any patient, 18 years or older and presenting to the
Emergency Department with complaints of chest pain or acute myocardial
infarction, first had contact with Emergency Department personnel during such
visits.
REQUEST 58: All Emergency Department logs or other documentation of
transfers (as required to be kept by the Emergency Medical Treatment & Labor
Act), to or from any other medical facility, of patients presenting to LMH with
chest pain or acute myocardial infarction.2
As Defendant conducted searches for documents responsive to these requests, it
determined that 15,574 unique patient records would have to be located and gathered.3 The
process would require an individual or individuals to go into Defendant’s electronic records
system and review every one of the patient charts in those records to respond to the discovery
order. As Defendant explains, the hospital rolls its patients’ Emergency Department visit records
into their inpatient or observation visits, making it impossible to electronically segregate the
Emergency Department portion from the hospital-based portion of any visit. According to
Defendant, during 2016 it released 13,848 patient records (or nearly 2,000 fewer than this
production would require) with a staff of three individuals working five days a week. Mr.
2

See ECF No. 116-1 at 2-5, 10.

3

The data recited in this paragraph and the next comes from the affidavit of Michael Williams,
Vice President and Chief Information Officer for Lawrence Memorial Hospital. See ECF No.
143-1.
2

Williams voices a concern that processing and logging 15,574 patient records in relatively short
order would cause significant strain on Defendant’s access to and use of its electronic production
database, slowing the system and potentially impacting patient care. As a result, Mr. Williams
recommends that the search for and production of these patient records be performed outside the
hours of 7:00 AM to 5:00 PM Monday through Friday.
In an effort to calculate the time necessary to locate and produce the relevant patient
records, Defendant’s Medical Records department obtained a sample of ten patient records.
They reported that it took up to 20 minutes to process and log a single patient’s records to
respond to the four requests at issue, and an additional ten minutes to determine if a record
contained information relating to a transfer to or from other medical facilities as requested in
RFP No. 58. At 30 minutes per record, Defendant estimates it would take 7,787 worker hours to
locate and produce responsive information for 15,574 patient records. If Defendant had ten
employees working on the task, they would spend more than ninety-seven days working eight
hours a day, at an estimated cost to Defendant of $196,933.23.4
After aggregating the information, Defendant asserts it would need to redact patients’
personal confidential information. According to an affidavit of the Director of Litigation
Support at defense counsel’s law firm, redaction would take ten reviewers fourteen days at a cost
of $37,259.50. The process would include a quality control attorney reviewer who would spend
two hours a day, and reviewers who would review 15 documents per hour for eight hours a day.

4

Defendant believes it would pay contract staff approximately $25.29 per hour based on the job
grade for that position, which represents a base hourly pay of $16.86, multiplied by one and onehalf times for overtime.
3

In sum, Mr. Williams and Mr. Cole estimate that producing the information relevant to
RFP Nos. 40, 41, 43, and 58 would take 8,982 hours of work and cost in excess of $230,000 if
done by contract staff.
II.

Summary of the Parties’ Arguments
Given these numbers, Defendant asks the Court to modify its order by limiting the

required production to a random sampling of 252 patient records plus five spares. Defendant
contends the sampling would abide by appropriate government standards, minimize the costs of
production, yet ensure Plaintiff has sufficient information to litigate her case. Defendant
contends other courts have accepted random sampling as a means of reducing the cost and
burden of discovery, and it arrived at a sample size by using a statistical tool known at RATSTATS used by the Department of Health and Human Services Office of Inspector General. In
the alternative, Defendant seeks additional time in which to comply with the Court’s order, and
asks the Court to shift some or all of the expense of production to Plaintiff.
Plaintiff opposes the motion on a number of grounds. First, Plaintiff argues Defendant’s
motion is not justiciable because Defendant makes no representation that it attempted to confer
with Plaintiff’s counsel before filing its motion as required by Local Rule 37.2, or alternately
because the Court should construe the motion as a baseless motion for reconsideration. Second,
Plaintiff argues that Defendant’s motion is untimely because it raises undue burden, an objection
the Court rejected in the first instance because Defendant had provided no facts to support it.
Plaintiff urges the Court to reject the argument once again to prevent Defendant from benefitting
from its own inaction. Plaintiff seeks to distinguish the cases Defendant relies on to support the
adequacy of random sampling in responding to discovery requests, and argues case law reflects a
reluctance to shift costs of production. Finally, Plaintiff contends redaction is unnecessary

4

because the protective order in this case allows Defendant to designate the patient records as
Confidential Information.
III.

Analysis
A.

Propriety of a Protective Order

The Court has carefully considered the affidavits of Messrs. Williams and Cole to
determine whether Defendant has demonstrated good cause pursuant to Fed. R. Civ. P. 26(c)(1)
for an order protecting it from undue burden and expense. The affidavits, which are unrefuted,
satisfy the Court that Defendant should not be required to comply with the Court’s order as it
currently stands. Had Defendant presented such evidence in response to Plaintiff’s Motion to
Compel,5 the Court may have found the requests at issue unduly burdensome and disproportional
to the needs of the case. Contrary to Plaintiff’s assertion, Defendant did not waive its right to
seek protection once the enormity of the task became apparent. Nor will the Court find
Defendant’s motion is not justiciable because Defendant did not attempt to confer with Plaintiff
before its filing.6 The parties conferred following Defendant’s objections to the discovery
requests, and that was the point at which some meeting of the minds could have produced a
different response by Defendant or an alteration of the discovery request by Plaintiff. At this
point, however, Defendant is seeking relief from this Court’s order rather than from a party’s
discovery request.7

5

ECF No. 116.

6

The Court likewise rejects Plaintiff’s suggestion that Defendant’s motion seeks reconsideration.
Defendant is not asking the Court to change its conclusion that Defendant must produce
responsive documents, but is instead seeking an alternative means of complying with the Court’s
order.

7

The Court recognizes that Fed. R. Civ. P. 26(c)(1) imposes a requirement that a motion for
protective order include a certification that the movant has in good faith conferred or attempted
5

Granting Defendant’s request for a protective order is well within the Court’s discretion.
The court has broad discretion “to decide when a protective order is appropriate and what degree
of protection is required.”8 The Supreme Court has recognized that “[t]he trial court is in the
best position to weigh the fairly competing needs and interests of the parties affected by
discovery. The unique character of the discovery process requires that the trial court have
substantial latitude to fashion protective orders.”9 Along with these principles, this Court is
mindful of its duty to construe and administer the Federal Rules of Civil Procedure “to secure the
just, speedy, and inexpensive determination of every action and proceeding.”10 The Court finds
Defendant is entitled to an order permitting it to randomly sample the 15,574 electronic patient
records it has identified as necessary for review to comply with the Court’s discovery order.
Defendant’s request to comply with the order to produce documents responsive to RFP
Nos. 40, 41, 43 and 58 by producing a random sampling of 252 patient records, along with five
spares, is justified by the time and expense of a full production. The Court also finds merit in the
method from a standpoint of accuracy. Plaintiff summarily contends the manner of retrieving
information is a non-factor. However, if Defendant were to employ contract workers to

to confer with the opposing party in an attempt to resolve the issue without court involvement.
In this instance, the Court excuses Defendant’s omission of the certification because Plaintiff
could not have given Defendant permission to disobey the Court’s order.
8

MGP Ingredients, Inc. v. Mars, Inc., 245 F.R.D. 497, 500 (D. Kan. 2007) (quoting Seattle
Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)).

9

Seattle Times, 467 U.S. at 36. Defendant cites health care cases from other jurisdictions where
random sampling was authorized. ECF No. 143 at 8-9. Plaintiff argues no single case is
sufficiently analogous to sway the Court and none are applicable. While the Court finds the
cases to be of interest, the Court exercises its discretion under Rule 26 based on the unrefuted
evidence Defendant presents and not because of the subject matter of the action.
10

Fed. R. Civ. P. 1.
6

manually search for and review the records, and if the individuals were under time constraints to
meet a court deadline, the element of human error would be a realistic factor.
Overall, the myth that exhaustive manual review is the most effective - and
therefore, the most defensible - approach to document review is strongly refuted.
Technology-assisted review can (and does) yield more accurate results than
exhaustive manual review, with much lower effort. Of course, not all technologyassisted reviews (and not all manual reviews) are created equal. The particular
processes found to be superior in this study are both interactive, employing a
combination of computer and human input. While these processes require the
review of orders of magnitude fewer documents than exhaustive manual review,
neither entails the naïve application of technology absent human judgment. Future
work may address which technology-assisted review process(es) will improve
most on manual review, not whether technology-assisted review can improve on
manual review.11
B.

The Use of RAT-STATS

The next question is whether Defendant may employ the method it proposes, RATSTATS, to select the sample size of 257. According to Mr. Williams, RAT-STATS is the
primary statistical tool used by the Department of Health and Human Services Office of
Inspector General (“OIG”) and offered to providers in their “efforts to fulfill the claims review
requirements for corporate integrity agreements or provider self-disclosure protocol.”12 This is
consistent with the Court’s understanding of RAT-STATS, a statistical package developed,
recommended by, and available free of charge from the OIG website.13 The software includes a
11

Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can
Be More Effective and More Efficient Than Exhaustive Manual Review, 17 Rich. J.L. & Tech.
11, 61 (2011).
12

ECF No. 143-1 ¶10.

13

“RAT-STATS is a free statistical software package that providers can download to assist in a
claims review. The package, created by OIG in the late 1970s, is also the primary statistical tool
for OIG's Office of Audit Services.” https://oig.hhs.gov/compliance/rat-stats/. See also Cornelia
Dorfschmid, “Why OIG RAT-STATS and Sampling are Hot,” published in Journal of Health
Care Compliance, http://compliance.com/publications/why-rat-stats-and-sampling-are-hot-thebest-strategy-for-health-care-entities-is-one-of-proactive-preparedness/.
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Sample Size Determination feature to ensure that a statistically valid sample is drawn, which in
turn allows for making a “fair guess” and drawing conclusions from the sample to the universe.14
Asking the software to produce a confidence level of 99%15 (the highest level offered by the
program) in a universe size of 15,754 records, RAT-STATS identified 252 as an appropriate
sample size. Defendant then used the RAT-STATS tool to create 257 (252 sample and five
spares) random numbers.
Plaintiff offers no objection to or criticism of RAT-STATS. Instead, Plaintiff contends
that allowing Defendant to conduct random sampling is akin to giving her a raffle ticket. She
does not explain the analogy, nor is the similarity immediately apparent. Absent a reasoned
objection and considering the source and reliability of the statistical tool, the Court is satisfied
that the methodology Defendant proposes does not prejudice Plaintiff.
The Court will modify its order (ECF No. 133) to direct Defendant to utilize RATSTATS and produce a random sampling of 252 patient records, along with five spares, to
respond to RFP Nos. 40, 41, 43 and 58.16 The Court recognizes that further issues could arise
following Defendant’s production of this limited number of records, but if so counsel may bring
any such issues to the Court’s attention and they will be addressed in due course.

14

Dorfschmid, id.

15

As Defendant explains through citations to authority, a confidence level of 99% means a less
than 1% chance that under- or over-representation of the data in the random sample is
attributable to chance. See, e.g., Little v. Master-Bilt Products, Inc., 506 F. Supp. 319, 327 n.7
(N.D. Miss. 1980).
16

Using Defendant’s estimates of time and calculating it will take more than 128 hours for
Defendant to produce 257 records (not including review time for redaction purposes), the Court
is allowing Defendant six weeks to comply with the Court’s modified order. If the Court’s
calculation is too generous or Defendant is otherwise able to produce the records in less time, it
should do so.
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C.

Redaction

Defendant intends to redact personal confidential information from the patient records it
produces. Plaintiff claims no such redaction is necessary because any concerns about
confidentiality are addressed by the protective order entered in this case.17 While the Court has
full confidence in the parties’ adherence to the terms of the protective order, the data at issue
relates to patients who are not parties to this action and whose personal confidential information
Defendant has a legal duty to safeguard. At this point, the Court directs Defendant to produce
records only after redacting patients’ personal confidential information. After reviewing the
records, should Plaintiff perceive a compelling need to view the redacted information that
outweighs the patients’ privacy rights, Plaintiff may raise the issue in an appropriate manner.
IT IS THEREFORE ORDERED that Defendant/Counterclaimant Lawrence Memorial
Hospital’s Motion to Modify Discovery Order (Doc. 133) Directing Defendant/Counterclaimant
Lawrence Memorial Hospital to Respond to Document Request Nos. 40, 41, 43 and 58 and for
Protective Order, or, in the Alternative, Motion for Extension of Time to Respond (ECF No.
142) is GRANTED. The Court hereby enters this protective order which modifies that portion of
the Court’s Memorandum and Order dated February 7, 2017 (ECF No. 133) ordering Defendant
Lawrence Memorial Hospital to produce documents responsive to Qui Tam Plaintiff’s Second
Request for Production of Documents to Defendant Nos. 40, 41, 43 and 58. No later than 42
days after the date of this order, Defendant shall respond to Qui Tam Plaintiff’s Second Request
for Production of Documents to Defendant Nos. 40, 41, 43 and 58 by producing a random
sampling (utilizing RAT-STATS) of 252 patient records plus five spares, for a total of 257
records.
17

See ECF No. 38.
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IT IS SO ORD
T
DERED.
Dated this 31st day of Ma
D
arch, 2017 at Kansas Cit Kansas.
t
ty,

Teresa J. James
a
U. S. M
Magistrate Judge
u

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