Duffy v. Lawrence Memorial Hospital

Filing 187

MEMORANDUM AND ORDER memorializing oral rulings made during Status Conference held on 5/8/2017, granting 160 Plaintiff's Motion to Modify Third Amended Scheduling Order; granting in part and denying in part 163 Defendant/Counterclaimant La wrence Memorial Hospital's Motion for Extension of Time to Respond to Requests 59 and 61 and Request for Cost Shifting; granting 169 Relator's Motion for Partial Reconsideration of Redaction Component of Protective Order; and entering FOURTH AMENDED SCHEDULING ORDER. Discovery deadline 12/12/2017. Proposed Pretrial Order due 1/3/2018. Final Pretrial Conference set for 1/10/2018 at 10:30 AM in KC Courtroom 236 before Magistrate Judge Teresa J. James. Dispositive motion deadline 2/9/2018. Signed by Magistrate Judge Teresa J. James on 5/10/2017. (ts)

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 AND FOURTH AMENDED SCHEDULING ORDER
On May 8, 2017, the Court conducted an in-person Status Conference to discuss and
consider four outstanding motions. Relator/Plaintiff Megen Duffy1 appeared through counsel,
Sarah A. Brown, Robert K. Collins, Anthony E. LaCroix and Theodore J. Lickteig. Defendant
Lawrence Memorial Hospital appeared through counsel, David R. Frye and Elizabeth D. Hatting.
Prior to the conference, however, the Court issued a written order ruling on one of the four.2
This order memorializes the oral rulings the undersigned Magistrate Judge made on Plaintiff’s
Motion to Modify Third Amended Scheduling Order (ECF No. 160),
Defendant/Counterclaimant Lawrence Memorial Hospital’s Motion for Extension of Time to
Respond to Requests 59 and 61 and Request for Cost Shifting (ECF No. 163), and Relator’s
Motion for Partial Reconsideration of Redaction Component of Protective Order (ECF No. 169).
Document No. 163

1

The Court hereinafter refers to Ms. Duffy as Plaintiff.

2

See ECF No. 182 (ruling on Defendant/Counterclaimant Lawrence Memorial Hospital’s
Motion to Compel (ECF No. 155)).
1

Defendant seeks an extension of time from April 133 to May 26, 2017 to respond to
Plaintiff’s RFP Nos. 59 and 61, and to shift or divide the costs of redacting the responsive
documents. The Court advised the parties that in ruling on Plaintiff’s motion to compel
Defendant to respond to those requests for production,4 the Court had not intended to impose any
protection on protected health information (“PHI”) beyond that which HIPAA requires. The
Court inquired of Defendant whether an order directing Defendant to produce the documents
without redacting the information Defendant identifies as PHI5 would cause Defendant to violate
its HIPAA obligations. Defendant replied that such an order would not violate HIPAA, but
Defendant would maintain concern for patient privacy.
In response, Plaintiff cited the applicable HIPAA regulation which allows a covered
entity to disclose PHI without the patient’s written permission pursuant to court order or when a
qualified protective order is in place.6 Defendant’s counsel acknowledged the regulation would
allow Defendant to produce documents to Plaintiff without redacting PHI, and made clear that
Defendant’s only ground for redaction is concern for patient privacy. Plaintiff’s counsel
indicated a willingness to narrow the protective order provisions in consideration of Defendant’s

3

Upon the filing of this motion, the Court suspended the April 13 deadline until the Court ruled
on the motion. See ECF No. 166.
4

See ECF No. 156.

5

Defendant identifies as PHI the following information contained in the responsive documents:
“patient names, Social Security numbers, dates of birth, addresses, phone numbers, fax numbers,
email addresses, and credit card information as well as similar information for dependents or
beneficiaries, and information regarding insurance policy and claim numbers, and patient and
medical record numbers.” ECF No. 163 at 2.
6

See 45 C.F.R. § 164.512(e)(1)(i), (e)(1)(ii)(B), (e)(1)(v).
2

concern. In response to questioning by the Court, Plaintiff confirmed her primary intended use
of the documents at issue is by her expert witness(es).
The Court determined the existing protective order contains the provisions necessary
under HIPAA to allow Defendant to produce the documents at issue without redaction.
Accordingly, the Court granted in part and denied in part Defendant/Counterclaimant Lawrence
Memorial Hospital’s Motion for Extension of Time to Respond to Requests 59 and 61 and
Request for Cost Shifting (ECF No. 163). Defendant is granted an extension of time until May
26, 2017 to produce documents responsive to Request Nos. 59 and 61. If Defendant feels it
needs the protection of redaction, it may redact the documents before producing them by the
deadline. The Court denies Defendant’s motion insofar as it seeks an order for Plaintiff to bear
or share in the cost of redaction. If Defendant decides not to redact (either within the confines of
the current protective order or any narrowing of the order as agreed to by the parties), the Court
encourages Defendant to produce the documents ahead of the deadline.
Document No. 169
Plaintiff asks the Court to modify its order allowing Defendant to respond to certain
document requests by producing a random sampling of patient records.7 Plaintiff acknowledges
Defendant has made the production contemplated by the Court’s order and Plaintiff has reviewed
most of those records. According to Plaintiff, because Defendant uses a different computer
system to report information to CMS than it uses for its underlying patient records, Plaintiff is
unable to compare the records because Defendant has redacted all patient names, dates of birth,
and medical records numbers from the latter group. Plaintiff asks the Court to direct Defendant
to reveal, in the random sample, the patient’s date of birth and medical record number. Plaintiff
7

The Court’s order is Doc. No. 133.
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asserts those identifiers will allow for an accurate match of the records from the two systems and
provide adequate protection of patient privacy.
Plaintiff also requests an extension of time to file a motion to compel with regard to
Defendant’s production. Plaintiff is not challenging the Court’s decision to allow sampling, but
has questions about the population from which Defendant chose the patient records.
Defendant takes no position on the redaction issue but asks that if the Court grants the
motion, it order only that Defendant unredact the medical record number and date of birth in one
location in each of the patient records. Defendant does not oppose the extension of time Plaintiff
requests.
The Court granted Relator’s Motion for Partial Reconsideration of Redaction Component
of Protective Order (ECF No. 169) and directed Defendant to unredact the medical record
number and date of birth the first time each such identifier appears in the patient records. The
Court also extended until May 26, 2017 Plaintiff’s deadline to file a motion to compel related to
the production. The Court further directed counsel to discuss the issue immediately following
the conference.
Document No. 160
Plaintiff seeks to modify the Third Amended Scheduling Order by extending the
remaining deadlines by approximately four months. These deadlines include both parties’ expert
witness designations, rebuttal expert designations, close of discovery, proposed Pretrial Order
and Pretrial Conference, and dispositive motions deadline. Defendant opposes the motion.
After hearing counsel’s arguments and considering the status of discovery, the Court
granted the motion in part. The Court extended the remaining deadlines by only approximately
two months. The Court strongly encouraged counsel to confer and resolve their pending
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discovery disputes in the hope that further extensions will be unnecessary. For good cause
shown, the Court granted Plaintiff’s Motion to Modify Third Amended Scheduling Order (ECF
No. 160). The Third Amended Scheduling Order deadlines are amended as set forth in the chart
below:
Event

New
Deadline/Setting

Current Deadline/Setting
40 days before deadline
for completion of all
discovery

unchanged

October 6, 2017

December 12, 2017

Experts disclosed by plaintiff

April 7, 2017

June 7, 2017

Experts disclosed by defendant

June 9, 2017

August 9, 2017

Rebuttal experts disclosed

July 14, 2017

September 14, 2017

November 30, 2017

February 9, 2018

Final supplementation of initial
disclosures
All discovery completed

All other potentially dispositive
motions (e.g. summary judgment)
Motions challenging admissibility
of expert testimony
Proposed pretrial order due
Pretrial conference in Courtroom
236

unchanged

45 days before trial

January 3, 2018

October 25, 2017
November 1, 2017

January 10, 2018 at 10:30 AM

IT IS SO ORDERED.
Dated this 10th day of May, 2017 at Kansas City, Kansas.

s/ Teresa J. James
Teresa J. James
U.S. Magistrate Judge

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