Wheeler v. United States of America
Filing
59
ORDER granting in part, denying in part, and taking under advisement in part 35 Motion to Compel. Signed by Magistrate Judge James P. O'Hara on 4/30/2018. (srj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RICKY WHEELER, personally and as
Special Administrator of the
Estate of Gretchen A. Konrad, Deceased,
and as the father and natural guardian
of L.W., a minor,
Plaintiff,
v.
Case No. 17-2249-JTM
UNITED STATES OF AMERICA,
Defendant.
ORDER
Ricky Wheeler, the surviving spouse of Gretchen A. Konrad, brings this wrongfuldeath and survival action against the United States of America under the Federal Tort
Claims Act. Plaintiff alleges physicians and other healthcare providers at Irwin Army
Community Hospital (“IACH”) negligently failed to properly manage Ms. Konrad’s
delivery of her son and failed to properly assess and treat Ms. Konrad thereafter. Plaintiff
has filed a motion to compel defendant to provide complete responses to his first
interrogatories and request for production of documents (ECF No. 35). For the reasons
set forth below, the motion is granted in part, denied in part, and taken under advisement
in part.
1. Training policies and procedures, and credentialing and privileging
requirements (Interrogatory Nos. 7–10; Document Request Nos. 4, 8,
10, and 16)
Plaintiff seeks production of materials used to train agents, servants, employees
1
and/or contractors of IACH, IACH policies and procedures, and the requirements for
credentialing and privileging IACH physicians and staff.
In response to plaintiff’s
motion to compel, defendant asserts its supplemental document production and amended
interrogatory answers have resolved these requests. Plaintiff, in his reply brief, seeks
clarification only as to Interrogatory No. 7. Specifically, plaintiff claims that defendant’s
amended answers to Interrogatory Nos. 8–10 state that defendant has searched for
responsive information and has not found anything beyond what has been produced.
Defendant’s response to Interrogatory No. 7, which covers training on the management of
uterine atony, apparently lacks a similar statement.1 Accordingly, “[o]ut of an abundance
of caution,” plaintiff requests that defendant either describe in full all training concerning
the management of uterine atony or state that no further records exist.2 Plaintiff’s motion
to compel is granted as to Interrogatory No. 7, and denied as moot with respect to
Interrogatory Nos. 8–10 and Document Request Nos. 4, 8, 10, and 16.
2. Audit log and/or audit trails (Document Request Nos. 5–7)
Plaintiff seeks the audit log and/or audit trail for the electronic health record of
Ms. Konrad and her son. Plaintiff claims defendant’s responses to these requests are
insufficient in two respects. First, plaintiff claims the audit trail information produced by
defendant only includes “view information when the person accessing the record also
Defendant’s amended interrogatory answers have not been attached as exhibits to
either party’s briefing.
1
2
ECF No. 45 at 2.
2
modifies or takes some other action in the record.”3 Plaintiff, however, seeks “‘view
information’ even when the person did not modify or take any action in the record.”4
Second, plaintiff suggests defendant’s responses do not provide audit trail information for
all software systems on which Ms. Konrad’s medical records were managed, which
include Ahlta, Essentris, and Innovian.
In response to plaintiff’s motion to compel, defendant asserts it’s produced data
regarding the audit log or audit trail of Essentris, the inpatient medical record system
used at IACH. Defendant asserts “[n]o responsive data exists for AHLTA (outpatient) or
CHCS (labs) records,” and that defendant “is attempting to obtain audit data from the
contractor who runs the [Innovian] software” used by the anesthesia department at
IACH.5 Plaintiff’s motion is granted with respect to Document Request Nos. 5–7 insofar
as plaintiff seeks audit data for the Innovian software and the “view only” audit trail
information for Essentris.
3. Code Blue (Document Request Nos. 1–2 and 18–20)
Plaintiff seeks all documents pertaining to Ms. Konrad’s code blue on April 30,
2015. Plaintiff claims that defendant has produced some responsive documents, but that
a number of responsive documents remain outstanding, including lab results, EKG
documentation, heart rhythm recordings, defibrillator data, forms referenced in FR
3
ECF No. 35 at 9.
4
Id.
5
ECF No. 42 at 3.
3
MEDDAC Regulation No. 40-117, a note written by Sean Pozarek, CRNA, and a
memorandum written by Mary Ellen Raymond, CNM.
The parties agree defendant’s amended discovery responses have resolved
plaintiff’s requests for the code blue documentation, except to the extent defendant has
withheld the Pozarek note and Raymond memorandum pursuant to the medical quality
assurance privilege contained in 10 U.S.C. § 1102. Accordingly, plaintiff’s motion to
compel is denied as moot, in part, as to Document Request Nos. 1–2 and 18–20.
Defendant’s privilege assertions are addressed below.
4. Interdepartmental communications (Document Request Nos. 1 and 18–
20)
Plaintiff seeks interdepartmental communications between physicians and staff
regarding Ms. Konrad and her son.6
In response to plaintiff’s motion to compel,
defendant asserted it was working to identify responsive communications, and expected
to finish this process no later than March 23, 2018. Accordingly, to the extent not
already moot, plaintiff’s motion to compel is granted as to Document Request Nos. 1 and
18–20.
5. Miscellaneous information not yet produced, subject to no objection
Plaintiff claims defendant has indicated it will produce documents and information
responsive to Interrogatory Nos. 1, 4, and 11, and Document Request Nos. 4, 7–10, 16,
25, and 37, without objection, but that plaintiff has not yet received documents or
information in response to these requests. In response to plaintiff’s motion to compel,
6
The court notes that Request No. 1 has been rewritten by agreement of the
parties. See ECF No. 35 at 5 and ECF No. 42 at 3.
4
defendant asserts it’s providing amended discovery responses. Accordingly, to the extent
not already moot, plaintiff’s motion to compel is granted as to Interrogatory Nos. 1, 4,
and 11, and Document Request Nos. 4, 7–10, 16, 25, and 37.
Plaintiff also asks the court to require defendant to identify which bates-numbered
documents are responsive to which requests and/or interrogatories, to identify documents
withheld in a privilege log, and to provide a sworn signature page with defendant’s
interrogatory answers. To the extent not already moot, plaintiff’s requests are granted.
6. Documents Withheld Based on Medical Quality Assurance Privilege
Plaintiff asks the court to compel defendant to produce documents defendant is
withholding pursuant to the medical quality assurance privilege contained in 10 U.S.C. §
1102—specifically, (1) credentialing and privileging files of specific IACH physicians,7
(2) a note written by Sean Pozarek, CRNA, and (3) a memorandum written by Mary
Ellen Raymond, CNM.
10 U.S.C. § 1102(a) provides that “[m]edical quality assurance records created by
or for the Department of Defense as part of a medical quality assurance program are
confidential and privileged.” The statute goes on to specifically provide that “[n]o part
of any medical quality assurance record … may be subject to discovery or admitted into
evidence in any judicial … proceeding”8 except under certain enumerated exceptions,9
7
To the extent plaintiff also seeks personnel files of specific IACH physicians and
staff, plaintiff’s request is moot. Defendant asserts it has produced the requested files
(with certain personal information—e.g., tax and employee benefits information—
omitted) pursuant to an agreement with plaintiff.
8
10 U.S.C. § 1102(b)(1) (emphasis added).
5
none of which apply in this case. Congress had one overriding concern in mind when it
enacted this medical quality assurance privilege:
to produce an effective mechanism allowing the military departments to
monitor and ensure that quality medical care [is] provided to Department of
Defense beneficiaries through a collegial review process operating in an
“environment of confidentiality in order to elicit candid appraisals and
evaluations of fellow professionals” without the fear that such records
would be subject to discovery during litigation, thereby causing such
beneficiaries to “receive less than the high quality of care they deserve.”10
The statute defines “medical quality assurance program” as:
any peer review activity carried out … to assess the quality of medical care,
including activities conducted by individuals, military medical or dental
treatment facility committees, or other review bodies responsible for quality
assurance, credentials, infection control, patient care assessment ….,
medical records, health resources management review and identification
and prevention of medical or dental incidents and risks.11
The term “medical quality assurance record” is defined as “the proceedings, records,
minutes, and reports that emanate from quality assurance program activities described
[above] and are produced or compiled by the Department of Defense as part of a medical
quality assurance program.”12
a. Credentialing and Privileging Files
Plaintiff seeks the “credentialing and privileges files” of three IACH physicians.
9
Id. § 1102(c).
10
Smith ex rel. Smith v. United States, 193 F.R.D. 201, 208 (D. Del. 2000)
(quoting 1986 U.S.C.C.A.N. 6413, 6440).
11
10 U.S.C. § 1102(j)(1).
12
Id. § 1102(j)(2).
6
Opposing plaintiff’s motion to compel, defendant has submitted the declaration of
Reynold Mosier, Deputy Commander for Quality and Safety at IACH, which asserts that
credentialing and privileging are part of the IACH medical quality management program.
The declaration indicates that provider credential files are records compiled or created by
IACH quality management activities, and that the files are kept separate from non-quality
management records per Army Regulation 40-68.13 Defendant cites Army Regulation
40-68 for the proposition that “credentialing and privileging are two sides of one coin,”
and that the privileging process is “directed solely and specifically to the provision of
quality patient care.”14
As defendant points out, this court has already considered the medical quality
assurance privilege in a case involving privileging and credentialing files of a physician
at IACH. In Benson v. United States, this court concluded:
The application for, review of, and granting of medical privileges is a
credentialing activity that occurs during a process in which the quality of
medical care that a particular health care practitioner is capable of
providing must be assessed, and thereby attempt to prevent medical
incidents and risks. It is, quite simply, a part of the “medical quality
assurance program” as defined by the plain language of the statute. Further,
the documents memorializing that credentialing activity are reports that
emanate from that medical quality assurance program and, therefore, are
“medical quality assurance records” as defined by the plain language of the
statute.15
13
Army Regulation 40-68 establishes policies, procedures, and responsibilities for
the administration of the Army Medical Department Clinical Quality Management
Program.
14
ECF No. 42 at 8.
15
Benson v. United States of America, No. 01-2148 (D. Kan. Sept. 6, 2002).
7
Plaintiff correctly observes that Benson was decided prior to the 2011 amendment
of 10 U.S.C. § 1102, which changed the definition of “medical quality assurance
program” by replacing “any activity carried out” with “any peer review activity carried
out.”16 The 2011 amendment also added the following definition of “peer review”:
any assessment of the quality of medical care carried out by a health care
professional, including any such assessment of professional performance,
any patient safety program root cause analysis or report, or any similar
activity described in regulations prescribed by the Secretary under
subsection (i).17
Plaintiff argues that under the amended definition of “medical quality assurance
program,” the credentialing and privileging files are employment records, rather than
protected quality assurance documents. Relying on the 1999 case of E.E.O.C. v. MedNational, Inc.,18 plaintiff claims he’s entitled to “at least those portions of the privileging
and credentialing files that were initiated as employment records rather than as quality
assurance documents.”19 Plaintiff reasons, “[d]efendant should not be permitted to shield
itself from theories of liability merely by including employment documents in quality
assurance files.”20
The court is unpersuaded—at least on this relatively thin record—that the 2011
16
See Pub. L. No. 112-81, § 714(a), 125 Stat. 1298 (2011).
17
10 U.S.C. 1102(j)(4).
18
186 F.R.D. 609 (D. Haw. 1999).
19
ECF No. 45 at 8.
20
Id.
8
amendment to the medical quality assurance privilege statute has altered the status of the
requested documents as “medical quality assurance records.”
Further, the statute
“protects the confidentiality of all ‘medical quality assurance records,’ regardless of
whether the contents of such records originated within or outside of a medical quality
assurance program.”21
Plaintiff correctly asserts that defendant may not insulate non-privileged, nonconfidential documents from disclosure by filtering them through a quality assurance
program. Notably, section 1102(h) provides:
[n]othing in this section shall be construed as limiting access to the
information in a record created and maintained outside a medical quality
assurance program, including a patient’s medical records, on the grounds
that the information was presented during meetings of a review body that
are part of a medical quality assurance program.22
But as the court observed in Dayton Newspapers, Inc., “[t]his does not mean … that §
1102(h) authorizes the disclosure of a patient’s medical files from a medical quality
assurance record.”23 Rather, “[s]ection 1102(h) … makes clear that an individual is not
precluded from obtaining those files from an outside source (i.e., a source other than the
quality assurance program) simply because they may have been incorporated into a
Dayton Newspapers, Inc. v. Dep’t of Air Force, 107 F.Supp.2d 912, 917 (S.D.
Ohio 1999)
21
22
10 U.S.C. § 1102(h).
23
Dayton Newspapers, Inc., 107 F.Supp.2d at 917 (emphasis in original).
9
quality assurance record.”24 Indeed, in Med-National, Inc., the case on which plaintiff
relies, the E.E.O.C. sought disclosure of employment applications from an independent
contractor of the government, rather than the military’s actual quality assurance program.
Accordingly, to the extent plaintiff seeks credentialing and privileging files of
specific IACH physicians, plaintiff’s motion to compel is denied.
a. Note and Memorandum
As indicated above, plaintiff seeks a note written by Sean Pozarek, CRNA, and a
memorandum written by Mary Ellen Raymond, CNM.
Plaintiff apparently became
aware of these documents during the course of Mr. Pozarek’s and Ms. Raymond’s
depositions. Mr. Pozarek testified that following the exploratory laparotomy performed
on Ms. Konrad, he created a typed note “to remind [him]self of the patient.”25 Ms.
Raymond testified that “[n]ot too much longer after the incident occurred,” she created a
typed memorandum “to make sure that the facts, as [Ms. Raymond] saw them, were
given to Risk Management.”26 The content of the documents is unclear.
Plaintiff argues the documents are not protected by the quality assurance privilege
because “the documents were created by the witnesses on their own volition and separate
from any peer review process.”27 Defendant contends that section 1102 “does not require
24
Id. at 917–18 (emphasis in original).
25
ECF No. 35-8 at 1.
26
ECF No. 35-9 at 2.
27
ECF No. 35 at 7.
10
that someone who is part of a quality assurance program direct the creation of a
document for the privilege to attach.”28 Defendant argues that because Raymond and
Pozarek created the records “specifically for use in the quality assurance process,” the
documents are privileged under section 1102.29
Plaintiff, in his reply, argues that with its 2011 amendment to 10 U.S.C. § 1102,
Congress intended to clarify that the quality assurance privilege does not apply to records
stemming from any activity of groups or individuals associated with the medical quality
assurance program. “Rather, it only protects records created as part of any peer review
activity carried out by individuals or bodies responsible for medical quality assurance.”30
The court finds the instant record insufficient to establish that the documents are
protected from disclosure under 10 U.S.C. § 1102. With respect to the note written by
Mr. Pozarek, it’s unclear whether he provided the note to anyone and if that note was
used in any capacity except to prepare Mr. Pozarek for his deposition in the instant
litigation. Turning to the memorandum drafted by Ms. Raymond, it’s unclear to whom
she directed the memorandum and how that memorandum has been maintained by IACH.
As noted above, the Mosier declaration asserts that “[r]ecords compiled or created by
IACH quality management activities are kept separate from non-quality management
28
ECF No. 42 at 4.
29
Id. at 7.
30
ECF No. 45 at 4 (emphasis in original).
11
records as per the Army’s Clinical Quality Management regulation.”31 But defendant has
not indicated whether the documents sought by plaintiff are included in those records.
IT IS THEREFORE ORDERED that plaintiff’s motion to compel is granted in
part, denied in part, and taken under advisement in part. Where defendant has been
ordered to supplement its answers or produce documents, it must do so by May 14, 2018.
IT IS FURTHER ORDERED that defendant is directed to submit the Pozarek note
and Raymond memorandum to the court for in camera review, on or before May 14,
2018. By the same deadline, defendant is directed to submit an affidavit clarifying how
the Pozarek note and Raymond memorandum have been held by IACH, and how the
documents have been moved (if at all); defendant is granted leave to submit a
supplemental brief with the affidavit, limited to three double-spaced pages of argument.
Plaintiff shall have five business days to file a responsive brief, likewise limited to three
pages. No further briefing will be allowed.
Dated April 30, 2018, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge
31
ECF No. 42-2.
12
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