Morgan v. Wesley Medical Center, LLC et al

Filing 267

MEMORANDUM AND ORDER granting 214 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 1/25/19. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
D.M., a minor, by and through
)
his next friend and natural guardian, )
KELLI MORGAN,
)
)
Plaintiff,
)
)
v.
)
)
WESLEY MEDICAL CENTER LLC )
d/b/a WESLEY MEDICAL
)
CENTER-WOODLAWN, et al.,
)
)
Defendants. )
_______________________________)

Case No.: 18-2158-KHV-KGG

MEMORANDUM & ORDER ON MOTION TO COMPEL
Now before the Court is the Motion to Compel filed by Plaintiff regarding
peer review and/or risk management documents identified in Defendant Via
Christi’s and Defendant Wesley’s privilege logs. (Doc. 214.) Having reviewed the
submissions of the parties, Plaintiff’s motion (Doc. 214) is GRANTED for the
reasons set forth below.
BACKGROUND
Plaintiff, through his natural guardian and next friend, filed his federal court
Complaint on April 9, 2018, alleging claims under Kansas medical malpractice
laws and under the Federal Emergency Medical Treatment and Active Labor Act.
The claims result from the medical care he received on March 5 and 6, 2017.
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Plaintiff alleges that on March 6, 2017, he “suffered a catastrophic and medicallypreventable stroke that left him with right-side paralysis, neurological damage and
other debilitating physical injuries that permanently changed his and his parents’
lives.” (Doc. 1, at 5.)
In response to Plaintiff’s Requests for Production Nos. 5, 6, 14, 24, 28, 29,
31, 32 and 54, Defendant Via Christi (“Via Christi”) identified responsive
documents but asserted peer review and risk management privileges. Via Christi
identified VCHW-R000001-12, 13-15, 21-28, 38-40, and 54-56 as responsive but
provided a privilege log asserting these privileges. (Doc. 214-1, at 28-31.)
Defendant Wesley (“Wesley”) did the same in response to Plaintiff’s Requests for
Production of Documents Nos. 14, 25, 27, and 31. (Id., at 33-35.) Via Christi’s
privilege log indicates that certain of the withheld documents contain “details of
event, injury details, when and where event occurred, and who was notified” about
the event. (Id., at 28-31.)
Plaintiff contends “[t]hese are essential facts going to the heart of Plaintiff’s
claim” and, as such, the facts are discoverable. (Doc. 214, at 1.) Plaintiff brings
the present motion seeking an Order compelling Defendant to produce materials to
the Court so that it may conduct an in camera inspection “to redact non-facts” in
these documents, which would then be produced to Plaintiff. (Doc. 214, at 1.)
ANALYSIS
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I.

Legal Standards for Discovery.
Fed.R.Civ.P. 26(b) states that
[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case,
considering the importance of the issues at state in the
action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to
be discoverable.

As such, the requested information must be nonprivileged, relevant, and
proportional to the needs of the case to be discoverable. Holick v. Burkhart, No.
16-1188-JTM-KGG, 2018 WL 372440, at *2 (D. Kan. Jan. 11, 2018).
II.

Peer Review & Risk Management Privilege.
“Neither the Supreme Court nor the Tenth Circuit has recognized a medical

peer review or medical risk management privilege under federal common law.”
Sonnino v. University of Kansas Hosp. Auth., 220 F.R.D. 633, 644 (D. Kan.
2004). In the present case, however, Plaintiff also brings a pendant state law
causes of action against Defendants. As discussed above, in response to certain
document requests at issue, Defendants Via Christi and Wesley have asserted the

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peer review and risk management privileges, which have been codified by the
Kansas legislature at K.S.A. § 65-4915, et seq. and § 65-4925, et seq.
The peer review privilege is codified by K.S.A. § 65–4915(b), which
provides in relevant part:
the reports, statements, memoranda, proceedings,
findings and other records submitted to or generated by
peer review committees or officers shall be privileged
and shall not be subject to discovery, subpoena or other
means of legal compulsion for their release to any person
or entity or be admissible in evidence in any judicial or
administrative proceeding. Information contained in such
records shall not be discoverable or admissible at trial in
the form of testimony by an individual who participated
in the peer review process.
Via Christi notes that “it is not only the documents ‘generated by’ a peer review
committee/officer, but also the documents that were ‘submitted to’ the peer review
committee/officer that are not discoverable.” (Doc. 235, at 3 (citing K.S.A. 654915).) Via Christi also notes that “the statutory language does not carve out an
exception from the privilege for ‘facts.’” Id.
K.S.A. § 65–4925(a) states that records created
pursuant to K.S.A. § 65–4923 or § 65–4924, and
amendments thereto, shall be confidential and privileged,
including: (1) Reports and records of executive or
review committees of medical care facilities or of a
professional society or organization; (2) Reports and
records of the chief of the medical staff, chief
administrative officer or risk manager of a medical care
facility; (3) Reports and records of any state licensing
agency or impaired provider committee of a professional
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society or organization; and (4) Reports made pursuant to
this act to or by a medical care facility risk manager, any
committee, the board of directors, administrative officer
or any consultant. Such reports and records shall not be
subject to discovery, subpoena or other means of legal
compulsion for their release to any person or entity and
shall not be admissible in any civil or administrative
action other than a disciplinary proceeding by the
appropriate state licensing agency.
Via Christi notes that “[l]ike the peer review privilege, the risk management
privilege covers ‘reports and records,’ and does not make an exception for factual
statements within those documents.” (Doc. 235, at 5.) Via Christi also notes that
“Plaintiff does not and cannot deny that the documents at issue here fall within the
scope of the peer review and risk management privileges as set forth in the Kansas
statutes.” (Id.)
The parties spend much of their briefs discussing the case of Adams v. St.
Francis Regional Medical Center, in which the Kansas Supreme Court held that
the peer review and risk management privileges are subject to constitutional due
process limitations. 264 Kan. 144, 158, 955 P.2d 1169, 1178–79 (1998). Plaintiff
argues that “Via Christi’s privilege log informs Plaintiff that many of the withheld
documents contain ‘details of event, injury details, when and where event
occurred, and who was notified’ about the event.” (Doc. 214, at 1.) According to
Plaintiff, these are “essential facts going to the heart of Plaintiff’s claim.” (Id.)
Similarly, Plaintiff contends that Wesley “asserts the same privileges for
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documents containing essential facts.” (Id.) Plaintiff contends that “[b]ecause the
facts are discoverable but contained within privileged documents, pursuant to
Adams this Court must conduct an in camera inspection to redact nonfacts in the
specified documents,” which would then be produced to Plaintiff. (Id.)
Defendants both argue that Plaintiff has misinterpreted the Adams holding. (See
Doc. 235, at 5-8; Doc. 236, at 7-15.)
The Court finds that the parties’ reliance on Adams is misplaced in the
present situation, wherein Plaintiff has brought claims under federal as well as state
law. Analysis will instead be based on the undersigned Magistrate Judge’s prior
opinion in Sellers v. Wesley Medical Center, LLC, No. 11-1340-JAR-KGG, 2012
WL 5362977 (D. Kan. Oct. 31, 2012). That case also involved a plaintiff bringing
claims based on the federal EMTALA statute as well as pendent state law medical
malpractice claims. Id.
In the present case, as in Sellers, “[t]he issue thus before the Court is
whether and/or how the Kansas state court statutory peer review privilege applies
to Plaintiff’s federal and pendant state law claims in federal court.” Id., at 3. As in
Sellers, the parties’ briefs in the present matter “do not necessarily discuss whether
certain evidence at issue relates to Plaintiff’s EMTALA claim or the state court
medical malpractice claim, or both.” Id., at *3. Thus, as in Sellers, the Court will
attempt to make this determination.
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In so doing, the Court holds that evidence relating only to
Plaintiff’s federal claim will not be subject to assertions
of the Kansas statutory peer review privilege, to the
extent Plaintiff has adequately opposed the application of
the privilege, as no such privilege has been recognized by
the Tenth Circuit or U.S. Supreme Court. Sonnino [v.
University of Kansas Hosp. Auth., 220 F.R.D. 633, 644
(D. Kan. 2004).] On the other hand, evidence relating
only to Plaintiff’s pendant state law cause of action will
be subject to the privilege to the extent it was adequately
asserted by Defendant. Finally, to the extent evidence
relates to both the federal and state law causes of action,
the privilege will not apply to the extent it was
adequately opposed by Plaintiff.
Sellers, 2012 WL 5362977, at *3. Simply stated, the state law privilege does not
apply to evidence relevant to the federal claims, even if it is also relevant to the
pendant claims arising under state law.
No attempt was made by either Defendant to indicate whether certain
evidence related only to Plaintiff’s state law claim (to which the privileges would
be applicable) or related only to Plaintiff’s federal claim pursuant to EMTALA (to
which the privileges would not be applicable). The Court thus finds that the
information implicated by the discovery requests (and identified in Defendants’
privilege logs) relates to both the federal and state law causes of action. Given
Plaintiff’s opposition to the privileges, which the Court deems “adequate,” the
Kansas statutory privileges do not apply. Sellers, 2012 WL 5362977, at *3.
As such, the Court finds that Defendants’ objections based on the peer
review and risk management privileges are overruled. Plaintiff’s motion (Doc.
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214) is GRANTED. The Court declines to engage in an in camera review of the
documents at issue. Instead, the Court ORDERS that unredacted copies of the
documents be produced within thirty (30) days of the date of this Order.

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel (Doc.
214) is GRANTED as set forth more fully herein.
IT IS SO ORDERED.
Dated this 25th day of January, 2019, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE

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