Morgan v. Wesley Medical Center, LLC et al
Filing
333
MEMORANDUM AND ORDER granting in part and denying in part 272 Motion for Reconsideration re 267 Order on Motion to Compel; granting in part and denying in part 274 Motion for Reconsideration re 267 Order on Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 5/6/19. (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 are the Motions to Reconsider filed by Defendant
Wesley Medical Center, LLC (hereinafter “Wesley”) (Doc. 272) and Defendant
Via Christi Hospitals, Inc. (hereinafter “Via Christi”) (Doc 274). The motions both
result from the Court’s prior Order (Doc. 267) on a motion to compel (Doc. 214)
filed by Plaintiff regarding peer review and/or risk management documents
identified in these Defendants’ privilege logs. Having reviewed the submissions of
the parties, the Court GRANTS the Defendants’ request to reconsider the prior
Order (Doc. 267) but DENIES Defendants’ request to recognize a federal court
peer review and/or risk management privilege.
BACKGROUND
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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.
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, Via Christi identified responsive documents but asserted peer
review and risk management privileges. Via Christi identified VCHW-R00000112, 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.) 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 brought
the underlying motion seeking an Order compelling Defendant to produce
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materials to the Court so that it could conduct an in camera inspection “to redact
non-facts” in these documents, which would then be produced to Plaintiff. (Doc.
214, at 1.)
In ruling on that motion, the underlying Magistrate Judge found the parties’
analysis of the peer review and risk management privileges to be misplaced
because Plaintiff brought claims under federal as well as state law. The Court
indicated that the appropriate analysis was contained in its prior opinion in Sellers
v. Wesley Medical Center, LLC, No. 11-1340-JAR-KGG, 2012 WL 5362977 (D.
Kan. Oct. 31, 2012), which also involved a plaintiff bringing claims based on the
federal EMTALA statute as well as pendent state law medical malpractice claims.
This Court held that 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.” (Doc. 267, at 6 (citing Sellers, 2012 WL 5362977, at *3).) Because neither
party had addressed the issue, as was the case in Sellers, the Court attempted to
decide “whether certain evidence at issue relates to Plaintiff’s EMTALA claim or
the state court medical malpractice claim, or both.” Id. (citing Sellers, at *3).) The
undersigned Magistrate Judge relied on the following passage from the Sellers
opinion:
In so doing, the Court holds that evidence relating only to
Plaintiff’s federal claim will not be subject to assertions
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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.
(Id., at 7 (quoting Sellers, 2012 WL 5362977, at *3).)
The Court noted that “[n]o 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).” Id., at 7. The
Court held that the responsive information identified in Defendants’ privilege logs
relates to both the federal and state law causes of action and, given Plaintiff’s
sufficient opposition to the privileges, the Kansas statutory privileges do not apply.
(Id. (citing Sellers, 2012 WL 5362977, at *3).) The Court thus overruled
Defendants’ peer review and risk management privilege objections and granted
Plaintiff’s motion (Doc. 214). (Doc. 267, at 7-8.) The Court declined the request
to engage in an in camera review of the documents at issue, but rather ordered
unredacted copies of the documents be produced within thirty (30) days of the date
of the prior Order. (Id., at 8.)
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Wesley points out that the Court sua sponte raised the issue of the
applicability of the state law privileges to Plaintiff’s federal EMTALA claim.
(Doc. 272, at 1-2.) Wesley now “requests the opportunity to brief and argue points
not raised in Plaintiff’s Motion to Compel.” (Id., at 2.) Wesley relies on the U.S.
Supreme Court decision of Day v. McDonough, which, according to Wesley, holds
that “before acting on its own initiative a court should accord the parties fair notice
and an opportunity to present their positions.” (Doc. 272, at 2, citing Day, 547
U.S. 198, 210 (2006).) Wesley argues that “(1) the court should adopt a peer
review privilege applying federal common law, and (2) even if no federal common
law peer review privilege is adopted, certain documents for which the Kansas peer
review and risk management privileges were asserted are not relevant to Plaintiff’s
EMTALA claim.” (Id.)
Via Christi points out that, in the prior Order, the Court made the “factual
finding that all of the disputed documents were relevant to both the EMTALA
claim and the malpractice claims, because the defendant hospitals, having only
responded to the argument that plaintiff raised, had not attempted to identify any
particular documents as relating only to the state-law claims.” (Doc. 274, at 2
(citing Doc. 267 at p. 7).) Via Christi raises the following issues: “1. Should the
Court reconsider its sua sponte ruling that there is no privilege under federal law
for hospital peer review and risk management documents? 2. Should the Court
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reconsider its factual finding as to one of the documents requested, which is not
related to the EMTALA claim?” (Id.)
ANALYSIS
I.
Reconsideration.
Pursuant to D. Kan. Rule 7.3(b), reconsideration of a non-dispositive order is
available where there is “(1) an intervening change in controlling law; (2) the
availability of new evidence; or (3) the need to correct clear error or prevent
manifest injustice.” The Court finds that, because the parties were not instructed to
present argument on the issue applicability of the privilege, reconsideration is
appropriate, particularly given the importance of the issues relating to the peer
review and risk management privileges. Contrary to Plaintiff’s arguments (Doc.
279, at 3-4), to deny the parties the opportunity to address the issues raised by the
Court would constitute manifest injustice pursuant to Rule 7.3. The Court thus
GRANTS Defendants’ motions to the extent they request reconsideration. The
Court will now, however, address the underlying legal issue that has now been
briefed by the parties – whether to adopt the peer review privilege in the federal
District Court of Kansas.
II.
Application of Privilege.
As an initial matter, the Court notes that Defendants acknowledge “that no
federal peer review privilege has been recognized by the Supreme Court or the
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Tenth Circuit.”1 (Doc. 272, at 3 (citing Doc. 267, at 7; Sellers, 2012 WL 5362977,
at *2, *3; Sonnino v. University of Kansas Hosp. Auth., 220 F.R.D. 633, 644 (D.
Kan. 2004).) Wesley argues, however, that the Court should “find that a federal
peer review privilege is applicable under the facts of this case.” (Id.) Wesley cites
numerous cases from other jurisdictions in which courts applied a federal common
law peer review privilege in EMTALA and FTCA cases that, like the present case,
also had pendant state law claims. (Id., at 4.) Plaintiff points out that Defendants
“ignor[e] binding precedent from this jurisdiction and cit[e] to only out-ofjurisdiction, non-binding authority …” (Doc. 279, at 5.)
Wesley continues that recognition of the privilege by this Court would
“serve public and private interests,” such as the provision of an acceptable quality
health care, which Wesley states is “essential to the well-being of [the] citizens [of
Kansas] …” (Doc. 272, at 5.) Another consideration raised by Wesley is the
facilitation of information and opinions between health care professionals with the
goal of improvement of patient care.
The Court acknowledges that federal and state courts in Kansas have
recognized the strong public policy behind the privileges. See Fretz v. Keltner,
109 F.R.D. 303, 309 (D. Kan. 1985); Adams v. St. Francis Regional Med. Center,
1
The Court will cite to and discuss Wesley’s motion because Via Christi “adopts and
incorporates by reference the arguments presented by Wesley … on this issue.” (Doc.
274, at 3.)
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264 Kan. 144, 955 P.2d 1169 (1998). The Court also acknowledges that some
form of the privileges has been adopted by all 50 states and the District of
Columbia. Francis v. U.S.A., No. 09-4004-GBD-KNF, 2011 WL 2224509, at *6
(S.D. N.Y. May 31, 2011) (citation omitted).
That stated, the fact remains that the peer review and risk management
privileges have not been recognized in this District or the Tenth Circuit. In the
absence of Congressional directive, this Court should be cautious imposing
restrictions on the discovery of evidence relevant to federal claims. Defendants
have not persuaded the Court to recognize an entirely new federal court privilege
under the circumstances presented.
III.
Relevancy of Documents to Plaintiff’s EMTALA Claim.
Wesley argues that “[s]ome of the documents set forth in [the] privilege log
… are not relevant to plaintiff’s ‘adequate screening’ EMTALA claim as it
pertains to the screening of D.M. …” (Doc. 272, at 10.) Wesley continues that if
so, these documents would be relevant only to Plaintiff’s pendant state law claim,
thus making them subject to the protections of the state law privilege.
Interestingly, Via Christi “acknowledges that most of the documents requested
would, to the extent they are relevant at all, pertain to all of plaintiffs’ claims,” but
asks the Court to reconsider its ruling as to four pages of a certain document.
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(Doc. 274, at 4.) The Court will individually address the various documents
identified by Wesley and Via Christi.
A.
Regulatory Survey Data Log.
Wesley argues that this “online form completed to reflect the fact of site visit
by a regulatory agency and the area of the hospital being reviewed” contains no
facts regarding Plaintiff’s treatment. (Doc. 272, at 10.) Plaintiff argues that “[t]he
fact of an EMTALA regulatory site visit and the area of hospital being reviewed
relates to the EMTALA claim.” (Doc. 279, at 8.) Plaintiff continues that “[t]he
findings and conclusions of an EMTALA regulatory emergency department site
visit relate to EMTALA claims.” (Id. (citing In re Syngenta AG MIR 162 Corn
Litig., No. 14-MD-2591-JWL, 2017 WL 1106257, at *18 (D. Kan. March 24,
2017).) The Court agrees with Plaintiff that these documents relate to the
EMTALA claim. As such, the state law privileges do not apply. The documents
are to be produced.
B.
EMTALA Requested Documents & Reports Form.
Wesley contends that “[t]his document lists documents that were requested
by the regulatory agency for purposes of a generalized EMTALA compliance
survey conducted at Wesley” and contains nothing relevant to Plaintiff’s care or
treatment. (Doc. 272, at 10.) Plaintiff responds that EMTALA compliance is
“directly related” to Plaintiff’s EMTALA claim because “[f]ailing to comply with
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EMTALA regulations could have a bearing on Plaintiff’s EMTALA claim and
could lead to other evidence bearing on Plaintiff’s EMTALA claim.” (Doc. 279, at
9.) The Court agrees that these documents relate to Plaintiff’s EMTALA claim
and, as such, the state law privilege does not apply. The documents are to be
produced.
C.
Handwritten Notes from Regulatory Site Visit.
Wesley contends that “only pages 4,5, and 7 relate to the EMTALA claims
or even the facts of care provided to Plaintiff.” (Doc. 272, at 10.) Wesley argues
that the remaining pages are not applicable to Plaintiff’s EMTALA claim because
they merely “contain summaries of interviews of Wesley officers (not involved in
care) after reviewing the Plaintiff’s chart, and notes regarding document collection
for the regulators.” (Id.) The Court agrees with Plaintiff that these documents are
relevant to the EMTALA claim “because that information may reveal EMTALA
violations or lead to information that has a bearing on EMTALA violations.”
(Doc. 279, at 10.) The documents are to be produced.
D.
Forms for Disclosures of Medical Records of multiple patients
provided during regulatory survey.
Wesley argues that “[t]hese documents have no relevance to the EMTALA
claim or the care provided to Plaintiff,” but rather consist of “medical record
disclosure forms containing the names of other patients that show what other
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pediatric patient medical records, besides those of D.M., were provided to
surveyors by their request.” (Doc. 272, at 12.)
Plaintiff contends that the documents are relevant to the EMTALA claims
“to the extent they show pediatric patients with similar emergency department
presentations as D.M. who were screened and stabilized before transfer to another
floor.” (Doc. 279, at 10.) According to Plaintiff, the documents “would tend to
serve as admissions that D.M. should have been screened and discharged
differently given his presentation.” (Id.) The Court agrees that these documents
relate to Plaintiff’s EMTALA claim and, as such, the state law privilege does not
apply. The documents are to be produced. The Court does, however, GRANT
Wesley’s request “to redact all patient identifiers prior to production so as to
protect patient privacy under HIPAA regulations.” (Doc. 272, at 12.)
E.
Letter from Outside Organization (Object that further specificity
will waive the privilege) requesting response to D.M. news article.
Wesley contends that “[t]his letter does not relate to the EMTALA claim or
the facts of the underlying care,” because it is simply “a letter from the Joint
Commission (a hospital accreditation organization) citing a newspaper article
about the Plaintiff and requesting that the hospital provide a written explanation.”
(Doc. 272, at 12.) Plaintiff responds that “[t]he newspaper article describes the
substandard care D.M. received at Wesley emergency department” and is thus
“related to the EMTALA claims and so is a request to Wesley for information
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about the article.” (Doc. 279, at 10.) The Court agrees with Plaintiff that the
document applies to Plaintiff’s EMTALA claim and, as such, the state law
privilege does not apply. The document is to be produced.
F.
Letter & supporting documents to Outside Organization in
response to 4/17/2018 letter (Object that further specificity will
waive the privilege).
Wesley describes this document as its “[r]esponse letter to the Joint
Commission.” (Doc. 272, at 13.) Wesley contends the document “contains no
firsthand information – only Wesley’s counsel’s interpretation of D.M.’s Wesley
emergency department chart as applied to Joint Commission standards.” (Id.) The
Court finds that the document relates to Plaintiff’s EMTALA claim and, as such,
the state law privilege does not apply.
Wesley also objects to production of this document on the basis of the
attorney work-product and attorney-client privilege. (Doc. 272, at 13.) Plaintiff
argues that “Wesley’s assertion of attorney work-product and privilege is late and
waived” because Wesley “did not raise this objection and the letter was shared to a
third party …” (Doc. 279, at 10.) The Court agrees that any privilege has been
waived by Wesley. The document is to be produced.
G.
Facility Ethics and Compliance Committee Meeting Minutes for
Wesley Medical Center.
Wesley contends that “[t]his document does not relate to the EMTALA
claim in this case, the care provided to Plaintiff or the facts of this case,” while
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conceding that the document contains “a very brief reference to the conclusion of
the regulatory site visit at the hospital.” (Doc. 272, at 13.) Plaintiff’s response to
Defendants’ motions does not address this document or the arguments raised by
Defendant(s). As such, this portion of Defendants’ motion is GRANTED as
uncontested.
H.
Via Christi documents.
Via Christi asks the Court to reconsider its prior ruling as to only four pages.
The first of these documents is Bates No. VCHW-R000017, which Via Christi
describes as a “document concerning care provided on the inpatient floor at Via
Christi after plaintiff was admitted to the hospital,” thus it “does not concern care
provided in the emergency room.” (Doc. 274, at 4.)
Plaintiff argues that this document is relevant to the EMTALA claim
because “Via Christi’s emergency department improperly screened him before
transferring him to inpatient care.” (Doc. 279, at 7.) Thereafter, Plaintiff
“remained unstable in Via Christi’s inpatient floor and ultimately suffered a stroke
on that floor,” which, according to Plaintiff, “tends to support the claim that D.M.
was screened improperly and transferred from the emergency department before
stabilization.” (Id.) Plaintiff continues that “[t]hese failures were the impetus for
further improper care on the inpatient floor and the preventable stroke suffered by
D.M. on the inpatient floor tends to support that claim.” (Id.)
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Via Christi next refers to the Court to Bates Nos. VCHW-R000057–VCHWR000059, which it describes as “documents ‘from Ascension’s internal claims
system noting that claims had been filed against certain Ascension insureds and
setting initial reserve amounts.’” (Doc. 274, at 4.) Via Christi contends that these
documents are irrelevant to Plaintiff’s EMTALA claim “because they do not relate
to emergency room care.” (Id.)
Plaintiff argues that Via Christi is “less forthright” in its motion as to “what
these documents contain than it was in its privilege log description.” (Doc. 279, at
8.) According to Plaintiff,
[i]n its motion, Via Christi claims these documents only
note that claims had been filed against certain Ascension
insured’s in this case and set initial reserve amounts. The
truth, however, as Via Christi previously disclosed in its
privilege log, is these documents ‘contain information
regarding details of event.’ (Ex. 1, Via Christi Privilege
Log, at VCHW-R000057-59). Information regarding
details of event is directly related to Plaintiff’s EMTALA
claim.
(Id.) Plaintiff also argues that it would be improper for the Court to consider Via
Christi’s “newly raised argument.” (Id.)
Via Christi anticipated that Plaintiff would argue “this is not a proper matter
for reconsideration because Via Christi failed to bring its strongest argument in
response to plaintiff’s motion.” (Doc. 274, at 4.) Via Christi disagrees, however,
noting that it responded “to the only argument [P]laintiff made” because Plaintiff
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“never argued (either in his motion or in pre-motion communications among
counsel) that there was no applicable privilege due to the EMTALA claim.” (Id.)
Rather, according to Via Christi, “[t]he issue was raised by the Court sua sponte in
the order to compel.” (Id.)
Defendant is correct that the Court raised the issue sua sponte. As such, the
Court will not deny Defendant’s motion on this basis. That stated, the Court
DENIES this portion of Defendant’s motion because the documents at issue
clearly relate to Plaintiff’s EMTALA claim given the broad scope of discovery.
The documents are to be produced.
IT IS THEREFORE ORDERED that Defendants’ Motions to Reconsider
(Docs. 272, 274) are GRANTED in part and DENIED in part as more fully set
forth above. The motions are GRANTED to the extent the Court has reconsidered
its prior ruling and allowed Defendants to present argument as to whether the
Court should recognize a federal court peer review and/or risk management
privilege. The Court, however, DENIES Defendants’ request to recognize the
privilege in federal court. The Court further ORDERS the production of certain
documents as discussed herein. All documents ordered to be produced herein shall
be submitted to Plaintiff, without further objection, within thirty (30) days of the
date of this Order.
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IT IS SO ORDERED.
Dated this 6th day of May, 2019, at Wichita, Kansas.
S/ KENNETH G. GALE
HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE
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