Morgan v. Wesley Medical Center, LLC et al

Filing 342

MEMORANDUM AND ORDER denying 264 Motion to Quash or Modify Subpoena to Non-Party. Signed by Magistrate Judge Kenneth G. Gale on 5/24/19. (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 QUASH OR MODIFY SUBPONEA TO NON-PARTY
Now before the Court is the “Motion to Quash or Modify Plaintiff’s
Subpoena to Non-Party CarePoint, LLC” filed by Defendant Wesley Medical
Center (hereinafter “Wesley” or “Defendant”). (Doc. 264.) Having reviewed the
submissions of the parties, the Court DENIES Defendant’s motion.
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.

1 

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.)
Plaintiff filed a Notice of Subpoena (Doc. 250) on January 7, 2019,
informing the parties that a subpoena for documents would be served on non-party
CarePoint. CarePoint employed Defendants Bridget Grover and Dr. Gregory
Faimon at the time Plaintiff was treated in Wesley’s Woodlawn emergency room.
Wesley contends it has standing to bring the present motion (Doc. 264, at 2) and
Plaintiff does not contest this (see generally Doc. 277). Wesley argues that the
subpoena seeks several categories of documents that are protected by the risk
management and peer review privileges, seeks irrelevant yet confidential
proprietary information, and are duplicative of document requests made to Wesley.
(See generally Docs. 264, 283.) Plaintiff contends that the privileges are
inapplicable, the information requested is both relevant and not confidential, and
the categories of documents requested are not duplicative. (See generally Doc.
277.)

ANALYSIS
I.

Legal Standards for Discovery.
Fed.R.Civ.P. 26(b) states that
2 

[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.

Application of Peer Review and Risk Management Privileges.
As an initial matter, the Court notes that Defendant has previously

acknowledged “that no federal peer review privilege has been recognized by the
Supreme Court or the Tenth Circuit.” (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).) In its motion to reconsider the
Court’s prior Order regarding the application of the privileges, Wesley argued that
the Court should “find that a federal peer review privilege is applicable under the
facts of this case.” (Id.) Wesley continued that recognition of the privilege by this
Court would “serve public and private interests,” such as the provision of an
3 

acceptable quality health care, which Wesley states is “essential to the well-being
of [the] citizens [of Kansas] …” (Doc. 272, at 5.)
The Court has extensively addressed and analyzed the privileges in its prior
Order on Defendants’ Motion to Reconsider. (Doc. 333, at 6-8.) That analysis is
incorporated herein by reference. The Court will not further analyze the
application of the privileges. That stated, this Court held that
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.
(Id., at 8.) The Court applies this prior holding to the arguments raised by the
parties herein. As such, the Court DENIES Defendant’s Motion to the extent it
seeks to quash subpoena categories Nos. 6, 13, 22-32, 40, and 42 based on the
application of the peer review and risk management privileges in federal court.
Further, Defendant has failed to establish that the requested information is
relevant only to Plaintiff’s state law cause of action (for with the Kansas statutory
privileges would be applicable). Defendant concedes that CarePoint “is the
employer of various healthcare providers (including physicians, physician
assistants, and APRNs) practicing in Wesley’s Woodlawn emergency room. …”
(Doc. 264, at 3.) Defendant then attempts to argue that “plaintiff’s [subpoena]
4 

requests to CarePoint … ask for categories of documents not relevant to proving an
EMTALA violation.” (Doc. 283, at 2.) Defendant then contends that “EMTALA
does not set a federal standard of care or replace pre-existing state medical
negligence laws and EMTALA is not a substitute for state law malpractice actions,
and was not intended to guarantee proper diagnosis or to provide a federal remedy
for misdiagnosis or medical negligence.” (Id.) Thus, Defendant appears to take
the position that certain documents are relevant only to Plaintiff’s state law cause
of action – to which the Kansas statutory privileges would apply – rather than to
the federal EMTALA claim – to which the privileges would not apply. The Court,
however, fails to see, and Defendant has failed to establish, how documents
maintained by the company that employs the health care providers working in
Defendant’s emergency room would be irrelevant to Plaintiff’s EMTALA claim.
The Court DENIES the portion of Defendant’s motion relying on this argument.
III.

Request No. 46.
A.

Relevance.

Subpoena Request No. 46 seek “[a]ny and all policies, procedures,
guidelines on staffing of the Wesley Woodlawn emergency room for CarePoint,
P.C. that were in effect at the time [plaintiff] presented.” (Doc. 264-1.) Defendant
argues that policies regarding “staffing of the Wesley Woodlawn emergency
room” are irrelevant to the claims or defenses asserted by the parties. (Doc. 264, at
5 

7.) Defendant contends that Plaintiff “has made no claim or allegations that the
Wesley Woodlawn emergency room was understaffed. Plaintiff had virtually no
wait before he was seen, so any sort of understaffing claim is not anticipated.”
(Id.)
Plaintiff contends the information is relevant to numerous allegations in the
Complaint, including:
Defendant “utilizes mid-level practitioners … to staff its
emergency room in order to reduce its costs, which
“comes at the price of patient care”;
the Kansas Board of Healing Arts previously determined
that Defendant Grover “committed fraud in connection
with her attempt to renew her medical license”;
Plaintiff was “never seen by a physician, never given a
neurological assessment, and no imaging of the head was
ever considered, ordered or performed” while at
Defendant Wesley; and
Defendant Faimon was responsible for supervising
Defendant Grover, but Faimon never saw D.M. nor did
he review D.M.’s chart until after D.M. was discharged.”
(Doc. 277, at 2-3.) In other words, Plaintiff contends that Defendants Faimon and
Grover were employees of CarePoint working at Defendant Wesley’s emergency
room when Plaintiff presented there. (Id., at 3.) Plaintiff further contends that
CarePoint’s “staffing policies and procedures are relevant to support the allegation
that Wesley uses mid-level practitioners from CarePoint to staff [Defendant]
Wesley’s emergency department, which reduces the standard of care Wesley offers
6 

to emergency room patients while lining Wesley’s pockets.” (Id.) The Court
agrees that that, for the purposes of discovery, the information sought by Request
No. 46 clearly relevant to Plaintiff’s allegations. The Court Denies the portion of
Defendant’s Motion to Quash relying on this argument.
B.

Confidential Proprietary Information.

Defendant also argues that Request No. 46 should be quashed because
“acuity and census formulas and systems (that is, the tools used by Wesley to make
staffing decisions) are confidential, proprietary information and the court should
quash this request.” (Doc. 264, at 7 (citing Fed.R.Civ.P. 45(d)(3)(B)(i);
Fed.R.Civ.P. 26(c)(1)(G).) Defendant continues that CarePoint’s status a
contractor would not give it “the right to disclose Wesley’s confidential,
proprietary information.” (Id.)
Plaintiff responds that Defendant’s concerns as to producing confidential
information “are resolved by this Court’s Protective Order wherein the parties and
Court acknowledged that ‘during the course of discovery it may be necessary to
disclose certain confidential information …’.” (Doc. 277 (quoting Doc. 192.) The
Protective Order also specifically anticipated that Plaintiff’s claims “will require
factual support from all parties concerning issues involving … proprietary
information of health care facilities, and various other confidential information.”
(Doc. 192.) According to Plaintiff, Defendant’s “remedy for concerns over
7 

proprietary or confidential information is not a motion to quash; rather, it is an
assertion upon production that the material is confidential and proprietary thereby
placing it under the Protective Order’s umbrella.” (Doc. 277, at 4.) Plaintiff also
points out that the Protective Order provides that its provisions extend “‘to
Confidential Information produced in this case by third parties, if timely requested
by the third party.’” (Id. (quoting Doc. 192, at 8.)
The Court agrees with Plaintiff. Courts in this District, including the
undersigned Magistrate Judge, have routinely held that a document being
“confidential” does not equate to being privileged or otherwise shielded from
discovery. Benney v. Midwest Health, Inc., No. 17-2548-HLT-KGG, 2018 WL
6042591, at *5 (D. Kan. Nov. 19, 2018).
It is well settled that confidentiality does not act as a bar
to discovery and is not grounds to withhold documents or
information from discovery. ‘A concern for protecting
confidentiality does not equate to privilege.’ While a
confidentiality objection may be appropriate when a
party seeks a protective order limiting the parties' use or
disclosure of confidential information, it is generally not
a valid objection to withholding discovery altogether.
Id. (quoting High Point SARL v. Sprint Nextel Corp., No. 09-2269-CM-DJW,
2011 WL 4008009, at *1 (D. Kan. Sept. 9, 2011) (citations and footnotes omitted);
AKH v. Universal Underwriters Ins. Co., No. 13-2003-JAR-KGG, 2017 WL
5465240, at *15 (D. Kan. Nov. 14, 2017)). The Court DENIES this portion of

8 

Defendant’s motion and finds that any such documents can be produced in
accordance with the Protective Order entered in this lawsuit.
IV.

Duplicative Requests.
Finally, Defendant argues that Plaintiff’s subpoena to CarePoint “contains

document requests that are essentially identical to document requests already
propounded to Wesley as a party, with the only difference being a slight change of
wording to account for the request being directed to CarePoint.” (Doc. 264, at 8
(comparing Doc. 264-1 with Doc. 264-2).) As such, Defendant argues that the
requests “are unreasonably cumulative, duplicative and the relevant material has
already been produced” by Defendant. (Id., at 9.)
Plaintiff points out, however, that it is requesting documents maintained by
CarePoint, not Defendant Wesley. (Doc. 277, at 5.) Plaintiff continues
[f]rom CarePoint, Plaintiff seeks CarePoint’s medical
staff rules applicable to CarePoint employees’ contract
work at Wesley. From Wesley, Plaintiff seeks Wesley’s
medical staff rules applicable to any staff performing
work at Wesley’s emergency department. The same is
true of each request Wesley calls duplicative. Plaintiff
seeks Wesley’s documents from Wesley, and CarePoint’s
documents from CarePoint. Plaintiff is not asking
CarePoint to produce Wesley’s documents; rather, it is
asking CarePoint to produce its documents that apply to
CarePoint employees’ work at Wesley. There is no
duplicity.
(Id.) Plaintiff also contends that he “has no way of knowing” whether CarePoint’s
documents are the same as Defendant’s documents “unless CarePoint produces the
9 

documents.” (Id.) For instance, according to Plaintiff, “[e]ven if CarePoint has
adopted Wesley’s policies, Plaintiff is entitled to discover that information by
requesting CarePoint produce the adopted policies in order to determine which
policies have been adopted and which have not.” (Id.) As Plaintiff correctly
points out, this Court has held that
[p]arties may choose the manner and method in which
they conduct discovery. The Federal Rules provide
several vehicles for discovery. Parties may choose their
preferred methodology. Courts generally will not
interfere in such choices.
McCloud v. Bd. Of Geary Cnty. Comm’rs, No. 06-1002-MLB, 2008 WL 3502436
at *2 (D. Kan. Aug. 11, 2008) (citing Audiotext Communications Network, Inc. v.
U.S. Telecom, Inc., No. 9402395–GTV, 1995 WL 625962, at *5 (D. Kan. Oct. 5,
1995). The Court thus DENIES this portion of Defendant’s motion.

IT IS THEREFORE ORDERED that Defendant’s Motions to Quash (Doc.
264) is DENIED.
IT IS SO ORDERED.
Dated this 24th day of May, 2019, at Wichita, Kansas.
S/ KENNETH G. GALE

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

10