Morgan v. Wesley Medical Center, LLC et al

Filing 388

MEMORANDUM AND ORDER denying 378 Motion for Reconsideration re 377 Order on Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 10/25/19. (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.
) Case No.: 2:18-CV-02158-KHV-KGG
)
WESLEY MEDICAL CENTER LLC )
d/b/a WESLEY MEDICAL
)
CENTER-WOODLAWN, et al.,
)
)
Defendants. )
_______________________________)
MEMORANDUM & ORDER ON
PLAINTIFF’S MOTION TO RECONSIDER
Plaintiff has filed a motion (Doc. 378) asking the Court to reconsider its
Order (Doc. 377) denying Plaintiff’s Motion to Compel (Doc. 365) which sought
production from non-party CarePoint, P.C. of certain documents shared with the
insurer and attorneys for Defendants Dr. Faimon and P.A. Grover, both of whom
are employed by CarePoint. For the reasons set forth herein, the Court DENIES
Plaintiff’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

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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.)
Plaintiff earlier subpoenaed non-party CarePoint, seeking documents
relating to correspondence between the non-party and Defendants Dr. Faimon and
P.A. Grover, their attorney and/or their insurer. (Doc. 365, at 2.) Plaintiff does not
dispute that Faimon and Grover are employed by CarePoint.
In addition, CarePoint does not dispute that it possesses information
responsive to Plaintiff’s requests. (Doc. 365, at 3.) Rather, CarePoint claims that
the attorney for Defendants Faimon and Grover “requested that CarePoint not
produce the documents on grounds that it is the work-product of or attorney-client
privilege between Dr. Faimon and P.A. Grover, their attorney, or their insurer.”
(Id., at 1.)
CarePoint served its responses and objections to Plaintiff’s subpoena on July
20, 2019, objecting to Requests for Production Nos. 13, 23, 27, 29, 30, 32, 40, 42,
and 47 on the basis of work-product or attorney-client privilege. (Doc. 365, at 23.) The objections to the Requests all indicate that CarePoint
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has copies of communications between it and the
attorneys and insurers for defendant Faimon and
defendant Grover. These confidential communications
constitute work product of parties, their counsel and
insurers, pursuant to Fed. R. Civ. P26(b)(3). CarePoint
has been requested to protect these communications from
discovery.
(Doc. 365-1, at 5, 8, 9, 10, 12, & 13.) CarePoint subsequently produced a Privilege
Log for its objections to Plaintiff’s requests and Plaintiff sought production of
certain documents listed therein. (Doc. 365, at 3.)
Plaintiff contends that “because Dr. Faimon and P.A. Grover’s attorney and
insurer disclosed the correspondence to third-party CarePoint, any privilege was
waived.” (Id., at 1.) The Court denied Plaintiff’s motion, holding that
[r]egardless of who has the burden of establishing
CarePoint’s status as a healthcare provider qualified for
coverage – and thus immune from vicarious liability –
the Court agrees with CarePoint that ‘there was a
potential for CarePoint to be sued for its independent
liability in staffing decisions,’ and such staffing decisions
would relate to Defendants Grover and Faimon. (Doc.
370, at 6.) As argued by CarePoint, this basis for liability
could be ‘asserted even if K.S.A. 40-3403(h) would
prohibit vicarious liability for the acts or conduct of
other health care providers.’ (Id.) The Court is,
therefore, satisfied that the common interest doctrine
applies and that the attorney-client privilege/work
product protection has not been waived as to the
documents at issue.
(Doc. 377, p. 10). Plaintiff brings the present motion to reconsider, arguing that
“[b]ecause a cause of action for negligent staffing against healthcare providers

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does not exist under Kansas law, it was clear error for this Court to deny Plaintiff’s
motion to compel on grounds that there was potential for CarePoint to be sued for
its independent liability in staffing decisions.” (Doc. 378, at 1 (citations omitted).)
ANALYSIS
I.

Legal Standard for Motion to Reconsider.
D. Kan. Rule 7.3(b) governs motions to reconsider. It states, in relevant

part, that “[a] motion to reconsider must be based on (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.” In Comeau v. Rupp, this District held
that
[r]evisiting the issues already addressed is not the
purpose of a motion to reconsider, and advancing new
arguments or supporting facts which were otherwise
available for presentation when the original summary
judgment motion was briefed is likewise inappropriate.
810 F.Supp. 1172 (D.Kan.1992) (internal citations and quotes omitted). Stated
another way, “[a] party’s failure to present its strongest case in the first instance
does not entitle it to a second chance in the form of a motion to reconsider.”
Eastman v. Coffeyville Resources Refining & Marketing, LLC, No. 10–1216,
2011 WL 972487, at *1 (D.Kan. March 16, 2011) (quoting Cline v. S. Star Cent.
Gas Pipeline, 370 F.Supp.2d 1130, 1132 (D.Kan.2005)).

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As stated above, Plaintiff argues that “[b]ecause a cause of action for
negligent staffing against healthcare providers does not exist under Kansas law, it
was clear error for this Court to deny Plaintiff’s motion to compel on grounds that
there was potential for CarePoint to be sued for its independent liability in staffing
decisions.” (Doc. 378, at 1 (citing Cady v. Schroll, 298 Kan. 731, 745, 317 P.3d
90, 100 (2014) (reaffirming K.S.A. 4-3403(h) prohibits negligent staffing/hiring
claims); Lemuz v. Fieser, 261 Kan. 936, 940–42, 933 P.2d 134, 139–40 (1997)
(holding 40-3403(h) prohibits negligent staffing claims); McVay v. Rich, 874 P.2d
641, 645 (Kan. 1994) (holding 40-3403(h) prohibits negligent staffing claims
because it “eliminates not only vicarious liability but also responsibility for any
injury arising out of the rendering of or failure to render professional services by
another health care provider who is also covered by the fund.”); Harris v. Hood,
No. 08-2386-EFM, 2009 WL 1421205, at *4 (D. Kan. May 20, 2009) (holding 403403(h) bars negligent staffing claims).)
Plaintiff is correct that “the common interest doctrine is inapplicable
between a defendant-employee and thirdparty employer when the employer is
immune from the acts of its employee.” (Doc. 378, at 7 (citing Beltran v.
InterExchange, Inc., No. 14-cv-03074-CMA-CBS, 2018 WL 839927 at *9 (D.
Col. Feb. 12, 2018) (“the [third party] does not, and cannot have, that interest

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because the [third party] cannot be held liable for [defendant’s conduct]”).
Plaintiff continues that
[b]ecause K.S.A. 40-3403(h) bars vicarious liability,
including negligent staffing claims, against healthcare
providers qualified for coverage from the Fund, the
common interest doctrine is inapplicable if CarePoint is a
healthcare provider qualified for coverage from the Fund.
[Citations omitted.] In its Order here, the Court reasoned
the common interest doctrine is applicable because:
Regardless of who has the burden of
establishing CarePoint’s status as a healthcare
provider qualified for coverage – and thus
immune from vicarious liability – the Court
agrees with CarePoint that ‘there was a potential
for CarePoint to be sued for its independent
liability in staffing decisions,’ and such
staffing decisions would relate to Defendants
Grover and Faimon. (Doc. 370, at 6.) As argued
by CarePoint, this basis for liability could be
‘asserted even if K.S.A. 40-3403(h) would
prohibit vicarious liability for the acts or
conduct of other health care providers.’ (Id.)
(Doc. 377, p. 10).
But with no potential of a negligent staffing claim,
the Court can only find the common interest doctrine
applicable if it first finds CarePoint met its burden to
show it is not a healthcare provider qualified for coverage
from the Fund such that 40-3403(h) is inapplicable to it.
If it is, Kansas law bars any potential claim against it for
the acts of its employees and the common interest
doctrine is inapplicable. If it is not, the common interest
doctrine may apply.

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(Doc. 378, at 7.) Plaintiff concludes that CarePoint failed to meet its “burden to
show whether it is or is not a healthcare provider qualified for coverage under the
fund.” (Id., at 8.)
CarePoint responds that “ Plaintiff has failed to mention that the statute does
not prohibit a health care provider from being ‘otherwise responsible’ when that
health care provider is qualified for the Fund (hereinafter ‘Fund HCP’) and the
person who committed the direct tort was not a health care provider qualified for
the Fund (hereinafter ‘non-Fund HCP’).” (Doc. 381, at 2.) CarePoint continues
that
[t]he statute draws a distinction between Fund HCP’s and
non-Fund HCP’s. Physicians, hospitals, physician
assistants, and a host of other health care providers are
defined as Fund HCP’s. K.S.A. 40-3401. Other types of
health care providers, such as nurse practitioners,
registered nurses, physical therapists, radiology techs,
etc., are not included in the definition of Fund HCP’s.
The statute does not prohibit legal responsibility of
a Fund HCP for the negligence of a non-Fund HCP. Nor
does the statute prohibit legal responsibility of a nonFund HCP for a Fund HCP.
(Id.)
CarePoint specifies that “Plaintiff hasn’t cited any case in which a defendant
employer was a non-Fund HCP” and indicates it is unaware “of a published case in
which a non-Fund HCP employed a Fund HCP, and a court found that the nonFund HCP was immune pursuant to KSA 40-3403(h).” (Id., at 4.) Rather,
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according to CarePoint, “[a]ll the published cases relate to various types of claims
plaintiffs have asserted against Fund HCP defendants to attempt to hold them
‘otherwise responsible’ for the negligence of other Fund HCP’s.” (Id.) The
Court’s research has resulted in similar findings. Further, Plaintiff did not file a
reply to CarePoint’s response, thus the Court is aware of no legal authority
contrary to CarePoint’s conclusion.
CarePoint continues that a healthcare provider covered by the Fund,
such as CEP[,] could have vicarious liability for the
negligence of a non-Fund HCP such as defendant Daney.
Likewise, a Fund HCP such as Wesley could have
vicarious liability for the negligence of a non-Fund HCP
such as a nurse employed by it in its emergency
department.
As a physician assistant, Grover is a Fund HCP.
As a physician, Dr. Faimon is also a Fund HCP. If
CarePoint is a Fund HCP, then CarePoint cannot have
“other responsibility” for the outcome of any negligent
conduct of Grover or Dr. Faimon. But if CarePoint is a
non-HCP, then CarePoint can have vicarious liability or
other responsibility for the results of any negligent
conduct of Grover or Faimon.
As CarePoint pointed out in its responsive brief
(Doc. 370), plaintiff has not attempted to demonstrate
whether CarePoint is a Fund HCP. Because that hasn’t
been determined, since CarePoint is the employer of two
Fund HCP defendants, there is potential for vicarious
liability based on the employer-employee relationship.
Since CarePoint’s status hasn’t been determined, if good
faith arguments can be made on either side of the issue,
then CarePoint had and still has a reasonable concern that
it might be named as a defendant.
(Id., at 3-4.)
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The Court agrees with CarePoint that, “[a]s a non-party employing two
defendants against whom serious allegations of negligence have been made,
CarePoint had an identical legal interest recognized by Ms. Cole (counsel for
Faimon/Grover) when she shared the information with it.” (Doc. 381, at 4.) The
Court also agrees that “[s]uch information would be helpful to CarePoint in
determining whether it might face the potential to be named as a defendant, and the
basis for such a potential claim” that would be based “upon the claims of
negligence against its two employees, and not upon any other basis.” (Id.)
CarePoint is correct in stating that because its “potential liability depended upon
the allegations against those employees,” the shared, underlying legal interest was
“identical; the ultimate legal validity of an arguably invalid claim was beside the
point.” (Id., at 4-5.) As such, Plaintiff’s Motion to Reconsider (Doc. 378) is
DENIED.

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reconsider
(Doc. 378) is DENIED.
IT IS SO ORDERED.
Dated this 25th day of October, 2019, at Wichita, Kansas.
S/ KENNETH G. GALE

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