Reyes et al v. Bob Wilson Memorial Grant County Hospital et al
MEMORANDUM AND ORDER sustaining in part and overruling in part 38 Plaintiff's Motion to Compel Defendant Bob Wilson Memorial Grant County Hospital to Produce Documents. Within ten (10) days of the date of this Memorandum and Order, Defendant Hospital shall deliver to the Court for in camera inspection its documents that bear Bates number 2492 through 2495, 2499, 2502, 2504 through 2512, and 2514. Signed by Magistrate Judge Gerald L. Rushfelt on 5/24/2011. (byk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Y.R., a minor, by and through his parents,
natural guardians and next friends,
EDUARDO REYES and CHRISTINE REYES,
Case No. 10-1312-JTM/GLR
BOB WILSON MEMORIAL GRANT
COUNTY HOSPITAL and NEAL R.
MEMORANDUM AND ORDER
This action involves a claim for damages for medical negligence against a physician
and hospital, allegedly resulting from their management of induced labor and delivery of
Plaintiff. Pending before the Court is Plaintiff’s Motion to Compel Defendant Bob Wilson
Memorial Grant County Hospital to Produce Documents (ECF No. 38). Plaintiff asks the
Court to conduct an in camera review of documents that the defendant hospital has withheld
from production based upon the peer review privilege, as provided by Kansas law. The
documents relate to the competence of the nurse assigned to care for Plaintiff’s mother
during labor and delivery. Plaintiff seeks production of any factual information relevant to
the medical care and treatment of Plaintiff and his mother. For the following reasons, the
Court sustains the motion in part and overrules it in part.
Documents at Issue1
Plaintiff’s First Requests for Production No. 17 asks Defendant Bob Wilson Memorial
Grant County Hospital (hereinafter the “Hospital”) to produce the entire personnel file of all
Hospital personnel that provided treatment to Plaintiff and his mother. Defendant Hospital
objected to the request as follows:
The request seeks information protected from discovery or disclosure by
K.S.A. 65-4915, et seq. (Peer Review privilege) and K.S.A. 65-4921, et seq.
(Risk Management privilege). Defendant also objects to producing patient
names pursuant to K.S.A. 60-427. As to items contained in the personnel files,
defendant objects to producing information properly deemed confidential
employer-employee information, or confidential information regarding
personal data and information about the employee. Defendant also objects to
the extent the request seeks documents that do not pertain to the qualifications,
education, experience, and training of the personnel, on the grounds the same
are not reasonably calculated to lead to the discovery of admissible evidence.2
The Hospital produced parts of the personnel files for twelve employees, except for
documents identified in its privilege log. It withheld as privileged the following items from
the personnel file of the nurse assigned to care for the mother of Plaintiff: documents with
Bates Nos.: 2492-2495, 2499, 2500, 2502, 2504, 2505, 2506, 2507-2508, 2509, 2510,
2511-2512, 2514 and 2515.
Plaintiff’s motion originally identified three groups of documents at issue. In his Reply
(ECF No. 46), Plaintiff advises the Court that he is withdrawing his motion to compel regarding the
first and third groups of documents at issue. The Court will therefore limit its consideration of the
motion to the group titled the “Second Group of Documents at Issue.”
Ex. A to Mem. in Opp. to Pl.’s Mot. to Compel (ECF No. 42-1) at 11.
The Positions of the Parties
Plaintiff concedes that some of the withheld documents or parts of them are
But he argues that the privilege for evaluations, determinations, and
recommendations of the peer review officer or committee does not extend to the underlying
facts they may have considered.
Plaintiff agrees that any of the evaluations,
recommendations, or determinations made by a peer review officer or committee are not
discoverable, but, based upon the rationale used in Adams v. St. Francis Regional Medical
Center,3 overriding constitutional considerations make the underlying facts discoverable in
a case like this, i.e., involving the relevancy of the Hospital’s decision to place the assigned
nurse in a position of responsibility for the management of the Pitocin-induced labor of
Defendant Hospital contends that the documents withheld are performance reviews
and documentation of disciplinary actions of the assigned nurse and are within the “peer
review” function for evaluating the qualifications, competence and performance of health
care providers under K.S.A. 65-4915(a)(3)(D). Defendant states that well after the delivery
of Plaintiff, the nurse who attended Christine Reyes in her labor, was disciplined by the
Hospital. The discipline was for several incidents completely unrelated to the Reyes labor
and delivery. The Hospital argues that an in camera inspection of documents is not
necessary, because the information provided on its privilege log is clearly sufficient to allow
264 Kan. 144, 955 P.2d 1169 (1998).
the Court to evaluate the existence of the privilege. It argues that this Court has specified on
many occasions that a privilege log is required to provide the court and adverse parties with
enough information to evaluate the privilege sufficiently to make the determination whether
or not the asserted privilege applies.
The Court has jurisdiction in this medical malpractice action based on diversity of
citizenship. Kansas law therefore defines the contours of the assertion of privilege.4
The Hospital asserts that the documents it withheld from production in response to
Request No. 17 are protected from disclosure under the peer review privilege. This privilege
is set forth in K.S.A. 65-4915(b) and protects peer review documents from discovery and
subpoena as follows:
(b) Except as provided by K.S.A. 60-437 and amendments thereto and by
subsections (c) and (d), 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. The peer review officer or committee
creating or initially receiving the record is the holder of the privilege
established by this section. This privilege may be claimed by the legal entity
See Fed. R. Evid. 501 (“[i]n civil actions and proceedings, with respect to an element of a
claim or defense as to which State law supplies the rule of decision, the privilege of a . . . person .
. . shall be determined in accordance with State law.”).
creating the peer review committee or officer, or by the commissioner of
insurance for any records or proceedings of the board of governors.5
“Peer review officer or committee” is defined as “[a]n individual employed, designated or
appointed by, or a committee of or employed, designated or appointed by, a health care
provider group and authorized to perform peer review.”6
K.S.A. 65-4915(a)(3) defines “peer review” to mean any of the following functions:
(A) Evaluate and improve the quality of health care services rendered by
health care providers;
(B) determine that health services rendered were professionally indicated or
were performed in compliance with the applicable standard of care;
(C) determine that the cost of health care rendered was considered reasonable
by the providers of professional health services in this area;
(D) evaluate the qualifications, competence and performance of the providers
of health care or to act upon matters relating to the discipline of any individual
provider of health care;
(E) reduce morbidity or mortality;
(F) establish and enforce guidelines designed to keep within reasonable bounds
the cost of health care;
(G) conduct of research;
(H) determine if a hospital's facilities are being properly utilized;
(I) supervise, discipline, admit, determine privileges or control members of a
hospital's medical staff;
(J) review the professional qualifications or activities of health care providers;
(K) evaluate the quantity, quality and timeliness of health care services
rendered to patients in the facility;
(L) evaluate, review or improve methods, procedures or treatments being
utilized by the medical care facility or by health care providers in a facility
rendering health care.
Plaintiff does not deny applicability of the asserted privileges. He instead asserts that
his constitutional right, pursuant to the holding of the Kansas Supreme Court in Adams v. St.
Francis Regional Medical Center,7 trumps the privilege as to any content that is factual and
relevant. If there is a reasonable possibility that the such factual content exists in the
documents, and respondent withholds it from discovery by virtue of the claims of privilege,
the court “. . . has a duty to conduct an in camera inspection and craft a protective order
which will permit the plaintiffs access to the relevant facts.”8 The argument of Defendant
addresses primarily the applicability of the privileges, which Plaintiff does not deny, and the
merit of its privilege log as an adequate response to foreclose any need or propriety for an
in camera review of the documents.
The Court first addresses the question of whether the Hospital’s privilege log
adequately shows that the withheld documents contain no relevant, factual information.
Defendant argues that its privilege log is sufficient. But it bases its argument simply upon
circumstantial evidence that the requested documents post-date the hospitalization of Plaintiff
and his mother by as much as 20 months and, consequently, must relate to conduct of the
nurse to other incidents. The Court has no problem in considering circumstantial evidence,
but it must be sufficient to lead to the conclusion that Defendant asserts. In this instance the
Court cannot find that the log settles the question to determine that the withheld documents
264 Kan. 144, 955 P.2d 1169 (1998).
Id. at 174, 955 P.2d at 1188.
can have no relevant, factual content. With the exception of documents Bates numbered
2500, 2501, and 2515, relating to “Paid leave, pending Peer Review of Stacey Cott,” the
Court does not find that Defendant has provided enough information in the privilege log to
allow the Court or Plaintiff to determine whether or not they contain some recitation or
description of relevant facts as to the conduct of the nurse in October 2008. Defendant has
provided nothing to persuasively suggest that peer review focuses only upon a narrow
window of contemporary events and must exclude consideration of conduct that may date
back months or even years.
But Defendant bears the burden to provide a privilege log adequate to allow other
parties to assess its claim of privilege. Fed. R. Civ. P. 26(b)(5)(A)(ii) requires the party
asserting the privilege to “describe the nature of the documents . . . and do so in a manner
that, without revealing information itself privileged or protected, will enable other parties to
assess the claim.” To avoid the need for an in camera inspection, the log here could have
added language, e.g.,“the document reports and contains only the discussions and
conclusions of the committee members, but no statements of facts about the hospitalization
or medical care of plaintiff YR,” or “the document contains only the specific terms of
discipline imposed upon Stacey Cott and no references to the hospitalization or medical care
of plaintiff YR.” In some instances, as herein noted, the description of the content may be
adequate to support the support the privilege. To minimize any doubt, adding language that
specifically negates factual content should be helpful. Absent some language, as herein
suggested, neither the Court nor a litigant can reasonably tell from most of the brief
descriptions in Defendant’s log, whether or not the documents contain relevant facts subject
to discovery, pursuant to the Adams case.
The Court finds that the privilege log does adequately describe the content of three
of the described documents, so as to preclude any need for their in camera inspection. They
bear Bates numbers 2500, 2501, and 2515, addressing the subject, “Paid leave, pending Peer
Review of Stacey Cott.” The Court can reasonably assume from that description that they
do not contain relevant facts about the hospitalization of any particular patient.
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion to Compel Defendant
Bob Wilson Memorial Grant County Hospital to Produce Documents (ECF No. 38) is
sustained in part and overruled in part, as set forth herein. Within ten (10) days of the date
of this Memorandum and Order, Defendant Hospital shall deliver to the Court for in
camera inspection its documents that bear Bates number 2492 through 2495, 2499, 2502,
2504 through 2512, and 2514.
Dated this 24th day of May 2011 at Kansas City, Kansas.
S/ Gerald L. Rushfelt
Gerald L. Rushfelt
U.S. Magistrate Judge
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