Slattery v. Mishra

Filing 63

MEMORANDUM AND ORDER granting in part and denying in part 36 Motion to Quash or Modify Subpoena filed by Western Plains Regional Hospital, LLC. Western Plains has established that all of the challenged documents identified on its privilege log ar e protected from disclosure under either the peer review or risk management privilege. The motion is therefore granted and the June 2013 subpoena served by Plaintiff upon Western Plains quashed to the extent that the subpoena seeks production of docu ments subject to the peer review and risk management privileges under Kansas law. The motion is denied as to Western Plains's overly broad and relevance objections to producing documents responsive to Subpoena Request Nos. 16 and 18. Western Plains shall produce documents responsive to Subpoena Request Nos. 16 and 18 within 14 days of the date of this Memorandum and Order. Signed by Magistrate Judge David J. Waxse on 3/31/2014. (byk)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK SLATTERY, as Special Administrator
of the Estate of DONNA LOUISE SLATTERY;
and MARK SLATTERY, representative heir at
law of DONNA LOUISE SLATTERY, Deceased,
Plaintiff,

Case No. 13-cv-1058-JAR-DJW

v.
ANURAG MISHRA, M.D.,
Defendant.

MEMORANDUM AND ORDER
The Court has before it the Motion to Quash or Modify Subpoena (ECF No. 36) filed by
Western Plains Regional Hospital, LLC (“Western Plains”). Third party Western Plains requests
an order quashing or modifying Plaintiff’s subpoena under Fed. R. Civ. P. 45(c)(3) on the
grounds it seeks the disclosure of material protected from disclosure under the Kansas statutory
peer review and risk management privileges. For the reasons discussed below, the motion is
granted in part and denied in part.
I.

Nature of the Matter before the Court
Plaintiff, as administrator of the estate of Donna Louise Slattery (“decedent”) and as her

representative heir at law, brings this medical malpractice action based on Kansas law against
Defendant Anurag Mishra, M.D. Federal jurisdiction is based on diversity of citizenship and
amount in controversy. Plaintiff alleges that from May 20, 2011 to May 23, 2011, Dr. Mishra
was negligent in his care and treatment of Ms. Slattery at Western Plains, resulting in her death.
In June 2013, Plaintiff issued a subpoena to Western Plains commanding the production of 21
categories of documents. On July 22, 2013, Western Plains served its response to the subpoena,

objecting to several requests as overly broad. Western Plains also served a privilege log, as it
withheld production of several documents as privileged under Kansas’s peer review and risk
management statutes. On July 23, 2013, Western Plains filed the instant motion, asserting that
Request Nos. 4–8, 10–16, 18, and 21 of the subpoena seek documents that are either beyond the
scope of discovery or subject to Kansas statutory peer review and risk management privilege, or
both, and requesting that the subpoena be quashed or modified under Fed. R. Civ. P. 45(c).
Plaintiff opposes the motion.
II.

Peer Review and Risk Management Privileges
Western Plains objects that Plaintiff’s Subpoena Request Nos. 4–8 and 10–15 seek

documents that are privileged under Kansas’s peer review and/or risk management privileges.
As a result, in its response to the subpoena, Western Plains produced a privilege log, in which it
asserts the specific privileges—with specific citations to the applicable subsections of each
statute—for each document withheld from production under either the peer review and/or risk
management privileges. Western Plains asserts that documents identified on its privilege log are
completely protected from discovery and not subject to subpoena.
Plaintiff argues that the Court should look to the Federal Rules of Civil Procedure and
federal case law with respect to the asserted privileges. He also argues that overriding
constitutional due process considerations, recognized in Kansas Supreme Court’s 1998 decision
in Adams v. St. Francis Regional Medical Center,1 make the underlying facts considered by peer
review officers or committees discoverable. Plaintiff posits that the “opinions, impressions and
deliberations about the facts” are privileged, but not the facts themselves.

1

264 Kan. 144, 158, 955 P.2d 1169, 1178–79 (1998).
2

A.

Applicable Law

Federal Rule of Civil Procedure 45 governs subpoenas. Under Rule 45(c)(3)(A)(iii), the
court must, upon timely motion, quash or modify a subpoena that “requires disclosure of
privileged or other protected matter, if no exception or waiver applies.” The party seeking to
quash or modify the subpoena has the burden to show good cause for these remedies.2 Federal
Rule of Evidence 501 provides that “in a civil case, state law governs privilege regarding a claim
or defense for which state law supplies the rule of decision.” Accordingly, the law of Kansas
regarding privileges is applicable.
Kansas has adopted a peer review privilege, as set forth in K.S.A. 65-4915(b). This
statute creates a privilege for materials submitted to or generated by health care provider peer
review committees or officers. It provides, in pertinent 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.3
This privilege may be claimed by the legal entity creating the peer review committee.4 A peer
review officer or committee includes “[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.”5 A health care provider group includes “an organized
medical staff of a licensed medical care facility”6 or a health care provider7 as defined under
2

Flint Hills Scientific, LLC v. Davidchack, No. 00-2334-KHV-DJW, 2001 WL 1717902,
at *1 (D. Kan. Nov. 9, 2001) (citing Sentry Ins. v. Shivers, 165 F.R.D. 255, 256 (D. Kan. 1996)).
3

K.S.A. 69-4915(b).

4

Id.

5

K.S.A. 69-4915(a)(4)(A).

6

K.S.A. 65-4915(a)(2)(E).
3

K.S.A. 40-3401.8 “Peer review” is defined under K.S.A. 65-4915(a)(3) to mean any of following
twelve 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.9
The previous version, which read “the reports,

K.S.A. 65-4915(b) was amended in 1997.

statements, memoranda, proceedings, findings and other records of peer review committees or
officers”10 was amended to read “the reports, statements, memoranda, proceedings, findings and
other records submitted to or generated by peer review committees or officers.”11

7

K.S.A. 65-4915(a)(2)(F).

8

K.S.A. 65-4915(a)(1)(A).

9

K.S.A. 65-4915(a)(3).

10

K.S.A. 65-4915(b) (1996) (amended 1997).

11

K.S.A. 65-4915(b) (emphasis added).
4

Kansas has also created a risk management privilege, as set out in K.S.A. 65-4925(a). It
provides that “(t)he reports and records made pursuant to K.S.A. 65-4923 or 65-4924, and
amendments thereto, shall be confidential and privileged.” This includes the following:
(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 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.12
K.S.A. 65-4925(a) further provides that “[s]uch 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.”13
K.S.A. 65-4922(a) requires each medical care facility to establish and maintain an
internal risk management program. K.S.A. 65-4923(a) requires health care providers and medical
care facility agents or employees to report “reportable incidents” where a health care provider
provides substandard care which has a reasonable probability of causing injury to a patient. 14
Plaintiff’s Challenges to Specific Documents Identified on the Privilege Log

B.

Plaintiff challenges the assertion of peer review and/or risk management privileges by
Western Plains for specific documents withheld from production and identified in its privilege
log. Specifically, he challenges the privileges asserted to documents identified by the following
privilege log entries: 1a, 1c, 1d, 2a–c, 2f–h, 3, 4b, 5–6, 10a, 10c–h, 10l–p, 11–15, 17–23, 25–26,

12

K.S.A. 65-4925(a).

13

Id.

14

K.S.A. 65-4921(f) (defining “reportable incident”).
5

and 29.15 For the majority of the documents, Plaintiff’s position is that the claimed privileged
document contains facts that are relevant and discoverable, or the claimed privilege is not
applicable to the documents under the statutes.
The Kansas statute protecting peer review materials, K.S.A. 65-4915(b), broadly protects
from “discovery, subpoena or other means of legal compulsion” the following materials:
“[R]eports, statements, memoranda, proceedings, findings and other records submitted to or
generated by peer review committees or officers.”16 The Kansas statute protecting risk
management materials set forth in K.S.A. 65-4925(a) likewise broadly protects from “discovery,
subpoena or other means of legal compulsion” reports and records of executive or review
committees of medical care facilities; reports and records of the chief of the medical staff, chief
administrative officer or risk manager of a medical care facility; and reports made by a medical
care facility risk manager, any committee, the board of directors, administrative officer or any
consultant.17
The Court has reviewed the privilege log prepared by Western Plains, as well as
Plaintiff’s position on each challenged document listed on the log. Based upon its review, the
Court finds that given the very broad scope of the materials included within K.S.A. 65-4915(b)
and 65-4925(a), Western Plains has established that all of the documents challenged by Plaintiff
are protected from disclosure under either the peer review or risk management privilege.
Notwithstanding the Court’s finding that all the documents are within the scope of either
the peer review or risk management privilege, the privileges are subject to constitutional due
15

For the other 18 privilege log entries, Plaintiff either offers no opposition to
withholding the document or “does not oppose non-production.” See Pl.’s Resp. (ECF No. 40)
at 15–45.
16

K.S.A. 65-4915(b) (emphasis added).

17

K.S.A. 65-4925(a) (emphasis added).
6

process limitations, as recognized by the Kansas Supreme Court in its Adams v. St. Francis
Regional Medical Center18 decision. Plaintiff argues that the Court should find that the
underlying facts considered by peer review officers or committees that are contained the
privileged documents are discoverable. He asserts that while the “opinions, impressions and
deliberations about the facts” are privileged, the facts themselves are not privileged and subject
to discovery.
In Adams, the court weighed the peer review privilege against the plaintiffs’ rights to due
process and the judicial need for the fair administration of justice.19 It found that allowing the
defendant hospital to insulate from discovery “the facts and information which go to the heart of
the plaintiffs’ claim” denied the plaintiffs that right and would “raise significant constitutional
implications.”20 It concluded that “although the interest in creating a statutory peer review
privilege is strong, it is outweighed by the fundamental right of the plaintiffs to have access to all
the relevant facts.”21 It found that the district 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.22 It
commented that the court can then “simply redact that which is protected and grant plaintiffs
access to the portions containing the relevant fact.”23 The Adams court found that forms and
documents containing factual accounts and witnesses’ names were not protected simply because
they also contained the officers’ or committee’s conclusions or decision-making process.24
18

264 Kan. 144, 158, 955 P.2d 1169, 1178–79 (1998).

19

Id. at 173, 955 P.2d at 1187.

20

Id.

21

Id.

22

Id. at 174, 955 P.2d at 1188.

23

Id.

24

Id.
7

In this case, Plaintiff has not shown that the facts and information he seeks that are
allegedly contained in the documents withheld by third-party Western Plains under the peer
review and risk management privileges “go to the heart of his claim” or that he has no other
reasonable means to discover these facts and information so as to raise constitutional
implications. The Court therefore declines to conduct an in camera review of all the privileged
documents challenged by Plaintiff.
Western Plains has established that all of the documents identified on its privilege log and
which were challenged by Plaintiff are protected from disclosure under either the peer review or
risk management privilege. As Plaintiff’s subpoena includes requests that seek these privileged
documents, Plaintiff’s subpoena should be quashed under Fed. R. Civ. P. 45(c)(3)(A)(iii) to the
extent it requires the production of documents protected from discovery under the peer review or
risk management privileges.
III.

Western Plains’s Overly Broad and Relevance Objections to the Subpoena Requests
Western Plains also asserts overly broad and relevance objections to Subpoena Request

Nos. 4–8, 10–16, 18, and 21. It argues the Requests are overly broad because they seek
documents beyond the scope of discovery that are not relevant to any of Plaintiff’s claims in this
action. Plaintiff argues that Western Plains cannot rely on its generalized overly broad and
relevance objections and has not met its burden of supporting its objections by showing
specifically how each request is overly broad or seeks irrelevant documents.
While irrelevance and overbreadth are not explicitly included as reasons to quash a
subpoena under Rule 45(c)(3)(A), the advisory notes clearly indicate that “the scope of discovery

8

through a subpoena is the same as that applicable to Rule 34 and the other discovery rules.”25
This includes Fed. R. Civ. P. 26(b), which allows parties to seek discovery of any nonprivileged
information relevant to any party’s claims or defenses.26 Relevance is construed broadly;
“request[s] for discovery should be allowed ‘unless it is clear that the information sought can
have no possible bearing’ on the claim or defense of a party.”27
Western Plains asserts that Subpoena Request Nos. 4–8, 10–16, 18 and 21 seek
documents beyond the proper scope of discovery. More specifically, it argues that Request Nos.
4 and 5 seeking documents in Defendant’s staff privileges, credentialing, or hospital files
addressing care provided to other patients is not relevant. For Request No. 12, Western Plains
argues that the request is overbroad in that it seeks factual statements that are not limited to the
decedent’s care but would include statement concerning care provided to other patients. Finally,
Western Plains argues that Request No. 16 and 18, which respectively seek core documents
setting out “title and position description” of the risk manager for Western Plains and the
“position description” for an attending nurse, seek documents not relevant to the claims or
defenses in the case. It objects to producing a “full job description” for its risk manager. It also
objects that the nurse’s position description is not relevant to Plaintiff’s negligence claim against
Defendant, and Plaintiff can obtain this information without having her position description.
Here, the Court finds that Western Plains makes no argument in support of its overly
broad or relevance objections to Subpoena Request Nos. 6–8, 10–11, 13–16, and 21 in its

Fed. R. Civ. P. 45 advisory committee’s note (1970 Am.); accord Booth v. Davis, No.
10-4010-RDR-KGS, 2010 WL 2008284, at *6 (D. Kan. May 23, 2011) (citing Hammond v.
Lowe’s Home Ctrs., Inc., 216 F.R.D. 666, 670 (D. Kan. 2003)).
25

26

Fed. R. Civ. P. 26(b)(1).

27

Booth, 2010 WL 2008284, at *6 (quoting Sheldon v. Vermonty, 204 F.R.D. 679, 689-90
(D. Kan. 2001)).
9

motion. The Court therefore finds that Western Plains fails to meet its burden with respect to its
objections to these Requests. For the Requests that it did address in its motion, i.e., Request Nos.
4, 5, 12, 16, and 18, the Court finds that Western Plains has not met its burden to show that these
Requests are overly broad and seek documents that are not relevant to any claim or defenses of
any party. Construing relevance broadly, the Court finds that documents relating to Defendant’s
care provided to other patients arguably could be relevant to Plaintiff’s medical negligence
claims in this case. Western Plains’s overly broad and relevance objections to Subpoena Request
Nos. 4, 5, and 12 are therefore overruled.
With respect to Plaintiff’s Request Nos. 16 and 18, which seek the risk manager’s title
and position description and an attending nurse’s position description in May 2011, the Court
finds that these Requests seek relevant information. Plaintiff points out in his response that the
medical records note that the risk manager was called by the house supervisor, who explained the
decedent patient’s condition and situation. Plaintiff alleges that the attending nurse was present
when the decedent became unstable. Thus the nurse’s position, training, education, and
background are relevant to her being the eyes and ears of the physician at the bedside. The
overly broad and relevance objections to Subpoena Request Nos. 16 and 18 are therefore
overruled. As Western Plains only asserted overly broad and relevance objections to subpoena
Requests 16 and 18, and did not assert any objections based upon privilege, Western Plains shall
produce documents responsive to Subpoena Requests 16 and 18 within 14 days of the date of this
Memorandum and Order.
IT IS THEREFORE ORDERED that Western Plains Regional Hospital, LLC’s Motion
to Quash or Modify Subpoena (ECF No. 36) is granted in part and denied in part. Western
Plains has established that all of the challenged documents identified on its privilege log are

10

protected from disclosure under either the peer review or risk management privilege. The motion
is therefore granted and the June 2013 subpoena served by Plaintiff upon Western Plains quashed
to the extent that the subpoena seeks production of documents subject to the peer review and risk
management privileges under Kansas law.
The motion is denied as to Western Plains’s overly broad and relevance objections to
producing documents responsive to Subpoena Request Nos. 16 and 18. Western Plains shall
produce documents responsive to Subpoena Request Nos. 16 and 18 within 14 days of the date
of this Memorandum and Order.
IT IS FURTHER ORDERED that the request by Western Plains for oral argument on
its motion is denied.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 31st day of March, 2014.

s/ David J. Waxse
David J. Waxse
United States Magistrate Judge

11