Farmer v. Stafford County Hospital et al

Filing 53

ORDER re 45 Joint MOTION for Discovery. Defendants' objections are overruled, and defendants shall produce the requested incident reports and medical records by December 19, 2018. Signed by Magistrate Judge James P. O'Hara on 12/12/2018. (srj)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
FREDRICK J. FARMER,
Plaintiff,
v.

Case No. 17-1284-EFM

STAFFORD COUNTY HOSPITAL,
et al.,
Defendants.

ORDER
The plaintiff, Fredrick J. Farmer, D.O., brings federal and state law claims against
Stafford County Hospital, Richard S. Carter, M.D., Carter Professional Care Stafford,
LLC, and Todd Taylor (collectively, “defendants”), arising from defendants’ forwarding
of allegations against plaintiff to the Kansas Board of Healing Arts.

Pursuant to

paragraph 2(b) of the scheduling order (ECF No. 43), the parties have filed a joint motion
(ECF No. 45) asking the court to resolve various discovery disputes discussed at the
October 19, 2018 scheduling conference. Specifically, the parties have asked the court to
determine whether plaintiff is entitled to the following: (1) so-called “incident reports”
defendants are withholding under assertions of privilege created by K.S.A. 65-4915
(“peer-review” privilege) and/or K.S.A. 65-4925 (“risk-management” privilege); and (2)
certain patient records defendants are withholding under an assertion of the physicianpatient privilege embodied in K.S.A. 60-427 and/or pursuant to the Health Insurance
Portability and Accountability Act of 1996 (HIPPA), 45 C.F.R. § 164.512(e).
1

As

discussed below, defendants’ objections are overruled.
K.S.A. 65-4915, K.S.A. 65-4925, K.S.A. 60-427
As an initial matter, the court must determine whether federal or state privilege
law is controlling with regard to this dispute where, as indicated above, this action
involves both federal and state law claims. The parties agree the documents sought are
relevant to both plaintiff’s federal and state law claims,1 and further agree that federal
common law does not recognize Kansas’s codified peer-review, risk-management, or
physician-patient privileges.2
Fed. R. Evid. 501 provides:
The common law—as interpreted by the United States courts in the light of
reason and experience—governs a claim of privilege unless any of the
following provides otherwise:
• the United States Constitution;
• a federal statute; or
• rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense
for which state law supplies the rule of decision.
This rule fails to directly address the present situation, i.e., where there is federal
question jurisdiction with pendent state law claims, the evidence sought is relevant to
Defendants concede “[plaintiff’s] claims are inextricably interrelated,” and
therefore, “all the evidence at issue relates to all the claims, whether they be federal law
or state law causes of action.” ECF No. 49 at 5.
1

Defendants assert that “[n]either the Supreme Court nor the Tenth Circuit has
recognized a medical peer review or medical risk management privilege under federal
common law.” ECF No. 49 at 5.
2
2

both claims, and a conflict exists between federal and state law. In Sprague v. Thorn
Americas, Inc., 129 F.3d 1355 (10th Cir. 1997), the Tenth Circuit held that where both
federal claims and pendent state law claims are implicated, courts should consider both
federal and state privilege law. The court noted, however, that if the privilege is upheld
by one body of law, but denied by the other, “an analytical solution must be worked
out.”3 The court then referenced several federal-question cases outside the circuit
upholding the application of federal privilege law, despite the presence of pendent state
law claims, where such conflicts existed.4
Since Sprague, several cases in this District addressing conflicts in law have
concluded that where a federal claim provides the basis for the court’s jurisdiction,
federal privilege law governs “even where the evidence sought also may be relevant to
pendent state law claims.”5 Defendants cite no authority supporting the application of
state privilege law.
Consistent with the above-discussed case law in this District, the court finds the
state-law privileges inapplicable. Accordingly, defendants’ objections based on K.S.A.
3

Sprague, 129 F.3d at 1369.

4

Id. at 1369, n. 7.

5

Eaton v. Citizens Med. Ctr., No. 03-1448 (D. Kan. Dec. 2, 2004) (quoting
Atteberry v. Longmont United Hosp., 221 F.R.D. 644 (D. Colo. 2004)). See also LopezAguirre v. Bd. of Cty. Com’rs, No. 12-2752, 2013 WL 6796459, at *3 (D. Kan. Dec. 20,
2013) (“to the extent evidence relates to both the federal and state law causes of action,
the [state-law] privilege will not apply to the extent it was adequately opposed by
[p]laintiff.”); Sellers v. Wesley Med. Ctr., LLC, No. 11-1340, 2012 WL 5362977, at *3
(D. Kan. Oct. 31, 2012) (same).
3

65-4915, K.S.A. 65-4925, and K.S.A. 60-427 are overruled.
HIPPA
Plaintiff seeks the patient records of an individual for whom plaintiff did not
provide care, “but who nevertheless serves as a basis for one of the allegations against
[plaintiff].”6 In addition to asserting the above-discussed physician-patient privilege,
defendants claim production of these records is prohibited by HIPPA. Both parties refer
to 45 C.F.R. § 164.512(e), which provides, in relevant part:
(1) Permitted disclosures. A covered entity may disclose protected health
information in the course of any judicial or administrative proceeding:
(i) In response to an order of a court or administrative tribunal, provided
that the covered entity discloses only the protected health information
expressly authorized by such order; or
(ii) In response to a subpoena, discovery request, or other lawful process,
that is not accompanied by an order of a court or administrative tribunal, if:
(A) The covered entity receives satisfactory assurance, as described
in paragraph (e)(1)(iii) of this section, from the party seeking the
information that reasonable efforts have been made by such party to
ensure that the individual who is the subject of the protected health
information that has been requested has been given notice of the
request; or
(B) The covered entity receives satisfactory assurance, as described
in paragraph (e)(1)(iv) of this section, from the party seeking the
information that reasonable efforts have been made by such party to
secure a qualified protective order that meets the requirements of
paragraph (e)(1)(v) of this section.
Defendants assert that plaintiff has not provided satisfactory assurance that the

6

ECF No. 48 at 1.
4

individual who is the subject of the protected health information has been notified or
consented to the release of information. As plaintiff observes, however, disclosure may
be authorized absent such notification under subsections (e)(1)(i) or (ii)(B). In light of
the parties’ agreed protective order entered in this case (ECF No. 47), the court overrules
defendants’ objections to the production of patient records on the basis of HIPPA.
IT IS THEREFORE ORDERED that defendants’ objections based on K.S.A. 654915, K.S.A. 65-4925, K.S.A. 60-427, and/or 45 C.F.R. § 164.512(e) are overruled.
Defendants are ordered to produce the requested incident reports and medical records by
December 19, 2018.
IT IS SO ORDERED.
Dated December 12, 2018, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

5