Loyd v. Saint Joseph Mercy Oakland Hospital/Trinity Health et al

Filing 24

ORDER Denying Plaintiff's Motion To Compel Discovery Of Documents Sought From Defendant SJMO 18 . Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANITA LOYD,
Plaintiff,
v.

Case No. 12-cv-12567
Hon. Gershwin A. Drain

ST. JOSEPH MERCY OAKLAND/TRINITY
HEALTH, et al.,
Defendants.
______________________________/
ORDER DENYING PLAINTIFF’S MOTION TO COMPEL DISCOVERY OF
DOCUMENTS SOUGHT FROM DEFENDANT SJMO [#18]
I.

INTRODUCTION
On June 13, 2012, Plaintiff, Anita Loyd, filed the instant discrimination in employment

action pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.,
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Civil Rights
Act of 1991, 42 U.S.C. § 1981a, and Michigan’s Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS
§ 37.2101 et seq. Plaintiff also brings claims of intentional infliction of emotional distress and
interference with contractual employment relationship.
Presently before the Court is Plaintiff’s Motion to Compel Discovery of Documents sought
from Defendant, St. Joseph Mercy Oakland/Trinity Health (“SJMO”), filed on February 1, 2013.
Plaintiff seeks to compel the production of the Potential Error Event Reporting System (“PEERS”)
report prepared by a nurse regarding Plaintiff’s conduct on June 16, 2011, conduct which allegedly
led to Plaintiff’s discharge. Plaintiff also seeks to compel video surveillance of the Emergency
Room from June 16, 2011. This matter is fully briefed and a hearing was held on March 13, 2013.
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For the reasons that follow, the Court denies Plaintiff’s Motion to Compel.
II.

FACTUAL BACKGROUND
Plaintiff is a fifty-two year old, African American female who was employed by SJMO for

twenty-five years as a security officer in its Public Safety Department from June 10, 1986 until her
termination on July 1, 2011. On June 16, 2011, Plaintiff was dispatched for security assistance to
restrain a patient at SJMO’s Emergency Room, #19. Defendant maintains that Plaintiff assumed the
patient had been admitted for drug addiction only and gave this patient inaccurate advice that she
could leave the hospital premises. These comments allegedly escalated the situation and placed the
nursing staff and patient in a potentially harmful and dangerous situation because the patient became
agitated and tried to rip the I.V. out of her arm.

Plaintiff disputes Defendant’s assertions that

Plaintiff’s conduct put the patient and nursing staff at risk.
Sonya Moak, a nurse who was present during the incident on June 16, 2011, drafted a report
utilizing SJMO’s PEERS system. Moak testified that she did so to improve and provide a safer
environment for staff and patients.
A.

Q.
A.

Let me finish. In my mind the PEERS Reporting is done that when you see
a staff member performing or doing something that is — their behavior is not
---Appropriate?
–appropriate, then we write the PEERS Report so that they can get some
education or some information to make–to make it a better work
environment, a better safe –that’s why I use the PEERS.

See Def.’s Resp., Ex. 1 at 124. Plaintiff’s supervisors learned of the incident and conducted an
investigation, ultimately concluding that Plaintiff’s behavior put both the patient and staff at risk of
serious harm. Plaintiff was on a Final Written Warning, thus the incident on June 16, 2011 resulted
in her discharge. Plaintiff’s discharge paperwork stated that Plaintiff “acted outside the scope of her

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duties and advised a patient incorrectly about her ability to leave the premises,” and that “this
behavior exacerbated the patient’s behavior in a negative manner that resulted in the patient
attempting to pull the IV out and required SJMO staff to place the patient in restraint.” See Def.’s
Resp., Ex. 2.
III.

LAW & ANALYSIS
Plaintiff seeks the production of the PEERS report prepared by Moak in order to determine

the veracity of the allegations set forth in Plaintiff’s discharge paperwork. Defendant has objected
to production of the PEERS report on the basis that the document is confidential and protected from
discovery by the peer review confidentiality privilege set forth in the Michigan Public Health Code.
The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite
broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Federal Rule of Civil
Procedure 26(b)(1) permits parties to “obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense . . . if the discovery appears reasonably calculated to lead
to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1).
“[T]he peer review statutory regime protects peer review from intrusive general public
scrutiny. All the peer review communications are protected from discovery and use in any form
of legal proceedings.” Armstead v. Diederich, No. 296512, 2011 Mich. App. LEXIS 1367, *4-5
(Mich. Ct. App. July 21, 2011). The privilege for peer review data is set forth in three separate
statutes. Armstead, 2011 Mich. App. LEXIS 1367, at *4. Specifically, Michigan Compiled Laws
§ 333.20175(8) states:
[t]he records, data, and knowledge collected for or by individuals or committees
assigned a professional review function in a health facility . . . are confidential, shall
be used only for the purposes provided in this article, are not public records, and are
not subject to court subpoena.

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MICH. COMP. LAWS § 333.20175(8). Next, Michigan Compiled Laws § 333.21515 provides that
“[t]he records, data, and knowledge collected for or by individuals or committees assigned a review
function described in this article are confidential and shall be used only for the purposes provided
in this article, shall not be public records, and shall not be available for court subpoena.” MICH.
COMP. LAWS § 333.21515. Finally, Michigan Compiled Laws § 331.533 states “[e]xcept as
otherwise provided in [this statute], the record of a proceeding and the reports, findings, and
conclusions of a review entity under this act are confidential, are not public records, and are not
discoverable and shall not be used as evidence in a civil action or administrative proceeding.” MICH.
COMP. LAWS § 331.533.
Plaintiff argues that the PEERS report is not subject to the peer review privilege because
Plaintiff, as a security officer, is not a physician or other health care professional subject to peer
review procedures imposed on hospitals. This argument lacks merit. Michigan courts have
repeatedly held that the peer review privilege encompasses hospital incident reports where such
reports are “compiled in furtherance of improving health care and reducing morbidity and
mortality.” Gallagher v. Detroit-Macomb Hosp. Ass’n, 171 Mich. App. 761, 768; 431 N.W.2d 90
(1988); see also Ligouri v. Wyandotte Hospital and Med. Center, 253 Mich. App. 372, 375-77; 655
N.W.2d 592 (2002). In Gallagher, the Michigan Court of Appeals concluded that an incident report
prepared at the time of the plaintiff’s decedent’s injury was appropriately excluded under the peer
review privilege because it was prepared for a committee assigned a review function. Gallagher,
171 Mich. App. at 768. Thus, the PEERS report is subject to the peer review privilege if it was
“collected for or by an individual or committee assigned a review function.” Id.
Here, Defendant has offered evidence that the PEERS program is used for the improvement
of patient care and to reduce morbidity and mortality rates. See Def.’s Resp., Ex. 4. Rita Stockman,
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Chief Accreditation, Regulatory & Risk Officer at SJMO, states that:
3.

4.

Staff members at SJMO are trained to utilize the Incident Reporting System
to report incidents that caused near miss, potential or actual patient injury,
death, or potential legal liability.
I review all reports made through the Incident Reporting System. As
appropriate, I investigate the events or incidents reported for the purpose of
improvement of the quality of patient care and the reduction of morbidity and
mortality rates.

Id. at 2. Thus, the Court concludes that the PEERS report is subject to privilege because its purpose
is for the improvement of patient care.
Next, Plaintiff argues that Defendant waived the peer review privilege by including
information from the report in the Human Resources Department’s Investigation Summary, as well
as by providing excerpts from the report to the Equal Employment Opportunity Commission and
the Michigan Department of Civil Rights. Plaintiff offers no authority for the proposition that the
peer review privilege can be waived. While the Michigan courts have yet to rule on this precise
issue, it would seem that the Michigan courts would ultimately conclude that the peer review
privilege cannot be waived based on the clear statutory language that peer review information may
be used “only for the purposes” provided in the statute. MICH. COMP. LAWS § 333.21515. Further,
unlike other statutorily-created privileges which contain an explicit waiver provision, the peer
review statutes contain no waiver provision. See MICH. COMP. LAWS § 600.2157 (patient-physician
privilege waived if patient brings an action to recover for personal injuries); see also MICH. COMP.
LAWS § 339.1611(providing a waiver for communications between a marriage counselor and his or
her clients, unless the counselor is a party defendant to a civil, criminal or disciplinary action arising
from that counseling).
As to Plaintiff’s request for an order compelling the production of video surveillance from

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June 16, 2011, Defendant maintains that the only video surveillance is of the hallways in the hospital
and not in any of the patient rooms. Further, Defendant contends that the recordings from June 16,
2011 have already been erased and overwritten pursuant to policy.

Defendant provides the

declaration of Greg Williams, Supervisor in the Public Safety Department, who states that the video
recordings are automatically overwritten and erased every thirty days. See Def.’s Resp., Ex. 5.
Plaintiff contends that Defendant’s destruction of this evidence amounts to spoilation of
evidence subject to sanction. Plaintiff argues that Defendant should have known that Plaintiff’s
termination on July 1, 2011 would lead to litigation. Thus, Defendant should have preserved the
video surveillance from June 16, 2011. Defendant argues that it was put on notice of the possibility
of litigation when it received a copy of Plaintiff’s EEOC complaint, which was filed three months
after June 16, 2011, or on September 9, 2011.
Plaintiff counters that Defendant’s assertion that it did not learn of the potential for litigation
until September 9, 2011 is disingenuous. Plaintiff relies on the fact that she filed a grievance with
her representative union on July 5, 2011, four days after her termination, to demand reinstatement
to her job. Thus, SJMO was on notice of the potential lawsuit before the expiration of the thirty day
retention period for video surveillance. Plaintiff argues that the video surveillance is essential to
proving her claims. Plaintiff will be unable to challenge the testimony of Defendant’s witnesses
concerning the events on June 16, 2011without the video surveillance. For this reason, Plaintiff
requests that the Court sanction Defendant for destroying this evidence when Defendant knew or
reasonably should have known that it was relevant to potential litigation. See Bloemendaal v. Town
& Country Sports, Inc., 255 Mich. App. 207; 659 N.W.2d 684 (2002); Brenner v. Kolk, 226 Mich.
App. 149, 161-62; 573 N.W.2d 65 (1997). Specifically, Plaintiff requests an order excluding the
testimony of Defendant’s witnesses.

The Court finds that Plaintiff’s requested sanction is
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unwarranted. Rather, Plaintiff may be entitled to a jury instruction that the jury may draw an
inference adverse to the culpable party from the absence of the evidence. Brenner, 226 Mich. App.
at 161-62. However, the Court will revisit the propriety of a spoilation instruction at the time of
trial.
IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Compel [#18] is DENIED.

Dated: March 18, 2013

/s/ Gershwin A Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE

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