Faure v. Community Health Systems, Inc., et al

Filing 451

MEMORANDUM OPINION AND ORDER by Chief Magistrate Judge Karen B. Molzen granting 429 Plaintiff's MOTION for Leave to File Motion; granting in part [429, Exh 1] Motion for Enforcement of Court Order and granting in part 442 Defendant Hospital's Second Supplemental MOTION for Protective Order. (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

GLORIA QUIMBEY, DECEASED, BY THE
PERSONAL REPRESENTATIVE FOR
THE WRONGFUL DEATH ESTATE,
JOHN FAURE,
Plaintiff,
v.

CIV 14-0559 KG/KBM

COMMUNITY HEALTH SYSTEMS
PROFESSIONAL SERVICES CORPORATION,
LAS CRUCES MEDICAL CENTER, LLC D/B/A
MOUNTAIN VIEW REGIONAL MEDICAL CENTER,
and
ACCOUNTABLE HEALTHCARE STAFFING,
INC., ACCOUNTABLE HEALTHCARE
HOLDINGS CORPORATION, MEDASSETS
WORKFORCE SOLUTIONS, RONALD LALONDE,
and
AFFILION, LLC AND DR. JOEL MICHAEL JONES,
Defendants.

MEMORANDUM OPINION AND ORDER REGARDING
PLAINTIFF’S REQUESTS FOR PRODUCTION NOS. 17 AND 19
THIS MATTER comes before the Court on the following motions: Plaintiff’s
Motion for Leave to File Motion for Enforcement of Court Order (Doc. 429) (“Motion for
Leave”), Plaintiff’s Motion for Enforcement of Order Regarding Plaintiff’s Request for
Production Nos. 17 and 19 to Defendant Mountain View Regional Medical Center

(Doc. 429, Ex. 1) (“Motion for Enforcement of Court Order”), and Defendant
Mountainview Regional Medical Center’s 2nd Supplemental Motion for Protective Order
and Response to Plaintiff’s Motion for Enforcement of Order Regarding Plaintiff’s
Request for Production Nos. 17 and 19 (Doc. 442) (“Defendant Hospital’s Second
Motion for Protective Order”).
Plaintiff first seeks leave to file the Motion for Enforcement of Court Order, which
she attached as Exhibit 1 to her Motion for Leave. Defendant Hospital does not oppose
this request and has, instead, addressed the substance of Plaintiff’s Motion for
Enforcement of Court Order. Plaintiff followed suit in her reply brief, further addressing
the substance of her Motion for Enforcement of Court Order and responding to
Defendant Hospital’s Second Motion for Protective Order. Given the lack of opposition,
the Court will grant Plaintiff’s Motion for Leave. See D.N.M.LR-CR. 7.1(b) (failure to
respond in opposition constitutes consent to grant motion). Moreover, because the
Court is satisfied that it has adequate briefing on Plaintiff’s Motion for Enforcement of
Court Order, it will proceed to the merits of that motion, rather than require the parties to
refile it along with responsive briefs.
The Court has reviewed the parties’ submissions and the relevant law and has
also undertaken an in camera review of the documents submitted by Defendant Las
Cruces Medical Center, LLC (“Defendant Hospital”), which it contends are protected by
the New Mexico Review Organization Immunity Act (“ROIA”), N.M. Stat. Ann. § 41-9-1
to 41-9-7 (1978), and the Patient Safety and Quality Improvement Act (“PSQIA”), 42
U.S.C. § § 299b-21 to 26, and Texas Occupations Code § 301.466(a)(2). The Court

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finds that Plaintiff’s Motion for Enforcement of Court Order is well-taken in part.
Likewise, Defendant Hospital’s Second Motion for Protective Order is well-taken in part.
I.

Background

Following a hearing on March 3, 2017, the Court ordered Defendant Hospital to
search for and to produce to Plaintiff the following documents:
i.

Documents constituting the budget that was in effect at the time of the
subject hospitalization of Gloria Quimbey.
ii. Any electronic correspondence to or from Willa Dixon, Kelly Clark,
Denten Park, and Karen Anderson containing the search terms
“Quimbey” or “Lalonde,” regardless of date.
iii. Any electronic correspondence to or from Willa Dixon, Kelly Clark,
Denten Park, and Karen Anderson during the calendar year 2012,
which contain the following combination of search terms:
1. “patient” + “ratio” + “telemetry”
2. “short” + “staff” + “telemetry”
3. “short” + “staff” + “emergency/ED/ER”
4. “traveler” + “emergency/ED/ER.”
Doc. 351 at 3. After receiving two extensions, Defendant Hospital produced documents
responsive to this Order but withheld others subject to the assertion of certain privileges
and protections. Docs. 374, 401, 405. On May 19, 2017, Defendant Hospital provided a
privilege log for documents it withheld. See Doc. 429, Ex. 1. Then, on September 13,
2017, concurrent with the filing of its response to the subject motion, Defendant Hospital
provided its “1st Amended Privilege Log.” Doc. 442, Ex. A. Defendant Hospital also
provided the Court with the documents identified in that amended privilege log for
in camera review.
II.

Legal Standard
As the Court has previously discussed, both the New Mexico Review

Organization Immunity Act (ROIA) and the Patient Safety and Quality Improvement Act
of 2005 (PSQIA) provide protections against the disclosure of medical peer-review

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documents and information. See Doc. 241 at 2. The pertinent portion of New Mexico’s
ROIA statute provides:
All data and information acquired by a review organization in the
exercise of its duties and functions shall be held in confidence and shall
not be disclosed to anyone except to the extent necessary to carry out
one or more of the purposes of the review organization or in a judicial
appeal from the action of a review organization. . . . Information,
documents or records otherwise available from original sources shall not
be immune from discovery or use in any civil action merely because they
were presented during proceedings of a review organization, nor shall
any person who testified before a review organization or who is a
member of a review organization be prevented from testifying as to
matters within his knowledge, but a witness cannot be asked about
opinions formed by him as a result of the review organizations hearings.
N.M. Stat. Ann. § 41-9-5 (1978). The statute defines a “review organization” as an
organization whose “membership is limited to health care providers and staff” and
whose purpose is to “gather and review information relating to the care and treatment of
patients for the purposes of”:
(1) Evaluating and improving the quality of health care services
rendered in the area or by a health care provider;
(2) Reducing morbidity or mortality;
(3) Obtaining and disseminating statistics and information relative to
the treatment and prevention of diseases, illnesses and injuries;
(4) Developing and publishing guidelines showing the norms of health
care services in the area or by health care providers;
(5) Developing and publishing guidelines designed to keep within
reasonable bounds the cost of health care services;
(6) Reviewing the nature, quality or cost of health care services
provided to enrollees of health maintenance organizations and
nonprofit health care plans;
(7) Acting as a professional standards review organization . . .
(8) Determining whether a health care provider shall be granted
authority to provide health care services using the health care
provider’s facilities or whether a health care provider’s privileges
should be limited, suspended, or revoked.
N.M. Stat. Ann. § 41-9-2(E) (1993).

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The New Mexico Supreme Court has interpreted ROIA and crafted burdens to
govern discovery disputes under the Act. See Sw. Cmty. Servs. v. Smith, 755 P.2d 40,
44-45 (N.M. 1988). First, the party seeking to compel discovery, Plaintiff here, has the
initial burden of “proving relevance to subject matter.” See Chavez v. Lovelace Sandia
Health Sys., Inc., 189 P.3d 711, 715 (N.M. Ct. App. 2008). Next, the party invoking
ROIA’s protections, here Defendant Hospital, must establish that the data or information
was “generated exclusively for peer review and for no other purpose” and that the
“opinions were formed exclusively as a result of peer review deliberations.” Id. Finally, if
the court determines that the information is confidential under ROIA, the party seeking
the information may attempt to persuade the court that the information “constitutes
evidence which is critical to the cause of action or defense.” Id. at 715-16. For instance,
if the court determines that the “litigant’s cause of action or defense would likely turn on
the evidence adjudged to fall within the scope of Section 41-9-5, then [it] shall compel
production.” Id. at 716.
The PSQIA is essentially a federal overlay to state peer-review statutes like New
Mexico’s ROIA. According to Congress, the PSQIA was drafted to “strike[] the
appropriate balance between plaintiff rights and creating a new culture in the health
care industry that provides incentives to identify and learn from errors.” S. Rep. No. 108196, at 3 (2003). The PSQIA created a voluntary reporting mechanism for healthcare
providers to share data on adverse medical incidents in an effort to improve patient
safety. See 24 U.S.C. § 299b-21-26 (2012). The Act grants privileges and confidentiality
protections to information that constitutes “patient safety work product.” Id. Patient
safety work product is information that is reported to a patient safety organization

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(PSO), developed by a PSO, or analyzed as part of a system for reporting to or by a
PSO. 42 U.S.C. § 299b-21 (2012). PSOs must be certified and listed by the Secretary of
the Department of Health and Human Services, 42 U.S.C. § 299b-24 (2012); however,
the Secretary has delegated this function to the Agency for Healthcare Research and
Quality, which maintains an online listing of approved PSOs, 42 C.F.R. § 3.112 (2012).
This Court previously held that the express language of the PSQIA demonstrates
Congressional intent to preempt state peer-review statutes, at least to the extent that a
state statute fails to protect information qualifying as patient safety work product.
Doc. 241 at 5. ROIA is also impliedly preempted by the PSQIA in circumstances where
compliance with both Acts would be impossible. Id. That is, when a court or parties
conclude that certain information should be produced under a ROIA criticality analysis,
because of implied conflict preemption, the information remains categorically protected
and excluded from production so long as it qualifies as patient safety work product
under the PSQIA. Id.
III.

Analysis
Defendant Hospital contends that “all four of the electronic searches that Plaintiff

requested and the Court ordered pertained to staffing levels in the telemetry unit and
emergency department in the Hospital.” Doc. 442 at 7. According to Defendant Hospital,
Judge Gonzales’ exclusion of testimony concerning “appropriate staffing levels” at the
hospital rendered such information irrelevant to Plaintiff’s claims. Id. at 8.
But Defendant Hospital’s position is oversimplified. First, the searches ordered by
this Court on March 7, 2017, did not relate only to staffing levels. Rather, the searches
were also for documents constituting the budget in effect at the relevant time as well as

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electronic correspondence containing the terms “Quimbey,” “Lalonde,” or “traveler” +
“emergency/ED/ER.” See Doc. 351 at 2-3. In addition, the Court is not persuaded that
any responsive documents that relate to staffing at the hospital are now wholly
irrelevant to Plaintiff’s claims. Despite Judge Gonzales’ exclusion of certain opinions
and testimony by Dr. Stein and Dr. Hyde, he also held that Dr. Hyde was “qualified to
testify regarding the narrow issues of staffing identified in th[e] Memorandum Opinion
and Order,” namely that “staffing issues are the responsibility of the organization that
controls the hospital.” Doc. 445 at 2-3 (citing Doc. 438 at 9, 13). Further, Judge
Gonzales determined that Dr. Hyde could testify about Defendant Hospital’s
“organizational and structural failures” and that Dr. Stein could testify about its “systemic
failures.” Id. at 3 (citing Doc. 438 at 13). In other words, while Plaintiff’s experts may not
present testimony regarding what constituted a safe staffing ratio at the hospital, Judge
Gonzales has not, thus far, excluded any opinions regarding staffing issues at the
hospital.
Plaintiff suggests that, in addition to staffing issues, some of the documents
withheld by Defendant Hospital are likely relevant to Defendant Hospital’s
“organizational and structural failures” as well as to Plaintiff’s punitive damages claim.
Doc. 445 at 4. The Court considers these claims by Plaintiff in determining the
discoverability of the documents at issue.
A. Documents 1294-96, 1567-69, and 1580.
In conjunction with its Second Motion for Protective Order, Defendant Hospital
provided the affidavit of Karen Dawson, its Risk Manager and Compliance Officer. See
Doc. 442, Ex. B. Ms. Dawson identified documents 1294-96 and 1567-69 as confidential

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attorney-client communications. Additionally, she identified document 1580 as a
document prepared in anticipation of litigation. Plaintiff withdrew her request that the
Court compel production of these documents, and her motion is therefore denied as
moot as to Documents 1294-96, 1567-69, and 1580.
B. E-mails
Plaintiff submits that Defendant Hospital has failed to offer any support for
privilege claims asserted as to certain e-mail communications produced in response to
its electronic search. Doc. 445. More particularly, Plaintiff identifies the following
e-mails:
416 (“E-mail string between Yasmine Estrada and MVRMC Representative”)
696 (“E-mail string between Denten Park and Karen Anderson”)
704 (“E-mail string between Denten Park and Kelly Clark”)
1150 (“E-mail string between Kelly Clark and Daniel Pattarozzi”)
1381-1382 (“E-mail string between Melina Loya and Willa Dixon”)
1401 (“E-mail string between Denten Park and Karen Anderson”)
1462-1463 (“E-mail string between Vince Bader and Willa Dixon”)
1464-1465 (“E-mail string between Jackie Moran and Willa Dixon”)
1466-1467 (“E-mail string between Jackie Moran and Willa Dixon”)
1468-1469 (“E-mail string between Vince Bader and Willa Dixon”)
See Doc. 445 at 5. In its 1st Amended Privilege Log, Defendant Hospital asserted ROIA
and PSQIA privileges as to each of these e-mails. See Doc. 442, Ex. A. Yet, Ms.
Dawson does not specifically reference these e-mails in her affidavit, and Defendant
Hospital has not otherwise demonstrated that they are privileged. Further, having
conducted an in camera review of these e-mails, it is not apparent that they contain
“data and information acquired by a review organization in the exercise of its duties and
functions.” Certain of the emails, including Documents 1462-69, include a response that
was apparently submitted to the Joint Commission regarding complaints against
Defendant Hospital. This Court previously held that Defendant Hospital had failed to

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meet its burden to establish that documents created for or submitted to the Joint
Commission were entitled to protection under ROIA. See Doc. 241 at 11-12. Because
this remains true, the Court will require Defendant Hospital to produce Documents
1462-69.
Documents 696 and 1401 each contain an e-mail from Denten Park to Karen
Anderson concerning an unnamed patient. Because there is no indication that the
e-mail contains “data and information acquired by a review organization in the exercise
of its duties and functions,” the Court will order production of these documents as well.
Documents 1381-82 contain a survey which appears to have been completed by
staff in the Telemetry and Medical Surgical Departments of the hospital in 2011,
approximately a year before the subject incident. While the information contained
therein strikes the Court as the type of information that might be useful for peer review,
Defendant Hospital has not specifically maintained that the survey was acquired by a
review organization in the exercise of its duties and functions. Once again, Karen
Dawson does not address in her affidavit whether this specific survey is protected by
ROIA or PSQIA. Further, the attached email indicates that the survey was conducted
“for Sharon in regard to her units.” The Court is unable to ascertain whether the
“Sharon” referenced in the e-mail is part of a review organization, and Defendant does
not provide any argument or evidence in this regard. Under these circumstances,
Defendant Hospital has not met its burden to establish that a privilege applies to
Documents 1381-82. Accordingly, the Court will require Defendant Hospital to produce
Documents 1381-82.

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Documents 451-54, 708-09, and 1470 contain communications between
Defendant Hospital’s administrators, including human resources and risk management
staff, to employees of Community Health Systems Professional Services Organization.
The e-mails relate to a “Compliance 360” complaint. In her affidavit, Ms. Dawson
describes Compliance 360 as an initiative that “involves hospital data and information
used to address various internal hospital practices including compliance, patient
privacy, and other similar issues.” Doc. 442, Ex. B ¶ 8. Ms. Dawson states that the
Compliance 360 documents were generated exclusively to carry out peer review
purposes and for no other reason and that the opinions and decisions contained therein
were formed as a result of peer review organization deliberations. Id. Ms. Dawson does
not maintain that these documents constitute patient safety work product provided to a
PSO. Thus, Defendant Hospital has not established that they qualify for protection
under the PSQIA.
Even if the Court was satisfied that these e-mail communications were protected
by ROIA for the reasons set forth by Ms. Dawson, it finds that they are nevertheless
critical to Plaintiff’s presentation of her case. Plaintiff has alleged that Defendant
Hospital’s systemic and organizational failures in staffing and training contributed to
Gloria Quimbey’s death. The communications in Documents 451-454, 708-09, and 1470
discuss relevant circumstances in the Telemetry Unit just months before the subject
incident. Given that these documents were created close in time to Defendant Hospital’s
alleged negligence and go directly to issues in the case, the Court considers them
highly probative, perhaps more so than other evidence that Plaintiff could procure

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through reasonable means. The Court will require production of Documents 451-454,
708-09, and 1470.
C. Letters to Texas Board of Nursing
Defendant Hospital withheld communications by its employees and/or agents to
the Texas and New Mexico Boards of Nursing, including Documents 331, 344, 658,
1162, 1163, 1298, 1300, 1302, 1565, 1572, and 1574, asserting that these materials are
protected under Federal Rule of Civil Procedure 26(b)(3)(A) because they were
prepared in anticipation of litigation. Doc. 442 at 17. Defendant Hospital also submits
that a Texas state statute, Texas Occupations Code § 301.466(a)(2), prohibits it from
disclosing these documents to Plaintiff. Doc. 442 at 17.
First, it is not apparent to the Court how these letters to the Texas and New
Mexico Boards of Nursing would constitute trial preparation materials under Rule
26(b)(3)(a)(A), and Defendant Hospital offers only a conclusory explanation for its
assertion of the work-product protection. Upon in camera review of the documents, the
Court finds that instead of being prepared in anticipation of litigation, they appear to be
aimed at reporting Defendant Lalonde’s conduct to the state nursing boards and
assisting them in making informed decisions concerning his nursing license. See, e.g.,
445, Ex. 4, Deposition of Willa Dixon (testifying that she reported Defendant Lalonde’s
error to the nursing board through written documentation). “[I]n order to establish work
product[] protection for a document, a discovery opponent must show that ‘the primary
motivating purpose behind the creation of a document’. . . [was] ‘to aid in possible future
litigation[.]’” Allen v. Chicago Transit Auth., 198 F.R.D. 495, 500 (N.D. Ill. 2001).
Narrowly construing the work-product doctrine, as it must, the Court finds that

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Defendant Hospital has failed to establish that it protects the subject correspondence to
the Texas and New Mexico Boards of Nursing.
Moreover, Texas Occupations Code § 301.466 does not shield these letters from
disclosure. The statute provides:
[A]ll information and material compiled by the [B]oard [of Nursing] in
connection with the complaint and investigation are . . . not subject to
disclosure, discovery, subpoena, or other means of legal compulsion for
release to anyone other than the board or a board employee or agent
involved in license holder discipline.
Tex. Occ. Code § 301.466(a)(2). But Plaintiff seeks production of communications from
Defendant Hospital in the context of discovery in a civil law suit; it is not seeking
information or material complied by the Texas Board of Nursing. Second, Texas law
does not apply. The parties have stipulated that the substantive law governing this case
is that of New Mexico, not Texas. Doc. 83, Joint Status Report, at 3. In diversity cases,
“state law supplies the rule of decision on privilege.” Fed. R. Evid. 501; Frontier
Refining, Inc. v. Groman-Rupp Co., Inc., 136 F.3d 695, 698 (10th Cir. 1998). Defendant
Hospital has cited no authority, and the Court is aware of none, that would demonstrate
that Texas Occupations Code § 301.466 somehow operates to preclude disclosure of
the referenced communications in discovery.
For these reasons, the Court will grant Plaintiff’s Motion as to Documents 331,
344, 658, 1162, 1163, 1298, 1300, 1302, 1565, 1572, and 1574.
D. Joint Commission Preparation Committee Meeting Minutes
Defendant Hospital contends that Documents 234 and 1156-60, which it
identifies as the Joint Commission Preparation Committee Meeting Minutes, are
protected by ROIA and PSQIA. Ms. Dawson makes no claim that these documents

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were patient safety work product submitted to a PSO; thus, Defendant Hospital has
failed to establish that they are entitled to protection under the PSQIA. As to ROIA,
while the Court has determined herein that documents created for or submitted to the
Joint Commission are not entitled to protection under ROIA, it has not yet passed upon
documents generated by Defendant Hospital’s Joint Commission Preparation
Committee.
According to Ms. Dawson’s affidavit, the purpose of the Joint Commission
Preparation Committee “is to monitor patient care activities and the hospital’s general
environment of care in accordance and compliance with Joint Commission standards
and in preparation for regulatory surveys.” Doc. 442, Ex. B ¶ 6. Ms. Dawson states that
these minutes were “generated exclusively to carry out one or more of the purposes of
the peer review committees and/or review organizations and for no other reason.” Id.
ROIA, of course, only applies if the minutes were prepared by a “review organization,”
as defined by the statute. Plaintiff contends that because the committee is aimed at
maintaining the Joint Commission Certification and preparing for regulatory surveys, it
does not qualify as a review organization.
The Court, however, is satisfied that the Joint Commission Preparation
Committee is a review organization made up of health care providers and staff whose
purpose was to gather and review information in order to evaluate and improve the
quality of health care services rendered by Defendant Hospital, though they admittedly
did so with reference to the Joint Commission’s standards. The Committee’s minutes
are entitled to protection under ROIA.

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Plaintiff submits that the information in the Committee’s minutes is nevertheless
critical to her case, because issues concerning Defendant Hospital’s stroke program
certification by the Joint Commission are central to her claims. The Court disagrees.
Plaintiff’s causes of action are unlikely to turn on the information contained in the
Committee’s minutes; indeed, the information is tangential to the issues in this case.
Accordingly, the Court will deny Plaintiff’s Motion as to Documents 234 and 1156-60.
E. Outpatient Pulse Report
While Defendant Hospital contends that its Outpatient Pulse Reports are
protected by ROIA and PSQIA, Plaintiff submits that its description of these documents
does not support such protection. Ms. Dawson describes the Outpatient Pulse Reports
as containing “various information and data related to treatment and for hospital
allocation of resources to best serve the medical needs of the patient population.”
Doc. 442, Ex. B ¶ 9. As with other withheld documents, Ms. Dawson states that
Outpatient Pulse Reports “were generated exclusively to carry out one or more of the
purposes of the peer review committees and/or review organizations and for no other
reason.” Id. The Court’s review of the Outpatient Pulse Reports comports with Ms.
Dawson’s description of them. The reports appear to have been compiled by health
care providers and staff with the purpose of disseminating statistical information
regarding the treatment of illnesses and injuries and with the aim of keeping health care
costs within reasonable bounds. Thus, the Court is satisfied that the documents were
generated by a peer review organization for purposes enumerated in the ROIA statute
and are, thus, entitled to ROIA protection. The Court further finds that the documents
are not critical to Plaintiff’s claims. Although Plaintiff makes general allegations

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concerning Defendant Hospital’s allocation of resources, her causes of action are
unlikely to turn upon the information contained in the Outpatient Pulse Reports. The
Court will deny Plaintiff’s Motion as to Documents 669-72, 674-75, 678-701, and 125051.
F. Meaningful Use Measures
Finally, Plaintiff seeks production of documents related to Meaningful Use
Measures. Ms. Dawson describes Document 1289 as “MountainView’s Summary
Meaningful Use Measure Threshold Report” and Documents 359 and 360 as
“MountainView’s Meaningful Use Reports and Meaningful Use Threshold Reports.”
Defendant Hospital submits that the Meaningful Use Reports are protected from
disclosure by PSQIA and ROIA. See Doc. 442, Ex. A. Because Ms. Dawson does not
specifically maintain that the Meaningful Use Reports qualify as patient safety work
product provided to a PSO, the Court concludes that they are not entitled to PSQIA
protection. Ms. Dawson does insist, however, that the documents were generated
exclusively for “peer review.” She explains that Documents 359 and 360 “constitute data
collection used to analyze and promote quality improvement within the hospital.”
Doc. 442, Ex. B ¶ 7.
Plaintiff, in contrast, notes that “‘meaningful use measure’ data is compiled for
the Centers for Medicare and Medicaid Services (CMS) as a requirement of
participation in the Electronic Health Record (EHR) Incentive Program.” Doc. 445 at 12.
She refers the Court to a document available online from CMS’s website, which outlines
the requirements for the Stage 1 of the “Medicare and Medicaid EHR Incentive
Program.” See https://www.cms.gov/Regulations-and-Guidance/Legislation/

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EHRIncentivePrograms/ downloads /MU_Stage1_ReqOverview.pdf, last accessed Nov.
17, 2017. The document suggests that the reporting of Meaningful Use data to CMS is
required by law in order to receive incentives. See id. Plaintiff submits that data
collected for submission to CMS is not data generated exclusively for peer review.
Defendant Hospital does not offer any argument that would support the application of
ROIA save the conclusory statements of Ms. Dawson in her affidavit. For instance, it
does not identify any peer review committee or organization that collected or reviewed
the information contained in the reports; nor does it elaborate on the purpose of
gathering the information, other than to say that the reports were created to “promote
quality improvement within the hospital.” Likewise, Defendant Hospital does not contend
that CMS is a “review organization” as defined by ROIA.
Accordingly, Defendant Hospital has failed to meet its burden to establish that
the Meaningful Use Reports were generated exclusively for peer review and for no other
purpose. The Court will therefore grant Plaintiff’s Motion as to Documents 359-60 and
1289.
Wherefore,
IT IS HEREBY ORDERED AS FOLLOWS:
1. Plaintiff’s Motion for Leave to File Motion for Enforcement of Court Order
(Doc. 429) is granted.
2. Plaintiff’s Motion for Enforcement of Court Order Regarding Plaintiff’s
Request for Production Nos. 17 and 19 to Defendant Mountain View Regional
Medical Center (Doc. 429, Ex. 1) is granted in part as follows:

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a. Defendant Hospital must produce the e-mails strings and attachments
in Documents 451-54, 696, 708-09, 1381-82, 1401, and 1462-70.
b. Defendant Hospital must produce the correspondence to state nursing
boards found in Documents 331, 344, 658, 1162-63, 1298, 1300,
1302, 1565, 1572, and 1574.
c. Defendant Hospital must produce the Meaningful Use Reports found in
Documents 359-60 and 1289.
3. Conversely Defendant MountainView Regional Medical Center’s 2 nd
Supplemental Motion for Protective Order and Response to Plaintiff’s Motion
for Enforcement of Order Regarding Plaintiff’s Request for Production Nos. 17
and 19 (Doc. 442) is granted in part as follows:
a. Defendant Hospital need not produce Documents 1294-96, 1567-69,
and 1580, which were identified as documents prepared in anticipation
of litigation and as attorney-client communications.
b. Defendant Hospital need not produce the Joint Commission
Preparation Committee Minutes found in Documents 234 and 1156-60.
c. Defendant Hospital need not produce the Outpatient Pulse Reports
found in Documents 669-72, 674-75, 678-701, and 1250-51.
4. Defendant Hospital must provide to Plaintiff the documents for which the
Court has ordered production by November 29, 2017. In all other respects,
the above motions are denied.

______________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE

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