United States of America et al v. Oudeh et al

Filing 116

ORDER granting 91 Motion to Compel. Signed by Magistrate Judge James E. Gates on 7/24/2019. Counsel is reminded to read the order in its entirety for important deadlines and information. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
5:18-CV-9-D
UNITED STATES OF AMERICA and THE
STATE OF NORTH CAROLINA,
Plaintiffs,
v.
DR. IBRAHIM N. OUDEH; TERESA
SLOAN-OUDEH; and IBRAHIM N.
OUDEH, M .D ., P.A. ,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

ORDER

This case, brought pursuant to the court' s federal question jurisdiction under 28 U.S.C. §
1331 , comes before the court on the motion (D.E. 91) by plaintiffs United States of America and
the State of North Carolina ("plaintiffs") to compel nonparty Blue Cross Blue Shield of North
Carolina ("BCBSNC") to respond to a subpoena duces tecum (D.E. 92-1) issued by plaintiffs
pursuant to Rule 45 of the Federal Rules of Civil Procedure on 17 September 2018. The subpoena
seeks documents contained in the credentialing file of defendant Dr. Ibrahim N. Oudeh ("Dr.
Oudeh"). BCBSNC has not filed any opposition to the motion, 1 but advised plaintiffs that it could
not voluntarily produce the information without consent from Dr. Oudeh pursuant to provisions of
North Carolina state law. Pls.' Mem. (D.E. 92) 2; see N.C. Gen. Stat. § 90-21.22A(c), (d). For
the reasons set forth, the motion will be allowed .
North Carolina Gen. Stat. § 90-21.22A(c) and (d) provide for confidentiality of medical
review committee proceedings:

1
In a letter to plaintiffs' counsel, BCBSNC noted that in the event plaintiffs filed a motion to compel production of
the info rmation, BCBSNC could not consent to the motion, but did not wish to be heard further in response to it. 5
Nov. 201 8 Ltr. (D.E. 92-2) I.

(c) The proceedings of a medical review or quality assurance committee, the
records and materials it produces, and the materials it considers shall be confidential
and not considered public records within the meaning of G.S. 132-1 , 131 E-309, or
58-2-100; and shall not be subject to discovery or introduction into evidence in any
civil action against a provider of health care services who directly provides services
and is licensed under this Chapter, a PSO [i.e., provider sponsored organization]
licensed under Article 17 of Chapter 131 E of the General Statutes, an ambulatory
surgical facility licensed under Chapter 131 E of the General Statutes, or a hospital
licensed under Chapter 122C or Chapter 13 lE of the General Statutes or that is
owned or operated by the State, which civil action results from matters that are the
subject of evaluation and review by the committee. No person who was in
attendance at a meeting of the committee shall be required to testify in any civil
action as to any evidence or other matters produced or presented during the
proceedings of the committee or as to any findings, recommendations, evaluations,
opinions, or other actions of the committee or its members. However, information,
documents, or records otherwise available are not immune from discovery or use
in a civil action merely because they were presented during proceedings of the
committee. Documents otherwise available as public records within the meaning of
G.S. 132-1 do not lose their status as public records merely because they were
presented or considered during proceedings of the committee. A member of the
committee may testify in a civil action but cannot be asked about the person's
testimony before the committee or any opinions formed as a result of the committee
hearings.
(d) This section applies to a medical review committee, including a medical review
committee appointed by one of the entities licensed under Articles 1 through 67 of
Chapter 58 of the General Statutes.
These state law provisions, however, are not binding on the court. Rather, "[i]n federal
question cases, the federal common law of privileges is applicable." Price v. Howard Cty. Gen.

Hosp ., 950 F. Supp. 141 , 142 (D. Md. 1996). Notably, there is no federal peer review privilege.
See Bost v. Wexford Health Sources, Inc. , No. CV ELH-15-3278, 2017 WL 3084953 , at *4 (D.
Md. 19 June 2017) ("In addition and as Plaintiff correctly points out, the Supreme Court has yet
to recognize a federal medical peer review privilege and there are no circuit court cases recognizing
such a privilege. Every circuit court that has addressed the issue of a federal medical peer review

2

privilege has flatly rejected the assertion."). The court' s task is therefore to balance the need for
discovery against the policies behind the state privilege. See Price, 950 F. Supp. at 142.
Here, plaintiffs have demonstrated that the information contained in Dr. Oudeh ' s
credentialing file is critical to their investigation of health care fraud in this case. In addition,
neither Dr. Oudeh, who is represented by counsel, nor the other defendants have filed any response
to the motion and the time to do so has expired. The court therefore presumes that defendants do
not oppose the relief requested.

The court accordingly finds the production sought to be

permissible. See Fed. R. Civ. P. 26(b)(l), 45(d)(2).
IT IS THEREFORE ORDERED as follows :

1.

Plaintiffs' motion (D.E. 91) is ALLOWED.

2.

BCBSNC shall produce to plaintiffs the following documents in response to the

subpoena served by plaintiffs:
a.
b.
c.
d.
e.

f.

3.

documents related to statements and representations by Dr. Oudeh
and his counsel or representati ves as part of the peer review process;
documents, reports, and handouts relied upon by Dr. Oudeh in
support of credentialing with BCBSNC;
documents relied on by Dr. Oudeh to support any positions he took
as part of the peer review process;
documents provided by anyone other than Dr. Oudeh for
consideration by the peer review committee;
any settlement and/or consent agreements between BCBSNC and
Dr. Oudeh arising out of the peer review process; and
any reporting by BCBSNC to any agencies, national registries,
databases, or credentialing entities regarding any action taken with
respect to Dr. Oudeh.

BCBSNC shall make the foregoing production no later than 31 July 2019.

3

4.

In the event a party seeks confidentiality protection for any documents produced

pursuant to this Order, the party may file a motion for such relief after appropriate conferral with
the other parties.
SO ORDERED, this 24th day of July 2019.

United States Magistrate Judge

4