PERONIS et al v. UNITED STATES OF AMERICA et al

Filing 68

MEMORANDUM ORDER denying 63 Plaintiffs' Motion to Compel (details more fully stated in said Order). Signed by Judge Nora Barry Fischer on 8/28/17. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CARISSA PERONIS, individually and as
administratrix of the estate of Kendall
Peronis, and MATTHEW FRITZIUS,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
VALLEY MEDICAL FACILITIES, INC., )
t/d/b/a HERITAGE VALLEY
)
PEDIATRICS, VALLEY MEDICAL
)
FACILITIES, INC., t/d/b/a HERITAGE
)
VALLEY BEAVER, and HILARY JONES, )
M.D.,
)
)
Defendants.
)

2:16-cv-01389-NBF
District Judge Nora Barry Fischer

MEMORANDUM ORDER
Presently before the Court is Plaintiff’s Motion to Compel (Docket No. [63]), in which
the Court is asked to order Defendants to produce the redacted medical records of a “high risk”
baby treated on the same day as Kendall Peronis. It is averred that these non-party records could
provide relevant information pertaining to the activities of treating medical staff on the day of
Kendall Peronis’s death, i.e., whether medical staff were distracted by the needs of the other
child. In their Brief in Opposition (Docket No. [65]), Defendants note that Plaintiffs provided
the Court with a detailed timeline of events on the day in question, including relevant deposition
excerpts from treating medical staff, and did not point to any relevant facts that may be gleaned
from the non-party medical records that have not already been obtained from other sources. In
addition to constituting a “fishing expedition,” they argue that production of the non-party
medical records would result in disclosure of a significant amount of personal, highly
confidential information.

The Court notes that Rule 26(b)(1) of the Federal Rules of Civil Procedure provides as
follows:
Unless otherwise limited by court order, the scope of discovery is as follows:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties' relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence to
be discoverable.
The scope of discovery under the Rule is broad, but it is not without limits. Hay v. Somerset
Area Sch. Dist., 2017 WL 2829700, at *1 (W.D. Pa. June 29, 2017) (citing Bayer AG v.
Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999)). A party seeking an order compelling
discovery has the burden of proving the relevance of the requested information. Trask v. Olin
Corp., 298 F.R.D. 244, 263 (W.D. Pa. 2014). Upon such a showing, the opposing party must
demonstrate that the “(1) discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome, or less expensive; (ii)
the party seeking discovery has had ample opportunity to obtain the information by discovery in
the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).”
Rouse v. Pa. Dep’t of Corrections, 2017 WL 3139567, at *1 (M.D. Pa. July 24, 2017)
In this Court’s estimation, even if the non-party’s medical records possessed some
minimal degree of relevance, Plaintiffs do not articulate why the non-party’s medical records are
needed in light of the other evidence obtained through discovery.1 As noted by Defendants,
there is significant deposition testimony by Kendall Peronis’s treaters – the same treaters that
cared for the non-party baby – pertaining to the activities of staff during the time period at issue
1

Under Rule 26, “the scope of all discovery is limited to matter that is relevant to the claims or defenses in
the case and proportional to what is at stake in a given case.” Cole’s Wexford Hotel, Inc. v. Highmark, Inc., 209
F.Supp.3d 810, 823 (W.D. Pa. 2016). The Court is not convinced that Plaintiffs have made such a showing.

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in this case. Moreover, other evidence obtained to-date has allowed Plaintiffs to construct a
detailed timeline of events for the Court. (Docket No. 63 at 2 – 4). In light of the above,
Plaintiffs have failed to demonstrate how production of the non-party’s medical file is necessary
to resolve whether or not the Defendants met the standard of care required under the
circumstances. As such, the Court will not compel disclosure of this cumulative information.
The Court is likewise unwilling to compel disclosure based upon relevant federal and
state law. Plaintiffs note that the Federal Health Insurance Portability and Accountability Act
(“HIPAA”) and related regulations make discovery of the non-party’s medical records possible.
Specifically, the Court notes that 45 C.F.R. § 164.512(e)(1) provides as follows:
(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[.]
However, regulations promulgated pursuant to HIPAA may not supersede contrary provisions of
state law if state law imposes requirements, standards, or implementation specifications more
stringent than those under HIPAA and related regulations. Citizens for Health v. Leavitt, 428
F.3d 167, 172 n. 2 (3d Cir. 2005); Williams v. City of Phila., 2014 WL 5393988, at * 4 (E.D. Pa.
Oct. 22, 2014). This includes situations in which state law prohibits or restricts the disclosure of
medical records where otherwise permitted under HIPAA. Creely v. Genesis Health Ventures,
Inc., 2004 WL 2943661, at * 3 (E.D. Pa. Dec. 17, 2004).
Mindful of the applicability of Pennsylvania state law to the instant case, over which this
Court exercises diversity jurisdiction, the Court looks to the holding of Buckman v. Verazin, 54
A.3d 956 (Pa. Super. Ct. 2012), for guidance. Here, Plaintiffs assert claims sounding only in
negligence under the law of Pennsylvania. The plaintiffs in Buckman also asserted negligence
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claims against various medical professionals, and sought the records of several non-parties to
confirm a doctor’s experience with a particular medical procedure, and the manner in which the
procedure was performed. Id. at 958 – 59. The defendants in Buckman protested, arguing that
such a disclosure would violate physician-patient privileged codified at 42 Pa. Cons. Stat. §
59292, as well as 42 Pa. Cons. Stat. § 6155(a)3 pertaining to medical records held by health care
facilities. In response, the Pennsylvania Superior Court held that:
The information relating to third parties that have not given their consent is
confidential and is not relevant to the instant negligence claim in that actions
taken by [the treater] when operating on other patients is not probative of what his
actions were when caring for [plaintiff]. The standard of care is an objective
standard and does not contemplate a focus on a [treater’s] state of mind.
Buckman, 54 A.3d at 964. Further, the Superior Court found that information sought by the
plaintiffs could have been obtained “by other, less intrusive means,” including the testimony of
another medical professional or questions asked of the treater about prior cases. Id. Ultimately,
the Superior Court concluded that the plaintiffs’ “collateral evidentiary interest when weighed
against the need for confidentiality of the records of third parties who have not given their
consent does not overcome the right to privacy.” Id.
This Court is inclined to the same view. The records now sought by Plaintiffs are clearly
of a confidential, private nature, implicate physician-patient privilege, and are sought without the
2

42 Pa. Cons. Stat. § 5929 states as follows:
No physician shall be allowed, in any civil matter, to disclose any information which he acquired
in attending the patient in a professional capacity, and which was necessary to enable him to act in
that capacity, which shall tend to blacken the character of the patient, without consent of said
patient, except in civil matters brought by such patient, for damages on account of personal
injuries.

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42 Pa. Cons. Stat. § 6155(a) states as follows:
Any patient whose medical charts or records are copied and delivered pursuant to this subchapter,
any person acting on such patient's behalf and the health care facility having custody of the charts
or records shall have standing to apply to the court or other body before which the action or
proceeding is pending for a protective order denying, restricting or otherwise limiting access to
and use of the copies or original charts and records.

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consent of the non-party – or his or her legal guardians. See Lykes v. Yates, 77 A.3d 27, 32 (Pa.
Super. Ct. 2013) (“[T]he actions taken by a doctor when caring for previous patients are not
necessary to prove a breach of the standard of care.”). As previously discussed, Plaintiffs are
already in possession substantial deposition testimony and all pertinent medical records. The
need for cumulative, non-party medical records is not so weighty as to overcome the need for
confidentiality.4 Accordingly, upon consideration of Plaintiffs’ Motion to Compel [63] and
attached exhibits, Defendants’ Brief in Opposition [65] and attached exhibits, and relevant
authority,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Compel [63] is DENIED.
/s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Date: August 25, 2017
cc/ecf: All counsel of record.

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The Court’s decision in the instant case comports with that of United States District Judge David S.
Cercone, also of the Western District of Pennsylvania, in Cordes v. Valley Medical Facilities, Inc., Docket No. 41,
Civil Action No. 2:13-cv-00547-DSC.

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