Miller v. Huron Regional Medical Center, Inc. et al

Filing 31

ORDER re: 21 Motion to Compel and 22 Motion to Produce. Signed by US Magistrate Judge John E. Simko on 6/13/13. (SLW)

FILED
UNITED STATES DISTRICT COURT

JUN 13 2013

DISTRICT OF SOUTH DAKOTA

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SOUTHERN DIVISION

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LINDA A. MILLER, M.D.,
Plaintiff,

v.

CIV. 12-4138

ORDER

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HURON REGIONAL MEDICAL
CENTER, INC.; CY B. HAATVEDT,
M.D., as a Member of its Executive
Committee and Individually; and
MICHAEL N. BECKER, M.D., as a
Member of its Executive Committee and
Individually,
Defendant.

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Pending is Plaintiff Miller's Motion to Produce. I

BACKGROUND
In February, 2011, Huron Regional Medical Center (HRMC) asked its insurance carrier to
secure an independent medical records review of Dr. Miller's care of a patient. The insurance
company selected a surgeon to perform the records review. The identity ofthe reviewer is unknown
to HRMC. The independent medical review occurred. A letter summarizing the independent
medical review was sent to HRMC by the insurance carrier. The underlying report itself authored
by the surgeon who conducted the independent records review was not provided to HRMC. Instead

lDocs. 21 & 22. The dispute addressed by Doc. 21has been resolved by the parties
themselves. Doc. 21 will be denied as moot.

the insurance carrier summarized the conclusion of the independent medical review saying "the
patient received good care that was well within the standard of care.,,2
Miller found a pancreatic lesion in the patient while performing a surgical procedure on the
patient. Miller biopsied the pancreas during the surgical procedure without closing the patient to
obtain a CT to confirm the lesion needed to be biopsied.

The independent medical reviewer

concluded that doing the biopsy without CT confirmation was a matter ofmedical judgment. Some
surgeons would do as Miller did. Others would have preferred to close the patient to obtain a CT
before doing the biopsy.
Miller has been provided the insurance company's letter summarizing the reviewing
surgeon's report. Miller wants the report itself authored by the surgeon who performed the medical
review ofthe records of Miller's patient. HRMC opposes Miller's motion because (1) it is not the
appropriate method to obtain documents from a non-party; (2) it addresses a document protected by
the physician peer review privilege established by SDCL § 36-4-26.1; and (3) the independent
medical review is not relevant to claims and defenses in this lawsuit. 3

DISCUSSION
Miller asserts defendants reduced her surgical privileges and terminated her, and made
reports about her to the National Practitioner Data Bank. 4 One of two scenarios necessarily must
exist: either this patient's incident (1) was or (2) was not used to justifY defendants' conduct or (1)
was or (2) was not reported to the National Practitioner Data Bank.

2Doc.27-6.

3Doc. 23, p. 1.

40 0C. 27, p. 2, filed under seal pursuant to a Protective, Order Doc. 18.

2

Ifthis patient's incident was not used to justify defendants' conduct and was not reported to
the National Practitioner Data Bank, then neither the summary letter from the insurance company
nor the underlying independent medical records review is relevant to the lawsuit.
But if this incident was used either to justify defendants' conduct or was reported to the
National Practitioner Data Bank, then Miller is entitled to see the underlying report which was
summarized by the insurance company letter. Denying her that right would be to deny her the right
to cross examine the person whose report was the reason for the act which was adverse to her. She
is entitled to cross examine the surgeon who conducted the medical records review to determine
whether defendants used a report which was not adverse to her to make a decision which was
adverse to her.
Defendants Haatvedt and Becker have asserted "In regard to Paragraphs 16 through 44 of
Plaintiff's Complaint, these Defendants are unable to admit or deny these allegations because the
information, and subject matter, is potentially protected and privileged pursuant to the Health Care
Quality Improvement Act, 42 U.S.C. § 111 01, et seq., and S.D.C.L. §36-4-26.1 and, therefore, remit
Plaintiff to her strict proof thereof with regard to all factual allegations and legal claims."s
Defendant HRMC made a similar assertion: "HRMC is immune from liability for the causes of
actions herein by virtue of the Health Care Quality Immunity Act, 42 U.S.C. 11101 et seq. and/or
SDCL Chapter 36-4.,,6
Among the reasons for the federal law relied upon by the defense are the national need to
restrict the ability of incompetent physicians to move from state to state and to protect physicians

5Doc. 8, p. 2, ~ 9.
6Doc. 9, p. 8, ~ 48.
3

engaging in effective professional peer review. 7 Any person on or who participates with a
professional review body "shall not be liable in damages .... ,,8 The physician under scrutiny must
be provided" ... procedures as are fair .... ,,9 The procedural requirements are not required if
"there is no adverse professional review action taken."lo Further, the failure by a review body to
meet these procedural conditions must not "in itself' constitute failure to satisfy the procedural
statutory requirements. II
Ifdefendants did not take any adverse action against Miller as a result ofthis patient incident,
then there is no need to fulfill the statutory procedural requirements, which in tum means Miller is
not entitled to the underlying report prepared by the independent medical records reviewer. But if
there was an adverse professional review action taken, then Miller must be provided procedures
which are fair, which in tum means she must be provided a copy of the report prepared by the
independent medical records reviewer.
In this case, however, that analysis does not completel y resolve the issue because defendants

allege Miller voluntarily resigned. For Miller to rebut the assertion that she voluntarily resigned, she
needs to show the circumstances. If she resigned merely because there was an investigation, so to
speak, in the absence of any adverse action by the professional review board, that would be enough
to explain her voluntary resignation to a jury. This further analysis brings the issue full circle. If

742 U.S.C. § 11101(2) & (5).

842 U.S.C. § 11111(a)(I)(A) thru (D).

942 U.S.C. § 11112(a)(3).

10

42 U.S.c. § 1111(c)(l)(A).

1142 U.S.C. § 11112.

4

there was no adverse action by the professional review board, then Miller is not entitled to the
underlying report of the independent medical records reviewer. If the defendants reported this
patient's incident to the National Practitioner Data Bank, that is an adverse action- in which case
Miller is entitled to the underlying report ofthe independent medical records reviewer under the fair
procedures requirement of42 U.S.C. § 11112(a)(3). Because the defense has asserted the pertinent
federal statute; because the federal statute is not inconsistent with the state statute also asserted by
the defense; and because the analysis ofthe federal statute resolves the issues, an analysis ofthe state
statute requirements is not necessary to resolve this discovery dispute.
It is ORDERED:

1.

If a report about Dr. Miller's care for this patient l2 was provided to the
National Practitioner Data Bank by the defendants or any of them or if there
was other adverse action taken by the professional review body as a result of
Dr. Miller's care for this patient, then plaintiff'S Motion to Produce is
GRANTED (Doc. 22), and the defense must provide to the plaintiff the
report authored by the independent medical records reviewer. In this event,
it is recommended to the district court that the defense should not be allowed
to assert plaintiff voluntarily resigned unless this report is furnished to the
plaintiff.

2.

In the alternative, if a report about Dr. Miller's care for this patient was not
provided to the National Practitioner Data Bank by the defendants or any of
them and if there was no other adverse action taken by the professional
review body as a result ofDr. Miller's care for this patient, plaintiff's Motion
to Produce is DENIED (Doc. 22), and the defense does not need to provide
the report about Dr. Miller's care for this patient authored by the independent
medical records reviewer. Plaintiff is left to her own resources under Rule
45 to subpoena the independent medical records reviewer's report. In this
event it is recommended to the district court that the defense should be
allowed to assert the plaintiff voluntarily resigned.

12There should be no question about the identity ofthe incident to which "this patient" refers.
It is the patient on whom the biopsy of the pancreas was performed on December 2, 2010.
5

3.

If a report about Dr. Miller's care for this patient was not provided to the
National Practitioner Data Bank by the defendants or any of them and if the
parties dispute whether there was other adverse action taken by the
professional review body as a result of Dr. Miller's care for this patient, then
the parties must notify the undersigned about the nature of the dispute and a
briefing schedule will be established to resolve the dispute.

4.

Plaintiff's Motion to Compel Discovery (Doc. 21) is DENIED as moot.

Dated June

1.3, 2013.
BY THE COURT:

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