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

Filing 59

ORDER denying as moot 51 Motion to Intervene; quashing the subpoena served by Linda A. Miller, M.D. on ProAssurance; lifting the stay of the Amended Order of September 4, 2013; amending the Scheduling Order as stated. Signed by US Magistrate Judge John E. Simko on 10-23-13. (DJP)

FILED
UNITED STATES DISTRICT COURT

OCT 23 2013

DISTRICT OF SOUTH DAKOTA

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SOUTHERN DIVISION

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

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CIV. 12-4138

ORDER

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Pending is the Motion to Intervene by ProAssurance Casualty Company. I

BACKGROUND
The centerpiece for this ongoing dispute is an expert report which neither Miller nor
Huron Regional Medical Center (HRMC) has ever read or has ever possessed. The expert report
was procured and is possessed by the liability insurer for HRMC, ProAssurance. The liability
insurer, ProAssurance, refuses to produce the report. The report was prepared by an unidentified
expert selected and paid by ProAssurance who evaluated Miller's treatment of one of her
patients.

'Doc. 51.

On March 29,2013, Miller filed motions to compel discovery.2 HRMC resisted the
motions. 3
On June 13,2013, an Order was filed which in essence ruled that ifHRMC wished to use
the report or fruits from it during the trial, HRMC would have to produce the expert report. If
HRMC did not produce the report, then HRMC should not be allowed to use any evidence at the
trial about the treatment of the patient evaluated by the expert. 4 The Order provided that Miller
was left to her own resources to serve a subpoena under Rule 45 " ... 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 of Dr. Miller's care for this patient ...."5
On June 20,2013, Miller served a subpoena on ProAssurance to secure the expert report
and related documents. 6 On July 5, ProAssurance objected to the subpoena by sending a letter to
Miller's counseV
HRMC objected to the June 13 Order. On September 4,2013, the District Court denied
the objections, but for a different reason from that upon which the June 13, 2013, Order was

2Docs. 21 & 22.

3Docs.23-25.

4Doc.31.

5Doc. 31, p. 5, item 2.

6Doc. 51, ~ 1.

7Doc. 51, ~ 2.

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decided. 8 The District Court's Order in essence ruled that the report was in the possession of
HRMC because of the close relationship between the insured and the insure~ and "ProAssurance
was and is in complete control and direction of the defense of HRMC. For all practical purposes
it is performing the exact functions and playing the precise role of an actual party to the
litigation."lo The District Court also ordered HRMC to produce the report and any associated
records for an in camera review "if HRMClProAssurance is claiming the report or records are
subject to any privilege .... ,,11
Neither HRMC nor ProAssurance has produced the report nor have they disclosed their
intention about using Miller's care of the patient as evidence at trial; nor have they disclosed
whether the report was provided to the National Practitioner Data Bank:. Likewise, neither
HRMC nor ProAssurance has complied with the District Court's Order to produce the report in

camera "if HRMC/ProAssurance is claiming the report or records are subject to any privilege ...

"
On September 19,2013, ProAssurance filed this motion to intervene " ... for the limited
purpose of addressing and being heard on the issue of the production of its claims file on 'J. _
.,,12

Neither HRMC nor Miller has responded to the motion to intervene.

8Doc.48.

9Doc. 48, p. 4.

JODoc. 48, p. 5 (quotation marks altered).

1JDoc. 48, p. 6.

12Doc.51.

3

DISCUSSION AND DECISION
Motion to Intervene.
ProAssurance has moved to intervene pursuant to Federal Rules of Civil Procedure 24
and 45. Rule 24 is applicable to intervention of parties. Rule 45 is applicable to subpoenas.
HRMC was previously, conditionally ordered to produce the expert report as a result of different
proceedings in this case, i.e. Miller's motions to compel discovery. 13
It is beside the point that ProAssurance asserts its claims file is at issue. The subjects of

Miller's subpoena were not the entire claims file. Rather, Miller subpoenaed only the expert
report and documents relating to the expert report. 14 There is certainly more in the claims file
than that which is described in the subpoena.
On June 20, one week after this court's opinion was filed on June 13, Miller served her
subpoena on ProAssurance. ls By letter to Miller's counsel dated July 5, ProAssurance's counsel
objected to the sUbpoena. '6

H •••

[N]o further action was taken on the subpoena by Plaintiff.,,17

Under Rule 45(c)(2)(B)(i) Miller could have moved the court for an order compelling production
of the subpoenaed documents. Miller did not. Under Rule 45(c)(3)(A)(iii) ProAssurance could
have moved the court for an order quashing the subpoena. ProAssurance did not. Instead,
ProAssurance waited for the district court to rule on HRMC's objections to the June 13 order on

13Doc. 31 and Doc. 48.
14Doc. 52-1, p. 2.
15Doc. 52-1, p. 2.
16Doc. 52-2.
17Doc. 51, ~ 3.
4

Miller's motion to compel discovery. After the district court denied HRMC's objections, then
ProAssurance moved to intervene, asserting it is not a party to this litigation; asserting there is no
order directing ProAssurance to furnish the expert report;18 and asserting HRMC cannot furnish
the expert report because the report is not in HRMC's possession.1 9 ProAssurance wants to
intervene "for the limited purpose of addressing and being heard on the issue of the production of
its claims file on J. _ ,,20
Miller has abandoned her pursuit of the subpoena. ProAssurance wants to intervene to
assert that privileges protect its confidential "claims file.,,21 Because Miller has abandoned her
pursuit of the subpoena by failing to make a motion to compel under Rule 45(d)(2)(B)(i) and
because the implicit remedy sought by ProAssurance now is the same as if Pro Assurance had
moved to quash the subpoena under Rule 45(d)(3)(A)(iii), it is appropriate to quash the
subpoena.

In Camera Review.
"The amended order (Docket 48) required Huron Regional Medical Center to produce to
the court, for an in camera review, the independent external review report and any associated
records.,,22 The in camera review was referred for consideration along with the motion to

ISDoc. 51, p. 2, ~8.

19Doc. 52, p. 2 ~ 9.

2°Doc.51.

2lDoc. 51, p. 2, ~ 10. Again, the entire claims file is not at issue. It is only the documents

described in the subpoena which are at issue.
22Doc.56.

5

intervene. HRMC has provided J. _'s medical records and redacted HRMC Medical Executive
Committee records. But the independent external review report and other associated records
have not been provided to the court. For that reason it has not been possible to conduct an in
camera review of the independent external review report and associated records.
It is ORDERED that:

1.

The subpoena served by Linda A. Miller, M.D. on ProAssurance (Doc. 52-1) is
QUASHED.

2.

ProAssurance's motion to intervene is DENIED AS MOOT. (Doc. 51).

3.

The stay of the Amended Order of September 4,2013, is lifted because the
Motion to Intervene and objections of Intervenor have now been decided.

IT IS FURTHERED ORDERED that the Scheduling Order is amended to include:

1.

Not later than December 1,2013, HRMC must disclose to the court and counsel
its intentions about the use of Miller's care of patient J. _ as evidence at tria1. 23
By the same date HRMC must advise the court and counsel whether a report
was provided to the National Practitioner
about Dr. Miller's care for patient J.
Data Bank or whether there was any adverse action taken by any professional
review body as a result of Dr. Miller's care for patient J. _.24 The disputed expert

23"Evidence at trial" means all evidence and even if the door is opened by the plaintiff,
e.g. direct examination, re-direct examination, cross examination or rebuttal evidence. In other
words the defense cannot use the independent expert evaluation, report, or any of its fruits for
any purpose under any circumstance at trial if it does not timely disclose the expert report to the
plaintiff.
24It is observed that Miller's complaint alleges:

34. . .. At the time, she was not advised, nor was she aware that HRMC intended
to report her voluntarily reduction of privileges to the State of South Dakota
Medical Board and the National Practitioner Data Bank ("NPDB").
35. Within one or two days after voluntarily reducing her privileges, Miller was
advised by HRMC's administrative staff that the voluntary reduction would be
reported to the NPDB. Miller asked if the report had to be made, to which she was
advised, affirmatively. . ..
36. After the matter was reported to the NPDB ....
6

,

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report must be disclosed to the court for an in camera review not later than
December 1,2013, ifHRMC intends to use Miller's care of patient J. _ as
evidence at trial or if any adverse action was taken by any professional review
body as a result of Dr. Miller's care for patient J. _. HRMC must deliver the
disputed expert report to Miller's counsel by January 2,2014, unless the court
orders some or all of it not to be disclosed as a result of the in camera review.
2.

All other terms of the original Scheduling Order filed October 15,2012 (Doc. 13)
and the Amended Scheduling Order (Doc. 50) shall remain the same and in full
force and effect.

Dated October 23,2013.
BY THE COURT:

States Magistrate Judge

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