Rodriguez v. Christus Spohn Health System Corporation et al
Filing
147
MEMORANDUM OPINION AND ORDER DENYING MOTION TO STRIKE AND DENYING IN PART AND GRANTING IN PART MOTIONS FOR PROTECTIVE ORDER AND TO COMPEL denying 129 MOTION to Strike 124 MOTION for Protective Order, granting in part and denying in part 131 Opposed MOTION to Compel Documents with Deposition Notice of Sidney Nau, granting in part and denying in part 124 MOTION for Protective Order.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(bcortez, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
SUSANNA HINOJOSA RODRIGUEZ, §
Plaintiff
§
§
V.
§
§
CHRISTUS SPOHN HEALTH
§
SYSTEM, ET AL.,
§
Defendants
§
C.A. NO. C-09-95
MEMORANDUM OPINION AND ORDER DENYING MOTION
TO STRIKE AND DENYING IN PART AND GRANTING IN PART
MOTIONS FOR PROTECTIVE ORDER AND TO COMPEL
Pending is defendant CHRISTUS Spohn Health System Corporation d/b/a
CHRISTUS Spohn Hospital Corpus Christi–Memorial, named also as CHRISTUS Spohn
Health System Corporation and CHRISTUS Health (CHRISTUS)’s motion for protective
order (D.E. 124), plaintiff ’s motion to strike the motion for protective order (D.E. 129-2)
and plaintiff’s motion to compel production of documents with deposition notice of
Sidney Nau (D.E. 131). Responses to the motions were filed (D.E. 128, 130, 132). All
of the motions appear to relate to documents pertaining to the hospital’s investigation of
the incident which forms the basis of this lawsuit. The documents are identified together
as “Bates Labeled Peer Review/Privilege 00001 to 00045,” were submitted for in camera
inspection, and will be referred to herein as the “investigation documents” or
“documents.”
BACKGROUND
Plaintiff Rodriguez claims that she was sexually assaulted by CHRISTUS
employee and defendant John Hill while she was a patient at CHRISTUS Spohn Hospital
Corpus Christi–Memorial. She filed a number of claims against the hospital, its
associated corporations and Hill. Several of her claims have been dismissed, but pending
and relevant to these motions are her § 1983 action against Hill and CHRISTUS and her
cause of action brought pursuant to TEX. CIV. PRAC. & REM. CODE § 81.010, in which
she seeks an order requiring CHRISTUS to terminate Hill, court costs and attorney’s fees.
Plaintiff seeks the investigation documents which were generated by CHRISTUS
after hospital personnel became aware of her allegations of sexual assault. Defendant
argues that the documents are privileged under the attorney-client and work-product
protections, the medical committee privilege and the Health Insurance Portability and
Accountability Act, Pub.L. No. 104-191, 110 Stat. 1936 (1996)(codified primarily in
Titles 18, 26, and 42 of the United States Code) (“HIPAA”). Plaintiff counters that the
documents are not privileged and that even if such documents were, CHRISTUS failed to
timely comply with FED. R. CIV. P. 26(b)(5).
The first eleven pages of the investigation documents are labeled “TapRooT
Incident Report,” “TapRooT Corrective Actions Report” and “TapRooT Corrective
Actions Status Tracking Report,” wherein the incident is discussed along with its
suspected causes and the corrective action to be taken (Peer Review/Privilege, pp. 1-11).
The next two pages are a “‘Yellow Form’ Incident Initial Review” and contain a brief
2
handwritten description of the incident and names of staff person who may have had
knowledge of the incident (Peer Review/Privilege, pp. 12-13). Pages fourteen to fortyfour are copies of e-mails sent between hospital administrators and staff discussing the
allegations and the investigation (Peer Review/Privilege, pp. 14-44). The final page
contains handwritten notes about the incident and is not dated or otherwise identified
(Peer Review/Privilege, p. 45).
DISCUSSION
A. Work Product Privilege
CHRISTUS argues that it is entitled to withhold the investigation documents
because such documents fall under the work product doctrine, which is codified in Rule
26(b)(3):
Ordinarily, a party may not discover documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its
representative (including the other party’s attorney, consultant, surety, indemnitor,
insurer, or agent). But, subject to Rule 26(b)(4), those materials may be
discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case
and cannot, without undue hardship, obtain their substantial equivalent by other
means.
The work product doctrine “works to protect the mental process of an attorney
from inquiry by opposing party.” Smith v. Diamond Offshore Drilling, Inc., et al., 168
F.R.D. 582, 583 (S.D. Tex. 1996)(citing Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385
(1947)). The privilege applies to documents prepared in anticipation of litigation. FED.
3
R. CIV. P. 26(b)(3); In re Kaiser Alum. & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000),
cert. denied 532 U.S. 919, 121 S.Ct. 1354 (2001). Litigation does not need to be
imminent “‘as long as the primary motivating purpose behind the creation of the
document was to aid in possible future litigation.’” United Staes v. El Paso Co., 682 F.2d
530, 542 (5th Cir. 1982)(quoting United States v. Davis, 636 F.2d 1028, 1040 (5th Cir.
1981)); Kaiser Alum., 214 F.3d at 593. Documents and materials assembled in the
ordinary course of business or pursuant to public requirements unrelated to the litigation,
or for other nonlitigation purposes, are not entitled to work product protection. FED. R.
CIV. P. 26(b)(3), Advisory Committee Note.
The burden of establishing that a document is work product is on the party who
asserts the claim. Hodges, Grant & Kaufman v. United States Dept. Treas., 768 F.2d 719,
721 (5th Cir. 1985)(citing Hickman, 329 U.S. at 511-12, 67 S.Ct. at 394). The burden of
showing that it has a substantial need for the discovery and cannot, without undue
hardship otherwise obtain the materials, is on the party seeking production. Hodges,
Grant & Kaufmann, 768 F.2d at 721.
It is not clear from the face of any of the investigation documents that the
documents were prepared in anticipation of litigation. The documents were generated by
hospital personnel and circulated among them. The initial report contains a section
entitled “Notifications” and lists the names and titles of several hospital employees, none
of whom were attorneys or appear to have been associated with legal counsel (Peer
Review/Privilege, p. 1). The report describes the incident as plaintiff and another witness
4
reported it, notes that plaintiff contacted the Corpus Christi Police Department, and lists
hospital employees with whom investigators spoke and the comments they made.
In an affidavit, Richard Davis, the Chief Medical Officer for CHRISTUS Spohn
Health System Corporation, explained that when a sentinel event1 has occurred, a root
cause analysis2 is performed by a committee made up of members of the Risk
Department, the Quality Department or both (Davis Aff., D.E. 125-2, ¶ 3).
If a suspected sentinel event has occurred, the Committee . . . timely conducts a
thorough root cause analysis to determine the cause(s) of the event, whether the
conduct constitutes a sentinel event, and to formulate an appropriate action plan
for the purpose of improving processes to prevent recurrences of such events.
During this investigation, all relevant information and documents regarding the
event are collected, prepared, submitted to, or generated at the direction of the
[Professional Review Committee] for the purposes of investigating, analyzing, and
communicating sentinel events so that a root cause analysis may be completed and
an appropriate action plan or improvement in processes may be created to prevent
the recurrence of such events.
(Id. at ¶ 6).
Regarding plaintiff’s allegations, Davis stated that the incident was reported as a
suspected sentinel event and the director of risk management, acting as an agent of the
Professional Review Committee, created a sentinel event file and conducted an
investigation. (Id. at ¶ 7).
1
A “sentinel event” is an unexpected occurrence involving death or serious
physical or psychological injury or risk thereof. (Affidavit of Richard Davis, M.D., D.E.
125-2, ¶ 3).
2
A “root cause analysis” is a process for identifying the basic or causal factors that
underlie variations in performance, including the occurrence or possible occurrence of a
sentinel event. (Id.)
5
The [Professional Review Committee] specifically authorized the creation of a
Root Cause analysis team, which included the Director of Risk Management
among others, to conduct a root cause analysis . . . to determine the cause(s) of the
event and to formulate an appropriate action plan for the purpose of improving
processes to prevent recurrences of such events. Additionally, litigation was
anticipated in this case when the suspected sentinel event was reported on April 3,
2007 (the day of the event).
(Id.)(emphasis added).
The statement that “litigation was anticipated” is the only reference to litigation in
the affidavit or in the investigation documents. The affidavit otherwise makes clear that
the purpose of the investigation was to determine what happened and, if the incident were
found to be a sentinel event, to prevent such an incident from happening again. Davis
also stated that the investigation records are kept confidential to ensure candid discussion
and improve the quality of patient care (Id. at ¶ ¶ 6, 7). Based on the report itself and
Davis’s comments, these documents do not appear to have been created primarily to aid
in litigation, but rather to address the reported problem.
Nor do the e-mails which make up most of the rest of the documents appear to
have been prepared or sent primarily to aid in possible future litigation. Rather, like the
report, they discuss the incident, its causes, and how to prevent it from happening in the
future. The other documents in the file were handwritten notes which also contain
descriptions of the allegations and do not appear to have been prepared in anticipation of
litigation.
While CHRISTUS may have been concerned about the possibility of future
litigation, it appears that the primary motivating purpose behind the creation of the
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documents was to assess the incident, determine its severity and take measures to prevent
it from happening again. Accordingly, the documents are not work product and are not
privileged from disclosure.
B. Medical Committee Privilege
The medical committee privilege is set forth in TEX. HEALTH & SAFETY CODE §
161.031 et seq. A medical committee includes, in relevant part, any committee of a
hospital, hospital district or hospital authority, including a committee appointed ad hoc to
conduct a specific investigation or one established under the bylaws or rules of the
organization or institution. TEX. HEALTH & SAFETY CODE § 161.031(a) and (b). The
governing body of a hospital or other medical organization may form a medical peer
review committee, as defined in TEX. OCC. CODE § 151.002, or a medical committee to
evaluate medical and health care services, with certain exceptions not relevant here. TEX.
HEALTH & SAFETY CODE § 161.0315. The medical privileges are important in
promoting free discussion in the evaluation of health care professionals and health
services, but the right to evidence is also important, and therefore the privileges must be
strictly construed. In re Living Centers of Texas, 175 S.W.3d 253, 258 (Tex. 2005).
A report prepared by a medical committee is subject to the same confidentiality
and disclosure requirements as a report prepared by a medical peer review committee.
TEX. HEALTH & SAFETY CODE § 161.0315(c), (e) and (f). See also In re Ching, 32
S.W.3d 306, 310, n. 1 (Tex. App. – Amarillo 2000, no pet.)(discussion regarding
privileges is pertinent to both the peer review privilege and the medical committee
7
privilege). While a report prepared by a medical peer review committee or a medical
committee generally is privileged the following exception applies:
If a judge makes a preliminary finding that a proceeding or record of a medical
peer review committee or a communication made to the committee is relevant to
an anticompetitive action, or to a civil rights proceeding brought under 42 U.S.C. §
1983, the proceeding, record, or communication is not confidential to the extent it
is considered relevant.
TEX. OCC. CODE § 160.007.
Defendant argues that the investigation documents are not relevant to plaintiff’s §
1983 cause of action because the documents reflect actions taken by CHRISTUS after the
incident, as opposed to before the incident. However, the argument is misguided. The
investigation documents address the alleged sexual assault by defendant Hill and factors
which may or may not have contributed to the alleged assault. Although the
investigation necessarily occurred after the incident, an in camera review of the
documents show that the documents are relevant to the issues raised in plaintiff’s § 1983
cause of action. In her first amended complaint, plaintiff has alleged a theory of
ratification by CHRISTUS policymakers (D.E. 141). Although the Fifth Circuit has
severely limited the circumstances under which a theory of ratification may support
liability,3 plaintiff has alleged sufficient facts to entitle her to at least pursue discovery on
3
See Grandstaff v. City of Borger, Texas, 767 F.2d 161 (5th Cir. 1985); Peterson
v. City of Fort Worth, Texas, 588 F.3d 838, 848 (5th Cir. 2009) (discussing ratification
theory).
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this theory of liability. Accordingly, the documents are not protected by the medical
committee privilege.
In addition, because the documents are relevant to plaintiff’s federal cause of
action, the documents also are not privileged for purposes of plaintiff’s state law claim.
Although neither the Supreme Court nor the Fifth Circuit has resolved the issue of
whether state or federal privilege law applies when state-law claims are present in a
federal-question case under the federal court’s supplemental jurisdiction, the court in
Guzman v. Memorial Hermann Hospital System, No. H-07-3973, 2009 WL 427268 (S.D.
Tex. 2009), noted that the majority of courts considering the issue have held that if the
documents at issue are relevant only to a plaintiff’s state law claims, the state law
privilege applies, but if the documents are relevant to a plaintiff’s federal claims, or to her
federal and state claims, the privilege does not apply. In this case, because the
investigation documents are relative to plaintiff’s federal cause of action, the privilege
does not apply to either of her claims.
C. HIPAA
CHRISTUS argues that portions of the investigation documents are protected
under HIPAA. Among other things, HIPAA prohibits hospital personnel from disclosing
protected health care information to third parties. See, generally, 45 C.F.R. Part 164,
Subpart E. However, there are exceptions to the disclosure prohibitions as set forth in
relevant part in 45 C.F.R. § 164.512 (e):
(e) Standard: Disclosures for judicial and administrative proceedings.
9
(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; or
(ii) In response to a subpoena, discovery request, or other lawful process, that is
not accompanied by an order of a court or administrative tribunal, if:
(A) The covered entity receives satisfactory assurance, as described in paragraph
(e)(1)(iii) of this section from the party seeking the information that reasonable
efforts have been made by such party to ensure that the individual who is the
subject of the protected health information that has been requested has been given
notice of the request; or
(B) The covered entity receives satisfactory assurance, as described in paragraph
(e)(1)(iv) of this section, from the party seeking the information that reasonable
efforts have been made by such party to secure a qualified protective order that
meets the requirements of paragraph (e)(1)(v) of this section.
Defendant argues that it is not at liberty to disclose certain documents because the
documents contain protected health information of someone who was a patient at
CHRISTUS. The documents contain the name of a woman, Keraleigh Braun, who was a
patient at CHRISTUS at the same time plaintiff was a patient. Plaintiff told Braun her
allegations about what defendant Hill had done and Braun also alleged that she had an
unwelcome encounter with Hill. Defendant asserts that plaintiff has not complied with
the HIPAA regulation because she has not provided satisfactory assurance that notice has
been provided to Braun or any response received from the patient, and that without that
assurance, it cannot release the documents.
10
Plaintiff does not disagree that she did not provide the assurance that Braun had
been contacted, but points out that Braun provided an affidavit describing what happened
at the hospital and also reported the incident to a police officer who prepared an offense
report, both of which are public record (Affidavit of Keraleigh Braun, D.E. 128-9;
Offense Report, D.E. 128-10). A review of the affidavit, offense report and investigation
documents reveals that there is nothing about Braun in the investigation documents that is
not also in the affidavit, the police report, or both.4
Defendant is correct that it is not permitted to make the disclosure in response to
plaintiff’s discovery request without receiving satisfactory assurance from plaintiff that
Braun was notified of the request or that reasonable efforts have been made to secure a
qualified protective order. 45 C.F.R. § 164.512 (e)(1)(ii)(A). Nevertheless, because a
review of the documents shows that no protected health information will be revealed
which is not already a matter of public record, defendant CHRISTUS is ORDERED to
provide plaintiff with the investigation documents that refer to Braun.
D. Attorney-Client Privilege
Defendant argues that portions of the investigation documents are protected by the
attorney-client privilege. Specifically, defendant alleges that the TapRooT Corrective
Actions Report and TapRooT Corrective Actions Status Tracking Report (Peer
4
In fact, the only health information contained in any of the documents is the fact
that Braun was a patient at CHRISTUS.
11
Review/Privilege, pp. 7-11) and some e-mail exchanges, referring to conversations with,
but not addressed to, counsel (Peer Review/Privilege, pp. 19-21) are privileged.
Under the attorney-client privilege, “a corporate client has a privilege to refuse to
disclose, and prevent its attorneys from disclosing, confidential communications between
its representatives and its attorneys when the communications were made to obtain legal
services.” Nguyen v. Excel Corp., 197 F.3d 200, 206 (5th Cir. 1999)(citing 3 JACK B.
WEINSTEIN ET AL., WEINSTEIN’S FEDERAL EVIDENCE §§ 503.10, 503.11, at
503-14-15 (2d ed. 1999) and Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677,
66 L.Ed.2d 584 (1981)). The exercise of the attorney-client privilege is a “question of
fact, to be determined in the light of the purpose of the privilege and guided by judicial
precedents.” In re Auclair, 961 F.2d 65, 68 (5th Cir. 1992).
The attorney-client privilege protects two related, but different communications:
(1) confidential communications made by a client to his lawyer for the purpose of
obtaining legal advice; and (2) any communication from an attorney to his client
when made in the course of giving legal advice, whether or not that advice is based
on privileged communication from the client.
S.E.C. v. Brady, 238 F.R.D. 429, 438 (N.D. Tex. 2006)(citing United States v. Mobil
Corp., 149 F.R.D. 533, 536 (N.D. Tex. 1993)). However, the privilege does not protect
against discovery of underlying facts from their source merely because those facts have
been communicated to an attorney. Upjohn, 499 U.S. at 395-396, 101 S.Ct. at 686-687.
In order to establish attorney-client privilege, the party claiming the privilege must
show the following:
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(1) the asserted holder of the privilege is or sought to become a client; (2) the
person to whom the communication was made (a) is a member of a bar of a court,
or his subordinate and (b) in connection with this communication was acting as a
lawyer; (3) the communication relates to a fact of which the attorney was informed
(a) by his client (b) without the presence of strangers (c) for the purpose of serving
primarily either (i) an opinion on law or (ii) legal service or (iii) assistance in some
legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4)
the privilege has been claimed and not waived by the client.
Brady, 238 F.R.D. at 438 (citing Mobil, 149 F.R.D. at 536). Also protected are
communications between corporate employees concerning matters pertinent to their job
tasks if the information is sought by the corporation’s attorney in order to formulate and
render legal advice to the corporation. See Upjohn, 449 U.S. at 394-395, 101 S.Ct. at
685.
Regarding the TapRooT Corrective Actions Reports, as discussed above, the
documents do not appear to have been prepared for an attorney or his subordinate, but
rather were prepared by CHRISTUS staff to address and correct the incident reported by
plaintiff. In fact, nothing about the documents indicates that they were shared with an
attorney at all. Accordingly, these documents (Peer Review/Privilege, pp. 7-11) are not
protected by the attorney-client privilege.
Regarding the e-mail exchanges, the exchanges were not between attorney and
client. However, they do refer to services sought to be provided by the attorney and note
that the attorney had made a request for information to be used in the provision of
services. Accordingly, these e-mails (Peer Review/Privilege, pp. 19-21) are privileged.
13
E.
Resolution of Summary Judgment Motions
CHRISTUS maintains that the District Court should decide their summary
judgment motion on plaintiff’s § 1983 claims against them (D.E. 109) before ruling on
the privilege issues.5 In her response to the motion for summary judgment, plaintiff has
requested time to conduct additional discovery. FED. R. CIV. P. 56. In her amended
complaint, plaintiff has alleged a theory of ratification by CHRISTUS policymakers (D.E.
141). As mentioned earlier, even though the Fifth Circuit has severely limited the
circumstances under which a theory of ratification may support liability, plaintiff has
alleged sufficient facts to entitle her to at least pursue discovery on this theory of liability.
Plaintiff is entitled to discovery before she supplements her response to the motion for
summary judgment.
F.
Other Documents
In her motion to compel (D.E. 131), plaintiff seeks documents responsive to
Requests for Production Nos. 1-7 in connection with the investigation into the allegation
that defendant Hill assaulted plaintiff. It is unknown whether defendants are in
possession of documents, in addition to those produced for an in camera inspection.
Defendants provided no argument in support of their failure to produce such documents,
if any such documents exist. Plaintiff’s requests for production are not overly broad or
5
Plaintiff has filed a response to the motion for summary judgment on plaintiff’s
Section 81.010 claims (D.E. 106, 110) and has not asked for additional time to complete
discovery on this issue. The privilege issue appears to be unrelated to this motion, and it
will be taken under advisement without any further delay.
14
vague. To the extent that defendants are in possession of additional documents
responsive to plaintiff’s Requests for Production Nos. 1-7, plaintiff’s motion to compel is
GRANTED.
CONCLUSION
Based on the foregoing, it is ORDERED that defendant’s motion for protective
order (D.E. 124) is GRANTED in part and DENIED in part. The only documents subject
to privilege are the e-mail exchanges identified as Peer Review/Privilege, pp. 19-21,
which are protected by the attorney-client privilege. The remainder of the documents,
identified as Peer Review/Privilege, pp. 1-18 and pp. 22-45 are not subject to any
privilege and should be turned over to plaintiff as partial responses to her requests for
production. Plaintiff’s motion to strike defendant’s motion for protective order (D.E.
129-2) is DENIED. Plaintiff’s motion to compel production of documents with
deposition of Sidney Nau (D.E. 131) is GRANTED in part and DENIED in part. As
stated above, defendant is ORDERED to turn over to plaintiff all of the inspection
documents except for those identified as Peer Review/Privilege, pp. 19-21, and all
documents, if any exist, discussed in Section F above.
ORDERED this 18th day of August, 2011.
____________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
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