United States of America et al v. St. Mark's Hospital et al

Filing 404

MEMORANDUM DECISION AND ORDER granting 354 Motion to Compel. Signed by Magistrate Judge Evelyn J. Furse on 1/17/2020. (las)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

UNITED STATES OF AMERICA, ex rel.
GERALD POLUKOFF, M.D.,

MEMORANDUM DECISION AND ORDER
GRANTING RELATOR’S MOTION TO
COMPEL PRODUCTION OF
DOCUMENTS WITHHELD BY THE
SORENSEN DEFENDANTS BASED ON
ASSERTED PRIVILEGE (ECF NO. 354)

Plaintiff/Relator,
vs.
ST. MARK’S HOSPITAL,
SHERMAN SORENSEN, M.D.,
SORENSEN CARDIOVASCULAR
GROUP,

Civil No.: 2:16-cv-00304-TS-EJF
District Judge Ted Stewart
Magistrate Judge Evelyn J. Furse

Defendants.

Before the Court is Relator, Gerald Polukoff, M.D.’s, Motion to Compel
Production of Documents Withheld by the Sorensen Defendants Based on Asserted
Privilege (ECF No. 354). Having heard oral argument on December 17, 2019 (ECF No.
370), and having considered all of the parties’ briefing (ECF Nos. 354, 366, 387, 389),
the Court GRANTS the Motion because the Sorensen Defendants failed to meet their
burden to show that a privilege protects the withheld documents from disclosure during
discovery.
The privilege that the Sorensen Defendants attempt to claim comes from Utah
Code sections 26-25-1 and 26-25-3, the state’s care review statute. 1 Before turning to
the applicability of these privileges in a federal question case, the Court notes the failure
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One could interpret the privilege log as claiming privilege under Utah Code section 5813-5(7), Utah’s peer review statute (Privilege Log, ECF No. 354-1), but that statute
creates immunity from liability and not discovery or evidentiary privileges. Belnap v.
Howard, 2019 UT 9, ¶ 19, 437 P.3d 355, 360. The Sorensen Defendants have not
offered any basis to read Utah Code section 58-13-5(7) any other way.
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to establish this privilege as to any of these documents even under state law. The care
review privilege authorizes “[a]ny person, health facility, or other organization” to provide
enumerated “persons and entities” with a variety of information including “interviews,”
“reports,” “statements,” “memoranda,” and “other data relating to the condition and
treatment of any person.” Utah Code Ann. § 26-25-1(1). The entities enumerated are
as follows:
(a) the department and local health departments; (b) the Division of
Substance Abuse and Mental Health within the Department of Human
Services; (c) scientific and health care research organizations affiliated
with institutions of higher education; (d) the Utah Medical Association or
any of its allied medical societies; (e) peer review committees; (f)
professional review organizations; (g) professional societies and
associations; and (h) any health facility's in-house staff committee.
Utah Code Ann. § 26-25-1(2). The providing party may provide this information for only
two purposes: “study and advancing medical research, with the purpose of reducing the
incidence of disease, morbidity, or mortality,” and “the evaluation and improvement of
hospital and health care rendered by hospitals, health facilities, or health care
providers.” Utah Code Ann. § 26-25-1(3). When a person or entity complies with the
statute, “[a]ll information, interviews, reports, statements, memoranda, or other data
furnished by reason of [the Confidential Information Release] chapter, and any findings
or conclusions resulting from those studies are privileged communications and are not
subject to discovery, use, or receipt in evidence in any legal proceeding of any kind or
character.” Utah Code Ann. § 26-25-3.
The burden of establishing the existence of a privilege is on the party seeking to
assert the privilege. Fed. R. Civ. P. 26(b)(5), see also Barclaysamerican Corp. v. Kane,
746 F.2d 653, 656 (10th Cir. 1984) (noting burden in context of attorney-client privilege

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and work product protection). Several of the documents the Sorensen Defendants
claim privilege over under the care review privilege contain no indication that they were
provided to one of the enumerated entities for the purposes outlined in the care review
statute. The third, fourth, fifth, eighth, ninth, and tenth entries in the privilege log contain
insufficient information from which the Court could conclude that the documents were
provided to an enumerated entity for the purposes contemplated by Utah Code section
26-25-1. Therefore, the Sorensen Defendants fail to meet their burden to show these
documents are protected from discovery.
The remaining entries in the Sorensen Defendants’ privilege log make some
mention of peer review but also fail to meet the requirements of the care review statute
for other reasons. Specifically, nothing in the privilege log or the briefing suggests that
documents one, two, six, or seven were created or submitted to any of the enumerated
entities or that they were submitted for the purpose of any study meant to reduce
morbidity or mortality, or for the purposes of evaluation and improvement of hospital and
health care. Counsel for the Sorensen Defendants asserts that the documents relate to
Intermountain’s septal closure policy and changes to it in addition to the suspension of
Dr. Sorensen. (Sorensen Defs.’ Suppl. Opp’n to Pl.’s Mot. to Compel (Suppl. Opp’n) 7,
ECF No. 387). Policy development and disciplinary documents do not appear to fall
under the care review privilege. Further, the Utah courts have held that the care review
privilege applies only to documents specifically prepared to be submitted for care review
purposes, and not to any and all medical documents prepared by hospital personnel,
despite their tangential relationship to improvement of hospital care. Wilson v. IHC
Hosps., Inc., 2012 UT 43, ¶ 113, 289 P.3d 369, 399 (citing Benson v. I.H.C. Hosps.,

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Inc., 866 P.2d 537, 540 (Utah 1993)). The party asserting the care review privilege
must provide an adequate evidentiary basis that the documents were prepared
specifically to be submitted for review purposes. Wilson, 289 P.3d at 399. Simply put,
the Sorensen Defendants failed to indicate that any of the remaining documents were
prepared specifically for care review. The Sorensen Defendants have not provided the
necessary evidentiary basis, despite the opportunity for additional briefing, instead
choosing to make conclusory statements that the privilege applies. (Suppl. Opp’n, ECF
No. 387 at 6–7.) To the extent a care review privilege does exist in federal court, it does
not protect these documents.
Even if the Sorensen Defendants’ care review privilege claims did supply the
necessary evidentiary basis, the vast majority of federal courts addressing the issue
have persuasively declined to adopt a federal care review privilege. See United States
v. Aurora Health Care, Inc., 91 F. Supp. 3d 1066, 1068 (E.D. Wis. 2015) (listing district
and circuit courts that have declined to recognize a federal peer and/or care review
privilege). Federal Rule of Evidence 501 requires that unless contradicted by the
Constitution, federal statute, or federal rule, the common law, “as interpreted by United
States courts in the light of reason and experience,” governs recognition of new federal
privileges. Fed. R. Evid. 501. Federal courts should “consider the law of the state . . .
in determining whether a privilege should be recognized as a matter of federal law,” but
should only incorporate that privilege to the extent it is consistent with the federal
policies at issue in the case. Mem'l Hosp. v. Shadur, 664 F.2d 1058, 1061–62 (7th Cir.
1981).

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The Utah legislature enacted the care review privilege to encourage physicians
and healthcare professionals to participate in care review proceedings and provide
accurate information for the betterment of hospital and health care. Benson, 866 P.2d
at 539. Federal law provides some protections from liability for peer review participants,
through the Health Care Quality Improvement Act of 1986; however, the Act does not
shield peer review materials from discovery in litigation. 42 U.S.C. §§ 11111–11153.
That Congress specifically passed a law to encourage medical care peer review and did
not include any type of discovery or evidentiary privilege weighs heavily against finding
the existence of one.
Considering the statute under which this case proceeds, the federal False Claims
Act provides a mechanism by which private party relators and/or the federal government
may sue people or entities who have defrauded the federal government and recover
monies fraudulently dispensed. 31 U.S.C. §§ 3729–3732. Notably, the FCA exempts
from public disclosure specific information furnished in cooperation with the government
but does not carve out any such protection for peer or care review or self-critical
analysis materials. 31 U.S.C. § 3729(c). Furthermore, this privilege does not protect
documents from discovery in litigation. Adopting such a privilege in healthcare fraud
cases but not in other fraud cases like those involving national security and defense
contracts or public works contracts makes no sense. The Sorensen Defendants’
arguments about encouraging frank internal review to increase public health and safety
apply to all of these fields. The Sorensen Defendants have not offered a sufficient
reason to draw this line in False Claims Act cases.

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Permitting the application of Utah’s state-law care review privilege to this FCA
case would come with a high cost—specifically, the government, through the relator,
would be blocked from accessing evidence potentially pertinent to the alleged fraudulent
practices at issue. On the other hand, the Sorensen Defendants have only generally
alleged that failure to recognize the care review privilege federally would damage the
process of peer/care review, and do not address how this might occur, or why any
potential chilling effect has not already occurred in any of the appellate circuits where
the appellate courts have previously declined to recognize a federal peer review
privilege. See Adkins v. Christie, 488 F.3d 1324 (11th Cir. 2007) (declining to recognize
a medical peer review privilege in federal civil rights cases); Virmani v. Novant Health
Inc., 259 F.3d 284 (4th Cir. 2001) (declining to recognize a medical peer review
privilege in an employment discrimination claim); Mem'l Hosp., 664 F.2d 1058 (refusing
to apply medical peer review privilege in an antitrust case). As such, considering the
competing policies at issue, “reason and experience” do not favor recognizing the care
review privilege in this case. Fed. R. Evid. 501.
For the foregoing reasons, the Court GRANTS Relator’s Motion to Compel.

DATED this 17th day of January, 2020.
BY THE COURT:

_____________________________________
Evelyn J. Furse
United States Magistrate Judge

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