United States District Court, D. Kansas
MARK SLATTERY, as Special Administrator of the Estate of DONNA LOUISE SLATTERY; and MARK SLATTERY, representative heir at law of DONNA LOUISE SLATTERY, Deceased, Plaintiff,
ANURAG MISHRA, M.D., Defendant.
MEMORANDUM AND ORDER
DAVID J. WAXSE, Magistrate Judge.
The Court has before it the Motion to Quash or Modify Subpoena (ECF No. 36) filed by Western Plains Regional Hospital, LLC ("Western Plains"). Third party Western Plains requests an order quashing or modifying Plaintiff's subpoena under Fed.R.Civ.P. 45(c)(3) on the grounds it seeks the disclosure of material protected from disclosure under the Kansas statutory peer review and risk management privileges. For the reasons discussed below, the motion is granted in part and denied in part.
I. Nature of the Matter before the Court
Plaintiff, as administrator of the estate of Donna Louise Slattery ("decedent") and as her representative heir at law, brings this medical malpractice action based on Kansas law against Defendant Anurag Mishra, M.D. Federal jurisdiction is based on diversity of citizenship and amount in controversy. Plaintiff alleges that from May 20, 2011 to May 23, 2011, Dr. Mishra was negligent in his care and treatment of Ms. Slattery at Western Plains, resulting in her death. In June 2013, Plaintiff issued a subpoena to Western Plains commanding the production of 21 categories of documents. On July 22, 2013, Western Plains served its response to the subpoena, objecting to several requests as overly broad. Western Plains also served a privilege log, as it withheld production of several documents as privileged under Kansas's peer review and risk management statutes. On July 23, 2013, Western Plains filed the instant motion, asserting that Request Nos. 4-8, 10-16, 18, and 21 of the subpoena seek documents that are either beyond the scope of discovery or subject to Kansas statutory peer review and risk management privilege, or both, and requesting that the subpoena be quashed or modified under Fed.R.Civ.P. 45(c). Plaintiff opposes the motion.
II. Peer Review and Risk Management Privileges
Western Plains objects that Plaintiff's Subpoena Request Nos. 4-8 and 10-15 seek documents that are privileged under Kansas's peer review and/or risk management privileges. As a result, in its response to the subpoena, Western Plains produced a privilege log, in which it asserts the specific privileges-with specific citations to the applicable subsections of each statute-for each document withheld from production under either the peer review and/or risk management privileges. Western Plains asserts that documents identified on its privilege log are completely protected from discovery and not subject to subpoena.
Plaintiff argues that the Court should look to the Federal Rules of Civil Procedure and federal case law with respect to the asserted privileges. He also argues that overriding constitutional due process considerations, recognized in Kansas Supreme Court's 1998 decision in Adams v. St. Francis Regional Medical Center,  make the underlying facts considered by peer review officers or committees discoverable. Plaintiff posits that the "opinions, impressions and deliberations about the facts" are privileged, but not the facts themselves.
A. Applicable Law
Federal Rule of Civil Procedure 45 governs subpoenas. Under Rule 45(c)(3)(A)(iii), the court must, upon timely motion, quash or modify a subpoena that "requires disclosure of privileged or other protected matter, if no exception or waiver applies." The party seeking to quash or modify the subpoena has the burden to show good cause for these remedies. Federal Rule of Evidence 501 provides that "in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision." Accordingly, the law of Kansas regarding privileges is applicable.
Kansas has adopted a peer review privilege, as set forth in K.S.A. 65-4915(b). This statute creates a privilege for materials submitted to or generated by health care provider peer review committees or officers. It provides, in pertinent part:
the reports, statements, memoranda, proceedings, findings and other records submitted to or generated by peer review committees or officers shall be privileged and shall not be subject to discovery, subpoena or other means of legal compulsion for their release to any person or entity or be admissible in evidence in any judicial or administrative proceeding.
This privilege may be claimed by the legal entity creating the peer review committee. A peer review officer or committee includes "[a]n individual employed, designated or appointed by, or a committee of or employed, designated or appointed by, a health care provider group and authorized to perform peer review." A health care provider group includes "an organized medical staff of a licensed medical care facility" or a health care provider as defined under K.S.A. 40-3401. "Peer review" is defined under K.S.A. 65-4915(a)(3) to mean any of following twelve functions:
(A) Evaluate and improve the quality of health care services rendered by health care providers;
(B) determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care;
(C) determine that the cost of health care rendered was considered reasonable by the providers of professional ...