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Duffy v. Lawrence Memorial Hospital

United States District Court, D. Kansas

August 11, 2017

MEGEN DUFFY, Relator/Plaintiff,
v.
LAWRENCE MEMORIAL HOSPITAL, Defendant.

          MEMORANDUM AND ORDER

          TERESA J. JAMES U.S. MAGISTRATE JUDGE

         This matter is before the Court on Relator's[1] Motion to Compel Regarding Defendant's Sample Produced in Response to Requests for Production 40, 41, 43, and 58 (ECF No. 193). Pursuant to Federal Rule of Civil Procedure 37 and D. Kan. Rules 37.1 and 37.2, Plaintiff asks the Court to order Defendant Lawrence Memorial Hospital to provide responses to her Requests for Production 40, 41, 43, and 58 as those requests were modified by the Court's Memorandum and Order dated March 31, 2017 (ECF No. 157). Defendant opposes the motion. As set forth below, Plaintiff's motion is denied.

         I. Relevant Background

         The relevant background concerning this dispute is largely set forth in the Court's Memorandum and Order dated March 31, 2017 (ECF No. 157), in which the Court granted Defendant's request to respond to RFPs 40, 41, 43 and 58 by producing a random sampling of 257 patient records. Following that order, the parties communicated by email, letter, in person, and by telephone concerning a number of issues relating to Defendant's production. On May 8, 2017, the Court held an in-person discovery conference which included discussion related to this issue. Plaintiff asked for an extension of time to file a motion to compel with regard to Defendant's production, which Defendant did not oppose.[2] The Court granted the motion, extending the deadline until May 26, 2017. As the Court wrote, “Plaintiff is not challenging the Court's decision to allow sampling, but has questions about the population from which Defendant chose the patient records.”[3] In addition, during the conference the Court granted Plaintiff's motion to reconsider that portion of its March 31 order regarding redaction of two identifiers in the patient records Defendant produced, [4] and directed counsel to discuss the issues related to RFPs 40, 41, 43 and 58 following the conference. Counsel conferred as directed and continued to communicate thereafter, but ultimately they were unable to resolve the issue. The Court finds that in advance of filing this motion, Plaintiff complied with the requirements of D. Kan. Rule 37.2 insofar as it is applicable.

         II. Summary of the Parties' Arguments

         Plaintiff seems to acknowledge the appropriateness of Defendant using random sampling to respond to the four requests at issue, but argues the production is inadequate because of problems with the patient population sampled and the statistical assumptions Defendant made. Defendant argues that only one of the issues Plaintiff raises is properly the subject of a motion to compel and should be denied, while the remaining issues should have been addressed in a motion to reconsider for which Plaintiff is out of time.

         III. Responsiveness of Patient Records

         Plaintiff contends that Defendant's search terms were insufficient to capture the correct patient population whose records would be responsive to the “goals of the four requests”[5] that underlie this and previous motions. Specifically, Plaintiff contends that the sample Defendant produced on March 23 yielded patients who did not present to the Emergency Department with an initial complaint of chest pain or acute myocardial infarction (AMI), which each of the four RFPs includes as a qualifying characteristic. As evidence, Plaintiff submitted copies of three sets of patient records Defendant produced that did not list an initial complaint of chest pain or AMI.[6]Plaintiff suggests the solution is to have Defendant randomly select a replacement patient, from the same population, for each instance where the record indicates the patient did not initially present with chest pain or AMI. Plaintiff states that counsel suggested this solution to Defendant, but Defendant declined.

         Defendant responds by pointing out that the three examples Plaintiff cites do not contain complaints of “chest pain” or “AMI” (abbreviated or unabbreviated) on the respective patients' face sheets, but they were captured because one or more of those words appeared as a “chief complaint” in Defendant's search of Emergency Department patient records. In these instances, the chief complaint listed on the patients' triage notes included the words “chest” and “pain.” Defendant further points out that the search terms are contained in a February 20, 2017 submission which Plaintiff has not opposed.[7]

         Plaintiff advised Defendant of this alleged deficiency in a May 4, 2017 letter which listed a total of six patient records from which Plaintiff concluded that Defendant sampled the wrong population.[8] Defendant takes the position that it responded on three separate occasions with an offer to produce additional documentation showing the responsiveness of the documents. On May 22, 2017, Defendant produced the triage notes for the six patient records in question.

         Plaintiff also complains that the sampled records Defendant produced were not limited to patients who were given EKGs.[9] Plaintiff acknowledges, however, that Defendant offered to produce an additional 41 patient records, including EKGs, “to ensure that Duffy had a sample of 257 EKGs with corresponding patient records.”[10] It is unclear whether Defendant ever produced those additional 41 patient records to Plaintiff.

         Clearly, the parties are once again talking past each other and not addressing this issue with a focused discussion. The briefing demonstrates that neither side has fully revealed and/or explained its position before putting it on paper in connection with this motion. The Court concludes that, based on the examples Plaintiff cites and Defendant's explanation of and further document production related to those patient records, [11] Defendant has complied with the Court's orders dated March 31 and May 8, 2017.[12] The Court denies Plaintiff's motion insofar as it seeks to compel Defendant to provide additional documents responsive to RFPs 40, 41, 43 and 58.

         IV. Remaining Issues

         Plaintiff also asks the Court to order Defendant to (1) produce separate samples for each fiscal year; (2) conduct another search with a larger sample size by increasing the “anticipated rate of occurrence” percentage from 10 to 50; and (3) permit Plaintiff to have two representatives present during the input of information into the RAT-STATS program, during the ...


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