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Wheeler v. United States

United States District Court, D. Kansas

April 30, 2018

RICKY WHEELER, personally and as Special Administrator of the Estate of Gretchen A. Konrad, Deceased, and as the father and natural guardian of L.W., a minor, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          JAMES P. O'HARA, U.S. MAGISTRATE JUDGE

         Ricky Wheeler, the surviving spouse of Gretchen A. Konrad, brings this wrongful-death and survival action against the United States of America under the Federal Tort Claims Act. Plaintiff alleges physicians and other healthcare providers at Irwin Army Community Hospital (“IACH”) negligently failed to properly manage Ms. Konrad's delivery of her son and failed to properly assess and treat Ms. Konrad thereafter. Plaintiff has filed a motion to compel defendant to provide complete responses to his first interrogatories and request for production of documents (ECF No. 35). For the reasons set forth below, the motion is granted in part, denied in part, and taken under advisement in part.

         1. Training policies and procedures, and credentialing and privileging requirements (Interrogatory Nos. 7-10; Document Request Nos. 4, 8, 10, and 16)

         Plaintiff seeks production of materials used to train agents, servants, employees and/or contractors of IACH, IACH policies and procedures, and the requirements for credentialing and privileging IACH physicians and staff. In response to plaintiff's motion to compel, defendant asserts its supplemental document production and amended interrogatory answers have resolved these requests. Plaintiff, in his reply brief, seeks clarification only as to Interrogatory No. 7. Specifically, plaintiff claims that defendant's amended answers to Interrogatory Nos. 8-10 state that defendant has searched for responsive information and has not found anything beyond what has been produced. Defendant's response to Interrogatory No. 7, which covers training on the management of uterine atony, apparently lacks a similar statement.[1] Accordingly, “[o]ut of an abundance of caution, ” plaintiff requests that defendant either describe in full all training concerning the management of uterine atony or state that no further records exist.[2] Plaintiff's motion to compel is granted as to Interrogatory No. 7, and denied as moot with respect to Interrogatory Nos. 8-10 and Document Request Nos. 4, 8, 10, and 16.

         2. Audit log and/or audit trails (Document Request Nos. 5-7)

         Plaintiff seeks the audit log and/or audit trail for the electronic health record of Ms. Konrad and her son. Plaintiff claims defendant's responses to these requests are insufficient in two respects. First, plaintiff claims the audit trail information produced by defendant only includes “view information when the person accessing the record also modifies or takes some other action in the record.”[3] Plaintiff, however, seeks “‘view information' even when the person did not modify or take any action in the record.”[4]Second, plaintiff suggests defendant's responses do not provide audit trail information for all software systems on which Ms. Konrad's medical records were managed, which include Ahlta, Essentris, and Innovian.

         In response to plaintiff's motion to compel, defendant asserts it's produced data regarding the audit log or audit trail of Essentris, the inpatient medical record system used at IACH. Defendant asserts “[n]o responsive data exists for AHLTA (outpatient) or CHCS (labs) records, ” and that defendant “is attempting to obtain audit data from the contractor who runs the [Innovian] software” used by the anesthesia department at IACH.[5] Plaintiff's motion is granted with respect to Document Request Nos. 5-7 insofar as plaintiff seeks audit data for the Innovian software and the “view only” audit trail information for Essentris.

         3. Code Blue (Document Request Nos. 1-2 and 18-20)

         Plaintiff seeks all documents pertaining to Ms. Konrad's code blue on April 30, 2015. Plaintiff claims that defendant has produced some responsive documents, but that a number of responsive documents remain outstanding, including lab results, EKG documentation, heart rhythm recordings, defibrillator data, forms referenced in FR MEDDAC Regulation No. 40-117, a note written by Sean Pozarek, CRNA, and a memorandum written by Mary Ellen Raymond, CNM.

         The parties agree defendant's amended discovery responses have resolved plaintiff's requests for the code blue documentation, except to the extent defendant has withheld the Pozarek note and Raymond memorandum pursuant to the medical quality assurance privilege contained in 10 U.S.C. § 1102. Accordingly, plaintiff's motion to compel is denied as moot, in part, as to Document Request Nos. 1-2 and 18-20. Defendant's privilege assertions are addressed below.

         4. Interdepartmental communications (Document Request Nos. 1 and 18- 20)

         Plaintiff seeks interdepartmental communications between physicians and staff regarding Ms. Konrad and her son.[6] In response to plaintiff's motion to compel, defendant asserted it was working to identify responsive communications, and expected to finish this process no later than March 23, 2018. Accordingly, to the extent not already moot, plaintiff's motion to compel is granted as to Document Request Nos. 1 and 18-20.

         5. Miscellaneous information not yet produced, subject to no objection

         Plaintiff claims defendant has indicated it will produce documents and information responsive to Interrogatory Nos. 1, 4, and 11, and Document Request Nos. 4, 7-10, 16, 25, and 37, without objection, but that plaintiff has not yet received documents or information in response to these requests. In response to plaintiff's motion to compel, defendant asserts it's providing amended discovery responses. Accordingly, to the extent not already moot, plaintiff's motion to compel is granted as to Interrogatory Nos. 1, 4, and 11, and Document Request Nos. 4, 7-10, 16, 25, and 37.

         Plaintiff also asks the court to require defendant to identify which bates-numbered documents are responsive to which requests and/or interrogatories, to identify documents withheld in a privilege log, and to provide a sworn signature page with defendant's interrogatory answers. To the extent not already moot, plaintiff's requests are granted.

         6. Documents Withheld Based on Medical Quality Assurance Privilege

         Plaintiff asks the court to compel defendant to produce documents defendant is withholding pursuant to the medical quality assurance privilege contained in 10 U.S.C. § 1102-specifically, (1) credentialing and privileging files of specific IACH physicians, [7](2) a note written by Sean Pozarek, CRNA, and (3) a memorandum written by Mary Ellen Raymond, CNM.

         10 U.S.C. § 1102(a) provides that “[m]edical quality assurance records created by or for the Department of Defense as part of a medical quality assurance program are confidential and privileged.” The statute goes on to specifically provide that “[n]o part of any medical quality assurance record … may be subject to discovery or admitted into evidence in any judicial … proceeding”[8] except under certain enumerated exceptions, [9] none of which apply in this case. Congress had one overriding concern in mind when it enacted this medical quality assurance privilege:

to produce an effective mechanism allowing the military departments to monitor and ensure that quality medical care [is] provided to Department of Defense beneficiaries through a collegial review process operating in an “environment of confidentiality in order to elicit candid appraisals and evaluations of fellow professionals” without the fear that such records would be subject to discovery during litigation, thereby causing such beneficiaries to “receive less than the high quality of care they deserve.”[10]

         The statute defines “medical quality assurance program” as:

any peer review activity carried out … to assess the quality of medical care, including activities conducted by individuals, military medical or dental treatment facility committees, or other review bodies responsible for quality assurance, credentials, infection control, patient care assessment …., medical records, health resources management review and identification and prevention of medical or dental incidents and risks.[11]

         The term “medical quality assurance record” is defined as “the proceedings, records, minutes, and reports that emanate from quality assurance program activities described [above] and are produced or compiled by the ...


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