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Farmer v. Stafford County Hospital

United States District Court, D. Kansas

December 12, 2018

FREDRICK J. FARMER, Plaintiff,
v.
STAFFORD COUNTY HOSPITAL, et al., Defendants.

          ORDER

          James P. O'Hara, U.S. Magistrate Judge.

         The plaintiff, Fredrick J. Farmer, D.O., brings federal and state law claims against Stafford County Hospital, Richard S. Carter, M.D., Carter Professional Care Stafford, LLC, and Todd Taylor (collectively, “defendants”), arising from defendants' forwarding of allegations against plaintiff to the Kansas Board of Healing Arts. Pursuant to paragraph 2(b) of the scheduling order (ECF No. 43), the parties have filed a joint motion (ECF No. 45) asking the court to resolve various discovery disputes discussed at the October 19, 2018 scheduling conference. Specifically, the parties have asked the court to determine whether plaintiff is entitled to the following: (1) so-called “incident reports” defendants are withholding under assertions of privilege created by K.S.A. 65-4915 (“peer-review” privilege) and/or K.S.A. 65-4925 (“risk-management” privilege); and (2) certain patient records defendants are withholding under an assertion of the physician-patient privilege embodied in K.S.A. 60-427 and/or pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPPA), 45 C.F.R. § 164.512(e). As discussed below, defendants' objections are overruled.

         K.S.A. 65-4915, K.S.A. 65-4925, K.S.A. 60-427

         As an initial matter, the court must determine whether federal or state privilege law is controlling with regard to this dispute where, as indicated above, this action involves both federal and state law claims. The parties agree the documents sought are relevant to both plaintiff's federal and state law claims, [1] and further agree that federal common law does not recognize Kansas's codified peer-review, risk-management, or physician-patient privileges.[2]

         Fed. R. Evid. 501 provides:

The common law-as interpreted by the United States courts in the light of reason and experience-governs a claim of privilege unless any of the following provides otherwise:
• the United States Constitution;
• a federal statute; or
• rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

         This rule fails to directly address the present situation, i.e., where there is federal question jurisdiction with pendent state law claims, the evidence sought is relevant to both claims, and a conflict exists between federal and state law. In Sprague v. Thorn Americas, Inc., 129 F.3d 1355 (10th Cir. 1997), the Tenth Circuit held that where both federal claims and pendent state law claims are implicated, courts should consider both federal and state privilege law. The court noted, however, that if the privilege is upheld by one body of law, but denied by the other, “an analytical solution must be worked out.”[3] The court then referenced several federal-question cases outside the circuit upholding the application of federal privilege law, despite the presence of pendent state law claims, where such conflicts existed.[4]

         Since Sprague, several cases in this District addressing conflicts in law have concluded that where a federal claim provides the basis for the court's jurisdiction, federal privilege law governs “even where the evidence sought also may be relevant to pendent state law claims.”[5] Defendants cite no authority supporting the application of state privilege law.

         Consistent with the above-discussed case law in this District, the court finds the state-law privileges inapplicable. Accordingly, defendants' objections based on K.S.A. ...


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