United States District Court, D. Kansas
D.M., a minor, by and through his next friend and natural guardian, KELLI MORGAN, Plaintiff,
WESLEY MEDICAL CENTER LLC d/b/a WESLEY MEDICAL CENTER-WOODLAWN, et al., Defendants.
MEMORANDUM & ORDER ON MOTION TO COMPEL
Kenneth G. Gale, U.S. Magistrate Judge.
before the Court is the Motion to Compel filed by Plaintiff
regarding peer review and/or risk management documents
identified in Defendant Via Christi's and Defendant
Wesley's privilege logs. (Doc. 214.) Having reviewed the
submissions of the parties, Plaintiff's motion (Doc. 214)
is GRANTED for the reasons set forth below.
through his natural guardian and next friend, filed his
federal court Complaint on April 9, 2018, alleging claims
under Kansas medical malpractice laws and under the Federal
Emergency Medical Treatment and Active Labor Act. The claims
result from the medical care he received on March 5 and 6,
2017. Plaintiff alleges that on March 6, 2017, he
“suffered a catastrophic and medically-preventable
stroke that left him with right-side paralysis, neurological
damage and other debilitating physical injuries that
permanently changed his and his parents' lives.”
(Doc. 1, at 5.)
response to Plaintiff's Requests for Production Nos. 5,
6, 14, 24, 28, 29, 31, 32 and 54, Defendant Via Christi
(“Via Christi”) identified responsive documents
but asserted peer review and risk management privileges. Via
Christi identified VCHW-R000001-12, 13-15, 21-28, 38-40, and
54-56 as responsive but provided a privilege log asserting
these privileges. (Doc. 214-1, at 28-31.) Defendant Wesley
(“Wesley”) did the same in response to
Plaintiff's Requests for Production of Documents Nos. 14,
25, 27, and 31. (Id., at 33-35.) Via Christi's
privilege log indicates that certain of the withheld
documents contain “details of event, injury details,
when and where event occurred, and who was notified”
about the event. (Id., at 28-31.)
contends “[t]hese are essential facts going to the
heart of Plaintiff's claim” and, as such, the facts
are discoverable. (Doc. 214, at 1.) Plaintiff brings the
present motion seeking an Order compelling Defendant to
produce materials to the Court so that it may conduct an
in camera inspection “to redact
non-facts” in these documents, which would then be
produced to Plaintiff. (Doc. 214, at 1.)
Legal Standards for Discovery.
26(b) states that
[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at state in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
such, the requested information must be nonprivileged,
relevant, and proportional to the needs of the case to be
discoverable. Holick v. Burkhart,
No. 16-1188-JTM-KGG, 2018 WL 372440, at *2 (D. Kan. Jan. 11,
Peer Review & Risk Management Privilege.
the Supreme Court nor the Tenth Circuit has recognized a
medical peer review or medical risk management privilege
under federal common law.” Sonnino v.
University of Kansas Hosp. Auth., 220 F.R.D.
633, 644 (D. Kan. 2004). In the present case, however,
Plaintiff also brings a pendant state law causes of action
against Defendants. As discussed above, in response to
certain document requests at issue, Defendants Via Christi
and Wesley have asserted the peer review and risk ...