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D.M. v. Wesley Medical Center, LLC

United States District Court, D. Kansas

January 25, 2019

D.M., a minor, by and through his next friend and natural guardian, KELLI MORGAN, Plaintiff,
v.
WESLEY MEDICAL CENTER LLC d/b/a WESLEY MEDICAL CENTER-WOODLAWN, et al., Defendants.

          MEMORANDUM & ORDER ON MOTION TO COMPEL

          Hon. Kenneth G. Gale, U.S. Magistrate Judge.

         Now 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.

         BACKGROUND

         Plaintiff, 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.)

         In 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.)

         Plaintiff 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.)

         ANALYSIS

         I. Legal Standards for Discovery.

         Fed.R.Civ.P. 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.

         As 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, 2018).

         II. Peer Review & Risk Management Privilege.

         “Neither 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 ...


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