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D.M. v. Wesley Medical Center, LLC

United States District Court, D. Kansas

May 6, 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 are the Motions to Reconsider filed by Defendant Wesley Medical Center, LLC (hereinafter “Wesley”) (Doc. 272) and Defendant Via Christi Hospitals, Inc. (hereinafter “Via Christi”) (Doc 274). The motions both result from the Court's prior Order (Doc. 267) on a motion to compel (Doc. 214) filed by Plaintiff regarding peer review and/or risk management documents identified in these Defendants' privilege logs. Having reviewed the submissions of the parties, the Court GRANTS the Defendants' request to reconsider the prior Order (Doc. 267) but DENIES Defendants' request to recognize a federal court peer review and/or risk management privilege.

         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, 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.) 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 brought the underlying motion seeking an Order compelling Defendant to produce materials to the Court so that it could conduct an in camera inspection “to redact non-facts” in these documents, which would then be produced to Plaintiff. (Doc. 214, at 1.)

         In ruling on that motion, the underlying Magistrate Judge found the parties' analysis of the peer review and risk management privileges to be misplaced because Plaintiff brought claims under federal as well as state law. The Court indicated that the appropriate analysis was contained in its prior opinion in Sellers v. Wesley Medical Center, LLC, No. 11-1340-JAR-KGG, 2012 WL 5362977 (D. Kan. Oct. 31, 2012), which also involved a plaintiff bringing claims based on the federal EMTALA statute as well as pendent state law medical malpractice claims.

         This Court held that in the present case, as in Sellers, “[t]he issue thus before the Court is whether and/or how the Kansas state court statutory peer review privilege applies to Plaintiff's federal and pendant state law claims in federal court.” (Doc. 267, at 6 (citing Sellers, 2012 WL 5362977, at *3).) Because neither party had addressed the issue, as was the case in Sellers, the Court attempted to decide “whether certain evidence at issue relates to Plaintiff's EMTALA claim or the state court medical malpractice claim, or both.” Id. (citing Sellers, at *3).) The undersigned Magistrate Judge relied on the following passage from the Sellers opinion:

In so doing, the Court holds that evidence relating only to Plaintiff's federal claim will not be subject to assertions of the Kansas statutory peer review privilege, to the extent Plaintiff has adequately opposed the application of the privilege, as no such privilege has been recognized by the Tenth Circuit or U.S. Supreme Court. Sonnino [v. University of Kansas Hosp. Auth., 220 F.R.D. 633, 644 (D. Kan. 2004).] On the other hand, evidence relating only to Plaintiff's pendant state law cause of action will be subject to the privilege to the extent it was adequately asserted by Defendant. Finally, to the extent evidence relates to both the federal and state law causes of action, the privilege will not apply to the extent it was adequately opposed by Plaintiff.

(Id., at 7 (quoting Sellers, 2012 WL 5362977, at *3).)

         The Court noted that “[n]o attempt was made by either Defendant to indicate whether certain evidence related only to Plaintiff's state law claim (to which the privileges would be applicable) or related only to Plaintiff's federal claim pursuant to EMTALA (to which the privileges would not be applicable).” Id., at 7. The Court held that the responsive information identified in Defendants' privilege logs relates to both the federal and state law causes of action and, given Plaintiff's sufficient opposition to the privileges, the Kansas statutory privileges do not apply. (Id. (citing Sellers, 2012 WL 5362977, at *3).) The Court thus overruled Defendants' peer review and risk management privilege objections and granted Plaintiff's motion (Doc. 214). (Doc. 267, at 7-8.) The Court declined the request to engage in an in camera review of the documents at issue, but rather ordered unredacted copies of the documents be produced within thirty (30) days of the date of the prior Order. (Id., at 8.)

         Wesley points out that the Court sua sponte raised the issue of the applicability of the state law privileges to Plaintiff's federal EMTALA claim. (Doc. 272, at 1-2.) Wesley now “requests the opportunity to brief and argue points not raised in Plaintiff's Motion to Compel.” (Id., at 2.) Wesley relies on the U.S. Supreme Court decision of Day v. McDonough, which, according to Wesley, holds that “before acting on its own initiative a court should accord the parties fair notice and an opportunity to present their positions.” (Doc. 272, at 2, citing Day, 547 U.S. 198, 210 (2006).) Wesley argues that “(1) the court should adopt a peer review privilege applying federal common law, and (2) even if no federal common law peer review privilege is adopted, certain documents for which the Kansas peer review and risk management privileges were asserted are not relevant to Plaintiff's EMTALA claim.” (Id.)

         Via Christi points out that, in the prior Order, the Court made the “factual finding that all of the disputed documents were relevant to both the EMTALA claim and the malpractice claims, because the defendant hospitals, having only responded to the argument that plaintiff raised, had not attempted to identify any particular documents as relating only to the state-law claims.” (Doc. 274, at 2 (citing Doc. 267 at p. 7).) Via Christi raises the following issues: “1. Should the Court reconsider its sua sponte ruling that there is no privilege under federal law for hospital peer review and risk management documents? 2. Should the Court reconsider its factual finding as to one of the documents requested, which is not related to the EMTALA claim?” (Id.)

         ANALYSIS

         I. Reconsideration.

         Pursuant to D. Kan. Rule 7.3(b), reconsideration of a non-dispositive order is available where there is “(1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or prevent manifest injustice.” The Court finds that, because the parties were not instructed to present argument on the issue applicability of the privilege, reconsideration is appropriate, particularly given the importance of the issues relating to the peer review and risk management privileges. Contrary to Plaintiff's arguments (Doc. 279, at 3-4), to deny the parties the opportunity to address the issues raised by the Court would constitute manifest injustice pursuant to Rule 7.3. The Court thus GRANTS Defendants' motions to the extent they ...


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