D.M. v. Wesley Medical Center, LLC

          MEMORANDUM & ORDER ON MOTION TO QUASH OR MODIFY SUBPONEA TO NON-PARTY

          HON. KENNETH G. GALE, U.S. MAGISTRATE JUDGE

         Now before the Court is the “Motion to Quash or Modify Plaintiff's Subpoena to Non-Party CarePoint, LLC” filed by Defendant Wesley Medical Center (hereinafter “Wesley” or “Defendant”). (Doc. 264.) Having reviewed the submissions of the parties, the Court DENIES Defendant's motion.

         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.)

         Plaintiff filed a Notice of Subpoena (Doc. 250) on January 7, 2019, informing the parties that a subpoena for documents would be served on non-party CarePoint. CarePoint employed Defendants Bridget Grover and Dr. Gregory Faimon at the time Plaintiff was treated in Wesley's Woodlawn emergency room. Wesley contends it has standing to bring the present motion (Doc. 264, at 2) and Plaintiff does not contest this (see generally Doc. 277). Wesley argues that the subpoena seeks several categories of documents that are protected by the risk management and peer review privileges, seeks irrelevant yet confidential proprietary information, and are duplicative of document requests made to Wesley. (See generally Docs. 264, 283.) Plaintiff contends that the privileges are inapplicable, the information requested is both relevant and not confidential, and the categories of documents requested are not duplicative. (See generally Doc. 277.)

         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. Application of Peer Review and Risk Management Privileges.

         As an initial matter, the Court notes that Defendant has previously acknowledged “that no federal peer review privilege has been recognized by the Supreme Court or the Tenth Circuit.” (Doc. 272, at 3 (citing Doc. 267, at 7; Sellers, 2012 WL 5362977, at *2, *3; Sonnino v. University of Kansas Hosp. Auth., 220 F.R.D. 633, 644 (D. Kan. 2004).) In its motion to reconsider the Court's prior Order regarding the application of the privileges, Wesley argued that the Court should “find that a federal peer review privilege is applicable under the facts of this case.” (Id.) Wesley continued that recognition of the privilege by this Court would “serve public and private interests, ” such as the provision of an acceptable quality health care, which Wesley states is “essential to the well-being of [the] citizens [of Kansas] …” (Doc. 272, at 5.)

         The Court has extensively addressed and analyzed the privileges in its prior Order on Defendants' Motion to Reconsider. (Doc. 333, at 6-8.) That analysis is incorporated herein by reference. The Court will not further analyze the application of the privileges. That stated, this Court held that

the fact remains that the peer review and risk management privileges have not been recognized in this District or the Tenth Circuit. In the absence of Congressional directive, this Court should be cautious imposing restrictions on the discovery of evidence relevant to federal claims. Defendants have not persuaded the Court to ...