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D.M. v. Wesley Medical Center, LLC

United States District Court, D. Kansas

October 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 PLAINTIFF'S MOTION TO RECONSIDER

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

         Plaintiff has filed a motion (Doc. 378) asking the Court to reconsider its Order (Doc. 377) denying Plaintiff's Motion to Compel (Doc. 365) which sought production from non-party CarePoint, P.C. of certain documents shared with the insurer and attorneys for Defendants Dr. Faimon and P.A. Grover, both of whom are employed by CarePoint. For the reasons set forth herein, the Court DENIES Plaintiff'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 earlier subpoenaed non-party CarePoint, seeking documents relating to correspondence between the non-party and Defendants Dr. Faimon and P.A. Grover, their attorney and/or their insurer. (Doc. 365, at 2.) Plaintiff does not dispute that Faimon and Grover are employed by CarePoint.

         In addition, CarePoint does not dispute that it possesses information responsive to Plaintiff's requests. (Doc. 365, at 3.) Rather, CarePoint claims that the attorney for Defendants Faimon and Grover “requested that CarePoint not produce the documents on grounds that it is the work-product of or attorney-client privilege between Dr. Faimon and P.A. Grover, their attorney, or their insurer.” (Id., at 1.)

         CarePoint served its responses and objections to Plaintiff's subpoena on July 20, 2019, objecting to Requests for Production Nos. 13, 23, 27, 29, 30, 32, 40, 42, and 47 on the basis of work-product or attorney-client privilege. (Doc. 365, at 2-3.) The objections to the Requests all indicate that CarePoint

has copies of communications between it and the attorneys and insurers for defendant Faimon and defendant Grover. These confidential communications constitute work product of parties, their counsel and insurers, pursuant to Fed. R. Civ. P26(b)(3). CarePoint has been requested to protect these communications from discovery.

(Doc. 365-1, at 5, 8, 9, 10, 12, & 13.) CarePoint subsequently produced a Privilege Log for its objections to Plaintiff's requests and Plaintiff sought production of certain documents listed therein. (Doc. 365, at 3.)

         Plaintiff contends that “because Dr. Faimon and P.A. Grover's attorney and insurer disclosed the correspondence to third-party CarePoint, any privilege was waived.” (Id., at 1.) The Court denied Plaintiff's motion, holding that

[r]egardless of who has the burden of establishing CarePoint's status as a healthcare provider qualified for coverage - and thus immune from vicarious liability - the Court agrees with CarePoint that ‘there was a potential for CarePoint to be sued for its independent liability in staffing decisions,' and such staffing decisions would relate to Defendants Grover and Faimon. (Doc. 370, at 6.) As argued by CarePoint, this basis for liability could be ‘asserted even if K.S.A. 40-3403(h) would prohibit vicarious liability for the acts or conduct of other health care providers.' (Id.) The Court is, therefore, satisfied that the common interest doctrine applies and that the attorney-client privilege/work product protection has not been waived as to the documents at issue.

(Doc. 377, p. 10). Plaintiff brings the present motion to reconsider, arguing that “[b]ecause a cause of action for negligent staffing against healthcare providers does not exist under Kansas law, it was clear error for this Court to deny Plaintiff's motion to compel on grounds that there was potential for CarePoint to be sued for its independent liability in staffing decisions.” (Doc. 378, at 1 (citations omitted).)

         ANALYSIS

         I. Legal Standard for ...


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