Jackson et al v. St. Mary's Medical Center, Inc., No. 3:2014cv15086 - Document 86 (S.D.W. Va. 2015)

Court Description: MEMORANDUM OPINION AND ORDER granting Plaintiff's 74 MOTION for In Camera Review of Documents Defendant St. Mary's Hospital, Inc. Has Claimed as Protected by Peer Review; finding that the documents are privileged from disclosure; and denying Plaintiffs' request for production of the documents. Signed by Magistrate Judge Cheryl A. Eifert on 9/8/2015. (cc: counsel of record; any unrepresented party) (jsa)

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Jackson et al v. St. Mary's Medical Center, Inc. Doc. 86 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION TAN ISE JACKSON , In d ivid u ally, an d as Mo th e r an d N e xt Frie n d o f MARVELLE MAYO, an in fan t, Plain tiffs , v. Cas e N o .: 3 :14 -cv-150 8 6 U N ITED STATES OF AMERICA an d ST. MARY’S MED ICAL CEN TER, IN C., a W e s t Virgin ia Co rp o ratio n , D e fe n d an ts . MEMORAN D U M OPIN ION an d ORD ER Pending is Plaintiffs’ Motion For In Cam era Review Of Docum ents Defendant St. Mary’s Hospital, Inc. Has Claim ed As Protected by Peer Review . (ECF No. 74). In this m otion, Plaintiffs ask the Court to review four docum ents that were described in a privilege log supplied by St. Mary’s Medical Center (“SMMC”) in response to a Request for Production of Docum ents served by Plaintiffs. Plaintiffs further request an order com pelling production of the docum ents in the event they are not protected from discovery by West Virginia’s peer review statute. Defendants have filed responses in opposition to the m otion, (ECF No. 77, 78), and the tim e for filing a reply m em orandum has expired. 1 Dockets.Justia.com As part of its response, SMMC supplied the four docum ents under seal for in cam era review. (ECF Nos. 77-4, 77-5, 77-6, 77-7). In light of SMMC’s willingness to have the docum ents reviewed, the Court GRAN TS Plaintiffs’ Motion for In Cam era Review. Having fully considered the argum ents of counsel, and having reviewed the docum ents, the Court finds that the four docum ents clearly constitute the records or proceedings of a peer review organization, are privileged from disclosure, and are entitled to protection from discovery pursuant to West Virginia Code § 30 -3C-3. Therefore, Plaintiffs’ request for production of the docum ents is D EN IED . I. Re le van t Facts This civil action involves claim s of m edical negligence related to care rendered by the defendants during the labor and delivery of Plaintiff Marvell Mayo. During the course of discovery, Plaintiffs served a Request for the Production of Docum ents on SMMC asking it to “provide a copy of any and all investigative reports, incident reports and/ or inspection reports pertaining to the injuries sustained by any party to this lawsuit.” (ECF No. 74-2 at 12). SMMC objected to the request on the grounds of attorney-client privilege, work product protection, and peer review/ quality assurance privileges. (Id.). SMMC supplied a privilege log in connection with its objection that listed the four docum ents at issue in Plaintiffs’ m otion. (ECF No. 74-3). Approxim ately one m onth later, Plaintiffs’ counsel dem anded that the docum ents listed on the privilege log be produced the following day, or Plaintiffs would file a m otion to com pel. After the exchange of a few e-m ails, Plaintiffs proceeded to file the m otion. (ECF No. 77 at 3). At no tim e prior to filing the m otion did the parties m eet and confer in person or by telephone. 2 II. D is cu s s io n As a prelim inary m atter, the undersigned addresses SMMC’s argum ent that the m otion should be denied based upon Plaintiffs’ failure to m eet and confer as required by Fed. R. Civ. P. 37(a)(1) and Local Rule of Civil Procedure 37.1(b). From the representations of SMMC—which were not rebutted—Plaintiffs failed to com ply with Local Rule 37.1(b), which explicitly requires the m oving party’s counsel to arrange a m eeting of the parties, in person or by telephone, for the purpose of narrowing areas of disagreem ent prior to filing a m otion to com pel. Nonetheless, the failure of Plaintiffs’ counsel to arrange a m eet and confer session does not prevent consideration of the m otion on its m erits. Instead, such a failure potentially precludes an award of reasonable expenses to Plaintiffs under Rule 37. See Frontier-Kem per Constructors, Inc. v. Elk Run Coal Co., Inc., 246 F.R.D. 522, 526 (S.D.W.Va. 20 0 7). Consequently, the undersigned has considered the m erits of the m otion. A. Th e Fo u r D o cu m e n t s a r e Pr iv ile g e d a s Pe e r R e v ie w Federal Rule of Evidence 50 1 states the general rule for m atters of privilege in a federal court proceeding, providing in relevant part, “in civil actions and proceedings, with respect to an elem ent of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, governm ent, State, or political subdivision thereof shall be determ ined in accordance with State law.” The substantive claim s and defenses in this civil action are m atters of State law; accordingly, the question of whether the docum ents are privileged as peer review is governed by West Virginia law.1 1 Although the United States is a party pursuant to the Federal Torts Claim Act, the law of West Virginia still governs given that the alleged negligence occurred in West Virginia. See Bellom y v. United States, 888 F.Supp 760 , 763 (S.D.W.Va. 1995). 3 The West Virginia legislature has enacted statutory provisions designed to protect the confidentiality of a health care peer review organization’s records and proceedings. See W.Va. Code § 30 -3C-1, et seq. Peer review is broadly defined in the statute as “the procedure for evaluation of health care professionals of the quality and efficiency of services ordered or perform ed by other health care professionals.” W.Va. Code §30 -3C-1. A review organization is, inter alia, “any com m ittee or organization engaging in peer review.” Id. According to West Virginia law, the records and proceedings of a health care peer review organization “shall be confidential and privileged and shall not be subject to subpoena or discovery proceedings or be adm itted as evidence in any civil action arising out of the m atters which are subject to evaluations and reviews by such organization.” W.Va. Code § 30 -3C-3. Exceptions to this rule include docum ents or inform ation otherwise available through original sources; matters within the personal knowledge of a witness, regardless of whether the m atters were shared with a peer review organization; and the contents of a health care provider’s file pertaining to his or her own acts or om issions when the health care provider has “executed a valid waiver authorizing the release” of his or her file. Id. Plaintiffs are concerned that SMMC is im properly withholding docum ents that were not generated as part of a peer review process, and thus are discoverable. They explain that their concern stem s from the descriptions of the docum ents set forth in the privilege log. Plaintiffs argue that the descriptions are uninform ative and vague and certainly do not rule out the possibility that som e or all of the four documents are records prepared in the ordinary course of SMMC’s business. In addition, Plaintiffs contend that the withheld docum ents m ay include m aterials otherwise available from 4 an original source, and these m aterials should be produced. Plaintiffs need not be concerned. Based upon the Court’s review, the four docum ents withheld by SMMC were plainly prepared as part of its peer review process. As SMMC states in its opposition m em orandum and the supporting affidavit of J o Ann Rakes, SMMC’s risk m anager, the docum ents reflect evaluations perform ed by SMMC’s Departm ent of OB/ GYN, Departm ent of Medicine, and the facility, itself, regarding the quality of the health care rendered to Plaintiffs. (ECF No. 77-2). The docum ents include sum m aries of pertinent care, as reflected in the m edical records, but do not incorporate the records and do not contain other written m aterials otherwise available from original sources. Accordingly, the undersigned finds that the four docum ents are privileged as records of a health care peer review organization. B. Th e Pr iv ile g e w a s n o t W a iv e d Plaintiffs further assert that even if the docum ents are peer review records, SMMC should be compelled to produce them , because the health care providers that were the subject of the peer review waived their right to confidentiality by m eeting and discussing Plaintiffs’ treatm ent outside of the peer review process. The undersigned finds this position to be without m erit. The peer review statute provides that the privilege m ay be waived by the subject of peer review if the subject executes a valid authorization allowing disclosure of m aterials discussing the subject’s acts or om issions. W.Va. Code §30 -3C-3. Such a waiver m ust “form ally” dem onstrate the subject’s intent to waive the privilege. State ex rel. Brooks v. Zakaib, 588 S.E.2d 418, 427 (W.Va. 20 0 3) (quoting Young v. Saldanha, 431 S.E.2d 669 (W.Va. 1993)). In Brooks, the Suprem e Court of Appeals of West Virginia explained that while waiver can be im plied through the actions of an 5 individual, recognition of im plied waiver is “disfavored” and generally occurs only when a party uses or discloses the privileged inform ation without any apparent regard for m aintaining its confidentiality. Id. at 428. Plaintiffs do not allege that any of the health care providers whose care was reviewed executed an authorization allowing the release of peer review docum ents. Nor do they allege that the health care providers obtained the four privileged docum ents and disclosed them to third parties outside of the peer review process. Indeed, there is no evidence that the involved health care providers ever possessed the docum ents, or, for that m atter, even reviewed them . Instead, Plaintiffs claim that the waiver occurred when the nurses and physician involved in Plaintiffs’ labor and delivery m et and discussed their care in a setting other than the form al peer review proceedings. However, this type of m eeting does not create an implicit waiver of the privilege associated with peer review records for at least two obvious reasons. First, the inform ation shared by the involved health care providers was not disclosed to third parties unrelated to the m edical event. Instead, they discussed the event am ong them selves; therefore, confidentiality was m aintained. Second, the peer review privilege does not apply to the personal knowledge of the health care providers. An individual involved in the m edical care at issue m ay discuss or testify about m atters within his or her personal knowledge, but that knowledge exists separate and apart from the records and proceedings of a peer review organization. In other words, the m edical records, the knowledge of the witnesses, and the records of the peer review organization are three distinct sources of inform ation. Access to the m edical chart, or to the statem ents of the individuals involved, or to their recollections about a m eeting not protected as peer review, does not affect the privilege that attaches to the records 6 of a health care peer review organization. Accordingly, the undersigned finds that the privilege, which shields peer review m aterials from disclosure, was not waived in this case, and the records are not discoverable. The Clerk is instructed to provide a copy of this Order to counsel of record and any unrepresented party. EN TERED : Septem ber 8, 20 15 7

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