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Earhart v. Elder

United States District Court, S.D. West Virginia, Beckley Division

February 5, 2019

BETSY EARHART, Individually, and as Personal Representative and Administrator of the Estate of Colett Xan Easter, deceased, Plaintiff,
v.
KERREN H. ELDER, M.D., Defendant.

          ORDER

          OMAR J. ABOULHOSN, UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Bluefield Hospital Company, LLC d/b/a Bluefield Regional Medical Center's (hereinafter referred to as “BRMC”) Motion to Quash Plaintiff's Subpoena as it Pertains to Privileged Information (ECF No. 29), to which Plaintiff filed a Preliminary Response (ECF No. 33). Prior to the informal in chambers telephone conference on these matters, BRMC filed a Privilege Log as it related to the alleged privileged information. (ECF No. 34) After holding an informal in chambers telephone conference on November 28, 2018, it became apparent that the parties needed additional time to attempt reconciliation of the issues raised in their pleadings, accordingly, the undersigned issued an order outlining a briefing schedule concerning BRMC's Motion. (ECF No. 35)

         In compliance with this Court's briefing schedule, BRMC filed a Revised Privilege Log[1]regarding the documents sought by Plaintiff's subpoena. (ECF No. 38) Plaintiff filed a Response to BRMC's Motion and the Revised Privilege Log. (ECF No. 40) Defendant filed a Joinder in BRMC's Motion. BRMC filed a Reply to Plaintiff's Response (ECF No. 42) and Plaintiff filed a Response to Defendant's Joinder. (ECF No. 46)

         Plaintiff requested the undersigned to conduct an in camera review of the documents sought in the subpoena, and upon the undersigned's request to BRMC if it is amenable to an in camera review, BRMC declined, and submitted a letter through counsel explaining why it disagrees with an in camera view (ECF No. 50) along with additional documentation in support of its Motion to Quash: the CHS PSO, LLC Provider Participation Agreement with BRMC (ECF No. 50-1) and an Affidavit signed by BRMC Chief Executive Officer, Jim O'Loughlin (ECF No. 50-2). Plaintiff then filed a Response to BRMC's letter. (ECF No. 51)

         Accordingly, the matters raised herein have been fully briefed and is ripe for decision. For the reasons stated infra, the undersigned GRANTS BRMC's Motion to Quash Plaintiff's Subpoena as it Pertains to Privileged Information (ECF No. 29):

         Background

          This civil action was filed by Plaintiff Betsy Earhart on behalf of the decedent, Colett Xan Easter, and concerns alleged medical malpractice committed by Defendant Elder at Bluefield Regional Medical Center in Bluefield, West Virginia. On October 19, 2018, Plaintiff filed her Notice of Intent to Serve Subpoenas (ECF No. 21), which included a Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action issued to BRMC which lists twenty-five (25) separate requests for a variety of information. (ECF No. 21-2) BRMC states that it responded to many of the separate requests that did not ask for privileged information, however, the following requests are specifically disputed between BRMC and Plaintiff:

#4 Provide a copy of any applications for credentials or privileges submitted by Dr. Elder or on his behalf to provide medical services and/or treatment in Bluefield Regional from January 1, 2008 to the present.
#5 Provide a copy of any applications for credentials or privileges submitted by Dr. Elder or on his behalf to provide medical services and/or treatment in any hospital, clinic, or other health-related facility operated by Bluefield Hospital Company from January 1, 2008 to the present.
#6 Produce all documents or communications reflecting or referring to complaints made by any person regarding Dr. Elder, including but not limited to medical treatment rendered by him in the emergency room/trauma setting.
#7 Produce all documents relating to any investigations of Dr. Elder, including but not limited to investigations of his medical treatment by a state medical board or any other agency.
#8 Produce all documents relating to any evaluation, investigation, or internal review conducted by Island Medical, Bluefield Hospital Company, any medical committee, official board of medicine, and/or other entity in connection with the care and treatment provided to Decedent.
#9 Provide a copy of any variances, incident reports, or complaints that relate to Dr. Elder.
#19 Provide a copy of any minutes, notes and/or writings from all Bluefield Regional and/or Emergency Department meetings that relate in any way to Decedent.
#21 Produce any documents or communications between Dr. Elder and Bluefield Hospital Company relating to Decedent or her medical care or treatment.
#23 Produce a copy of any written statements that were taken from anyone regarding the facts of this case that are in your possession, custody, or control.
#24 Produce any documents in your possession, custody, or control that were exchanged between Dr. Elder and a committee or organization that reviewed medical treatment rendered by Dr. Elder in the emergency room or trauma setting.

         BRMC's Argument Against Production of Documents[2]

         BRMC asserts that the enumerated requests, supra, seek privileged information for which no exception or waiver applies pursuant to Rule 45(d)(3)(iii) of the Federal Rules of Civil Procedure. (ECF No. 29) BRMC has asserted several privileges[3] that prohibit disclosure of the documents responsive to the disputed requests, however, the parties have focused their dispute as to the application of two privileges: Peer Privilege Review pursuant to W.Va. Code § 30-3C-1, et seq. and Patient Safety Work Product (“PSWP”) under the Health Care Quality Improvement Act (“HCQIA”) pursuant to 42 U.S.C. § 11101, et seq. (Id. at 2-3)

         BRMC submitted a privilege log (ECF No. 34) and then a revised privilege log (ECF No. 38) that described and specified: (1) the documents requested; (2) the entity or entities and the names of the pertinent custodians of the documents; (3) the request number to which the documents respond; (4) the documents' origin and use (why the documents were created and for what purpose); and (5) the privilege asserted with supporting statutory and legal authority.

         Plaintiff's Argument in Support of Production of Documents

         Plaintiff contends that BRMC failed to meet its burden establishing peer review privilege or the privilege provided under the Patient Safety and Quality Improvement Act.

         With regard to the peer review privilege, Plaintiff argues that BRMC fails to properly assert this privilege concerning the “Complaints and Grievances Log” and “Event Reports” because it does not cite any bylaws, policies, procedures or additional information that indicates the “Risk Manager” and “Area Director” are part of a qualifying review organization, and further, BRMC does not indicate that these withheld documents were generated solely for peer review. (ECF No. 40 at 4) Plaintiff further contends that BRMC failed to identify who originated the documents described as the “National Practitioner Data Bank (“NPDB”) Query”, “WV Board of Medicine Search Details”, “Delineation of Privileges Checklist”, and “Event Report.” (Id.) Because the author of these documents is not identified, the Court cannot determine if a peer review committee created the documents. (Id. at 5) Finally, with the exception of the “Credentialing Form/Application for Privileges”, BRMC does not specify if these documents were used solely for peer review or patient safety processes. (Id.) If the documents are not generated solely for peer review purposes, there is no privilege. (Id.)

         Next, Plaintiff asserts that BRMC failed to establish a patient safety work product privilege pursuant to the Patient Safety and Quality Improvement Act because BRMC has not demonstrated that these documents were prepared for or submitted to a patient safety organization (“PSO”). (Id. at 6-7) Moreover, Plaintiff claims that BRMC has not shown that the withheld documents are protected under the Health Care Quality Improvement Act (“HCQIA”) because the privilege log does not identify if these documents were submitted to the Secretary of Health and Human Services. (Id. at 7-8)

         Finally, Plaintiff argues that BRMC's attorney-client and work product doctrine applies because the privilege log fails to identify that the documents were communicated to an attorney to seek legal advice or services. (Id. at 8)

         In reply, BRMC points out that Plaintiff requested that BRMC submit a final and complete privilege log in support of its Motion to Quash and that BRMC did so. (ECF No. 42 at 2) However, Plaintiff then requested that BRMC provide additional details concerning the privileged documents, to which BRMC submitted its revised privilege log. (Id.) Despite BRMC's efforts, Plaintiff still contends that the privilege log does not suffice. (Id.)

         BRMC asserts that on November 9, 2018, it produced its by-laws to Plaintiff as an exhibit attached to its response to subpoena, and that the by-laws clearly describe the existence and duties of the peer review organization. (Id. at 2-3) Further, BRMC has provided more than mere assertions of peer review privilege, its revised privilege log contains adequate document descriptions, specific custodians and detailed descriptions of the documents, their origin and use as well as an exhaustive list of privileges. (Id. at 4)

         BRMC also contends that it has established the application of the privilege afforded by the Patient Safety and Quality Improvement Act; BRMC is a member of a patient safety organization, CHS PSO, LLC. (Id.) This information was provided in its Motion to Quash as well as in the revised privilege log. (Id.) BRMC specifically noted that the privileged documents were generated by and through CHS PSO, LLC and that CHS PSO, LLC was the custodian. (Id. at 5)

         BRMC asserts that certain documents were specifically described in the revised privilege log as “prepared in anticipation of litigation” which adequately shows that the attorney-client privilege and/or work product doctrine applies. (Id.)

         In response to this Court's inquiry if BRMC would agree to an in camera review of the withheld documents, BRMC, by counsel, submitted a letter dated January 24, 2019 explaining why in camera review would be improper. (ECF No. 50) Notably, BRMC explained that it has maintained a PSO Agreement with CHS PSO, LLC since January 11, 2012 and the purpose of this relationship is to allow for confidential and protected exchange of patient safety and quality information in the conduct of patient safety activities. BRMC explained that it maintains an internal process, the Patient Safety Evaluation System (“PSES”), used for collecting and managing patient safety work product that may be reported to CHS PSO, LLC. This patient safety work product can be in the form of event reports that have been identified in the privilege log, but it does not include billing, medical or original provider records. Plaintiff has been provided all non-privileged information, but is not entitled to patient safety work product, as it is expressly privileged under the Patient Safety and Quality Improvement Act and not subject to any subpoena or order, even when there is a proceeding against a provider. None of the exceptions under the Act apply in this case.

         BRMC also submitted two exhibits along with its letter: (1) “CHS PSO, LLC Provider Participation Agreement” entered on January 11, 2012 between CHS PSO, LLC and BRMC, signed by Rachel A. Seifert, CHS PSO Executive Vice President and Secretary and Martin G. Schweinhart, BRMC President (ECF No. 50-1); and (2) “Affidavit of Jim O'Loughlin”, BRMC Chief Executive Officer, notarized on January 22, 2019. (ECF No. 50-2) Mr. O'Loughlin affirmed that the documents responsive to certain requests in Plaintiff's subpoena are maintained within BRMC's Patient Safety Evaluation System (“PSES”), constitute patient safety work product, are described in the privilege log and reported to CHS PSO, LLC as part of BRMC's patient safety activities.

         In response, Plaintiff argues that BRMC's letter further shows that its privilege log(s) were deficient, and because it failed to meet its burden establishing the asserted privileges, BRMC has effectively waived them. (ECF No. 51) Plaintiff also contends that because the Affidavit and other materials were submitted after the deadlines provided in the briefing schedule, the letter and exhibits should be stricken.[4] (Id. at 2) Plaintiff maintains that BRMC has not explained how the asserted privileges attach to the withheld documents and requests that it be ordered to produce same or submit them for in camera review. (Id. at 3)

         Relevant ...


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