Opinion
Civil Action No. 99-2830, Section: "J"(1).
February 21, 2001.
APPEARANCES. Submitted on briefs
MOTION: MOTION OF THE DEFENDANTS TO COMPEL RESPONSES TO SUBPOENAS DUCES TECUM ISSUED TO TENENT FACILITIES HEARING ON MOTIONS
GRANTED IN PART AND DENIED IN PART
Before the undersigned is the motion of the defendants, George Barnes, M.D., Willamena Paretti, Darrell Blaylock, Gerard DiLeo, M.D. and Lakeview Regional Medical Center ("Lakeview"), to compel Memorial Medical Center (Baptist Campus), Memorial Medical Center formerly known as Ear Eye Nose and Throat Hospital, Memorial Medical Center (Mercy Campus), Doctors Hospital of Jefferson, Kenner Regional Medical Center formerly known as St. Jude Medical Center, St. Charles General Hospital and Northshore Regional Medical Center (collectively referred to as "the Tenent Facilities"), to respond to subpoenas duces tecum issued to them. Rec. doc. 56.
Lakeview allegedly determined that Sabatier's practice patterns fell below its standards and terminated his privileges at Lakeview after votes of its peer review committees. Sabatier alleges that Lakeview acted in retaliation because he raised issues about its billing practices. Sabatier filed this action against Lakeview and the other defendants alleging claims under or for the following: (1) the Americans with Disabilities Act; (2) the Rehabilitation Act; (3) breach of contract; (4) bad faith breach of contract; (5) abuse of rights; (6) tortious interference with contract; (7) defamation; (8) intentional infliction of emotional distress; and (9) unfair trade practices/consumer protection law violations. See description of claims in denial of defendants' motion to dismiss by United States District Judge Barbier. Rec. doc. 21.
The subpoenas included requests that the Tenent Facilities produce documents relating to the medical license of Sabatier, complaints about him by patients, nurses and physicians, peer review committee records regarding him and documents provided to the State Board of Medical Examiners or any professional regulatory body concerning him. The Tenent Facilities oppose the motion. On September 27, 2000, the undersigned was presented a similar issue in this matter. Hospital Service District No. 1 of Jefferson Parish d/b/a West Jefferson Medical Center ("West Jeff") was served with a subpoena duces tecum seeking the same information at its facility. It filed a motion to quash and for protective order. West Jeff argued: (1) the peer review committee records on Sabatier are privileged under La. R.S. 13:3715.3; (2) the peer review records are privileged pursuant to the Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101, et seq. ("HCQIA"); and (3) any good to be done by allowing the discovery will be outweighed by the damage the discovery will cause to the peer review process. In response the undersigned concluded: (1) the starting point was not the Louisiana law of privilege, but the federal law of privilege; (2) the weight of authority was that there was no peer review privilege under federal common law or statutory law, including the HCQIA; (3) La. R.S. 13:3715.3 was not sufficiently compelling to be applied as a matter of federal common law; and (4) the need for discovery was not outweighed by any potential damage to the peer review process. Rec. doc. 44. The Tenent facilities argue that the September 27,2000, decision did not address substantive arguments now raised by them and the defendants have not shown how the information sought by the subpoenas is relevant to Sabatier's federal claims against them.
The Tenent facilities contend that unless the peer review records are relevant to Sabatier's federal law claims, then the issue must be resolved on the basis of Louisiana law on peer review records. In Robertson v. Neuromedical Center, 169 F.R.D. 80, 83-84 (M.D.La. 1996) the court held that the federal law of privilege governs even where there the evidence might be relevant to pendent state law claims, citing Hancock v. Hobbs, 967 F.2d 462, 467 (1st Cir. 1992).
The undersigned has carefully reviewed the September 27,2000, decision and the authorities cited by the Tenent facilities and finds no reason to reconsider the conclusions that there is no peer review privilege under federal law and Louisiana law is not sufficiently compelling to be applied as federal common law. Tenent raises two points concerning these conclusions that need to be addressed.
The Tenent facilities argue that in United States v. Harris Methodist Fort Worth, 970 F.2d 94, 103 (5th Cir. 1992), the Fifth Circuit recognized the importance and existence of the physician peer review privilege. The United States brought an action against the defendant hospital seeking declaratory relief that it was entitled to an extensive list of information pertaining to the defendant hospital's physician staff privileges and peer review processes. The Fifth Circuit agreed with the district court that the proposed search exceeded the bounds of reasonableness. In response to the assertion that the physician peer review materials were privileged, it said such materials are inherently confidential and that protecting their confidentiality serves an important public interest. It distinguished University of Pennsylvania v. EEOC, 110 S.Ct. 577 (1990), and described the medical peer review process as a sine qua non of adequate hospital care. 970 F.2d at 103, citing Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C. 1970), aff'd, 479 F.2d 920 (D.C. Cir. 1973). It said, however, that it did not have to define the scope of any applicable peer review privilege.
Berdice v. Doctors Hospital was a medical malpractice action, where the plaintiff sought the production of: (1) the minutes of the committee of the hospital concerning the death of Frank Bredice, the plaintiff's spouse; and (2) any reports of the hospital concerning the death of Mr. Bredice. 50 F.R.D. at 249-50. The court denied the plaintiff's request. With respect to the hospital committee minutes the court found that these minutes were made pursuant to the requirements of the Joint Commissions on Accreditation of Hospitals and with the understanding that all communications within the committee were confidential.
Confidentiality is essential to effective functioning of these staff meetings; and these meetings are essential to the continued improvement in the care and treatment of patients. Candid and conscientious evaluation of clinical practices is a sine qua non of adequate hospital care. To subject these discussions and deliberations to the discovery process, without a showing of exceptional necessity, would result in terminating such deliberations. Constructive professional criticism cannot occur in an atmosphere of apprehension that one doctor's suggestion will be used as a denunciation of a colleague's conduct in a malpractice suit.
The purpose of these staff meetings is the improvement, through self-analysis, of the efficiency of medical procedures and techniques. They are not a part of current patient care but are in the nature of a retrospective review of the effectiveness of certain medical procedures. The value of these discussions and reviews in the education of the doctors who participate, and the medical students who sit in, is undeniable. This value would be destroyed if the meetings and the names of those participating were to be opened to the discovery process.50 F.R.D. at 250.
Bredice v. Doctors Hospital shows that the privilege was really a critical self-analysis privilege rather than a blanket peer review privilege. All of the information sought by Mrs. Bredice was developed by the hospital after the death of her husband. As is discussed infra, the Fifth Circuit has not recognized a critical self-analysis privilege. Even if there was a critical self-analysis privilege for a hospital, Sabatier has not filed a medical malpractice action. In Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058, 1062 (7th Cir. 1981), the Seventh Circuit declined to follow Bredice v. Doctors Hospital and ordered the production of the hospital's peer review records because the doctor alleged they were used to conceal antitrust violations by the hospital. Sabatier put the peer review process at Lakeside at issue in this lawsuit. As discussed hereafter his allegations also implicate that process at the Tenent facilities. In the absence of a contrary ruling by the Fifth Circuit, the undersigned again concludes that the weight of authority is that there is no peer review privilege under federal common law. United States v. Harris Methodist Fort Worth does not change that conclusion.
The Tenent facilities argue that production of the peer review materials will chill physician participation in the process. This argument was also made by West Jeff and rejected by the undersigned. Unlike West Jeff, the Tenent facilities have provided the affidavits of two physicians who say that in the absence of confidentiality many physicians will refuse to participate in the peer review process for fear of being forced to endure lawsuits alleging defamation and other tortious conduct. Without the protection of confidentiality patient care will suffer because disclosure of peer review proceedings will cut off full and frank disclosures in the peer review process. Affidavits of F. Brobson Lutz, M.D. and Howard L. Lang, M.D., Exhibits 1 and 2 to the memorandum of the Tenent facilities in opposition to motion to compel. The defendants also seek to clothe their demand for the peer review documents with their own concern for patient care. In Syposs v. United States of America, 63 F. Supp.2d 301 (W.D.N.Y. 1999), the same public policy argument that the Tenent facilities make was rejected. For the reasons described in that decision the undersigned also rejects the public policy argument of the Tenent facilities.
The Tenent facilities raise additional arguments: (1) the subpoenas were not properly served; (2) the self-critical analysis privilege protects the documents from disclosure; (3) the patients at the Tenent facilities have an expectation of privacy; and (4) Lakeview is owned by the chief competitor of the Tenent facilities, Columbia Health Systems, and confidential and proprietary information is sought.
The Tenent facilities contend the subpoenas were not properly served as they were served on secretaries and receptionists and the record does not reflect a return of service on one of them. The defendants respond that there is no requirement under Fed.R.Civ.P. 45 that a corporation be served with a subpoena in the same manner as it is served with a summons. They say that service was made by handing the subpoenas to someone working in the offices of the chief executive officers of the Tenent facilities. They also reply that they re-served all the subpoenas. The Tenent facilities did not make a further response.
Fed.R.Civ.P. 45(b)(1) provides, "Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person . . ." The rule makes no distinction between individuals, corporations or other legal entities. The practice commentary states:
It is a good idea in that case (service of a subpoena duces tecum on a corporation) to have the subpoena delivered to a person who could be served with a summons in the corporate (or other entity's) behalf, such as an officer or managing agent (see Rule 4[d][3]), which will clarify that the subpoena has reached someone of responsibility. Serving a person in some menial position in the corporate employ, while it may work, reduces the prospect of a contempt punishment for disobedience if the corporation should claim that it never got notice.
28 U.S.C.A. Rule 45, Practice Commentaries, C45-9. Contempt for disobedience is not the issue before the court. The Tenent facilities do not contend that they did not receive the subpoenas, so the purpose of Fed.R.Civ.P. 45(b)(l) has been accomplished.
The self-critical analysis privilege does not protect the documents from disclosure. The Fifth Circuit has not yet embraced such a privilege. In Re: July 5, 1999, Explosion at Kaiser Aluminum Chemical Company, 1999 WL 717513 (E.D.La.).
The right of the patients at the Tenent facilities to privacy was protected in the September 27, 2000, order by requiring West Jeff to redact the-patient names before producing the records.
The Tenent facilities argue that the information sought by the defendants represents confidential and proprietary information that should not be disclosed to its biggest competitor in the New Orleans area, Columbia Health Systems, who is the owner of Lakeview. The defendants seek only the peer review materials pertaining to a single physician, Sabatier. They do not seek competitive information on profits, expenses and revenues that would raise valid concerns on the part of the Tenent facilities.
The remaining issues raised by the Tenent facilities, relevancy and the scope of the defendants' discovery, are related. The Tenent facilities contend that the peer review documents are not relevant or calculated to lead to the discovery of admissible evidence of any of Sabatier's federal law claims. They describe the defendants as seeking the peer review records in an effort to bolster their claim that Sabatier was unfit to practice medicine at Lakeview. The defendants acknowledge as much when they say that the peer review documents will clearly help demonstrate the reasonableness of their own conduct.
The Tenent facilities contend that Lakeside could not discipline Sabatier for events that occurred at another hospital. They show that Lakeside did not act on information from any of the Tenent facilities, when it suspended Sabatier from its medical staff. The Tenent facilities urge that the justification for Lakeside's suspension must rise or fall on what was available to it at the time of its decision and not what it can dig up at the Tenent facilities after the fact. The defendants respond that what may have been available to Lakeview at the time of suspension is not the end of the evidence. They contend that the peer review records at the Tenent facilities and other sources will show that Sabatier did not meet the standards required of any physician practicing at Lakeview and the termination of his privileges was appropriate and justified. The defendants also believe the Tenent peer review records will provide evidence of an escalating pattern of conduct by Sabatier.
The defendants also contend that the information is relevant to the issue of damages to counter Sabatier's charge that he has been adversely impacted by the defendants' suspension. The defendants allege it is actually Sabatier's failure to comply with standards at other hospitals that adversely impacted his career and not Lakeview's suspension of him. The Tenent facilities reply that Lakeview cannot reduce Sabatier's claim for damages because of evidence of wrongdoing at other institutions acquired after Lakeview made its decision to suspend Sabatier.
The defendants argue that Sabatier authorized the release of the peer review information when he signed a May 8, 1997, request for medical staff reappointment. Exhibit A to Rec. doc. 89. Under Part IX "Disciplinary," Sabatier answered "no" to each questions. Question "B" is as follows:
Have your clinical privileges at any other hospital or health care institution ever been voluntarily or involuntarily limited, suspended, revoked, or not renewed, or subject to probationary conditions, or have any such proceedings ever been instituted or recommended by a medical staff committee or governing body.
Exhibit A to Rec. doc. 89 at S01873. Part XI(b)and (c) "Consent and Release" contains the following:
I specifically authorize the hospital and its authorized representatives to consult with any third party who may have information, including otherwise privileged or confidential information bearing on my professional qualifications, credentials, clinical competence, character, mental or emotional stability, physical condition, ethics, behavior or any other matter bearing on my satisfaction of the criteria for reappointment to the medical staff, as well as to inspect or obtain any and all documents, recommendations or disclosures of said third parties relating to such questions. I also specifically authorize said third parties to release said information to the hospital and its authorized representatives upon request.
The term "third parties" means all individuals, including appointees to the hospital's medical staff, and appointees to the medical staffs of other hospitals or other government agencies, organizations, associations, partnerships and corporations, whether hospitals, health care facilities or not, from whom information has been required by the hospital or its authorized representatives.
Exhibit A to Rec. doc. 89 at S01877. The Tenent facilities contend the privilege belongs to the hospitals and not Sabatier, so Sabatier's waiver is without effect.
The defendants argue that Sabatier placed the peer review process at the Tenent facilities at issue when he alleged in his complaint that he held medical staff and clinical privileges and, as of the filing of the complaint, practiced at various area hospitals, including the Tenent facilities. Rec. doc. 1 at p. 6. Sabatier does not allege that patients, nurses or physicians at any of these facilities never made any complaint about him or that he has never been the subject of any peer review inquiry. He only alleged that he held staff privileges and practiced at those institutions.
In connection with both federal causes of action Sabatier alleged: (1) the defendants repeatedly and publicly mis-characterized him as an individual with a psychiatric impairment; (2) he was singled out for intensive scrutiny and harassed by the defendants because they required that he obtain psychiatric counseling; (3) the defendants misled Sabatier's peers and staff members of Lakeview in order to undermine his professional reputation by telling them he was mentally ill, in need of psychiatric treatment and afflicted by obsessive compulsive disorder; and (4) the defendants continued to perceived him erroneously and publicly mis-characterized him as impaired. Rec. doc. 1 at pp. 33 and 35.
The subpoenas seek production of the following five categories of documents:
1. Any and all documents related to Dr. Richard Sabatier's medical license and hospital, ambulatory care center and/or clinic privileges including but not limited to all documents regarding applications for privileges, termination or suspension of privileges, restriction or modification of privileges, review of Dr. Sabatier's practice, and limitations on privileges.
2. Any and all documents related to patient complaints or comments, quality assurance reports, utilization review, incident reports, committee records or personnel records related to Dr. Richard Sabatier.
3. Any and all documents related to complaints or comments by nursing and/or hospital staff or physicians, quality assurance reports, utilization review, incident reports, committee records or personnel records related to Dr. Richard Sabatier.
4. Any and all documents provided to the State Board of Medical Examiners related to Dr. Richard Sabatier.
5. Any and all documents provided to any other state or federal agency or professional regulatory body related to Dr. Richard Sabatier.
Rec. doc. 56.
When Sabatier alleged that he held medical staff and clinical privileges and practiced at the Tenent facilities at the time of the filing of the complaint, Sabatier placed some of the information sought by the defendants at issue. All of the information in categories 1, 4 and 5, was placed at issue, except for information concerning the review of Sabatier's practice in category 1.
The remaining information sought by the subpoenas, including the review Sabatier's practice in category 1, requires some weighing of all of the factors. A reasonable inference from Sabatier's allegations is that whatever problems Lakeview contends were present at its facility were not present at any of the Tenent facilities. The courts have recognized the importance of confidentiality in this area, but Sabatier specifically authorized Lakeview to seek confidential information from the Tenent facilities. The date of the recommendations at Lakeview for Sabatier's reappointment, October and November, 1997, and Lakeview's demand a year later that Sabatier voluntarily surrender his medical staff privilege or face summary suspension suggest a narrow time of inquiry. On balance these factors favor production of the information sought in the subpoenas, but with limits.
The Tenent facilities argue that the scope of the subpoenas are overbroad in three respects: (1) there is no temporal limitation; (2) there is no discrimination between minor and major complaints about Sabatier's conduct; and (3) the subpoenas are not limited to the kind of conduct at Lakeview that gave rise to Sabatier's suspension. The defendants respond: (1) they will accept a ten year (1990-2000) limitation on the documents to be produced; (2) minor as well as major complaints are discoverable, because minor complaints lead to major complaints; and (3) all complaints are required in order to show the escalating pattern of conduct.
The defendants' subpoenas are overbroad because there is no temporal limitation. The defendants' offer to limit the subpoenas to a ten year period is also overbroad. Lakeview granted Sabatier staff privileges in 1996. On November 4, 1997, the board of trustees recommended his reappointment. The complaint was filed by Sabatier in September, 1999, so the inquiry must continue at least through that date. The defendants' subpoenas will be limited to the two year period from November 1, 1997, through October 31, 1999 Because of the limited time period for the subpoenas there is no need to try to draw a distinction between minor and major complaints or complaints at the Tenent facilities that may or may not be related to Sabatier's alleged conduct at Lakeview.
Dr. Sabatier's privileges expired at Lakeview on November 4, 1999.
It is ORDERED that the motion of the Tenent facilities to quash and for protective order is GRANTED in part and DENIED in part. The Tenent facilities shall produce the documents responsive to the defendants' subpoenas duces tecum for the period from November 1, 1997, through October 31, 1999, within fifteen (15) days of the entry of this order. Prior to producing the records the Tenent facilities shall redact the identity of patients and, where appropriate, employ a letter or numerical code to identify' the patients. The documents shall be produced subject to a protective order to be drafted by the parties. Lakeview shall reimburse the Tenent facilities the reasonable costs of preparing, including redacting the identity of patients, and copying the documents.