2018-00242511-CU-MM

Mary Munson vs. Robert McCary, ACNP

Nature of Proceeding: Motion to Compel Further Responses to Requests for Production

Filed By: Paikoff, Richard J.

Plaintiff Mary Munson’s (“Plaintiff”) motion to compel defendant Sutter Medical Center Sacramento (“Sutter”) to serve a further verified response to Plaintiff’s request for production, set three, number 13, is ruled upon as follows.

This matter was continued to today’s date for additional briefing following the hearing on August 28, 2019. At the hearing, Plaintiff’s counsel sought to introduce evidence and argument that was not presented in the moving papers. Specifically, Plaintiff sought to introduce into evidence form CMS-2567 (the federal form from the Centers for Medicare and Medicaid Services). Plaintiff argued form CMS-2567 proved certain statements made in the declarations of Susan Gilpatrick and Heather Foster were false in that it shows the underlying document sought by Plaintiff is not patient safety work product.

The Court continued the hearing to grant Plaintiff the opportunity to explain why the CMS-2567 form shows that the document sought by Plaintiff is not patient safety work product and why the CMS-2567 form is admissible. Plaintiff was ordered to file any pleadings on or before September 11, 2019, and Sutter was ordered to file any response on or before September 16, 2019.

Plaintiff filed pleadings on September 11, 2019. Sutter filed a reply on September 16, 2019.

The Court has reviewed Plaintiff’s pleadings, but finds it does not alter the Court’s analysis. Even if the Court were to take judicial notice of form CMS-2567 (and the additional two facts asserted), and even if the Court were to accept Plaintiff’s argument that form CMS-2567 establishes the underlying document sought is not patient safety work product, this does nothing to change the Court’s determination that the underlying document remains privileged pursuant to Evidence Code § 1157. It also does nothing to alter the Court’s determination that Plaintiff had failed to set forth specific facts showing good cause justifying the discovery sought by the demand. Accordingly, the Court rules upon Plaintiff’s motion as follows.

Plaintiff’s [original] request for judicial notice is granted as to item 1, but denied as to item 2.

This action arises from personal injuries suffered by Plaintiff as a result of Sutter’s alleged wrongful conduct surrounding the August 28, 2017, death of Plaintiff’s husband. Plaintiff’s husband allegedly received a morphine drip of 250 milligrams over less than 90 minutes, despite an order from his physical for a morphine drip at 1 milligram per hour.

This instant dispute concerns the following document request (RFPD, set three, number 13):

“The document, which is referenced on page 13 of the CDPH report attached hereto as Exhibit 1, that contains a passage that resembles or is identical to the following passage: “The unanticipated free flow of IV medications/solutions can occur with the same model pump used with Patient 3 and the pump WILL NOT alarm. There have been 4 events at … affiliates in which IV medication/solutions have flowed via the … pump. Three of these events involved high risk IV medications such as … morphine … Patient harm has occurred.”

Sutter objected on the grounds the request seeks information protected by peer review and quality assurance privileges, including Evidence Code § 1157, as well as the Patient Safety Work Product privilege.

Plaintiff contends Sutter has waived the claimed privileges/protections because Sutter, in responding to Plaintiff’s request for production, set one, produced the unredacted California Department of Public Health (“CDPH”) 2567 form on February 6, 2019, including previous versions of this document, without asserting any kind of privilege or protection and expressly stated the documents being produced were not protected and/or privileged. Within the CDPH 2567 form produced was the quotation from the requested underlying document at issue. Specifically, the 2567 form produced states: “Review of a facility provided document dated 10/15 indicated “The unanticipated free flow of IV medications/solutions … .” Plaintiff now seeks the document cited therein. (Paikoff Decl., Exh. 4, pg. 158.) Plaintiff contends the quotation from the document sought is a “significant part” of the requested document because it represents the conclusion, and thus, Sutter has waived the asserted privileges and protections. However, there is no evidence the document referenced was set forth in toto verbatim.

Plaintiff contends this is a unique case because “[u]nlike any previous case that deals with California Evidence Code § 1157 and a document written by CDPH, which is supported by allegedly protected and/or privileged underlying documents sought by a plaintiff, [Sutter] voluntarily produced to Plaintiff … without objection a document that contains significant quotations from underlying documents that Defendant now claims are privileged and/or immune from discovery … .” (Memorandum at 5:1-8.) Plaintiff contends “[t]o the best of Plaintiff’s research abilities, it would appear that never before has a voluntarily [sic] disclosure, in the aforementioned privilege and/or protection context, been made to a Plaintiff by a Defendant hospital and/or regional hospital entity. Therefore, this case appears to be one of first impression.” (Memorandum at 5:27-6:3.)

In opposition, Sutter argues there has been no waiver because the document Plaintiff seeks has never been produced in this action, CDPH’s use and production of the 2567 [which does not produce “the document”] in connection with its regulatory licensing duties outside of litigation does not waive the immunities and privileges afforded to the information referenced, and Sutter’s inadvertent production of an unredacted 2567, which it did not know at the time contained immune and privileged information, and which Sutter has tried to claw back, cannot waive the privileged nature of the underlying document. In analogous circumstances, the Supreme Court has noted that waiver does not include accidental, inadvertent disclosure of privileged information by the attorney. (Ardon v. City of Los Angeles, (2016) 62 Cal. 4th 1176, 1187.) A court called upon to determine whether inadvertent disclosure of privileged information constitutes waiver of the privilege must examine both the subjective intent of the holder of the privilege and the relevant surrounding circumstances for any manifestation of the holder’s consent to disclose the information. (Id. at p. 1191.)

Evidence Code § 1157(a) protects from discovery “proceedings” and “records” of “organized medical committees” or “peer review bod[ies]…having the responsibility of evaluation and improvement of the quality of care rendered in the hospital… or having the responsibility of evaluation and improvement of the quality of care.” Documents that are created by the hospital administration are discoverable, except to the extent those documents include evidence of the proceedings and records of the staff committees. (Matchett v. Superior Court (1974) 40 Cal.App.3d 623.)

Plaintiff contends Sutter waived the § 1157 immunity when it produced the unredacted CDPH 2567 form and did not assert any privilege and/or protection. Plaintiff relies upon Henry Mayo Newhall Memorial Hospital v. Superior Court of Los Angeles County (1978) 81 Cal.App.3d 626, 636. In Henry Mayo the court found it was apparent “in view of the Hospital’s initial answer” to interrogatories that the Hospital does not believe that all of its records are within the prohibition and should be answered with more particularity. While the court noted the Hospital originally answered the interrogatory without objection and the failure to make timely objection constitutes a waiver, the Court also noted “the Hospital can, following identification of such records, assert the immunity in section 1157 if plaintiff does seek production of the records or documents within the scope of section 1157, provided that such assertion is timely and in proper form.” (Henry Mayo, supra, at 636-637.)

The circumstances presented here can be analogized to those presented in Henry Mayo, but the analogy cuts against Plaintiff’s argument. Here, Sutter voluntarily produced the CDPH 2567 form as requested by Plaintiff in her first set of requests for production. No privilege or protection was asserted. The 2567 form (albeit inadvertently) identified certain documents (similar to an interrogatory response). In turn, when Plaintiff then sought production of the actual underlying document referenced in the 2567 form, Sutter timely objected based on Evidence Code § 1157, as was contemplated in Henry Mayo. In short, Sutter’s identification of documents via references made in a document production does not automatically waive its right to seek protection from the actual production of those referenced documents. (See Henry Mayo, supra, at 636-637.) Thus, the Court is not persuaded that Sutter waived the

section 1157 immunity by agreeing to produce the CDPH 2567 form, and then later refusing to produce underlying documents referenced therein. Further, Sutter has presented evidence that at the time the unredacted 2567 document was produced Sutter was unaware it contained immune and privileged material and, since realizing the form contained protected information, Sutter has since taken actions to claw back the protected information from Plaintiff and get the information redacted. (Gilpatrick Decl. ¶¶7-8; Foster Decl. ¶ 9.) Thus, there is evidence the disclosure was not voluntary, but inadvertent.

It also bears noting that the California Supreme Court has held that section 1157 protection is not waived by a hospital turning its records over to the State Medical Board (Department of Health Services) because the hospital’s cooperation is mandatory. (Fox v. Kramer (2000) 22 Cal.4th 531, 540-541.) Moreover, even if the State Medical Board discloses the hospital’s records to plaintiffs, there is no waiver by the hospital and the content remains inadmissible. (Fox, supra, at 540.) While the circumstances presented here are not identical as Sutter, rather than CDPH, has disclosed the records, it appears the disclosure was inadvertent and thus, not completely voluntary. These circumstances can be likened to Fox, wherein the disclosure is not entirely voluntary when disclosure is made by the State Medical Board.

The Court is also not persuaded that Sutter’s production of the 2567 form constitutes voluntary testimony that is not prohibited under § 1157. Indeed, while § 1157 does not prohibit voluntary testimony and only protects against compelled disclosure, the Court is not persuaded that the production of a document constitutes “testimony.” Rather, the case cited by Plaintiff (W. Covina Hosp. v. Superior Court (1986) 41 Cal.3d 846) clearly concerned testimony by a physician witness at trial.

In short, the Court finds Sutter has not waived the privilege it asserted pursuant to Evidence Code § 1157.

The Court must also note that Plaintiff has not sufficiently established good cause for the discovery. When requests for production of documents are involved, the motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (CCP § 2031.310(b)(1) (emphasis added); Kirkalnd v. Sup. Ct. (Guess?, Inc.) (2002) 95 Cal.App.4th 92, 98.) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial.) (Glenfed Develop. Corp. v. Sup. Ct. (National Union Fire Ins. Co. of Pittsburgh, Penn.) (1997) 53 Cal.App.4th 1113, 1117.) Plaintiff’s argument for good cause consists of the following sentence: “Plaintiff’s Request for Production No. 13 is reasonably calculated to lead to the discovery of admissible evidence regarding the facts underlying [Plaintiff’s] claims and facts relating to Plaintiff’s claims for damages, including the potential for punitive

damages.” (Separate Statement at 3:22-25.) Plaintiff makes no attempt beyond this general conclusion to explain why the document sought is relevant and necessary for trial preparation. Plaintiff simply relies on the arguments that Sutter has waived its asserted objections and, therefore, the document must be produced. As discussed above, the Court does not agree with these arguments.

Based on the foregoing, the Court need not evaluate the parties’ arguments regarding patient safety work protection.

The motion to compel is DENIED.

Plaintiff’s request for sanctions is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.