2011-00110432-CU-PO

Verda Z Davies vs. Whitney Oaks Care Center Inc

Nature of Proceeding:      Motion to Compel Request for Production

Filed By:   McLaughlin, Thomas G.C.

Plaintiffs’ motion to compel Defendant Kaiser Foundation Hospitals’ (“Kaiser”) further
responses to request for production of documents (re: PMQ Deposition Notice) is ruled
upon as follows.

Plaintiffs allege that on February 23, 2010, Ms. Davies fell and broke her right hip. The
hip was surgically repaired by Kaiser on February 28, 2010. Ms. Davies was admitted
to the Walnut Whitney Care Center (“Whitney Oaks”) on February 28, 2010 for
rehabilitation. Plaintiffs allege that Kaiser had a contract with Whitney Oaks and that
Kaiser had an affirmative duty to ensure that Whitney Oaks generally provided
appropriate care to its patients and that Whitney Oaks was capable of providing
appropriate care to Ms. Davies.  On March 4, 2010, Ms. Davies fell at Whitney Oaks.
Ms. Davies died on April 17, 2010.

Plaintiffs’ discovery requests were initially included in seven PMQ deposition notices
which were later converted into request for production of documents.  At issue are
document request from four of the deposition notices.

The discovery seeks documents related to: (1) Kaiser’s efforts to credential, monitor
and review Whitney Oaks during the relevant time period and the policies and
procedures related to Kaiser’s credentialing, monitoring, and review of skilled nursing
facilities in Northern California during the relevant time period, (2) the measures Kaiser
employed to ensure that Whitney Oaks was in compliance with its standards for skilled
nursing facilities with which it contracted, (3) the protocols, policies and procedures
that Kaiser employs in determining whether to contract with, and extend contracts with,
skilled nursing facilities, and (4) the quality assurances measures that Kaiser
employed in determining to contract with and extend contracts with Whitney Oaks.

Kaiser objected to the discovery on the grounds that these documents are protected
by Evid. Code §1157.

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.)  A defendant
cannot avoid discovery of materials related to its independent duties apart from such
committees by delegating those duties to committees or by placing relevant
documents in committee files.  ( Willits v Superior Court (1993) 20 Cal.App.4th 90,
104.)

Evidence Code section 1157 applies only to records of and proceedings before
medical investigative committees.  Information developed or obtained by hospital
administrators or others which does not derive from an investigation into the quality of
care or the evaluation thereof by a medical staff committee, and which does not
disclose the investigative and evaluative activities of such a committee, is not rendered
immune from discovery under section 1157 merely because it is later placed in the
possession of a medical staff committee or made known to committee members; and
this may be so even if the information in question may be relevant in a general way to
the investigative and evaluative functions of the committee. (Santa Rosa Memorial
Hospital v. Superior Court (1985) 174 Cal.App.3d 711, 724.)

“In passing upon the claim of immunity, a court must have before it facts which allow it
to match the staff committee’s mission and function against the specification of the
statute.”  (Matchett v. Superior Court (Petway) (1974) 40 Cal.App.3d 623, 627
[emphasis added].)  The burden of establishing entitlement to nondisclosure is on the
party resisting discovery.  (Id.)

As an initial matter Kaiser concedes that the following document requests contained in
the Notice of Deposition of PHQ regarding certain corporate documents and request
for production of documents at deposition do not contain any investigative work
product or conclusions regarding Whitney Oaks:  Request Nos. 10, 28, 31.
(Declaration of Michael J. Preovolos,  ¶4.)   Kaiser’s counsel also states that he has no
information that the following document requests contained in the same PMK
deposition notice were produced for the specific purpose of credentialing or re-
credentialing Whitney Oaks for contracting with Kaiser: Request Nos. 35-36.  (Id. ¶ 5.)
Thus, the motion is GRANTED as to the above requests.

Kaiser argues that the requested documents were “prepared under the authority and
direction of Kaiser’s Regional Credentials and Privileges Committee (hereinafter
referred to as the “RCPC”), for the purpose of discovering and documenting the quality
and fitness of Whitney Oaks.  (Opposition 2:12-15.)  Kaiser argues that in order to
qualify for a contract with Kaiser, the skilled nursing facility “must undergo investigation
and evaluation of their service quality and fitness to treat KFH patients.  The necessary
investigations are carried out by designated local KFH personnel associated with the
acute care hospital, who, in turn, transmit their investigative findings and
recommendations to the RCPC for approval and action.”  (Id. 2:22-24.)

Kaiser, however, fails to proffer evidence to support these facts.  The Court is not
convinced that the RCPC has the “responsibility of evaluation and improvement of the
quality of care rendered” in Whitney Oaks as Kaiser proffers no evidence regarding the
RCPC, its mission or function.  (Evid. Code §1157.)  Moreover, Kaiser’s attorney’s
declaration fails to sufficiently lay the foundation to demonstrate that the privilege
applies.  Mr. Preovolos’ declaration merely states “I have obtained and personally
reviewed those documents extant that are responsive to the below-listed items
requested by plaintiffs to be produced. Further, I have interviewed several KFH
personnel and, without waiving the attorney client communications privilege, declare
that they have identified for me the nature, scope, purpose and source of the
information contained in said documents. Based upon my review and consideration of
these documents and information, I can declare upon my own personal knowledge and
upon information and belief that the following requested documents are comprised of
quality assurance investigative work product and recommendation information which is
protected from discovery by Evidence Code §1157:”  (Declaration of Michael J.
Preovolos,  ¶3.)  Kaiser’s privilege log is also deficient as it simply categorizes
documents and fails to provide any foundation upon which Evid. Code §1157
purportedly applies.  (Declaration of Edward P. Dudensing, Ex. N.)

Moreover, even if Kaiser’s counsel’s declaration was sufficient, the Court is not
convinced the Evid. Code §1157 applies here (i.e. credentialing and evaluation of an
outside facility).  Evid. Code §1157 “evinces a legislative judgment that the quality of
in-hospital medical practice will be elevated by armoring staff inquiries with a measure
th
of confidentiality.”  (Alexander v. Saheb (1993) 5 Cal.4   1218, 1227 [emphasis added].
Indeed, the cases upon which Kaiser relies upon are inapposite as they deal with in-
hospital committees evaluating the care rendered at the specific hospital. (See
th
University of Southern California v. Comeau (1996) 45 Cal.App.4   1283, 1289 [“a
committee evaluating resident surgical trainees at a teaching hospital is responsible for
maintaining and improving the quality of care rendered at that hospital.  The committee
proceedings are therefore within the scope generally protected by section
1157.” [emphasis added]; see also Matchett v. Superior Court (Petway) (1974) 40
Cal.App.3d 623, 630 [“We examine each of the affected staff committees to ascertain
whether it fits the statutory description ‘ . . . having the responsibility of evaluation and
improvement of the quality of care rendered in the hospital.”  [emphasis added].)

Kaiser lastly objects on the grounds that the requests may include “personal records”
of “consumers” pursuant to CCP §1985.3 and that Plaintiffs have failed to give written
notice pursuant to CCP §1985.3.  Here, the Court is not convinced that CCP §1985.3
applies.  CCP §1985.3 applies when a consumer’s personal records are sought with a
subpoena duces tecum.  (CCP §1985.3.)  Here, it is unclear whether any of the
requested documents include the personal records of a consumer. Moreover, the
procedural mechanism at issue here is a request for production of documents, not a
subpoena.

Given all of the above, the motion is GRANTED.  Kaiser’s request to appoint a
discovery referee to review documents other than those responsive to request nos. 10,
28, 31, 35, and 36 is DENIED.  As noted above, Kaiser has failed to proffer any
evidence that Evid. Code §1157 applies at all.

The Court declines to formally rule on Plaintiffs’ objections to evidence as it relied only
on admissible evidence.

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