Case Number: 19STCV00468 Hearing Date: February 14, 2020 Dept: A

Diaz v Adventist Health System

Discovery Motion

Calendar:

04

Case No.:

19STCV00468

Hearing Date:

February 14, 2020

Action Filed:

January 07, 2019

Trial Date:

Not Set

MP:

Plaintiff Angel Diaz, individually and as Administrator of the Estate of Sonia Gomez-Diaz

RP:

Defendants Adventist Health System/West; Glendale Adventist Medical Center, Inc. d/b/a Adventist Health Glendale

ALLEGATIONS:

The instant action arises from the alleged negligence by Defendants Adventist Health System/West (“AHS”); Glendale Adventist Medical Center, Inc. d/b/a Adventist Health Glendale (“AHG” and together with AHS “Adventist”); and Noujan Adl Tabatabai, M.D. and Noujan Adl Tabatabai, M.D., Inc. (together “Tabatabai”), Lance J. Lee (“Lee”), Andy Wong, M.D., AMC, and David A. Thompson, M.D., Inc. (“Thompson” and collectively the “Defendants”) resulting in the death of Decedent Sonia Gomez-Diaz (“Decedent”) on or about January 10, 2018.

Plaintiff Angel Diaz, individually and as Administrator of the Estate of Sonia Gomez-Diaz (“Plaintiff”) filed his Complaint on January 07, 2019, alleging three causes of action sounding in (1) Medical Malpractice, (2) General Negligence, and (3) Negligent Infliction of Emotional Distress (“NIED”). A demurrer was heard and overruled in part, and sustained as to the Second Cause of Action on August 12, 2019. Although Plaintiff was granted 20 days leave to file an amended complaint, the case file contains no record of a first amended compliant having been filed.

PRESENTATION:

Plaintiff filed the instant motion on January 22, 2020. Adventist filed opposition on January 31, 2020, and a reply brief was received on February 06, 2020.

RELIEF REQUESTED:

Plaintiff moves to compel further responses to Request for Production Nos. 75 & 84; a privilege log, and monetary sanctions.

DISCUSSION:

Standard of Review – Code of Civil Procedure §2031.310 provides that a party may bring a motion to compel further to Requests for Production where the responding party provides inadequate, incomplete, or evasive responses, or the objections are too general or without merit. The propounding party must submit a declaration under Code of Civ. Proc. §2016.040 stating facts demonstrating a good faith and reasonable effort to informally resolve all issues raised by the motion. Code of Civ. Proc. §2031.310(b)(2). A motion to compel further responses to Requests for Production must further specifically identify facts showing good cause for the discovery. Code of Civ. Proc. §2031.310(b)(1). The motion must be brought within 45 days of service of the responses or supplemental responses. Code of Civ. Proc. §2031.310(c). Sanctions are mandatory against the party or attorney who unsuccessfully makes or opposes a motion to compel further unless the party acted with substantial justification or the circumstances make imposition of sanctions unjust. Code of Civ. Proc. §2031.310(h).

Code of Civil Procedure §2031.310(b)(1) requires the movant to set forth specific facts showing good cause justifying the production for inspection of any document described in the request for production or deposition notice. In law and motion practice, factual evidence is supplied to the court by way of declarations. Calcor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216, 224 (rejecting facts supporting the production of documents that were in a separate statement because the document was not verified and did not constitute evidence). In Calcor, the Court of Appeal issued a writ of mandate issue directing the trial court to vacate its order compelling the defendant to produce records because the plaintiff had failed to provide specific facts showing good cause for their production. Subsequently, in Digital Music News LLC v Superior Court (2014) 226 Cal. App. 4th 216 at 224, the court identified the manner for establishing good cause under Calcor: “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.

On review of the Decl. of Watkins, the Court finds that Plaintiff has met the requisite standard of establishing good cause under Calcor and Digital Music as to RFP Nos. 75 & 84. Decl. of Watkins ¶¶7-12.

Request for Production No. 75 – Plaintiff’s RFP No. 75 seeks “Any and all DOCUMENTS that YOU provided to DNV GL Healthcare USA, Inc. during the certification process to become a Comprehensive Stroke Center.” As stated in Plaintiff’s declaration, the good cause for discovering the requested information is to aid in the determination of the relevant standard of care Adventist is required to meet as a “Comprehensive Stroke Center” by providing information about the “performance metrics, policies, and procedures on which AH Glendale’s certification was, at least partially, based.” Decl. of Watkins, ¶9. In opposition to the motion, Adventist argues that the discovery sought is not reasonably calculated to lead to admissible evidence on the grounds that the status of Adventist as a Certified Stroke Center on the relevant date is not in dispute, and the documents needed for accreditation as a Certified Stroke Center are not relevant to Decedent’s treatment at Adventist because “There are no documents which would be produced in response to RFP No. 75 which would be relevant to Plaintiff’s allegations that AHGL failed to timely diagnose and treat Decedent’s stroke on January 5, 2018.” Adventist’s Separate Statement, 4:20-23. Adventist additionally argues that the documents should not be discovered on the grounds that accreditation bodies are not subject to discovery in several non-California cases (Niven v. Siqueira (1985) 109 Ill.2d 357; and Hofflander v. St. Catherine’s Hosp. Inc. (2003) 262 Wis.2d 539). Finally, Adventist contend that the documents are immune from discovery pursuant to Evid. Code §1157.

The Court has reviewed the operative complaint, and finds that the information proposed to be contained within the discovery sought is not relevant to the issues raised in the complaint. Specifically, the Court notes that Adventist’s status as a “Comprehensive Stroke Center” was not relied upon by Plaintiff in selecting Adventist for care, as Plaintiff was already present in the hospital as a visitor to Plaintiff’s brother, who was receiving hospice care. Complaint, ¶20-24.

Accordingly, the motion will be denied as to RFP No. 75.

Request for Production No. 84 – Plaintiff’s RFP No. 84 requests “Any and all DOCUMENTS RELATED to similar incidents within the last seven years where any individual presenting to YOUR emergency department with stroke symptoms waited more than 45 minutes before receiving brain scan results.” Adventist objects to the discovery on the grounds that the information is irrelevant, immune from discovery under Evid. Code §1157 and pursuant to the Heath Insurance Portability and Accountability Act of 1996 (“HIPAA”), which generally prohibits unauthorized use and disclosure of patient records; and subject to patient-physician and hospital-patient privilege. On reply, Plaintiff argues that the information is relevant as to the issue of notice based upon prior similar incidents, third party rights are not infringed because Plaintiff is not seeking any identifiable patient information and is willing to work with Adventist to stipulate to discovery that will redact all identifiable patient information in compliance with HIPAA.

When privacy is at issue, the information sought by the moving party must have direct relevance to the litigation. This follows from the fact that privacy is accorded, in California, the status of an inalienable right, on a par with defending life and possessing property. California Constitution, Article I, Section I; Vinson v. Superior Court (1987) 43 Cal. 3d 833, 841. Accordingly, it is burden of the party seeking the constitutionally protected information to establish its direct relevance to the litigation, and mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice. Davis v. Superior Court of Kern County (1992) 7 Cal. App. 4th 1008, 1017. Direct relevance, moreover, will not automatically open the door to the information sought; there still remains a careful balancing of the compelling public need for discovery against the fundamental right of privacy. Mendez v. Superior Court (1988) 206 Cal. App. 3d 557, 567. As a result, the courts must balance the rights of civil litigants to discover relevant facts against the privacy interest of the person(s) subject to discovery. Vinson v. Superior Court (1987) 43 Cal. 3d 833, 842. Even where the balance weighs in favor of disclosure of private information, the scope of disclosure will be narrowly circumscribed; such an invasion of the right of privacy “must be drawn with narrow specificity” and is permitted only to the extent necessary for a fair resolution of the lawsuit. Britt v. Superior Court (1978) 125 Cal. App. 3d 844, 856, 859.

As the instant issue deals with fundamental issues of privacy related to non-party medical records, the Court considers that the instant discovery device is ill suited for the purpose of discovering whether Adventist was on notice to prior similar incidents. Simply put, the request for all documents related to such prior incidents calls on Adventist to review, compile, redact, and produce medical records for non-parties in similar factual circumstances for the last seven years. If the sole basis for such discovery of records is the issue of ‘notice’ of prior similar incidents, then a better method of obtaining discovery of such is either through an interrogatory, a request for admission, or by inquiring of Adventist’s person most knowledgeable on such matters. Moreover, the Court does not consider that Plaintiff has established the direct relevance of non-party medical records to the instant action, nor would the Court consider such direct relevance to substantially weigh in favor of disclosure of third-party medical records. Even assuming that such information would be redacted, Plaintiff has not established that the weight of privacy interests favor disclosure under these circumstances.

Accordingly, the motion is denied as to RFP No. 84.

Privilege Log – Plaintiff additionally requests that the Court order Adventist to produce a privilege log based on its responses to RFP Nos. 32, 36-38, 67, 77-78, and 84. Adventist argues that it is not required to create a privilege log for attorney-client communications, nor for communications subject to Evid. Code §1157. However, neither the Court nor Plaintiff is capable of evaluating the claims of privilege without a log providing sufficient information regarding the privileged or non-privileged nature of the documents putatively subject to privilege. As such, the Court will require Adventist to create and produce a privilege log sufficient for the Plaintiff and the Court to evaluate the claims of privilege for RFP Nos. 32, 36-38, 67, and 77-78. The Court will exclude RFP No. 84 as it has already denied further responses above.

Accordingly, the motion is granted as to RFP Nos. 32, 36-38, 67, and 77-78.

Sanctions – As the Court considers that both parties had substantial justification for making and opposing the instant motion, the Court will not award sanctions to either party.

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RULING: below:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiff Angel Diaz, individually and as Administrator of the Estate of Sonia Gomez-Diaz’s Motion to Compel Further RFPs came on regularly for hearing on February 14, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS GRANTED IN PART AND DEFENDANT IS ORDERED TO PRODUCE A PRIVILEGE LOG FOR RFP NOS. 32, 36-38, 67, & 77-78; AND

DENIED AS TO THE REMAINDER: 75 and 84.

DATE: _______________ _______________________________

JUDGE