Case Number: BC661036 Hearing Date: March 28, 2018 Dept: O

Pasternak v. Mesiwala, et al. (BC661036; R/T Case Nos. BC599129 and BC618693)

1. Plaintiff Bayla Pasternak’s MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET NO. 2, FROM DEFENDANT POMONA VALLEY HOSPITAL MEDICAL CENTER

Respondent: Defendant, Pomona Valley Hospital Medical Center.

2. Plaintiff Bayla Pasternak’s MOTION TO COMPEL [FURTHER] PRODUCTION OF DOCUMENTS, SET NO. 2, FROM DEFENDANT POMONA VALLEY HOSPITAL MEDICAL CENTER

Respondent: Defendant, Pomona Valley Hospital Medical Center.

BACKGROUND

Plaintiff alleges that Ali Mesiwala, M.D. (“Mesiwala”) is liable for personal injury damages allegedly caused by an unnecessary and improperly performed bilateral IS fusion surgery on 2/25/13 and an L5-S1 ALIF surgery on 5/6/13. The complaint was filed 5/10/17. The First Amended Complaint, filed 6/7/17, asserts causes of action against Defendants Ali Mesiwala, M.D., Southern California Center for Neuroscience and Spine, Gowriharan Thaiyananthan, M.D., Pomona Valley Hospital and Does 1-100 for:

Medical Malpractice

Related cases:

On 11/22/17, this matter was transferred from Department 92 (personal injury hub) to this instant department.

On 3/21/18, the court in Case No. BC599129 related this instant case to Case Nos. BC599129 and BC618693 and referred all three cases to Department One for review and possible reassignment. On 3/22/18, Department One ordered related cases Case Nos. BC599129 and BC618693 reassigned to this department.

A Status Hearing is set for 3/28/18.

TENTATIVE RULING

1. Plaintiff Bayla Pasternak’s motion to compel further responses to special interrogatories, set no. two, from Defendant Pomona Valley Hospital Medical Center is denied.

Plaintiff Bayla Pasternak (“plaintiff”) moves the court, per CCP § 2030.300, for an order compelling Defendant Pomona Valley Hospital Medical Center (“PVHMC”) to provide further responses to her Special Interrogatories, Set Two (i.e., Nos. 28-33, 35, 36, and 39-49).

“The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: (1) An answer containing the information sought to be discovered. (2) An exercise of the party’s option to produce writings. (3) An objection to the particular interrogatory.” CCP § 2030.210(a). “Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” CCP § 2030.220(a).

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general.” CCP § 2030.300(a).

“A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.” CCP § 2030.300(b). “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” CCP § 2030.300(b).

On 10/9/17, plaintiff mail-served her Special Interrogatories, Set No. Two, on PVHMC.(Robbins Decl., ¶ 15, Exhibit “1”). On 11/13/17, PVHMC mail-served its responses thereto. (Id., Exhibit “3”). On 11/27/17, 11/28/17, and 12/15/17, counsel unsuccessfully met and conferred. (Id., ¶¶ 21-23, Exhibits “5”-“7”).

The interrogatories in dispute read as follows:

Special Interrogatory No. 28: Did Pomona Valley Hospital investigate reports of

possible injuries to Ali Mesiwala, M.D.’s patients who had undergone a spinal

procedure wherein the reports indicated that Dr. Mesiwala was a possible cause of

the injury?

Special Interrogatory No. 29: If Pomona Valley Hospital investigated possible

injuries to patients of Ali Mesiwala, M.D., who had undergone a spinal procedure,

when did each such investigation begin?

Special Interrogatory No. 30: If Pomona Valley Hospital investigated possible

injuries to patients of Ali Mesiwala, M.D., who had undergone a spinal procedure,

how long did each such investigation last?

Special Interrogatory No. 31: If Pomona Valley Hospital did investigate injuries to

patients of Ali Mesiwala, M.D., who had undergone a spinal procedure, what

hospital committees were involved in each such investigation?

Special Interrogatory No. 32: For each investigation of possible injuries to patients

by Ali Mesiwala, M.D. who had undergone a spinal procedure, for which reports

were written, what was/were the date(s) that each such report was prepared?

Special Interrogatory No. 33: How many reports as described in Interrogatory No.

32 were written?

Special Interrogatory No. 34: When was the first time that Pomona Valley Hospital

received a report of possible injury to a patient of Ali Mesiwala, M.D. who had

undergone a spinal procedure, where the report indicated Dr. Mesiwala was a

possible cause of the injury?

Special Interrogatory No. 35: Please identify all medical malpractice claims and/or

actions from 2000 to the present, in which Pomona Valley Hospital and Ali

Mesiwala, M.D. and/or his medical group, Southern California Center for

Neuroscience and Spine, were named as co-defendants?

Special Interrogatory No. 36: Since Ali Mesiwala, M.D. first held staff privileges at

Pomona Valley Hospital, how many written reports describing possible injuries to Ali Mesiwala, M.D.’s patients who had undergone a spinal procedure have been in Defendant Pomona Valley Hospital’s possession?

Special Interrogatory No. 39: From 2010 until Ali Mesiwala, M.D. no longer held

staff privileges at Defendant Pomona Valley Hospital, how many surgical

procedures of the spine (where an operating room and/or outpatient room was used)

were performed at said hospital by Ali Mesiwala, M.D.? (Note that no patient

confidential information is sought).

Special Interrogatory No. 40: As to those procedures referred to in your response to

Interrogatory No. 39, for how many did Pomona Valley Hospital receive reports of

injury attributed to possible acts, errors or omissions of Ali Mesiwala, M.D. or his

medical group?

Special Interrogatory No. 41: From 2010 until Ali Mesiwala, M.D. no longer held

staff privileges at Pomona Valley Hospital, how much did Defendant Pomona

Valley Hospital bill for each patient that Ali Mesiwala, M.D. and/or his group

admitted to said hospital for an inpatient spinal procedure? (Note that no patient

confidential information is sought).

Special Interrogatory No. 42: From 2010 until Ali Mesiwala, M.D. no longer held

staff privileges at Pomona Valley Hospital, how much did Defendant Pomona

Valley Hospital receive on its billings for each patient that Ali Mesiwala, M.D.

and/or his group admitted to said hospital for inpatient spinal procedures? (Note

that no patient confidential information is sought).

Special Interrogatory No. 43: From 2010 until Ali Mesiwala, M.D. no longer held

staff privileges at Pomona Valley Hospital, how much did Defendant Pomona

Valley Hospital bill for each patient that Ali Mesiwala, M.D. and/or his group saw

at said hospital for an outpatient spinal procedure? (Note that no patient

confidential information is sought).

Special Interrogatory No. 44: From 2010 until Ali Mesiwala, M.D. no longer held

privileges at Pomona Valley Hospital, how much did Defendant Pomona

Valley Hospital receive on its billings for each patient that Ali Mesiwala, M.D.

performed outpatient spinal procedures? (Note that no patient confidential

information is sought).

Special Interrogatory No. 45: Please identify by date and procedure name each

procedure performed each day by Ali Mesiwala, M.D. at Pomona Valley Hospital

from 2010 to the date that Ali Mesiwala, M.D. no longer held privileges at Pomona

Valley Hospital. (Note that no patient confidential information is sought).

Special Interrogatory No. 46: Please identify all medical appliance manufacturers

whose equipment Ali Mesiwala, M.D. implanted into his patients at Pomona Valley

Hospital from 2010 until Ali Mesiwala, M.D. no longer held staff privileges at that

facility.

Special Interrogatory No. 47: Identify all medical appliance distributors who

delivered to Pomona Valley Hospital medical appliances and/or equipment that

were used at the request of Ali Mesiwala, M.D. at Pomona Valley Hospital on his

patients at that facility from 2010 until Ali Mesiwala, M.D. no longer held staff

privileges at the facility.

Special Interrogatory No. 48: Identify all monies received by Pomona Valley

Hospital from medical appliance manufacturers as a result of medical equipment

used by Ali Mesiwala, M.D. and implanted into his patients at Pomona Valley

Hospital from 2010 until Ali Mesiwala, M.D. no longer held staff privileges at the

facility.

Special Interrogatory No. 49: Identify all monies received by Pomona Valley

Hospital from medical appliance distributors as a result of medical appliances

distributed to Pomona Valley Hospital and implanted into patients of Ali Mesiwala,

M.D. at that hospital from 2010 until Ali Mesiwala, M.D. no longer held staff

privileges at the facility.

Analysis

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” CCP § 2017.010.

In Nelson v. Superior Court (1986) 184 Cal.App.3d 444, the petitioner sought a writ of mandate to require the trial court to compel requested discovery in connection with a personal injury action against the state, arising out of an accident in which petitioner sustained serious injuries after being thrown onto I-10 from a vehicle in which he was riding. Petitioner, having alleged defective design and construction of the highway, or negligent in connection therewith, sought to obtain all California Highway Patrol accident investigation reports taken at the scene in question on prior instances. His motion to compel production of the reports of the contents thereof was denied, as was his subsequent motion to take a deposition of a state employee having knowledge of the reports sought. The Fourth District, Division Two Court of Appeal denied issuance of a peremptory writ on numerous grounds, including relevancy: “There was no showing whatever that any of the other accidents was even remotely the same factually as plaintiff’s. Plaintiff’s purpose in requesting the reports, so far as was shown, was precisely the type of ‘fishing expedition’ not authorized even when the requesting party is charged with crime on account of a vehicular accident. Without a showing the other accidents were or might have been even remotely similar in nature to his own, plaintiff failed to show his request was reasonably calculated to discover admissible evidence.” Id. at 452-453.

Here, the court agrees that plaintiff’s discovery requests are overbroad and seek irrelevant information. Plaintiff’s very generally pled First Amended Complaint (“FAC”) contains one cause of action, for medical malpractice, and pertains to whether appropriate care and treatment was provided to this plaintiff only. It is not a class action. The FAC does not contain any allegations that PVHMC failed to properly credential Ali Mesiwala, M.D. (“Mesiwala”), failed to investigate alleged complaints by other patients of Mesiwala, or that PVHMC had an inappropriate financial relationship with Mesiwala. Plaintiff’s interrogatories seeking information dating all the way back to the year 2010 about every surgical procedure performed by Mesiwala at PVMHC including, but not limited to, the details of every procedure, the costs of every procedure, and the medical appliances utilized in each and every procedure (including the names of every medical appliance manufacturer and distributor) is irrelevant to the issue of the care provided to plaintiff.

Additionally, many of plaintiff’s interrogatories are burdensome on their face, in that they request PVHMC to identify numerous details of surgical procedures performed on Mesiwala’s patients for an approximate six year time period.

Plaintiff’s interrogatories are also objectionable on the basis of third party privacy. The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) prohibits the disclosure of “protected health information” except as permitted by HIPAA regulations. See 45 C.F.R. § 164.502(a)). “Protected health information” means “individually identifiable health information,” which in turn, is “information that is a subset of health information, including demographic information collected from an individual, and: (1) Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and (i) That identifies the individual; or (ii) With respect to which there is a reasonable basis to believe the information can be used to identify the individual.” See 45 C.F.R. § 160.103. Likewise, under the Confidentiality of Medical Information Act (“CMIA”), “medical information” “means any individually identifiable information, in electronic or physical form, in possession of or derived from a provider of health care, health care service plan, pharmaceutical company, or contractor regarding a patient’s medical history, mental or physical condition, or treatment.” Civil Code § 56.05(j). “’Individually identifiable,’ [moreover,] means that the medical information includes or contains any element of personal identifying information sufficient to allow identification of the individual, such as the patient’s name, address, electronic mail address, telephone number, or social security number, or other information that, alone or in combination with other publicly available information, reveals the individual’s identity.” Id. As under HIPAA, the CMIA imposes a duty on health care providers to protect the private information of its patients. See Civil Code § 56.10(a).

Plaintiff’s interrogatories violate Evidence Code § 1157, which prohibits the discovery of the records and proceedings of medical staff committees. “In an accredited hospital, the organized medical staff is responsible to the hospital governing body for the quality of in-hospital medical care; it evaluates the qualifications of applicants and holders of staff privileges; it recommends appointment, reappointment, curtailment and exclusion from staff privileges; it provides peer group methods for reviewing basic medical, surgical and obstetrical functions. (Accreditation Manual: Governing Body and Management, p. 6; Medical Staff, pp. 5-7; Medical Record Services, p. 3). When medical staff committees bear delegated responsibility for the competence of staff practitioners, the quality of in-hospital medical care depends heavily upon the committee members’ frankness in evaluating their associates’ medical skills and their objectivity in regulating staff privileges. Although composed of volunteer professionals, these committees are affected with a strong element of public interest.” Matchett v. Superior Court (1974) 40 Cal.App.3d 623, 628.

“California law recognizes this public interest by endowing the practitioner-members of hospital staff committees with a measure of immunity from damage claims arising from committee activities. (Civ. Code, § 43.7; Ascherman v. San Francisco Medical Society (1974) 39 Cal.App.3d 623). Evidence Code section 1157 expresses a legislative judgment that the public interest in medical staff candor extends beyond damage immunity and requires a degree of confidentiality…Section 1157 was enacted upon the theory that external access to peer investigations conducted by staff committees stifles candor and inhibits objectivity. It evinces a legislative judgment that the quality of in-hospital medical practice will be elevated by armoring staff inquires with a measure of confidentiality.” Id. at 628-629. “This confidentiality exacts a social cost because it impairs malpractice plaintiffs’ access to evidence. In a damage suit for in-hospital malpractice against doctor or hospital or both, unavailability of recorded evidence of incompetence might seriously jeopardize or even prevent the plaintiff’s recovery. Section 1157 represents a legislative choice between competing public concerns. It embraces the goal of medical staff candor at the cost of impairing plaintiffs’ access to evidence.” Id.

Finally, plaintiff’s interrogatories Nos. 41-44, 48 and 49 are violative of PVHMC’s right to financial privacy. Assuming a business entity has a right of privacy, a court must determine whether it is outweighed by the relevance of the information sought to the subject matter in the pending action. See Hecht, Solberg, Robinson, Goldberg & Bagley v. Superior Court (2006) 137 Cal.App.4th 579. Again, the financial information sought here is not directly relevant to whether PVHMC provided adequate medical treatment and care to plaintiff.

Accordingly, the motion is denied.

2. Plaintiff Bayla Pasternak’s motion to compel further production of documents, set no. 2, from Defendant Pomona Valley Hospital Medical Center is denied.

Plaintiff Bayla Pasternak (“plaintiff”) moves the court, per CCP § 2031.310, for an order compelling Defendant Pomona Valley Hospital Medical Center to provide further responses to her Requests for Production of Documents, Set Two (i.e., Nos.7-12 and 14-18).

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general.” CCP § 2031.310(a). “A motion under subdivision (a) shall comply with both of the following: (1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040…” CCP § 2031.310(b). “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”

On 10/9/17, plaintiff mail-served her Requests for Production of Documents, Set

No. Two, on PVHMC. (Robbins Decl., ¶ 15, Exhibit “2”). On 11/13/17, PVHMC

mail-served its responses thereto. (Id., Exhibit “4”). On 11/27/17, 11/28/17, and

12/15/17, counsel unsuccessfully met and conferred. (Id., ¶¶ 21-23, Exhibits “5”-

“7”).

The requests in dispute read as follows:

Request No. 7: True and correct copies of any and all DOCUMENTS and writings (as defined in Evidence Code Section 250) that refer to, relate to, pertain to, memorialize and/or comprise all hospital staff by-laws, rules, procedures, and regulations in force and in effect at Pomona Valley Hospital from 2010 through and including the present.

Request No. 8: True and correct copies of any and all documents and writings, (as defined by Evidence Code Section 250) that refer to, relate to, pertain to, comprise and/or memorialize the number of patients that were admitted by Ali Mesiwala, M.D., to Pomona Valley Hospital for in-patient procedures during the period of time 2010 until Ali Mesiwala, M.D., no longer held staff privileges at said hospital. (Note, please redact any information identifying any patient).

Request No. 9: True and correct copies of any and all documents and writings, (as defined by Evidence Code Section 250) that refer to, relate to, pertain to, comprise and/or memorialize the number of patients that were admitted by Ali Mesiwala, M.D., to Pomona Valley Hospital for out-patient procedures (where an operating room or outpatient facility was used) that were performed by Ali Mesiwala, M.D. at Pomona Valley Hospital from 2010 until Ali Mesiwala, M.D. no longer held staff privileges at said hospital. (Note, please redact any information identifying any patient).

Request No. 10: True and correct copies of any and all medical malpractice claims and/or lawsuits presented to the responding defendant from 2000 to the present in which Pomona Valley Hospital, along with Ali Mesiwala, M.D., and/or his medical group, Southern California Center for Neuroscience & Spine, were named as co-defendants.

Request No. 11: True and correct copies of any and all documents and writings, (as defined by Evidence Code Section 250) that refer to, relate to, memorialize and/or identify the amount Defendant Pomona Valley Hospital billed for each patient that Ali Mesiwala, M.D., and/or his group, admitted to said hospital for an inpatient procedure from 2010 until Ali Mesiwala, M.D., no longer held staff privileges at Pomona Valley Hospital. (Note, please redact any information identifying any patient).

Request No. 12: True and correct copies of any and all documents and writings, (as defined by Evidence Code Section 250) that refer to, relate to, memorialize and/or identify the amount Defendant Pomona Valley Hospital received on its billings for each patient that Ali Mesiwala, M.D., and/or his group, who was admitted to said hospital for an inpatient procedure from 2010 until Ali Mesiwala, M.D., no longer held staff privileges at Pomona Valley Hospital. (Note, please redact any information identifying any patient).

Request No. 14: True and correct copies of any and all documents and writings, (as defined by Evidence Code Section 250) that refer to, relate to, memorialize and/or identify the procedures performed each day by Ali Mesiwala, M.D. at Pomona Valley Hospital from 2010 to the date that Ali Mesiwala, M.D. no longer held privileges at Pomona Valley Hospital. (Note, please redact any information identifying any patient).

Request No. 15: True and correct copies of any and all documents and writings, (as defined by Evidence Code Section 250) that refer to, relate to, memorialize and/or identify and/or list all medical appliance manufacturers whose equipment Ali Mesiwala, M.D., utilized and implanted in his patients at Pomona Valley Hospital from 2010 until Ali Mesiwala, M.D., no longer held staff privileges at that facility.

Request No. 16: True and correct copies of any and all documents and writings, (as defined by Evidence Code Section 250) that refer to, relate to, memorialize and/or identify and/or list all medical appliance distributors who delivered to Pomona Valley Hospital medical appliances and/or equipment that were used at the request of Ali Mesiwala, M.D. at Pomona Valley Hospital on his patients at that facility from 2010 until Ali Mesiwala, M.D. no longer held staff privileges at that facility.

Request No. 17: True and correct copies of any and all documents and writings, (as defined by Evidence Code Section 250) that refer to, relate to, memorialize and/or identify and/or list all monies received by Pomona Valley Hospital from medical appliance manufacturers as a result of medical equipment used by Ali Mesiwala, M.D., and implanted into his patients at Pomona Valley Hospital from 2010 until Ali Mesiwala, M.D. no longer held staff privileges at that facility.

Request No. 18: True and correct copies of any and all documents and writings, (as defined by Evidence Code Section 250) that refer to, relate to, memorialize and/or identify and/or list all monies received by Pomona Valley Hospital from medical appliance distributors as a result of medical appliances distributed to Pomona Valley Hospital and implanted into patients of Ali Mesiwala, M.D., from 2010 until Ali Mesiwala, M.D. no longer held staff privileges at the facility.

The motion is denied in its entirety, for the reasons articulated above.