Case Number: BC515709 Hearing Date: April 17, 2014 Dept: SEC

PEART v. TENET HEALTHCARE CORP.
CASE NO.: BC515709
HEARING: 04/17/14

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TENTATIVE ORDER

I. Plaintiffs’ motion for leave to amend the complaint is GRANTED.
C.C.P. § 473(a). Plaintiffs have 5 court days to SERVE AND FILE
the Second Amended Complaint.

Plaintiffs LOIS HOLMAN, REGINALD SAYLOR, COREY SAYLOR, THOMAS SAYLOR and RENDELL PEART brought this action for elder abuse, negligence and wrongful death after the demise of decedent Lois Peart (for whom plaintiff Lois Holman acts as successor-in-interest).

By way of the subject motion, they seek to amend the pleading to add a cause of action for negligent hiring based on facts recently learned during discovery. They are entitled to do so. Defendants do not oppose the request.

The copy of the proposed SAC submitted with the motion has certain portions bolded and is also unsigned. Therefore, plaintiffs are instructed to file an executed Second Amended Complaint within 5 days and to serve a copy (unless the parties stipulate to service).

II. Plaintiffs’ motion to compel a further deposition of the Person Most
Knowledgeable (PMK) of defendant LAKEWOOD REGIONAL
MEDICAL CENTER is DENIED. C.C.P. § 2025.480.

Plaintiffs and their counsel of record are ORDERED to pay defendant and its counsel of record sanctions in the amount of $540 no later than May 19, 2014 for the costs associated with opposing the subject motion.

Decedent was a patient at defendant Lakewood Regional. On October 9, 2013, plaintiffs served their deposition notice directed at defendant’s PMK. Motion, Exh. 1. Defendant served an objection on October 15, 2013 based on its disagreement with the October 24 date. Exh. 3. After some meet and confer, plaintiffs served an amended notice to which defendant again objected. Exh. 8, 9. Ultimately, on November 20, 2013, the first session of the deposition took place. This motion arises out of the parties’ inability to schedule a date for the second session and a dispute regarding certain items of inquiry and/or production.

Defendant’s argument that plaintiffs’ cited section 2025.450 (to compel an initial deposition) rather than section 2025.480 (to compel a further session) has merit, but the minor notice defect is of no effect. The basis for the motion is clear, and the error is thus disregarded. C.C.P. § 475.

Defendant also objects to the fact that the Notice of Motion does not indicate which of the specific topics of inquiry and/or categories of documents remain at issue. The disputed items are set forth in the Separate Statement, filed and served along with the motion. Any defect in the notice of motion is waived as one not affecting defendant’s substantial rights. C.C.P. § 475. That waiver also applies to the motions to compel further (III., IV. And V. herein), as each motion was properly accompanied by a Separate Statement.

Here, the dispute is as to topic of inquiry number 7 and request for production number 9 in the Notice of Deposition. Motion, Exh. 1. Plaintiffs seek to inquire of the PMK the “date of creation, circumstances of creation, existence, author and content of all Incident Reports and/or Unusual Occurrence reports” and seeks production of any such reports.

In the first deposition session, plaintiffs made general inquiries as to the type of information contained in such reports. Defendant objected to some of the inquiries under Evidence Code section 1157, including those seeking information as to when the reports (if any) were created. Defendant also asserted written objections to the notice. Opp., Exh. 3, 9.

Defendant argues that the incident report, referred to as the Electronic System for Risk Management Form (“ESRM”), is protected under the attorney-client privilege because it was primarily generated for the use of counsel. Scripps Health v. Superior Curt (2003) 109 Cal.App.4th 529. To the extent it was generated for quality assurance and/or peer review, it is protected by Evidence Code 1157. Defendant submitted the declaration of its risk manager Kristina Diaz to support that argument. She testified the one report was completed and entered into the computer system for access by risk management personnel as part of defendant’s risk management plan (as a self-insured entity). Plaintiffs’ argument that defendant failed to produce any evidence to support the objection ignores the Diaz declaration. Plaintiffs also failed to address the Scripps holding, which was decided on similar facts. The Court finds that defendant has met its burden of establishing that the document is privileged, and the motion is denied as to request for production number 9.

Plaintiffs also argue that the circumstances surrounding the creation of the report (inquiry number 7) are not privileged. While that is likely the case, the Court finds that the prior PMK deposition covered that area, as plaintiff inquired into the existence of any reports. PMK depo., p. 73-84. The motion to compel a further deposition session is denied.

III. Plaintiffs’ motion to compel further responses to special interrogatories (set one) is GRANTED as to numbers 3, 4, 8, 9, 39, 49, 70 through 77, 86, 87, 91, 92, 95 and 103; and DENIED as to numbers 78 through 85, 94.
C.C.P. § 2030.300.

IV. Plaintiffs’ motion to compel further responses to their demands for
production (set one) is GRANTED as to 6, 7, 8, 11, 12, 13, 21, 22, 23, 26 and 32; and DENIED as to 3, 4, 5, 9, 10, 24, 25. C.C.P. § 2031.310.

Defendant LAKEWOOD REGIONAL MEDICAL CENTER, INC. is ORDERED to serve further responses in accordance with this order no later than May 2, 2014.

Because both the motion and opposition were filed with substantial justification, the parties’ requests for sanctions are DENIED.

III. Special interrogatories
As a preliminary matter, the Court notes that defendant did not file a points and authorities in opposition to the motion. It did, however, file a Separate Statement which was read and considered. For the purpose of sanctions, the motion is deemed to be “opposed.”

In interrogatories 3, 4, 8, 9, 39 and 49, plaintiffs seek the identity of the person whose handwriting appears on certain documents in the patient file. Defendant served responses naming the individuals, but failed to provide their contact information. The dispute is as to whether plaintiffs are entitled to that information.

Defendant argues that it need not divulge addresses and phone numbers because plaintiffs’ counsel is ethically prohibited from contacting its employees, citing Rule of Professional Conduct 2-100(B)(2). That Rule prohibits opposing counsel from contacting a party who is represented by counsel, which includes an officer, director or managing agent. The Rule does not apply to former employees. It also does not serve to limit discoverability of that information, which is the only issue before the Court. There are limitations with respect to who plaintiffs may contact, and plaintiffs’ counsel is presumed to know those rules. See e.g. Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4th 719; La Jolla Cove Motel and Hotel Apartments, Inc. v. Superior Court (2004) 121 Cal.App.4th 773. Defendant proffered no reasonable basis to withhold the contact information, and is hereby ordered to produce further responses to those discovery requests.

Numbers 70 through 76 seek facts supporting defendant’s contentions regarding plaintiff’s injuries. Although number 70 is not expressly limited in time or scope, the Court limits the ordered response to the injuries allegedly suffered during the June 2012 and July through August 2012 admissions. In its separate statement, defendant indicated that it “did not have sufficient information” to respond. It is ordered to do so now, and if it does not possess sufficient facts, it must so state in a verified response in accordance with the Code. C.C.P. § 2030.220. The interrogatories are not objectionable under section 2030.230, as plaintiff is seeking defendant’s contentions regarding certain facts and not a compilation of the records. The motion for further responses to numbers 70 through 76 is granted.

Number 77 seeks the identity of the person who notified plaintiff’s family of her condition. A response does not require a compilation and the interrogatory is not otherwise improper, so the motion is granted. Numbers 78 through 85, and 94 seeking a list of “every person” who participated in various portions of plaintiff’s treatment, are improper insofar as defendant would be required to create a summary of the medical records, which have presumably been produced to plaintiffs. Defendant is not obligated to prepare a compilation for plaintiffs’ use. The motion is denied as to those items.

Defendant provided responses to numbers 86, 87, 91, 92 and 95 (identifying certain employees), but did not provide the contact information of the named individuals. It is ordered to do so for the reasons explained above. Additionally, the Court notes that employees and/or witnesses may have discoverable information and plaintiffs’ interest in discovering such outweighs the minimal privacy interest an individual holds with respect to his contact information. See Hill v. Nat’l Collegiate Athletic Ass’n (1994) 7 Cal.4th 1; Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640.

Finally, special interrogatory number 103 seeks the identity of “each person who were [sic] patients in the same wing or unit of the hospital as plaintiff during the same time periods.” The Court limits the ordered response to the time periods of June 6 through June 13, 2012 and July 10, 2012 through August 2, 2012 admissions.

Other patients in defendant’s facility clearly have a right to privacy. See 45 C.F.R. §160.103; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360. On the other hand, plaintiffs’ claim is one for elder abuse and punitive damages to which high standards of proof apply.

In a balance of the competing interests, the Court finds that an “opt in” letter shall be sent to each of the patients (as limited in the request), thereby allowing each individual to determine whether he or she wishes to contact counsel. See generally Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958. Such option adequately protects the third parties from an invasion of their constitutional right to privacy while affording plaintiffs an opportunity to discover facts which may be relevant to their claims. Puerto v. Superior Court (2008) 158 Cal.App.4th 1242.

Defendant LAKEWOOD REGIONAL MEDICAL CENTER is ORDERED: (1) to send out a letter within 15 days of this order, (2) to enclose a response card with a self-addressed stamped envelope, with each party equally bearing the cost of postage, and (3) as to all persons who authorize their contact information to be disseminated, to provide to plaintiffs’ counsel that information within 5 days of receipt of authorization. The language in plaintiffs’ Exhibits 4 and 5 is acceptable.

IV. Demands for production
With respect to items 6, 7, 8 and 32, it appears defendant served a further response indicating that no responsive documents exist. Opp., Exh. B. That supplemental response is unsigned and undated, as is the proof of service. Additionally, there is no verification. C.C.P. § 2031.250(a). Therefore, a further response curing those defects is ordered.

Numbers 3 and 5 (which appear to be duplicative) seek all documents in plaintiff’s file related to her initial assessment, intervention, evaluation, etc. during all times she was a patient. Number 4 seeks documents related to the “planning and implementing patient care” to plaintiff. Defendant appears to have provided 2 separate CDs which contain all information for her admissions, including not only the 2012 time periods, but plaintiff’s admissions in 2006, 2008, 2009, 2010 and 2011 (notwithstanding defendant’s initial responses limiting the requests to 2012). It appears that all responsive documents have been produced, so no further responses are ordered.

Number 9 seeks production of incident reports. Defendant has established that the one incident report prepared was done so for internal use and thus privileged. See Evid. Code § 1157; Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529; see decl. of Kristina Diaz. Plaintiffs’ reliance on Diaz’s deposition testimony is misplaced insofar as she was testifying, in general terms, what the contents of such an ESRM report would be. See Plaintiffs’ Sep. Stmt, Exh. 3. The motion is denied. It appears defendant has produced a “screen shot” of a blank incident report, in responses to number 10.

Numbers 11, 12 and 13 seeks documentation related to the staffing levels of the hospital, including time cards, work schedules, sign-in sheets, etc. to show the quantity and classification of the staff. Number 11 is limited in time from January 1 through August 2, 2012. Numbers 12 and 13 refer to the time “during the residency of the plaintiff” and “during the time in which the plaintiff was a patient,” respectively. The Court agrees with defendant that the relevant time periods are June 6 through June 13, 2012 and July 10 through August 2, 2012, plaintiff’s most recent admissions from which this lawsuit arises. Given the burden of such production (time cards, etc) for that period of time, the requests are also limited to the same unit, wing or station in which plaintiff was a resident. To the extent defendant has not produced complete responses, as narrowed herein, it is instructed to do so.

Numbers 21 and 22 seek any documents reflection questionnaires or surveys regarding the adequacy of hospital services from employees (21) or residents and family members (22), with names redacted. Number 23 seeks documents regarding complaints from residents or family members pertaining to the quality of service. The requests seek responsive documents from January 1 through August 2, 2012. The scope of time is reasonable, as the documents sought seek to establish defendant’s notice of any problems. Plaintiff may also properly obtain such surveys or questionnaires pertaining to other units of the hospital, as such information may be used to show notice. Further responses in accordance with this order are warranted.

Number 24 seeks documents pertaining to employee exit interviews (from January 1 through August 2, 2012), number 25 of job performance evaluations of employees who provided care to plaintiff (from June 1, 2011 through August 2, 2012) and number 26 disciplinary records of those employees (unlimited in time). Each request expressly provides for the redaction of employee names.

The motion is denied as to number 24, which is not drafted in such a way that it is reasonably calculated to lead to admissible evidence. It is not limited to employees who treated plaintiff of even those who worked on the same wing.

Defendant objects to numbers 25 and 26 as burdensome. It claims to have identified 78 employees, and submitted the declaration of Mary Okuhara who attests to the amount of time it would take to compile such responses. The motion is denied as to number 25, which would include all performance evaluations (included those with positive reviews) for a period of one year prior to the relevant time period.

The motion is granted to number 26, limited in time from June 6, 2012 through August 31, 2012 which would cover the scope of plaintiff’s admissions upon which the action is based and limited to those discipline reports pertain to patient care (as opposed to being late, not showing up for shifts, etc).

V. Plaintiffs’ motion to compel further responses to their demands for
production (set four) is CONTINUED to May 8, 2014 at 1:30 p.m. in
Department SE-C. C.C.P. § 2031.310.

The Court finds that the meet and confer with respect to Requests for Production, set four, has not been exhausted. Many of those requires pertain to employee files and defendant had some hesitation in producing those records prior to the filing of plaintiffs’ amended pleading stating a new claim for negligent hiring. Plaintiffs’ motion for leave to file a Second Amended Complaint was granted herein.

Additionally, the Court has herein ordered some production of information pertaining to defendant’s employees. Plaintiffs will have an opportunity to review that production which may assist in narrowing the issues presented. The parties also have the benefit of the Court’s rulings on discovery thusfar.

Counsel are instructed to engage in further meet and confer efforts in an attempt to informally resolve their disputes. If issues remain, they are ORDERED to file a joint statement setting forth each of the requests at issue, and counsel’s respective positions as to whether further responses should or should not be ordered. The joint statement must be filed directly in Department SE-C no later than May 5, 2014.