2015-00185014-CU-OE

Martin Straznicky, M.D. vs. Dignity Health, Inc.

Nature of Proceeding: Motion to Compel Further Responses to Production of Documents

Filed By: Schubert, Jill L.

Defendant Dignity Health’s motion to compel further responses to request for production of documents (set four) is ruled upon as follows.

Overview

This is an action for violation of Health and Safety Code §1278.5, Defamation and FEHA Harassment. Plaintiff alleges that he was a member of Defendant’s medical staff. Plaintiff alleges that he was discriminated and retaliated against, and harassed due to his presenting complaint regarding patient care, services, and/or hospital conditions. He further alleges that he was harassed based on his sex and that certain defamatory statements were made concerning his profession, trade, business, and qualifications.

The Medical Staff of Methodist Hospital’s Medical Executive Committee (“MEC”), is a committee responsible for reviewing the qualifications, credentials, performance, professional competence, and character of physician applicants and Medical Staff members. The MEC is a committee within the Medical Staff of Methodist Hospital. The Medical Staff of Methodist Hospital is a separate and distinct entity from Defendant. It makes recommendations to the Sacramento Service Area Community Board established by Dignity Health (“Board”). The MEC makes recommendations to the Board regarding clinical privileges and corrective action. The Board grants or denies physician privileges in accordance with MEC’s recommendations and Bylaws.

Plaintiff’s privileges to practice were suspended on October 6, 2014. The MEC eventually recommended revocation of Plaintiff’s clinical privileges. When the MEC recommends revocation, the physician is entitled to a formal hearing prior to the Board decision. Plaintiff invoked his right to an administrative hearing to challenge the revocation of his privileges. The administrative action (“Administrative Action”) is currently pending. Plaintiff’s grounds for challenging his revocation are nearly identical to those in his complaint.

The Medical Staff of Methodist Hospital is not represented by Defendant’s counsel in this action. Plaintiff is represented by the same counsel in both actions.

There is a stipulated protective order between the parties.

Trial is scheduled for 2/3/2020.

Defendant desires to compel Plaintiff’s further responses to the following two RFPs:

RFP 65: “All exhibits proposed and/or admitted into evidence by or on behalf of the Medical Staff of Methodist Hospital in the administrative hearing entitled The Medical

Staff of Methodist Hospital of Sacramento, In re the Matter of: Martin Straznicky, M.D.”

RFP 66: “All exhibits proposed and/or admitted into evidence by or on behalf of Martin Straznicky, M.D. in the administrative hearing entitled The Medical Staff of Methodist Hospital of Sacramento, In re the Matter of: Martin Straznicky, M.D.”

Plaintiff responded to each by objecting that the material “is privileged pursuant to Evid. Code §1157” and “invades the privacy of third parties.”

Analysis

Evid. Code section 1157(a), provides that “[n]either the proceedings nor the records of organized committee of medical…staffs in hospitals, of peer review body, …having the responsibility of evaluation and improvement of the quality of care, shall be subject to discovery.”

Evid. Code §1157(c) provides an exception to the general rule, “[t]he prohibition relating to discovery or testimony does not apply to the statements made by a person in attendance at a meeting of any of the committees described in subdivision (a) if that person is a party to an action or proceeding the subject matter of which was reviewed at that meeting, to a person requesting hospital staff privileges, or in an action against an insurance carrier alleging bad faith by the carrier in refusing to accept a settlement offer within the policy limits.

“The burden of establishing entitlement to nondisclosure rested with the parties resisting discovery, not the party seeking it.” (Matchett v. Superior Court (1974) 40 Cal App 3d 623, 627.)

None of the cases cited by either party are directly on point. Indeed, in the cases upon which the parties rely, the terminated/suspended physician/physician group is the party seeking the records, and not the employer hospital.

Relying Roseville Community Hospital v. Sup. Court (3DCA, 1977) 70 Cal.App.3d 809, Defendant insists that its discovery requests fall within the “persons requesting hospital staff privileges” exception. Plaintiff, citing to Cal Eye Ins. v. Sup. Court (5DCA, 1989) 215 Cal.App.3d 1477 and Univ. of S. Cal v. Sup. Court (2DCA, 1996) 45 Cal.App.4th 1283, counters that the exception does not apply because his action is one for damages and not “requesting hospital staff privileges.”

The Court finds Roseville Community more persuasive, especially given that it is a Third District Court of Appeal case. In Roseville, actions were taken by the committees and board of directors of defendant hospital which culminated in the dismissal or termination of plaintiff (a partnership of pathologists) as the exclusive clinical pathologist for the defendant hospital. It was alleged that defendant breached plaintiff’s rights under a working arbitration agreement in the nature of an employment

contract. Plaintiff sued for declaratory relief and money damages based on allegations of (1) a controversy over rights and duties under a 1974 arbitration award and refusal of defendant to submit to further arbitration and (2) breach of the 1974 arbitration award resulting in money damages. The plaintiff move to compel the minutes, records and tape recordings of certain staff committees and the board of directors of defendant. The trial court granted the motion; the hospital appealed arguing that Evid. Code §1157 barred production of the documents. Plaintiff contended that Evid. Code §1157(c) allowed the production. The Third District Court of Appeal agreed with plaintiff. The court explained:

We anticipated in Matchett that situations would arise in which doctors have been subjected to (allegedly) wrongful or arbitrary exclusions from hospital staff privileges. We indicated in Matchett, by way of dictum, that the exclusionary language in the statute was to all appearances designed to allow such doctors in such situations to obtain by discovery the necessary information to test the legality of their exclusion in a court action. (See Matchett v. Superior Court, supra, 40 Cal.App.3d at pp. 629-630.) We declare this statement of law is no longer dictum. Matchett, therefore, prophesied the exact issue we now face.

(Emphasis added.) The court held that because the contract provisions “allowed for termination ‘if the quality and/or quantity of professional services fall below that normally and customarily provided in accordance with Hospital’s customary standards.’ . . . the need to discover what transpired in the staff and what charges were made when the termination of plaintiff was for the vague reason of “no confidence” is obvious.” (Roseville Community at 816.)

Here, similar to other employment actions, a defense to Plaintiff’s H&S Code Code §1278.5 whistleblower action is that Defendant had a legitimate business purpose for Plaintiff’s suspension and (now possible revocation) of his clinical privileges. The requested documents will support Defendant’s defense. In addition, Defendant may also use after-acquired evidence (such as the requested documents) in support of its defense. Like the plaintiff in Roseville Community, the information is necessary for Defendant to show the legality of its decision.

The Court is not persuaded by Plaintiff’s cases. In Cal. Eye Ins. v. Sup. Court (5DCA, 1989) 215 Cal.App.3d 1477, the plaintiff physician’s staff privileges were restricted on recommendation of the medical staff executive committee. His full privileges were eventually restored. Three years later, plaintiff filed an action for damages for past restrictions on his staff privileges. Plaintiff sought certain documents relating to the restriction of his privileges. The defendants asserted Evid. Code §1157 to prohibit the production of documents. The Fifth District Court of Appeal held that the Evid. Code §1157(c) exemption did not apply given the plain language of the statute. The court distinguished Roseville Community on the ground that it was not an action for damages. While it appears unclear whether Roseville Community involved a claim for

damages (in Roseville Community the plaintiff was seeking monetary damages), the plaintiff in Cal. Eye Ins. could not have sought reinstatement or filed an action for

administrative mandamus because his privileges had been reinstated three year prior to his civil action. In the Administrative Action, Plaintiff is challenging the revocation of his privileges. Thus, he is “requesting hospital staff privileges.” Moreover, because
the Administrative Action is still pending, an action for administrative mandamus is not yet ripe.

Univ. of S. Cal v. Sup. Court (2DCA, 1996) 45 Cal.App.4th 1283 is inapposite because the plaintiff was a resident rather than a physician. The Second District Court of Appeal explained that the exemption is inapplicable to a resident who seeks reinstatement to a postgraduate training program.

With respect to the third party privacy objections, the parties’ protective order alleviates the concerns.

The motion to compel further responses is GRANTED. Plaintiff shall serve further verified written responses by no later than November 5, 2018.

Defendant’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.