Atteberry v. Longmont United Hosp. (Full Text)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland

Civil Act ion No. 03-D-488 (BNB)

BRENDA ATTEBERRY,

Plaintiff,

FILED
UNITED STATES DISTRICT COURT
DENVER, COLORADO
06/15/2004
GREGORY C. LANGHAM,
CLERK

LONGMONT UNITED HOSPITAL, a Colorado nonprofit corporation, and
JOHN D. LEONARD, M.D.,

Defendants.
______________________________________________________________________________

ORDER
______________________________________________________________________________

This matter is before me on the Plaintiff’s Motion to Compel Production of

Documents By Defendant Longmont United Hospital (the “Motion to Compel”), filed May 5,

2004. The motion is fully briefed. For the reasons stated below, the Motion to Compel is

GRANTED.

BACKGROUND

The pla in ti ff commenced this act ion in the state dis tr ic t court of Boulder County,

Colo rado, on March 6, 2003. The complain t asse rts three claims for rel ief, includ ing

(1) violation of the federal Emergency Medical Treatment and Active Labor Act (“EMTALA”),

41 U.S.C. § 1395dd, against the hospital; (2) state law professional negligence against the doctor;

and (3) state law negligent misrepresentation against the doctor. The case was removed by the

defendants to this court on March 21, 2003.

The plaintiff alleges:

Ms. Atteberry is the mother of Scott Atteberry, deceased. She
asserts that, when her son arrived at the Longmont United Hospital
emergency room after a motorcycle accident, he was in
hypovolemic shock from internal hemorrhages and unstable, with
no blood pressure on oxygen saturation readings that could be
obtained. She asserts that trauma surgeon Defendant Dr. Leonard
should have taken her son to the operating room within one hour of
his arrival at the hospital to stop his bleeding and save his life.
Instead, Dr. Leonard negligently allowed Scott Atteberry to
continue to bleed, remain unstable and deteriorate his entire three
hours in the emergency room. She asserts that her son should not
have been transferred out of the emergency department and tht the
transfer to St. Anthony’s Hospital Flight for Life helicopter
violated the Emergency Medical Treatment and Active Labor Act
. . . in that he had not been stabilized, medical treatment to
minimize his risks had not been performed, and as Defendants
admit, no written requests or signed certification for transfer that
comply with § 13955dd(c)(1)(A)(ii) or (iii) were ever obtained.
Ms. Atteberry asserts that Dr. Leonard’s negligent failure to stop
her son’s bleeding and negligent order that he leave Longmont
United Hospital and be taken to Denver, as well as the violations of
EMTALA, caused Scott Atteberry to suffer cardiac arrest in the St.
Anthony’s helicopter due to exsangination, and to bleed to death
shortly thereafter.

Scheduling Order, at pp.1-2.

The discovery at issue here involves requests for production seeking the following

materials:

1.
Any reports, files or reviews that refer or relate to Scott
Atteberry’s care on April 28, 2001, including, but not limited to
any quality assurance reports, peer review reports and
morbidity/mortality reports.

7.
Any and all reports relating to Dr. Leonard, including, but
not limited to, credentialing files, peer review files, quality
assurance reports, morbidity/mortality reports, hospital privileges,
and any reports relating to the deaths of patients under his care.

Longmont Hospital objected to the production requests, asserting that the requested

information is protected from discovery by (1) the federal Health Care Quality and Assurance

Act, 42 U.S.C. § 11101, et seq.; (2) the Colorado state peer review privilege, section 12-36.5-

104, C.R.S.; (3) the Colorado state quality management privilege, 25-3-109, C.R.S.; (4) the

doctrine of Hawkins v. District Court, 638 P.2d 1372 (Colo. 1982); (5) the attorney-client

privilege; and (5) the work product doctrine.

ANALYSIS

1. Federal Law Governs the Issue of Privilege

Discovery in the federal courts is governed by the Federal Rules of Civil Procedure,

regardless of whether federal jurisdiction is based on a federal question or diversity of

citizenship. Everitt v. Brezzel, 750 F. Supp. 1063, 1065 (D. Colo. 1990). Rule 26(b)(1), Fed. R.

Civ. P. , defines the scope of discovery:

Parties may obtain discovery regarding any matter, not privileged,
which is relevant to the subject matter involved in the pending
action. . . . The information sought need not be admissible at trial
if the information sought appears reasonably calculated to lead to
the discovery of admissible evidence.

(Emphasis added.)

Where, as here, there is a claim of privilege, I must determine whether federal or state law

governs the existence of the claimed privilege. Everitt, 750 F. Supp. at 1066. “Where federal

law provides the governing substantive law in a lawsuit, the federal common law of privileges

will govern.” Id. See also Fed. R. Evid. 501 (questions of “privilege . . . shall he governed by

the principles of the common law as they may be interpreted by the courts of the United States in

the light of reason and experience”). In this case, federal law provides the rule of decision with

regard to the EMTALA claim. In addition, the federal law of privilege governs even where the

evidence sought also may be relevant to pendent state law claims. Hancock v. Hobbs, 967 F.2d

462, 466-67 (11th Cir. 1992); Robertson v. Neuromedical Center, 169 F.R.D. 80, 82-82 (M.D.

La. 1996). Consequently, I look to federal common law to determine whether the requested

materials are privileged.

2. The Health Care Quality Improvement Act Does Not Create a Federal Peer
Review Privilege

Courts repeatedly have held that the Health Care Quality Improvement Act does not

create a federal statutory privilege. For example, in Robertson v. Neuromedical Center, 169

F.R.D. at 83-84, the court held:

There is no historical or statutory basis for a peer review materials
privilege. . . . The federal Health Care Quality Improvement Act of
1986, 42 U.S.C. § 11101, et seq., provides qualified immunity for
persons providing information to a professional review body
regarding the competence or professional conduct of a physician.
42 U.S.C. §11111(a). It also established confidentiality for
information reported under the act, but did not establish
confidentiality for peer review records or protect peer review
records and materials from discovery and court subpoena. The
absence of such a privilege in this statute is evidence that Congress
did not intend these records to have the level of confidentiality and
protection advanced by the hospitals and provided in the state
statute.

(Emphasis added.) Accord Poliner v. Texas Health Systems, 201 F.R.D. 437, 438 (N.D. Tex.

2001)(noting that the HCQIA does not create a bar to discovery of materials relating to peer

review committees); United States v. QHG of Indiana, Inc., 1998 WL 1756728 *7 (N.D. Ind.

Oct. 8 , 1998 )(not ing that “Congress spoke loud ly with i ts si lence in not including a p rivilege

against discovery of peer review materials in the HCQIA”); Syposs v. United States, 179 F.R.D.

406, 410 (W.D.N.Y. 1998)(noting that no federal statutory peer review privilege exists under the

Health Care Quality Improvement Act).

3. The Colorado State Privileges Are Not Applicable Here

Longmont United Hospital argues that I should apply the asserted Colorado state law

priv ileges , even if not requ ired to do so , as a ma tter of comi ty:

[F]ederal courts should consider the law of the state in which the
case arises in determining whether a privilege should be recognized
as a matter of federal law. A strong policy of comity between state
and federal sovereignties impels federal courts to recognize state
privileges where this can be accomplished at no substantial cost to
federal substantive and procedural policy. And where a state holds
out the expectation of protection to its citizens, they should not be
disappointed by a mechanical and unnecessary application of the
federal rule. . . .

The principal of comity is not limited to diversity cases, and this
Court should look to Colorado’s policy of protecting the
confidentiality of quality assurance and peer review proceedings. . .
. [A]s a matter of comity, federal courts should attempt to ascertain
what interests inspire relevant state doctrine and should take into
account the views of state authorities about the importance of those
interests.

Defendant Longmont United Hospital’s Response to Plaintiff’s Motion to Compel Production of

Documents, filed May 27, 2004, at pp.4-5 (internal quotations and citations omitted).

Neither the United States Supreme Court nor the Tenth Circuit Court of Appeals has

recognized a medical peer review or medical risk management privilege under federal common

law. Sonnino v. University of Kansas Hospital Authority, 220 F.R.D. 633, 644 (D. Kan. 2004).

To the con trary:

The Supreme Court has caut ioned that an evidentia ry privilege
should not be recognized or applied unless it promotes sufficiently
important interests to outweigh the need for probative evidence.

Because privileges contravene the fundamental principle that the
public has a right to every man’s evidence, any such privilege must
be strictly construed. Moreover, although Rule 501 manifests a
congressional desire not to freeze the law of privilege but rather to
provide the courts with flexibility to develop rules of privileges on
a case-by-case basis, the courts are disinclined to exercise this
authority expans ively.

Id. (internal quotations and citations omitted).

Although presented with the opportunity to do so when enacting the federal Health Care

Quality Improvement Act, the Congress failed to create an analogous federal privilege. United

States v. QHG of Indiana, Inc., 1998 WL 1756728 at *7(noting that “Congress spoke loudly with

its silence in not including a privilege against discovery of peer review materials in the

HCQIA”). Every legislative and controlling judicial indication is that federal policy, under these

circumstances, opposes recognition of the quality management and peer review privileges

enacted by the State of Colorado. See Patt v. Family Health Systems, Inc., 189 F.R.D. 518, 523-

24 (E.D. Wis. 1999), aff’d 280 F.3d 749 (7th Cir. 2002).

Nor is it clear that the state law privileges would apply to these facts. In order to be

entitled to the peer review privilege created by section 12-36.5-104(10)(a), the information must

constitute the “records of a professional review committee, a governing board, or a committee on

anticompetitive conduct,” id., and must be derived from an investigation “conducted in

conformity with written bylaws, policies, or procedures” adopted by a professional organization,

entity, or society. Section 12-36.5-104(6)(b), C.R.S. Similarly, the quality management

privilege created by section 25-3-109 attaches only to “quality management functions which are

described by a facility in a quality management program approved by the department of health

and environment.” Sections 25-3-109(2)-(3), C.R.S. Although I have been provided with the

Longmont United Hospital Medical Staff Organization and Functions Manual and the Longmont

United Hospital Medical Staff Bylaws, I have not been directed to a specific section which

creates a professional review committee, defines its functions, or establishes its procedures; nor

have I been provided with any evidence that the hospital has a quality management program

approved by the department of health and environment or that the materials sought are “records,

reports, or other information . . . that are part of a quality management program. . . .” My

independent review of the record before me does not indicate that the prerequisites to the claimed

privileges have been met.

4. Hawkins v. District Court Is Not Applicable

In Hawkins v. District Court, 638 P.2d 1372 (Colo. 1982), the Colorado Supreme Court

ruled that reports made and statements taken by an insurance company in the normal course of

investigating a claim are prepared in the regular course of business and not in anticipation of

litigation or trial. Consequently, those documents ordinarily are not protected from discovery

under the work product doctrine. The Hawkins decision concerns a state law privilege and is

factually distinct from the issues presented here. In any event, the claim of immunity under

Hawkins in this case appears to have been abandoned by the defendants, because it is not

addressed in their briefs in opposition to the Motion to Compel.

5. Longmont United Hospital Has Failed to Establish That Any
Responsive Document Is Subject to the Attorney-Client Privilege
or Work Product Doctrine

Rule 26(b)(5), Fed. R. Civ. P., establishes the procedure a party must follow when

objecting to discovery on the basis of a claim of privilege:

When a party withholds information otherwise discoverable under
these rules by claiming that it is privileged . . ., the party shall
make the claim expressly and shall describe the nature of the
documents, communications, or things not produced or disclosed
in a manner that, without revealing information itself privileged or
protected, will enable other parties to assess the applicability of the
privilege or protection.

Longmont United Hospital, as the party asserting the attorney-client privilege and work product

doctrine, must “provide sufficient information to enable the plaintiffs and the court to determine

whether each element of the asserted objection is justified.” Epling v. UCB Films, Inc., 2000

WL 1466212 *19 (D. Kan. Aug. 7, 2000). A blanket claim of privilege will not suffice. Id. The

failure to produce a privilege log or production of an inadequate privilege log may be deemed a

waiver of the privilege asserted. Haid v. Wal-Mart Stores, Inc., 2001 WL 964102 *1 (D. Kan.

June 25, 2001).

In Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984), the circuit

court of appeals held:

A party seeking to assert [a] privilege must make a clear showing
that it applies. Failure to do so is not excused because the
document is later shown to be one which would have been
privileged if a timely showing had been made. Even though it does
not seem seriously disputed that the privilege would have attached
if the objection had been timely made and adequately asserted, that
such a showing had not been made when the trial court was called
upon to make its ruling defeats the privilege. It is not enough that
a document would have been privileged if an adequate and timely
showing had been made. The applicability of the privilege turns on
the adequacy and timeliness of the showing as well as on the nature
of the document.

Longmont United Hospital has failed to make an adequate showing to establish the

applicability of the attorney-client privilege or work product doctrine to any document responsive

to Requests for Production Nos. 1 and 7. There is no privilege log whatsoever or other attempt

by the hospital to provide sufficient information “to enable the plaintiffs and the court to

determine whether each element of the asserted objection is justified.” Epling, 2000 WL

1466212 at *19.

6. The Requested Documents Are Discoverable

Finally, I find that Requests for Production Nos. 1 and 7 seek materials relevant to the

claims and defenses of the parties or appear reasonably calculated to lead to the discovery of

admissible evidence. The requests are within the scope of discovery permitted under Rule 26(b),

Fed. R. Civ. P.

CONCLUSION

The defendants have failed to establish any privilege protecting from discovery the

materials responsive to Requests for Production Nos. 1 and 7, and those materials are

discoverable . Accordingly,

IT IS ORDERED that the Motion to Compel is GRANTED.

IT IS FURTHER ORDERED that Longmont United Hospital shall produce all documents

responsive to Requests for Production Nos. 1 and 7 at a time and place as may be agreed to by

the parties, not later than June 21, 2004.

DATED June 14, 2004.

BY THE COURT:

United States Magistrate Judge