Summary
recognizing the privilege in malpractice/wrongful death action brought under the Federal Torts Claims Act
Summary of this case from United States ex rel. Wollman v. Mass. Gen. Hosp.Opinion
09 Civ. 4004 (GBD)(KNF)
05-31-2011
MARCERLYN FRANCIS, as Administrator of the Estate of TERON ALEXANDER FRANCIS, and MARCERLYN FRANCIS, individually, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
MEMORANDUM and ORDER
INTRODUCTION
Marcerlyn Francis, acting as administrator of the estate of her deceased son, Teron Alexander Francis (the "decedent"), and in her individual capacity, brings this action, pursuant to the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., for dental malpractice and wrongful death. The plaintiffs allege that Drs. Arnold V. Homer ("Homer") and Robert C. Bingham ("Bingham"), two dentists at the Dr. Martin Luther King Jr. Health Center ("MLK"), failed to diagnose or treat the decedent's sinusitis in April 2005, allowing the decedent to develop meningitis, which ultimately caused his death.
Before the Court is the plaintiffs' motion for an order compelling the defendant to: (1) produce documents withheld from disclosure on the basis of privilege; and (2) provide authorization for the release of Homer's medical records.
BACKGROUND AND PROCEDURAL HISTORY
In April 2007, the plaintiffs filed a malpractice and wrongful death action in the New York State Supreme Court, Bronx County, against the Bronx-Lebanon Hospital Center ("BLHC"), MLK, Bingham, Homer, Dr. Indranil Gupta ("Gupta") and Dr. Rajesh Shenoy ("Shenoy") (hereinafter, the "State Court Action"). On April 27, 2007, BLHC, which controls MLK, notified the Office of the General Counsel ("OGC"), United States Department of Health and Human Services ("DHHS"), of the lawsuit and requested that the United States certify the action under the FTCA and represent the defendants.
Under § 330 of the Public Health Service Act, 42 U.S.C. § 254b, the United States provides grants to certain entities to provide primary health care services. Pursuant to the Federally Supported Health Centers Assistance Act of 1992 and 1995, the United States, acting through DHHS, may "deem" an entity receiving funding under 42 U.S.C. § 254b, and any employee thereof, to be an employee of the Public Health Service. See 42 U.S.C. § 233(g)-(n). Public Health Service employees are immune from liability in tort actions "resulting from the performance of medical, surgical, dental, or related functions," while acting within the scope of their employment. See 42 U.S.C. § 233(a). Such actions may only be pursued against the United States, pursuant to the FTCA. See id.
In response, on May 9, 2007, OGC requested certain information from BLHC, including narratives from the health care practitioners involved. According to Dana R. Wyche-Adams, a paralegal specialist for OGC, it is the custom and practice of DHHS to request such information to determine whether: (1) a health center or practitioner is a deemed entity; and (2) a particular practitioner was acting within the scope of his or her employment at the time of the allegations giving rise to the complaint. DHHS cannot determine whether an action should be defended by the United States until such information has been provided.
In early June 2007, BLHC provided OGC practitioner narratives from Shenoy, Gupta and Dr. Paul E. Gates ("Gates"). Gates is, and was in 2005, the chairman of the MLK and BLHC dental departments. He authored a narrative on behalf of Homer and Bingham, because they were no longer employed by MLK at the time of OGC's request. Gates' narrative does not contain any statements from Homer or Bingham.
On September 5, 2007, DHHS deemed MLK a Public Health Service entity and Homer and Bingham Public Health Service employees. DHHS declined to do the same for BLHC, Gupta and Shenoy. Thereafter, the United States Attorney for the Southern District of New York certified that MLK, Homer and Bingham were federal employees under the FTCA. On October 23, 2007, the United States removed the State Court Action to this court. On January 30, 2008, the court substituted the United States for defendants MLK, Bingham and Homer and dismissed the action against the United States, owing to the plaintiffs' failure to exhaust administrative remedies. On April 3, 2008, the court remanded the claims against BLHC, Shenoy and Gupta to state court.
On April 22, 2009, having exhausted administrative remedies, the plaintiffs re-filed their claims against the United States in the instant action. On September 22, 2009, the plaintiffs served the defendant with their first set of document requests. On June 14, 2010, the defendant served the plaintiffs with its objections and responses thereto and provided the plaintiffs a privilege log, which it, thereafter, amended twice. Among the documents withheld and listed on the privilege log are the practitioner narratives of Shenoy, Gupta and Gates, which the defendant claims are protected from disclosure by the attorney-client privilege and the work product doctrine. Additionally, the defendant has withheld so-called "quality assurance documents," claiming they are protected by the self-critical analysis and common interest privileges.
The quality assurance documents include a report and two chronologies regarding the decedent's care, prepared as part of the MLK dental department's quality assurance review process. According to Gates, the purpose of the quality assurance review process is to identify possible treatment errors, improve the quality of care and educate dental practitioners. According to M. Jessie Polycarpe ("Polycarpe"), BLHC Director of Risk Management, although the quality assurance review process is maintained in accordance with the requirements of New York law, the decision to conduct such a review is generally left to the chair of the department that provided the care in question.
Gates determined to request a quality assurance review of the decedent's care at MLK. He led four other dentists from his department in conducting the review. As part of the review, the participants interviewed Homer and Bingham separately, telling each, prior to his interview, that the review was confidential. Gates prepared a report based on the quality assurance review and the decedent's MLK records. Gates did not include any direct statements or quotations from Homer or Bingham in the report. In addition to the report, Gates prepared two chronologies of events, dated April 25 and April 26, 2005, from the entries on the decedent's dental charts. Gates provided the report and chronologies to Marion Riggins ("Riggins"), Director, BLHC/MLK Department of Performance Improvement. The final report, dated April 28, 2005, was provided to the New York State Department of Health ("DOH"), upon DOH's request.
The defendant has also withheld a quality assurance document referred to as a plan of correction, dated June 6, 2005, sent by Riggins to DOH. According to Polycarpe, BLHC was required, by New York law, to report the incident involving the decedent to DOH and develop a plan of correction. BLHC developed its plan of correction following an on-site survey by DOH, on April 29, 2005, and provided DOH with a copy of the plan, as required by state law.
DISCUSSION
A. Withheld Documents
1. Practitioner Narratives
Pursuant to Fed. R. Civ. P. 26(b)(3)(A), a party may not ordinarily discover documents "prepared in anticipation of litigation or for trial by or for another party or its representative," absent a showing of: (1) substantial need for the documents; and (2) inability, without undue hardship, to obtain their substantial equivalent elsewhere. A document is "prepared in anticipation of litigation" where it is prepared "because of" existing or expected litigation, even if it is created in order to assist with a business decision. See United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998). "The party claiming work product protection has the burden of establishing that it applies" and that the protection has not been waived. William A. Gross Constr., Assocs., Inc. v. American Mfrs. Mut. Ins. Co., 262 F.R.D. 354, 360-61 (S.D.N.Y. 2009). The party claiming work product protection may waive the privilege through its conduct by, for example, disclosing the material to a non-aligned third party. See id. at 361.
By statute, DHHS may not deem an individual a Public Health Service employee "unless the [employing] entity has submitted an application for such deeming to the Secretary [of DHHS] in such form and such manner as the Secretary shall prescribe." 42 U.S.C. § 233(g)(1)(D). The record before the Court evinces that BLHC, which controls MLK, requested that DHHS deem all defendants in the State Court Action Public Health Services entities or employees. DHHS replied to this request by making its own request for additional materials, including the practitioner narratives now at issue. The practitioner narratives would not have been created but for the State Court Action initiated by the plaintiffs, see Adlman, 134 F.3d at 1204, and hence were prepared in anticipation of litigation, within the meaning of Fed. R. Civ. P. 26(b)(3)(A). The narratives were prepared by Gupta and Shenoy, defendants in the State Court Action, and Gates, as a representative for defendants Homer and Bingham, who were no longer employed by MLK. Accordingly, the Court finds that the practitioner narratives are eligible for work product privilege. See id. at 1202-03.
The plaintiffs contend that DHHS did not need the practitioner narratives to determine whether it would deem Homer and Bingham federal employees. The Court will not second-guess DHHS's decision that practitioner narratives must be part of the application to "deem" a health care provider a Public Health Service employee, as Congress has determined to afford DHHS the discretion to decide what materials should be submitted in such an application. See 42 U.S.C. § 233(g)(1)(D).
The plaintiffs contest the defendant's assertion of work product privilege on the ground that no evidence suggests that the narratives contain an attorney's thoughts or mental impressions. The plaintiffs' understanding of the work product doctrine is too narrow. "While it may well be that work product is more deeply concerned with the revelation of an attorney's opinions and strategies[,]" the Second Circuit has held that work product also encompasses facts. In re Grand Jury Subpoena Dated Oct. 22, 2001, 282 F.3d 156, 161 (2d Cir. 2002). The plaintiffs also contend that the defendant has waived any privilege concerning the practitioner narratives, as the narratives have been "distributed to various governmental agencies . . . and others." The plaintiffs' accusation is unsupported and contradicted by evidence, provided by the defendant, that DHHS has kept the narratives confidential, sharing them only with the United States Attorney's Office, which, by law, must defend any tort action brought against any Public Health Service employee, acting within the scope of his employment. See 42 U.S.C. § 233(b).
Since the defendant has established that the practitioner narratives are eligible for work product privilege, the burden shifts to the plaintiffs to demonstrate substantial need for the materials and inability to obtain their substantial equivalent. The plaintiffs have failed to meet their burden. It is unclear why the plaintiffs would need the narratives of Gupta and Shenoy, as their conduct is not at issue in this action. Similarly, the plaintiffs have not shown a substantial need for Gates' narrative, which does not contain any statements from Homer or Bingham and was prepared using records and information already disclosed to the plaintiffs. In any event, the plaintiffs are free to depose the authors of the narratives and, hence, are able to obtain the substantial equivalent of the narratives elsewhere.
Accordingly, the Court finds that the practitioner narratives are protected work product. Accord Batten v. United States, No. 8:08CV169, 2009 WL 1409462, at *2 (D. Neb. May 19, 2009) (holding that practitioner narratives requested by OGC from treating dentists are protected work product). As the practitioner narratives are protected from disclosure by the work product doctrine, no need exists to address the defendant's assertion of the attorney-client privilege.
2. Quality Assurance Documents
In its opposition to the plaintiffs' motion to compel, the defendant has not addressed the common interest privilege, which it asserts, in its privilege log, as a basis for withholding the quality assurance documents from disclosure. Thus, the Court deems this asserted privilege to be waived.
The plaintiffs object to the defendant withholding the quality assurance documents, contending that no federal common law privilege protects medical peer review documents. "Medical peer review privilege evolved out of the broader self-critical analysis privilege, and provides a specific incarnation of that privilege for medical situations. Therefore the principles underlying both are the same, and to the extent peer review privilege is inapplicable, self-critical analysis privilege is also inapplicable." Robinson v. Springfield Hosp., No. 109-CV-75, 2010 WL 503096, at *3 (D. Vt. Feb. 5, 2010) (internal citation omitted). As the defendant is invoking the self-critical analysis in a health care-related situation, the Court considers the medical peer review and self-critical analysis privileges to be equivalent for all practical purposes. See Weekoty v. United States, 30 F. Supp. 2d 1343, 1348 (D.N.M. 1998) (noting that the self-critical analysis privilege, as applied in a FTCA wrongful death action, is "perhaps more properly called the medical peer review privilege").
Federal privilege rules govern actions arising under the FTCA. See Syposs v. United States, 63 F. Supp. 2d 301, 303 (W.D.N.Y. 1999). As such, the Court must, in the first instance, determine whether a federal medical peer review privilege exists and, if not, whether one ought to be recognized, given the circumstances of this action.
The Supreme Court has expressly declined to create a federal common law privilege against the disclosure of a university's peer review materials in an employment discrimination action. Univ. of Pa. v. E.E.O.C., 493 U.S. 182, 189, 110 S. Ct. 577, 582 (1990). Neither the Supreme Court nor the Second Circuit has ruled on the existence of a peer review privilege in the context of a medical or dental malpractice action. Although there appears to be consensus among lower courts and in other circuits that no federal privilege protects medical peer review materials in civil rights or antitrust actions, see, e.g., Adkins v. Christie, 488 F.3d 1324, 1330 (11th Cir. 2007) (racial discrimination action); Virmani v. Novant Health, Inc., 259 F.3d 284, 289 (4th Cir. 2001) (racial discrimination action); Mem'l Hosp. v. Shadur, 664 F.2d 1058, 1063 (7th Cir. 1981) (per curiam) (antitrust action); Zoom Imaging v. St. Luke's Hosp. & Health Network, 513 F. Supp. 2d 411, 415-16 (E.D. Pa. 2007) (antitrust action); Johnson v. Nyack Hosp., 169 F.R.D. 550, 561 (S.D.N.Y. 1996) (racial discrimination action), no such consensus has developed in medical or dental malpractice actions. See Tucker v. United States, 143 F. Supp. 2d 619, 626 (S.D.W. Va. 2001) (declining to recognize federal peer review privilege); Syposs, 63 F. Supp. 2d at 304 (declining to recognize federal peer review privilege); but see KD ex rel. Dieffenbach v. United States, 715 F. Supp. 2d 587, 597-98 (D. Del. 2010) (recognizing peer review privilege); Weekoty, 30 F. Supp. 2d at 1348 (recognizing self-critical analysis privilege). Absent such a consensus, the Court cannot conclude that a general federal privilege for medical peer review materials exists. As a result, the Court must determine whether the circumstances of this case warrant recognition of such a privilege.
"Rule 501 of the Federal Rules of Evidence authorizes federal courts to define new privileges by interpreting 'common law principles . . . in the light of reason and experience.'" Jaffee v. Redmond, 518 U.S. 1, 8, 116 S. Ct. 1923, 1927 (1996) (recognizing psychotherapist-patient privilege). The rule affords district courts "flexibility to develop rules of privilege on a case-by-case basis." Univ. of Pa., 493 U.S. at 189, 110 S. Ct. at 582. Notwithstanding this latitude, district courts generally disfavor recognizing privileges, especially "in an area where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself." Id. Accordingly, a federal common law privilege should not be created and applied unless it "'promotes sufficiently important interests to outweigh the need for probative evidence . . . .'" Jaffee, 518 U.S. at 9-10, 116 S. Ct. at 1928 (quoting Trammel v. United States, 445 U.S. 40, 51, 100 S. Ct. 906, 912 [1980]). In making this determination, a district court must consider: (1) whether the privilege serves private and public interests; (2) the evidentiary benefit that would result from denial of the privilege; and (3) recognition of the privilege among the States. See Jaffee, 518 U.S. at 10-12, 116 S. Ct. at 1928-29. The Court finds that these factors militate in favor of recognizing a privilege for medical peer review records in this action.
The defendant has demonstrated, to the Court's satisfaction, that private and public interests would be served by recognizing a medical peer review privilege. The success of a hospital's quality assurance review process "depends upon an atmosphere of confidence," see id., 518 U.S. at 10, 116 S. Ct. at 1928, in which health care practitioners give frank and complete answers to questions posed by their peers. In his declaration, Gates opines that disclosing materials generated as part of a quality assurance review "would likely cause physicians and dentists to be less than open with the quality assurance reviewers for fear of the quality assurance report being used against them in litigation." According to Gates, reduced candor by physicians and dentists during the quality assurance review process would significantly impair the ability of MLK to: (1) analyze the facts of a given medical case; (2) take corrective action or implement corrective measures; (3) educate physicians and dentists based on past experience; and (4) determine whether discipline is warranted. The Court is persuaded that a privilege protecting peer review records from disclosure in medical or dental malpractice actions would promote the interests of health care practitioners, health care facilities and the public, by encouraging self-evaluation and improving the quality of care.
"In contrast to the significant public and private interests supporting recognition of the privilege, the likely evidentiary benefit that would result from the denial of the privilege is modest." id., 518 U.S. at 11, 116 S. Ct. at 1929. As discussed previously, courts that have declined to recognize a peer review privilege in the past have done so, primarily, in civil rights actions, and, in large measure, because peer review materials in such actions have been deemed essential to the plaintiff's case. See Univ. of Pa., 493 U.S. at 193, 110 S. Ct. at 584 ("Often . . . disclosure of peer review materials will be necessary . . . to determine whether illegal discrimination has taken place. Indeed, if there is a 'smoking gun' to be found . . . it is likely to be tucked away in peer review files."); Johnson, 169 F.R.D. 550, 558-59, n. 12 ("While the confidentiality of peer review records undoubtedly is an important state interest, in many cases, the only proof of employment discrimination that a plaintiff might have may be contained in such records."). No similar circumstance attends in this action. The plaintiffs are in possession of all the decedent's MLK records and they may procure their own expert to evaluate the quality of care the decedent received at MLK. Depending on the conclusion(s) reached during the review, the quality assurance records may aid the plaintiffs in prosecuting this action, but the records are by no means the only way the plaintiffs may establish their claims against the defendant.
Although the plaintiffs may not be able to depose Homer, given his health, see infra, the quality assurance review materials that the plaintiffs seek do not contain any remarks made by Homer.
Recognizing a privilege under Fed. R. Evid. 501 may be appropriate where there is uniform recognition of the privilege among the States. See Jaffee, 518 U.S. at 12, 116 S. Ct. at 1929 (acknowledging that all 50 States and the District of Columbia have enacted into law some form of psychotherapist privilege). As the Supreme Court has noted, "any State's promise of confidentiality would have little value if . . . the privilege would not be honored in a federal court. Denial of the federal privilege therefore would frustrate the purposes of the state legislation that was enacted to foster these confidential communications." Id., 518 U.S. at 13, 116 S. Ct. at 1930. All 50 States and the District of Columbia recognize some form of medical peer review privilege. See Adkins, 488 F.3d at 1327; Dieffenbach, 715 F. Supp. 2d at 594. "These statutes share a common purpose in encouraging physician candidness by eliminating the fear that peer review information will be used against them in subsequent litigation." Dieffenbach, 715 F. Supp. 2d at 594. Given the unanimous State recognition of medical peer review privilege, the Court finds that it would be appropriate to recognize a corresponding federal privilege in medical and dental malpractice actions, lest federal courts undermine State policy.
Recognizing a federal medical peer review privilege would also further federal policy. Courts that have declined to recognize a medical peer review privilege in the past have cited two bases for their determination: (1) the Supreme Court's holding in Univ. of Pa.; and (2) Congress' failure to create a medical peer review privilege when it enacted the Health Care Quality Improvement Act of 1986 (the "HCQIA"). See Syposs, 63 F. Supp. 2d at 303-04; Johnson, 169 F.R.D. at 559-60. However, the Supreme Court's holding in Univ. of Pa., which pertained to a professor's tenure peer review file in an employment discrimination action, does not extend to peer review documents in a medical or dental malpractice action - nor should it. "The interests at issue in a discrimination claim . . . are different from [those] of a malpractice case, and merit a different analysis." Adkins, 488 F.3d at 1330. "Unlike claims alleging violation of federal civil rights (which implicate the strong federal policy of rooting out invidious discrimination) or anti-trust laws (which involve the equally vital purpose of eradicating anti-competitive business practices), no such federal policy is at stake in a medical malpractice case." Dieffenbach, 715 F. Supp. 2d at 597. Moreover, recognizing a medical peer review privilege in a civil rights case would not further the primary purpose of such a privilege: "to encourage candor among medical staff by shielding the information from disclosure in medical malpractice suits." See Singh v. Pocono Med. Ctr., No. 3:09-0439, 2010 WL 2521039, at *3 (M.D. Pa. June 15, 2010).
Similarly, the reliance, by previous courts, on the HCQIA, which provided qualified immunity from suit to peer review participants, but did not create a privilege for most documents created in the peer review process, see 42 U.S.C. § 11111, is of no import, as the HCQIA "no longer represents Congress' final word on the issue of medical peer review." Dieffenbach, 715 F. Supp. 2d at 595. The Patient Safety and Quality Improvement Act of 2005 (the "PSQIA"), 42 U.S.C. § 299b-21 et seq., "announces a more general approval of the medical peer review process and more sweeping evidentiary protections for materials used therein." Dieffenbach, 715 F. Supp. 2d at 595. The purpose of the PSQIA "is to encourage a 'culture of safety' and quality in the U.S. health care system by providing for broad confidentiality and legal protections of information collected and reported voluntarily for the purposes of improving the quality of medical care and patient safety." S. Rep. No. 108-196, at 3 (2003). Specifically, the PSQIA creates a privilege for "any data, reports, records, memoranda, analyses (such as root cause analyses), or written or oral statements" that a health care provider assembles or develops and reports to a patient safety organization ("PSO") on a timely basis. 42 U.S.C. §§ 299b-21(7) and 299b-22(a). The quality assurance review documents at issue in this action are not protected under the PSQIA, since they were not provided to a PSO. However, the documents were provided to DOH which, although not listed as a PSO, meets many of the same qualifying criteria for PSOs and performs similar functions, which Congress clearly intended to encourage. See 42 U.S.C. §§ 299b-24(b) (listing criteria). In light of the broad protection afforded by the PSQIA, which Congress intended to complement, not supplant, existing law providing for greater privilege, see 42 U.S.C. §§ 299b-22(g), the Court finds that recognizing a medical peer review privilege in a FTCA action for dental malpractice would advance Congress' goal of promoting peer review to improve quality of care. Accord Dieffenbach, 715 F. Supp. 2d at 597.
Although the Court has determined to recognize a privilege for medical peer review materials in this action, it has yet to determine the applicability of the privilege to the documents at issue. See Jaffee, 518 U.S. at 18, 116 S. Ct. at 1932 (noting that Rule 501 "authorizes the recognition of new privileges on a case-by-case basis [and] makes it appropriate to define the details of new privileges in a like manner"). Courts that have recognized the self-critical analysis privilege in the past have found that it is a qualified, not absolute, privilege. See Hardy v. New York News, Inc., 114 F.R.D. 633, 641 (S.D.N.Y. 1987); Gillman v. United States, 53 F.R.D. 316, 319 (S.D.N.Y. 1971) (extending privilege to report by a hospital's board of inquiry only to the extent it contained suggestions or comments on future hospital procedures, not to any "narration of facts" contained therein). Inasmuch as the self-critical analysis privilege "is based upon the concern that disclosure of documents reflecting candid self-examination will deter or suppress socially useful investigations and evaluations[,]" Hardy, 114 F.R.D. at 640, it stands to reason that only quality assurance review documents containing self-examining statements are privileged. This conclusion is in line with Congress' intent regarding the scope of the PSQIA privilege, which extends only to "the analysis of, and subsequent corrective actions related to [an] adverse event or medical errors[.]" S. Rep. No. 108-196, at 4 (2003). Having reviewed the quality assurance documents, in camera, the Court finds that Gates' report and BLHC's plan of correction, which contain self-evaluative analysis, are protected from disclosure by the self-critical analysis privilege. However, the chronologies, which contain no similar analysis, cannot, by definition, be subject to the self-critical analysis privilege.
The defendant has been unclear about whether the quality assurance review documents were produced voluntarily or pursuant to State mandate. Some courts have found that where State law mandates a peer review be conducted, there can be no self-critical analysis privilege, since a key element of such a privilege - a chilling effect on future investigations - will be absent. See Mitchell v. Fishbein, 227 F.R.D. 239, 252 (S.D.N.Y. 2005); Tortorici v. Goord, 216 F.R.D. 256, 259 (S.D.N.Y. 2003). The Court does not doubt that State-mandated peer reviews will continue, absent a privilege. However, without a privilege, the efficacy of such reviews is jeopardized, as the health care providers participating in such reviews may not be as forthcoming, fearing that their statements will be used against them in future malpractice litigation. Moreover, requiring production of documents, which the State compels health care providers to prepare - albeit with assurance of protection from disclosure in state-court litigation - would be unfair to providers. See Zoom Imaging, 513 F. Supp. 2d at 415; Hardy, 114 F.R.D. at 641.
B. Authorization for Release of Homer's Medical Records
On June 17, 2010, the defendant provided the plaintiffs with letters from two of Homer's physicians, indicating that he suffers from dementia. The plaintiffs have requested that the defendant provide them with executed authorizations for the release of Homer's personal medical records. According to the plaintiffs, the defendant is representing Homer in this action and has control of his personal medical records. The plaintiffs contend that the defendant demonstrated its control over Homer's medical records by obtaining letters from two of Homer's physicians. The defendant maintains that Homer is a former federal employee and, as such, it cannot oblige him to execute an authorization. Additionally, through the declaration of its counsel, the defendant attests that it does not have possession, custody or control of Homer's personal medical records. No evidence is before the Court that the plaintiffs have sought to obtain Homer's medical records through other means.
Under the FTCA, the United States is charged with defending any civil action brought against a federal employee for, inter alia, personal injury and death, resulting from the negligent or wrongful act or omission of the employee, while acting within the scope of his employment. See 28 U.S.C. § 2679(b)(1), (c). Once the United States certifies that a federal employee was acting within the scope of his employment, at the time of the incident giving rise to the complaint, the action against the employee "shall be deemed an action against the United States . . . and the United States shall be substituted as the party defendant. 28 U.S.C. § 2679(d)(1).
Homer is not a party to this action. In fact, by virtue of being certified as a federal employee acting within the scope of his employment, Homer is immune from suit for any negligent or wrongful acts or omissions arising from his treatment of the decedent. See 28 U.S.C. § 2679(b)(1) (providing that suit against the United States is the exclusive remedy for a claim against federal employee acting within the scope of employment). The plaintiffs have provided no evidence to contradict the declaration of the defendant's counsel that the defendant lacks possession, custody or control of Homer's personal medical records. That the defendant obtained, from Homer's wife, two letters from Homer's physicians attesting to his medical condition, does not demonstrate that the defendant could have compelled Homer's wife to provide the letters, or that the defendant has authority to obtain the entirety of Homer's personal medical records. Absent evidence of control, or citation to case law to support the plaintiffs' proposition - that the Court may compel a party to provide authorization for the release of a non-party's medical records, of which it lacks possession, custody or control - the Court discerns no basis to grant the plaintiffs' request.
CONCLUSION
For the reasons set forth above, the plaintiffs' motion to compel is granted, only to the extent that the defendant must provide the plaintiffs with the April 25 and April 26, 2005 chronologies. The plaintiffs' motion is denied in all other respects. This order resolves Docket Entry No. 15. Dated: New York, New York
May 31, 2011
SO ORDERED:
/s/_________
KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE