Opinion
Case No. 03 C 50250.
January 30, 2006
MEMORANDUM OPINION AND ORDER
This matter is before the court on Defendant Kent Hess' January 4, 2006 Motion to Quash Subpoena. For the reasons stated below, Defendant's Motion is granted in part and denied in part.
I. History
On or about December 20, 2005, Plaintiffs issued a subpoena for records to Swedish American Primary Care Group. Swedish American Primary Care Group is Defendant Kent Hess, M.D.'s employer, but is not a party to this lawsuit. The subpoena requests any and all records regarding Dr. Kent Hess, including the following contested items: (1) "any and all records of disciplinary action"; (2) "any and all documents reflecting any pages received by and or responded to by KENT HESS during the interval of time: June 29th 2001 through July 2001"; (3) "all call schedules"; (4) "all vacation schedules"; and (5) "all patient rotation schedules or any other office schedules KATHY BANKS HUNT reflecting DR. KENT HESS patient care activities in interval of time: June 29th 2001 through July 2001."
Defendant raises several objections to Plaintiffs' subpoena, including that it is untimely, vague, over broad, unintelligible, and seeks privileged documents. Defendant raises the patient-physician privilege to the extent that any documents contain identifying information and/or protected health information of other patients. Defendant also claims protection under the Medical Studies Act, 735 ILL. COMP. STAT. 5/8-2101, et seq.
In Plaintiffs' Response to Defendant's Motion, Plaintiffs state Defendant Hess has no standing to object to the Subpoena to Swedish American Primary Care Group. Barring that argument, Plaintiffs contend that since they were unable to obtain information from Dr. Hess regarding his activities on the specific dates that he attended to Plaintiff Kathy Hunt, they have subpoenaed documents from his employer to obtain evidence of "his activity and ability or inability to attend to Kathy Hunt." Because Plaintiffs have learned that Defendant is named as a defendant in other bariatric surgical cases and no longer has privileges at Northwest Suburban Community Hospital, Plaintiffs believe it is reasonable to obtain information regarding Defendant's disciplinary action.
II. Analysis
While the proper method to challenge a subpoena is by motion to quash, parties do not generally have standing to bring a motion to quash on behalf of a subpoena recipient. Fed.R.Civ.P. 45. Unless the party seeks to protect a personal privilege or right with respect to the subject matter requested in the subpoena, the motion to quash may only be made by the person or entity to whom the subpoena was directed. See, e.g., Minnesota Sch. Bds. Ass'n Ins. Trust v. Employers Ins. Co., 183 F.R.D. 627 (N.D. Ill. 1999).
In this case, Defendant does move to quash on the basis of patient-physician privilege and under the Medical Studies Act. Even though Defendant raises various other objections to Plaintiffs' subpoena as a basis for his Motion to Quash, the court finds that Defendant could only have standing to move to quash on the basis of patient-physician privilege and the Medical Studies Act.
The only requested documents Defendant claims are protected by the Medical Studies Act are "records of disciplinary action." The only requested documents Defendant claims are protected by the patient-physician privilege are "documents reflecting any pages received by and or responded to by KENT HESS during the interval of time: June 29th 2001 through July 2001" and patient rotation schedules or any other office schedules KATHY BANKS HUNT reflecting DR. KENT HESS patient care activities in interval of time: June 29th 2001 through July 2001." The court will address each in turn.
A. Records of disciplinary action
In support of his Motion to Quash Plaintiffs' Subpoena of "any and all records of disciplinary action," Defendant states that Plaintiffs' request is objectionable because it "is inappropriate to the extent it seeks documents protected by the Medical Studies Act, 735 ILCS 5/8-2101, et seq." In diversity cases, such as this one, state law applies over the federal common law of privileges, so the court must apply the Medical Studies Act to determine if a privilege is properly raised by Defendant. See Jaffee v. Redmond, 51 F.3d 1346, 1354 (7th Cir. 1995), aff'd 518 U.S. 1 (1996).
The Medical Studies Act provides the following:
All information, interviews, reports, statements, memoranda, recommendations, letters of reference or other third party confidential assessments of a health care practitioner's professional competence, or other data of the Illinois Department of Public Health, local health departments, the Department of Human Services (as successor to the Department of Mental Health and Developmental Disabilities), the Mental Health and Developmental Disabilities Medical Review Board, Illinois State Medical Society, allied medical societies, health maintenance organizations, medical organizations under contract with health maintenance organizations or with insurance or other health care delivery entities or facilities, tissue banks, organ procurement agencies, physician-owned insurance companies and their agents, committees of ambulatory surgical treatment centers or post-surgical recovery centers or their medical staffs, or committees of licensed or accredited hospitals or their medical staffs, including Patient Care Audit Committees, Medical Care Evaluation Committees, Utilization Review Committees, Credential Committees and Executive Committees, or their designees (but not the medical records pertaining to the patient), used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care or increasing organ and tissue donation, shall be privileged, strictly confidential and shall be used only for medical research, increasing organ and tissue donation, the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges or agreements for services, except that in any health maintenance organization proceeding to decide upon a physician's services or any hospital or ambulatory surgical treatment center proceeding to decide upon a physician's staff privileges, or in any judicial review of either, the claim of confidentiality shall not be invoked to deny such physician access to or use of data upon which such a decision was based.735 ILL. COMP. STAT. 5/8-2101 (emphasis added). The Act goes on to provide that "[s]uch information . . . shall not be admissible as evidence, nor discoverable in any action of any kind in any court." 735 ILL. COMP. STAT. 5/8-2101. The burden of establishing a privilege under the Medical Studies Act is on the party seeking to invoke it, and a mere assertion of privilege will not suffice to meet this burden. See, e.g. Menoski v. S.K. Shih, 612 N.E.2d 834, 836 (1993).
Here, Defendant has a personal interest in his disciplinary records and has asserted privilege under the Medical Studies Act to protect any documents covered by the Act. Though Defendant cannot identify which documents may be protected under the Act without access to the documents, privileges under the Medical Studies Act are specifically enumerated. Plaintiffs, themselves, have stated no objection to the assertion of privilege as to any specific Medical Studies Act items that may be covered by their request. Thus, to the extent that any "information, interviews, reports, statements, memoranda, recommendations, letters of reference or other third party confidential assessments of a health care practitioner's professional competence . . . used in the course of internal quality control or of medical study" exist in Defendant's disciplinary records, the court finds such documents are privileged and strictly confidential. 735 ILL. COMP. STAT. 5/8-2101.
Accordingly, Defendant's Motion to Quash the subpoena of documents covered by the Medical Studies Act is granted. Swedish American Primary Care Group need not produce to Plaintiffs any documents protected under the Medical Studies Act, and if any documents have been produced, they should be returned promptly.
B. Documents reflecting pages received by and or responded to by Kent Hess
In moving to quash Plaintiffs' Subpoena of "any and all documents reflecting any pages received by and or responded to by KENT HESS during the interval of time: June 29th 2001 through July 2001," Defendant objects only to "the extent that any such documents exist that include patient identifying information and/or personal health information of patients other than the plaintiff." While the burden of establishing a privilege is on Defendant, and a mere assertion of privilege will not suffice to meet this burden, Defendant is only able to offer an assertion that Plaintiffs' request "threatens to invade the patient-physician privilege." See Menoski v. S.K. Shih, 612 N.E.2d 834, 836 (1993).
The court acknowledges that it is difficult for Defendant to be more specific regarding his objection to the production of documents because they are under the control of Swedish American Primary Care Group. However, the court notes that Swedish American Primary Care Group is a sophisticated third party witness, with the knowledge and ability to assert the patient-physician privilege where necessary. There is no need for Defendant to become involved. Consequently, Defendant's Motion to Quash subpoena of documents reflecting pages received by and or responded to by Kent Hess is denied.
C. Patient rotation schedules/office schedules
For the same reasons above, Defendant fails to meet his burden of establishing a privilege with regard to Plaintiffs' Subpoena of "all patient rotation schedules or any other office schedules KATHY BANKS HUNT reflecting DR. KENT HESS patient care activities in interval of time: June 29th 2001 through July 2001." Defendant objects only to "the extent Plaintiffs are seeking any documents that contain protected health information of other patients." Thus, Defendant's Motion to Quash subpoena of documents reflecting pages received by and or responded to by Kent Hess is denied.
III. Conclusion
For the foregoing reasons, Defendant Kent Hess' January 4, 2006 Motion to Quash Subpoena is granted in part and denied in part. Swedish American Primary Care Group need not produce to Plaintiffs any documents protected under the Medical Studies Act, and if any documents have been produced, they should be returned promptly. The remaining balance of Defendant's Motion is denied.