Opinion
Case No. 2:04-cv-0735.
February 8, 2007
OPINION AND ORDER
This personal injury case is again before the Court to consider the question of whether defendant Terminix is entitled, in some fashion, to discover whether plaintiff Dr. Bruce Kerner has made any statements or representations to credentialing boards, hospitals at which he has practice privileges, or other such organizations concerning his ability to practice medicine. As prior orders of the Court on the same subject explain thoroughly, Dr. Kerner has asserted that since he was exposed to certain insecticides which were allegedly improperly applied to his residence by Terminix employees, his ability to practice medicine has been adversely impacted. Terminix, in turn, has repeatedly sought to have Dr. Kerner turn over any documents which reflect statements he has made concerning his ability to practice medicine after the event in question and to obtain similar documents from parties to whom those statements may have been made. Dr. Kerner has generally resisted this process, arguing that the mere inquiry, either by him or by Terminix (presumably through a subpoena) to such parties may have a negative impact on their willingness to continue to grant him credentials or practice privileges and may therefore cause him to experience serious financial loss.
Although Dr. Kerner has yet to present the Court with any evidence that inquiries into these areas would have a negative impact upon him, the Court has made an effort to encourage the parties to engage in some type of procedure which will allow Terminix to obtain this information in the least intrusive way possible. After those efforts failed, the Court requested the parties to brief the question of whether this discovery should go forward. Dr. Kerner did so by filing a motion for protective order (#83), to which a response (#84) and a reply (#88) have now been filed. For the following reasons, the Court concludes that Terminix is entitled to obtain this information and that, failing an acceptable procedure through which Dr. Kerner obtains it voluntarily, Terminix will be permitted to conduct discovery directed toward hospitals and credentialing authorities concerning any statements or representations Dr. Kerner has made since the date of the incident concerning his ability to continue to practice medicine.
I.
The Court's prior orders adequately set forth the background of this dispute, and little additional background is necessary. As noted, although one of the key factual issues which the Court has attempted to focus on is the extent to which either an inquiry by Dr. Kerner, or a subpoena from Terminix, might have the potential to cause Dr. Kerner either to lose credentials or to be denied practice privileges, there is still no evidence before the Court on this issue. Although Dr. Kerner has represented that, if a hearing were held, he would testify concerning this matter, he has not submitted an affidavit or other evidence which would trigger the need for the Court to conduct an evidentiary hearing. Evidentiary hearings are typically reserved for those situations where each party has made a factual submission to the Court, and the facts are sufficiently in dispute that a hearing is needed to resolve the controversy. Here, there is no factual record, and thus no disputed fact which would be susceptible to resolution at an evidentiary hearing. The only facts which appear to the Court to be pertinent to this issue are the precise claims being asserted by Dr. Kerner, which have changed somewhat since the Court last discussed the matter with the parties, and the fact that Terminix has conducted some discovery concerning this matter without, at least based on the evidence of record, causing any adverse reaction. The Court will discuss each of these matters in turn.
Initially, Dr. Kerner had made a claim for lost wages. Although a portion of that claim was based upon foregone opportunities to conduct surgical procedures, the vast majority of his lost wage claim was premised upon the likelihood that, at some point in the future, he would be forced to discontinue his medical practice due to the residual effects of his exposure to insecticides. At one point, he placed a value of five million dollars on his lost wage claim. Terminix contended that because of the size and nature of the claim, it was important for it to determine whether Dr. Kerner had represented to various hospitals or credentialing agencies either that he had no impairment in his ability to practice medicine, which would favor Terminix's position, or that he had some type of impairment, which would shed light on whether he had reported the same type of impairment to these agencies as he claimed in his interrogatory answers, and as described by the reports of his expert witnesses.
In his motion for a protective order, Dr. Kerner now argues that the discovery sought by Terminix is irrelevant because he has withdrawn his claim for lost wages. Although he does not completely disavow any intent of pressing such a claim in this case, he has, for the moment, ceased advocating such a position. Further, he has not identified an expert witness or otherwise provided any factual information to Terminix which would support that claim. Under these circumstances, Dr. Kerner argues that the information is simply irrelevant.
In response, Terminix notes that although Dr. Kerner has dropped his lost wage claim, he still asserts a claim for continuing physical impairments, including impairments to his surgical practice, and has associated large dollar figures (a total of $2.5 million) with his claims that he has suffered adverse physical effects from his exposure to Terminix's insecticides. Further, Terminix notes that the diagnoses of insecticide poisoning presented by Dr. Kerner's physicians are based, at least in part, on Dr. Kerner's self-report of physical impairments which appeared only after the incident in question and which related directly to his ability to perform tasks associated with his surgical practice. Thus, Terminix asserts that the information is still relevant and necessary for Terminix to defend itself against a claim of physical injuries for which Dr. Kerner seeks substantial damages.
Terminix also notes, in its response, that it has subpoenaed information from the Ohio State Medical Board concerning its credentialing process. Documents were submitted in response to that subpoena, and Terminix points out that there is no evidence in the record before the Court that the Medical Board's receipt of the subpoena or its production of documents has had an impact on Dr. Kerner's continued good standing with the Ohio State Medical Board. Dr. Kerner has not refuted this statement. It is with these facts in mind that the issue will be decided.
II.
Turning first to Dr. Kerner's claim that the information is irrelevant, the Court notes that this case is in its discovery stage. During discovery, information which is either itself admissible at trial, or which may reasonably lead to the discovery of admissible evidence, may be pursued. From a discoverability standpoint, the only limitation on this concept (setting aside for the moment the issue of undue burden) is that the information relate to the claim or defense of a party.
Here, Dr. Kerner has claimed physical injuries due to Terminix's conduct. Even without a lost wage claim, he still appears to be claiming that these injuries have negatively impacted his ability either to practice medicine or to perform tasks which are subsumed within the practice of his medical specialty. As Terminix correctly points out, some of the experts' diagnoses are based upon just such a differential in abilities, and Dr. Kerner is still claiming significant damages based upon his claim that his surgical abilities have been impaired. Under these circumstances, the information sought by Terminix is clearly relevant and therefore discoverable unless there are countervailing reasons either to limit or to preclude that discovery.
One of the countervailing reasons raised by Dr. Kerner is that the information sought is made confidential under Ohio law. See O.R.C. § 2305.252(A). That statutory section prohibits both the discovery of and presentation at trial of incident reports and risk management reports related to medical practices. However, it does not appear to the Court that Terminix's requests are broad enough to cover such reports. Rather, in their most basic form, Terminix's requests are for information which Dr. Kerner himself has reported to credentialing agencies or hospitals concerning his continued fitness to practice medicine. Terminix does not seek any risk management reports or incident reports prepared either in response to a particular claim of medical malpractice asserted against Dr. Kerner or a particular response by these credentialing bodies or hospitals. Consequently, the information sought is simply not covered by this statute.
Dr. Kerner's other major assertion is that the mere inquiry to credentialing agencies or hospitals about his continued fitness to practice medicine will lead those agencies to conduct a more thorough investigation in which they might discover facts leading them to decertify him or withdraw his practice privileges. As noted above, however, there is no evidence which would support this assertion. Further, Dr. Kerner has made his allegations of insecticide poisoning and personal injury public by filing this lawsuit. Further, he presumably has an obligation to report truthfully to these organizations any information which might have an impact on their continued willingness to certify him as capable of practicing his medical specialty. If he has not reported any such information but is concerned that Terminix's inquiry might spark an investigation, it is not necessarily clear that there is a strong public policy reason for preventing that from occurring. Although such a result, if it occurs, might be a burden on Dr. Kerner, it might not necessarily be an undue burden if, in fact, he should not continue to receive practice privileges or be credentialed in his field. Taking all these matters into account, the Court is simply not persuaded, on the basis of this record, that allowing Terminix to move forward with this discovery would place an undue burden upon Dr. Kerner or place his ability to earn a living in substantial jeopardy.
Permitting discovery such as that requested by Terminix in this case is not unprecedented. Terminix points to a decision from Magistrate Judge Hogan, Varghese v. Royal Maccabees Life Ins. Co., 181 F.R.D. 359 (S.D. Ohio 1998), in which Judge Hogan permitted an insurer, to whom the plaintiff (a physician) had presented a claim of disability, to discover patient records which would shed light on whether the plaintiff retained the ability to practice medicine. In that case, the issue was whether concerns of patient privacy outweighed the disability insurer's interest in obtaining discovery. The Court concluded that the patient records could be adequately redacted to protect patient privacy and that they were clearly relevant to Dr. Varghese's disability claim.
A case presenting an even more analogous situation is Toyos v. Northwestern Mutual Life Ins. Co., 1 F.Supp. 2d 1462 (S.D. Fla. 1998). Like Varghese, this case involved a claim by a physician for disability insurance benefits, and the issue was whether the plaintiff had made representations to credentialing agencies or others that he was not disabled, in which case such statements would provide strong support for the insurer's denial of benefits. After concluding, as has this Court, that statutory privileges concerning such records are simply inapplicable to the request made, the court noted the following, which applies equally here: "This case involves a doctor who seeks to assert one position in this litigation, but who himself may be making contrary representations to the hospitals regarding his ability to practice medicine." Toyos, 1 F.Supp. 2d at 1467. The court concluded that the physician should not be permitted to conceal any statements he made concerning his ability to practice medicine and that the insurance company had need of that information. Consequently, it ordered the records to be produced.
Here, too, Dr. Kerner simply cannot be permitted to make claims in this litigation that Terminix's alleged misconduct has had a significant impact upon the physical abilities he utilizes to practice medicine, while at the same time preventing Terminix from learning whether he has either made contrary representations or has made similar representations to hospitals or credentialing agencies. Fairness dictates that such discovery should go forward. Therefore, the only question is whether it can be structured in such a way as to give the maximum amount of protection to Dr. Kerner's interest in continuing to practice medicine (assuming that he is, in fact, able to do so).
The Court previously suggested that it would be less intrusive for Dr. Kerner to obtain copies of any documents he may have submitted to hospitals or credentialing agencies and to turn those documents over to Terminix. In doing so, he would not be required to reveal to the agencies the purpose for his request. The Court continues to believe that this approach carries with it a greater degree of assurance that the agencies will not improperly suspend or terminate Dr. Kerner's practice privileges. Further, it may well be that Dr. Kerner actually retained copies of these documents and is able to produce them to Terminix. Either way, however, the Court believes that he should be given the first opportunity to provide the information to Terminix. When doing so, however, either he or any agent whom he designates to act on his behalf (such as his attorney) must be able to represent to Terminix that the documents are complete and accurate copies of what has been presented to these agencies. Should some question arise in the future as to the accuracy of that representation, the Court may well permit subpoenas to be issued in order to allow Terminix to verify that it has received all the pertinent information. Because the Court has concluded that the information is discoverable, however, Dr. Kerner's motion for a protective order (#83) will be denied.
III.
Based upon the foregoing, the motion for a protective order (#83) is denied. Within thirty days of the date of this order, plaintiffs shall produce to Terminix all documents which would be responsive to Terminix's proposed subpoenas to either credentialing agencies or hospitals at which Dr. Kerner has practice privileges, together with a sworn representation that all documents provided by Dr. Kerner to any of those agencies which make any representation concerning his continued ability to practice medicine has been produced. Should plaintiffs be unable to comply with this order, the Court will permit Terminix to send subpoenas directly to those hospitals and credentialing agencies requesting that information.
Any party may, within ten (10) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. § 636(b)(1)(A), Rule 72(a), Fed.R.Civ.P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due ten days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.
This order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.4.