Opinion
CIVIL ACTION NO. 97-1051, SECTION "J" (2).
January 6, 1999
This is a qui tam action in which plaintiff seeks to recover damages on behalf of himself and the United States under the False Claims Act. 31 U.S.C. § 3729. Defendants filed a motion for protective order seeking to protect the confidentiality of nonparty patients' medical records that plaintiff has requested defendants to produce, and objecting to the scope of plaintiff's request for production of documents. Record Doc. No. 33. Plaintiff filed a late opposition memorandum, Local Rule 7.5E, which I have nonetheless considered. Record Doc. No. 34. Plaintiff does not oppose the entry of a protective order to maintain the confidentiality of the nonparty medical records he has requested.
Having considered the written submissions of the parties, the record and the applicable law, IT IS ORDERED that the motion is GRANTED IN PART AND DENIED IN PART as follows.
A. Confidentiality of Medical Records
Recognizing that Louisiana's health care provider/patient privilege does not apply in this action brought exclusively under federal law, see Fed.R.Evid. 501, defendants nonetheless urge the Court to follow the Louisiana statutory scheme set forth in La. Rev. Stat. §§ 13:3734 and 13:3715.1B(2) and (5) and Louisiana Code of Evidence article 510B. These statutes provide that a court may order the production of a patient's records only with the patient's consent or after a contradictory hearing at which the patient is represented, thus implying that the patient must be notified. This procedure would permit the nonparty patients to assert their privacy rights in their medical records maintained by defendant Hospital Service District No. 1 of Tangipahoa Parish d/b/a North Oaks Medical Systems.
Defendants are also concerned that they might be subject to civil liability for voluntarily releasing such records without notifying the affected patients. Therefore, defendants have written to the patients, notified them of the pendency of plaintiff's requests for production and advised them that they could file written objections with the Court by January 5, 1999. No such objections have been received.
Under Fed.R.Evid. 501, privilege questions are generally governed by common law unless otherwise required by federal law. Thus, privilege questions are governed by the federal courts' interpretation of federal common law except when state law supplies the rule of decision, in which case state law on privilege governs. Fed.R.Evid. 501; Hancock v. Hobbs, 967 F.2d 462, 466 (11th Cir. 1992); Robertson v. Neuromedical Car., 169 F.R.D. 80, 81-82 (M.D. La. 1996) (Riedlinger, M.J.); Soriano v. Treasure Chest Casino, Inc., No. 95-3945, 1996 WL 736962, at *2 (E.D. La. Dec. 23, 1996) (Berrigan, J.).
In the instant case, plaintiff asserts claims solely under federal law, which provides the rule of decision. "Rule 501 makes it clear that state privilege law will apply in diversity cases, and that federal privilege law will apply in federal question cases." In re Combustion, Inc., 161 F.R.D. 51, 53 (W.D. La. 1995) (Tynes, M.J.), aff'd, 161 F.R.D. 54 (W.D. La. 1995) (Haik, J.).
Accordingly, I find that the Louisiana health care provider/patient privilege does not apply in this action. See Syposs v. United States, 179 F.R.D. 406, 409 (W.D.N.Y. 1998) (New York medical peer review privilege does not apply in action brought under Federal Tort Claims Act); Robertson, 169 F.R.D. at 82 (Louisiana hospital peer review records privilege does not apply in case brought under Americans with Disabilities Act ("ADA") with pendent state law claims); King v. Conde, 121 F.R.D. 180, 187 (E.D.N.Y. 1988) (New York law protecting personnel records of police officers from disclosure not applicable in federal civil rights action).
The Court must next consider whether any federal privilege, either statutory or common law, applies to the records that defendants seek to protect. Neither party has referred the Court to any federal statute or regulation on the subject of the privacy of records of the type plaintiff seeks from defendants. The Fifth Circuit "has previously concluded that there is no physician-patient privilege under federal law." Gilbreath v. Guadalupe Hosp. Found. Inc., 5 F.3d 785, 791 (5th Cir. 1993) (citing Fed.R.Evid. 501; United States v. Moore, 970 F.2d 48, 50 (5th Cir. 1992)); accord Hingle v. Board of Admins. of Tulane Educ. Fund, No. 95-0134, 1995 WL 731696, at *3 (E.D. La. Dec. 7, 1995) (Vance, J.). My own research has found no federal law that creates a privilege analogous to the Louisiana statute, with the following two exceptions:
First, the United States Supreme Court recognized the existence of a psychotherapist/patient privilege under federal common law in Jaffee v. Redmond, 518 U.S. 1, 9 (1996). Second, 42 U.S.C. § 290dd-2 requires that patient records "maintained in connection with the performance of any program or activity relating to substance abuse . . ., which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall . . . be confidential" and may be disclosed only in accordance with the procedures and for the reasons established in the statute and its enabling regulations. 42 C.F.R. § 2.61 et seq.
Therefore, I find that no existing federal law protects the medical records that plaintiff seeks from discovery, except to the extent they may be protected by the psychotherapist/patient privilege recognized in Jaffee or by the federal statute and regulations prohibiting disclosure of records related to drug or alcohol abuse. See 42 C.F.R. § 2.64(a). In their motion papers, defendants have not suggested the applicability of either of these specific privileges. However, the allegations of the complaint are clearly addressed to alleged "drug seeking behavior," so that these regulations may well be applicable.
The Court may also consider whether the policy of the Louisiana statute is sufficiently compelling, in light of reason and experience, to be applied as a matter of federal common law.Jaffee, 518 U.S. at 8; Robertson, 169 F.R.D. at 84. The Supreme Court recently reaffirmed that
privileges are strongly disfavored in federal practice, and any privilege must be strictly construed since "[t]estimonial exclusionary rules and privileges contravene the fundamental principle that `the public . . . has a right to every man's evidence.'" Though Rule 501 authorizes recognition of new privileges, the courts are not inclined to exercise this authority expansively. . . .Id. at 82 (quoting University of Pa. v. Equal Employment Opportunity Comm'n, 493 U.S. 182, 189 (1990)).
In deciding whether to recognize a new federal privilege, the Court
should balance "the public's need for the full development of relevant facts in federal litigation against the countervailing demand for confidentiality in order to achieve the objectives underlying the privilege in issue." The balance does not often favor recognition of a new privilege unless it "promotes sufficiently important interests to outweigh the need for probative evidence."Syposs, 179 F.R.D. at 409 (quoting 2 J. Weinstein, M. Burger J. McLaughlin, Weinstein's Evidence ¶ 501[03], at 39-41;University of Pa., 493 U.S. at 189).
This Court, like many others, is reluctant to find a new federal common law privilege that may undermine the federal interests at stake in plaintiff's claims brought under federal law. See University of Pa., 493 U.S. at 189 (declining to create privilege against disclosure of peer review materials in Title VII challenge to university's tenure decision); United States v. One Parcel of Prop., 930 F.2d 139, 141 (2d Cir. 1991) (state law protecting disclosure of erased arrest records not recognized as federal privilege); Pickett v. Woodland Heights Gen'l Hosp., No. 9:96-175(TH), 1997 WL 394822, at *2 (E.D. Tex. June 18, 1997) (peer review privilege inapplicable in antitrust case); Robertson, 169 F.R.D. at 83 (when Congress, through the ADA, recognized substantial costs of disability discrimination and made its elimination a matter of substantial governmental interest, court would not create peer review privilege); Smith v. Smith, 154 F.R.D. 661, 675 (N.D. Tex. 1994) (declining to recognize federal mediator's privilege in RICO, securities fraud and common law fraud case despite existence of such privilege under Texas law); Coastal Fuels of P.R., Inc. v. Caribbean Petroleum Corp., 830 F. Supp. 80, 81 (D.P.R. 1993) (refusing to apply state law accountant-client privilege); Pagano, 145 F.R.D. at 689-90, 695 (E.D. Cal. 1993) (declining to recognize state law physician-patient and medical peer review privileges); Swarthmore Radiation Oncology, Inc. v. Lapes, No. 92-3055, 1993 WL 517722, at *3 (E.D. Pa. Dec. 1, 1993) (policies reflected in state peer review statute incompatible with federal interest in fair competition embodied in antitrust laws). I am particularly reluctant to recognize such a broad privilege as a matter of federal common law when it is unclear at this time whether the Jaffee privilege or the confidentiality requirements of Section 290dd-2 apply and when a narrowly drawn protective order of the type included later herein, short of recognition of a broad-ranging privilege, will suffice to accommodate any need for confidentiality of the medical records of nonparties that might be responsive to plaintiffs' discovery.
Accordingly, defendants' motion for protective order on grounds of a health care provider privilege for medical records is GRANTED IN PART AND DENIED IN PART. Defendants' objections to production of the documents are overruled. Neither the privilege aspects of the Louisiana statute nor its purely procedural notice requirements are applicable to this case.
However, IT IS ORDERED that defendants must immediately review the records to determine if the psychotherapist/patient privilege recognized in Jaffee or the federal regulations concerning disclosure of records related to drug or alcohol abuse apply to these records. No later than January 11, 1999, defendants must advise the Court and plaintiff's counsel in writing whether either of the foregoing are applicable to any record and if so, defendants are prohibited from releasing the records and must comply with Fed.R.Civ.P. 26(b)(5) concerning such particular documents so that the parties and the Court may determine what additional action, if any, may be necessary.
On the other hand, if defendants' review of the records establishes that neither the Jaffee privilege nor the federal regulations concerning confidentiality of drug and alcohol abuse patients' records applies, and to the extent any such records concerning nonparties must be produced in light of the overruling of defendants' objections, IT IS ORDERED that all nonparty medical records produced by defendants shall be subject to the following protective order. All information produced in accordance with this order must be marked and kept confidential and used only for purposes of this litigation and must not be disclosed to any one except the named plaintiff and counsel of record. Defendants shall maintain possession of the medical records and make them available to plaintiff's counsel for review pursuant to Fed.R.Civ.P. 34(b). Plaintiff and his counsel mayNOT make any copies of the records but may take notes only. All such notes, including any copies thereof, must be returned to defendants for destruction at the conclusion of this case. If plaintiff determines that he desires to introduce all or any part of these records as evidence at trial, he must specifically designate them in his exhibit list so that arrangements may be made for their use and protection in court. All persons to whom such information is disclosed must sign an affidavit that must be filed into the record, agreeing to the terms of the protective order and submitting to the jurisdiction of this Court for enforcement of those terms. If any party seeks to add other terms to this protective order, counsel must confer immediately and submit by motion any proposed protective order.
B. Defendants' Specific Objections
1. Request for Production Nos. 1 through 4 and 6
Defendants object to plaintiff's Request for Production Nos. 1 through 4 and 6 on two grounds: (1) plaintiff has requested documents from the time period April 8, 1991 through December 14, 1998, although the complaint only refers to conduct from 1994 through March 20, 1998; and (2) plaintiff is seeking records related to a previously unnamed, second group of 17 patients (referred to as "Group B"). Defendants do not object, except as discussed in the preceding section, to producing documents related to the first group of 17 patients ("Group A") specifically named in the complaint.
Defendants complain that, only a few months before the March 1999 trial date, plaintiff is attempting to expand the scope of discovery for an additional three years beyond a relevant time period and to a much larger group of patients and their records. According to defendants, North Oaks Hospital has the second largest emergency room census in the United States and Group A's medical records for 1994-1998 alone consist of more than 250 charts. Thus, defendants contend, doubling the number of patients and expanding the time frame for an additional three years makes plaintiff's discovery requests unduly burdensome and expensive.
In his opposition memorandum, plaintiff does not dispute the facts stated in the previous paragraph. He offers no justification for expanding the time frame beyond the specific years of alleged wrongful conduct alleged in his complaint or the group of patients named in the complaint, other than to assert that a mere 17 additional patients cannot be terribly burdensome.
The Court agrees with defendants that plaintiff has failed to show the relevance or justify the added expense and burden of expanding the time frame of discovery for three years before the allegations of the complaint. Accordingly, defendants' motion for protective order is GRANTED IN PART and the time period of plaintiff's requests will be limited to January 1, 1994 through December 14, 1998.
The discovery deadline in this case is February 9, 1999, still one month away. Plaintiff has specifically named 17 additional patients in Group B, and defendants have not asserted that the records of these patients are not relevant. Accordingly, defendants' motion for protective order is DENIED as to these patients, except that as with all other records, these are also limited to the time period January 1, 1994 through December 14, 1998.
2. Request for Production No. 5
Defendants contend that this request for all documents "describing medically necessary, medically unnecessary or inappropriate service rendered and medication prescribed to patients" is vague and ambiguous and not calculated to lead to the discovery of admissible evidence. Defendants' objection is sustained. The request is overly broad, unduly burdensome and ambiguous as written, in that it requests the entire universe of documents reflecting both medically necessary and medically unnecessary treatment.
3. Request for Production No. 7
This request seeks all other claims pending against defendant Quorum Health Resources pursuant to the False Claims Act. Defendants object that this request is not reasonably calculated to lead to the discovery of admissible evidence. This objection is sustained as plaintiff has offered no explanation for the relevance of "all other claims."
4. Request for Production No. 8
Although labeled a Request for Production, this is actually an interrogatory. It asks defendants to identify all written, recorded or oral statements they have taken, who was present during such statements and the custodian of any such statements. Defendants object that this information is protected from discovery by the work product doctrine. Fed.R.Civ.P. 26(b)(3). This objection is overruled. Plaintiff is not seeking production of such statements, but only identifying information. Such information is not protected from discovery by Rule 26(b)(3), which applies only to documents and other tangible things. To whatever extent this is also a request for production, defendants must comply with Fed.R.Civ.P. 26(b)(5) as to any documents for which they claim work product protection.