Responding to a Plaintiff’s Discovery Requests

Because of the complex nature of the majority of medical malpractice cases, the discovery process is extremely important. As a defense attorney, the discovery requests received from plaintiffs are usually extensive in nature and include medical records, statements, incident reports, audit trails, videos, personnel files, and different policies and procedures of the hospitals. Therefore, in order to properly defend these cases, it is imperative to know and understand which documents are protected and not discoverable. The following discussion addresses different items that I consider when responding to a plaintiff’s request for production of documents in Pennsylvania medical malpractice cases.

The first question a defense attorney must ask after receiving a plaintiff’s discovery request is whether the material is relevant. Rule 401 of the Pennsylvania Rules of Evidence states that evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action. Particularly in medical malpractice cases, as it pertains to the discovery of personnel files, a plaintiff must initially show the relationship between the care the employee provided and a specific negligence allegation. Next, the plaintiff must explain how any information the plaintiff seeks from the employee’s personnel file may assist the plaintiff in establishing a claim, as in Shedlock v. UPMC Presbyterian, 69 Pa. D. & C. 4th 1, 9 (Pa. County Ct. 2004). The court must then decide whether the plaintiff’s request causes an unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party.

This issue of relevance was examined in detail in Shedlock, in which a plaintiff presented a medical malpractice action alleging brain damage because of the defendants’ overly rapid correction of her low sodium levels. The plaintiff tried to compel a hospital to produce the entire employment record of seven physicians. The defendant hospital opposed the production of these documents on the grounds that the request was overly broad and sought information that was not relevant to the plaintiff’s claim against the hospital.

The court denied the plaintiff’s motion on the grounds that the plaintiff did not describe the care that any of the seven physicians provided; how the care was provided related to the claim that the hospital was negligent in failing to have the plaintiff diagnosed, cared for and treated by competent physicians; or the relationship between the discovery that was sought and the plaintiff’s claims. The court used a first-year resident (one of the seven physicians named) as an example to show that the plaintiff’s request was not clear as to the relevancy of the plaintiff’s need for the additional background and qualifications of the resident.

The court reasoned that a general allegation that a hospital was negligent in failing to have a patient diagnosed, cared for, and treated by competent physicians does not trigger the right to obtain all records and other documents in the possession of the hospital regarding each doctor. The court stated that the plaintiff’s requests were “broad and unfocused discovery requests seeking records that are likely to include confidential information and appear to have almost no relevance to the subject matter of the litigation.”

Since it is not necessarily that difficult for a plaintiff to argue the relevancy of documents, thankfully, relevance isn’t the only rule to determine whether certain evidence and documents are discoverable. One of the most common objections to a plaintiff’s discovery requests in medical malpractice cases is peer review. The Pennsylvania Peer Review Protection Act defines “peer review” as “the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, claims review and the compliance of a hospital, nursing home or convalescent home or other health care facility operated by a professional health care provider with the standards set by an association of health care providers and with applicable laws, rules and regulations.”

The PRPA was created to serve “the legitimate purpose of maintaining high professional standards in the medical practice for the protection of patients and general public,” per Piroli v. Lodico, 909 A.2d 846, 850 (Pa. Super. Ct. 2006). The rationale supporting the statute is that the medical profession itself is in the best position to police its own activities because of the expertise and skill required in the practice of medicine. Thus, the PRPA was enacted to facilitate self-management and procedure in the health care industry, as in Dodson v. Deleo, 872 A.2d 1237, 1242 (Pa. Super. Ct. 2005).

The PRPA declares confidential the records and proceedings of a review committee, established for the purpose of reviewing information related to evaluating and improving patient care. The honest, potentially critical evaluation of one care provider by another envisioned under the act demands the strictest confidentiality of the proceedings to ensure the conclusions reached are not tainted by the fear of future legal repercussions, as in O’Neil v. McKeesport Hospital, 48 Pa. D. & C. 3d 115, 121-22 (Allegheny C.P. 1987).

Although the PRPA generally protects the work of a peer review committee, the PRPA does not protect non-peer review business records, even if those records are eventually reviewed by a peer review committee. An example of this type of document would be an incident report that contains only factual information.

Furthermore, the PRPA’s protections do not extend to documents that are available from original sources. Original source documents are those that are prepared in the ordinary course of treatment of a patient. This exception covers any documents created by an employee of a hospital who has no responsibility for evaluating the quality of the care and who did not prepare the documents at the request of a professional health care provider evaluating the quality and care as part of a peer review, as in Atkins v. Pottstown Memorial Medical Center, 634 A.2d 258 (Pa. Super. 1993). Simply put, where a document would not have been created but for the initiation of peer review, the document should be considered derived from or part of a peer evaluation.

In Dodson, a patient brought a professional negligence action against a doctor and hospital and filed a motion to compel four documents the hospital claimed were protected by the PRPA. These documents were quality management credentialing reports, which were used exclusively for quality assurance purposes and utilized exclusively within a physician’s credentialing file. The Superior Court reversed the trial court’s opinion stating that the documents were generated and used exclusively by the appellant’s peer review department.

In Scrima v. UPMC Mercy Hospital, 161 Pitts. Leg. J. 568-69 (2013), a recent opinion dated September 9, 2013, the plaintiffs requested documents created by the hospital staff relevant to the injuries sustained to the patient-plaintiff while under the hospital’s care. These documents consisted of a timeline of events as well as a re-education plan created by the hospital staff.

The hospital claimed that these documents were created for improving hospital care following the receipt of an incident report. The plaintiffs argued that the documents were not prepared solely for peer review and contained factual information otherwise available from original sources. The court held that the documents were protected by peer review. In its opinion, the court noted that the nurses who prepared and reviewed the documents testified that each was generated for the purpose of evaluating the conduct of the medical staff and, if necessary, re-educating the staff regarding future procedures. The court further stated that even if some of the factual information contained within the subject documents is available through original source, that alone does not render the documents discoverable.

In conclusion, while sifting through the hundreds (and sometimes thousands) of pages of medical records, it is important to think of and analyze the purpose of each document. Every defense attorney should ask himself or herself the following questions:  What is the document? Where did it come from? What is its purpose? Why was it created? Is it relevant to the plaintiff’s claim? And, if so, is it protected from disclosure? These steps will help with the proper representation of your client during the discovery process.

As appeared in:  The Legal Intelligencer, 3/18/2014

Reprinted with permission from the 3/18/2014 edition of The Legal Intelligencer© 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. 
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Ron G. Jones