Balk v. Dunlap

163 F.R.D. 360, 1995 U.S. Dist. LEXIS 13117, 1995 WL 529939
CourtDistrict Court, D. Kansas
DecidedSeptember 5, 1995
DocketCiv. A. No. 95-2080-GTV
StatusPublished
Cited by3 cases

This text of 163 F.R.D. 360 (Balk v. Dunlap) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Balk v. Dunlap, 163 F.R.D. 360, 1995 U.S. Dist. LEXIS 13117, 1995 WL 529939 (D. Kan. 1995).

Opinion

MEMORANDUM AND ORDER

RUSHFELT, United States Magistrate Judge.

The court has before it the Objections to and Motion to Modify Subpoena Issued to [361]*361Mercy Hospital of Fort Scott, Kansas (doc. 10). Pursuant to Fed.R.Civ.P. 45(c)(2)(B) and 45(c)(3)(A), Mercy Hospital (Mercy) as a non-party thereby seeks to avoid production of its cautery machines and related documents and “all original minutes of the OB/ GYN staff for 1990 to the present time.” In response plaintiff states it has completed its inspection of the physical equipment and related materials. The objections and motion, consequently, are moot in part. Plaintiff opposes, however, the objections and motion with respect to the staff minutes.

In its objections Mercy identifies responsive documents to be OB/GYN Department Medical Staff Meeting Minutes. It describes these as notes of the discussions which occur during monthly meetings of its OB/GYN medical staff about the following matters: quality of care; potential problems with patient care; review of the care provided by each of the members of the department; compliance with the standard of care required of its members; peer review; quality assurance; and risk management. The objections also state the minutes are prepared approximately monthly, coinciding with each meeting, by the current medical staff secretary for the members of the department for their corporate review. They also state the minutes are prepared and maintained as part of the requirements and procedures for peer review and risk management imposed upon Mercy as a hospital by K.S.A. 65-4915, 65^922, 65-4923, and 65-4925.

K.S.A. 65-4915(b) protects peer review documents from discovery and subpoena as follows:

Except as provided by K.S.A. 60-437 and amendments thereto and by subsections (c) and (d), the reports, statements, memoranda, proceedings, findings and other records of peer review committees or officers shall be privileged and shall not be subject to discovery, subpoena or other means of legal compulsion for their release to any person or entity or be admissible in evidence in any judicial or administrative proceeding. Information contained in such records shall not be discoverable or admissible at trial in the form of testimony by an individual who participated in the peer review process. This privilege may be claimed by the legal entity creating the peer review committee or officer, or by the commissioner of insurance for any records or proceedings of the board of governors.

K.S.A. 65-4915(a)(3) defines “peer review” as follows:

“Peer review” means any of the following functions:
(A) Evaluate and improve the quality of health care services rendered by health care providers;
(B) determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care;
(C) determine that the cost of health care rendered was considered reasonable by the providers of professional health services in this .area;
(D) evaluate the qualifications, competence and performance of the providers of health care or to act upon matters relating to the discipline of any individual provider of health care;
(E) reduce morbidity or mortality;
(F) establish and enforce guidelines designed to keep within reasonable bounds the cost of health care;
(G) conduct of research;
(H) determine if a hospital’s facilities are being properly utilized;
(I) supervise, discipline, admit, determine privileges or control members of a hospital’s medical staff;
(J) review the professional qualifications or activities of health care providers;
(K) evaluate the quantity, quality and timeliness of health care services rendered to patients in the facility;
(L) evaluate, review or improve methods, procedures or treatments being utilized by the medical care facility or by health care providers in a facility rendering health care.

K.S.A. 65-4925 similarly protects risk management reports and records from discovery and subpoena:

[362]*362Reports, records and proceedings confidential and privileged, (a) The reports and records made pursuant to K.S.A. 65-4923 or 65-4924, and amendments thereto, shall be confidential and privileged, including:
(1) Reports and records of executive or review committees of medical care facilities or of a professional society or organization;
(2) reports and records of the chief of the medical staff, chief administrative officer or risk manager of a medical care facility;
(3) reports and records of any state licensing agency or impaired provider committee of a professional society or organization; and
(4) reports made pursuant to this act to or by a medical care facility risk manager, any committee, the board of directors, administrative officer or any consultant.
Such reports and records shall not be subject to discovery, subpoena or other means of legal compulsion for their release to any person or entity and shall not be admissible in any civil or administrative action other than a disciplinary proceeding by the appropriate state licensing agency.
(b) No person in attendance at any meeting of an executive or review committee of a medical care facility or of a professional society or organization while such committee is engaged in the duties imposed by K.S.A. 65-4923 shall be compelled to testify in any civil, criminal or administrative action, other than a disciplinary proceeding by the appropriate licensing agency, as to any committee discussions or proceedings.
(c) No person in attendance at any meeting of an impaired provider committee shall be required to testify, nor shall the testimony of such person be admitted into evidence, in any civil, criminal or administrative action, other than a disciplinary proceeding by the appropriate state licensing agency, as to any committee discussions or proceedings.
(d) Any person or committee performing any duty pursuant to this act shall be designated a peer review committee or officer pursuant to K.S.A. 65-4915

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Cite This Page — Counsel Stack

Bluebook (online)
163 F.R.D. 360, 1995 U.S. Dist. LEXIS 13117, 1995 WL 529939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/balk-v-dunlap-ksd-1995.