Bethel v. United States

242 F.R.D. 580, 2007 U.S. Dist. LEXIS 28014
CourtDistrict Court, D. Colorado
DecidedApril 16, 2007
DocketCivil Action No. 05-cv-01336-PSF-BNB
StatusPublished
Cited by4 cases

This text of 242 F.R.D. 580 (Bethel v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bethel v. United States, 242 F.R.D. 580, 2007 U.S. Dist. LEXIS 28014 (D. Colo. 2007).

Opinion

ORDER

BOLAND, United States Magistrate Judge.

This matter is before me on the Plaintiffs’ Motion to Compel Discovery Responses and Request for Forthwith Hearing [Doc. # 139, filed 2/16/2007] (the “Motion to Compel”). I held a hearing on the Motion to Compel, ruled on some of the issues raised, and took some issues under advisement. I now GRANT IN PART and DENY IN PART the Motion to Compel with respect to the issues taken under advisement.

I.

This is an action for damages under the Federal Tort Claims Act (“FTCA”) arising out of injuries sustained by David Bethel while undergoing surgery at the Veterans Administration Medical Center in Denver, Colorado, on September 10, 2003. Dr. Robin Slover, M.D., was the anesthesiologist during that surgery in question. Although Dr. Slo-ver has been dismissed as a party to the suit, the United States has identified her as a nonparty at fault.

The plaintiffs describe the facts underlying their claims as follows:

On September 10, 2003, Mr. Bethel was scheduled to undergo a surgical procedure to repair an anal fistulectomy. Mr. Bethel was taken to an operating room and administered 2 mg of Versed. After the administration of Versed, Mr. Bethel became agitated and experienced obvious trouble breathing____ During the failed attempts to intubate Mr. Bethel, Mr. Be-thel’s arterial oxygen percent saturation failed to register on the monitors. Chest compressions were preformed on Mr. Be-thel for approximately 10 minutes. Ultimately, an emergency tracheotomy was performed. However, as a result of the multiple failed and inadequate attempts to intubate Mr. Bethel and the negligent administration and management of anesthesia, Mr. Bethel suffered cardiac arrest and significant hypoxia, lasting between 10 and 20 minutes.

Scheduling Order [Doc. # 118, filed 11/21/2006] at p. 2. As a result, Mr. Bethel suffered a disabling brain injury.

At issue here are the following requests for production of documents served by the plaintiffs on the United States:

REQUEST NO. 9: Produce any and all documents pertaining, in any way, to Robin Slover, M.D. This request specifically includes, but is not limited to, the following:
* * %
(b) Patient outcome information (see Anesthesiology Contract, p. 10) reported by or about Dr. Slover prior to September 10, 2003;
(c) Morbidity and mortality reports pertaining to Dr. Slover prior to September 10, 2003, including any documents pertaining to Dr. Slover maintained by VAMC’s risk management or by the U.S. Attorney’s Office;
^ $
(e) Chief of staffs verification (Staff Bylaws, Article V, Section 6) and audits of records to ensure Dr. Slover’s Compliance with the Staff Rules and Bylaws;
(f) Documents pertaining to “organizational performance improvement,” “patient care evaluation” and “ongoing performance improvement peer review” involving Dr. Slover, including any such reviews conducted in connection with Mr. Bethel (Staff, Section 8(A)(2), (3) and (6));
[583]*583(j) Minutes of all Medical Staff Meetings at which Dr. Slover was addressed or discussed ____

Motion to Compel at Exh. 2, pp. 1-3.

The United States responded to these requests as follows:

[ (b) ] In response to (b) above, outcome data for Dr. Slover is found in the Peer Review folder that is maintained in the Anesthesiology Office. Peer Review documents have statutory protection as they contain information regarding an activity carried out by or for the Department for the purpose of improving the utilization of health resources in Department health care facilities as contained under 38 U.S.C. § 5705 and VHA Directive 2002-043, Quality Management (QM) and Patient Safety Activities That Can Generate Confidential Documents. See attached privilege log.

Defendant United States’ Second Supplemental Response to Plaintiffs’ Fourth Set of Discovery to Defendant United States of America (the “Second Supplemental Response”), Exh. H at p. 3.

(c) The VA does not have any documents responsive to this request pursuant to the VA record retention policies. Furthermore, if this information were available, this information is protected under the VA quality assurance privilege and precluded from being produced. See, 38 U.S.C. § 5705.

Motion to Compel at Exh. 2, p. 4.

[ (e) ] In response to (e) above, the information requested is protected under the VA quality assurance privilege and is precluded from being produced. See, 38 U.S.C. § 5705. However, without waiving this objection, this function is completed by the Service Chief in the Peer Review Process. Please see Response to Request for Production 9(b) above. Please see privilege log.
[(f)] In response to (f) above, upon further diligent search of documents, some quality assurance documents have been found responsive to this request. However, this information is protected under the VA quality assurance privilege and is precluded from being produced. See, 38 U.S.C. § 5705. Please see privilege log. [ (j) ] In response to (j) above, diligent search pursuant to the continuing duty to supplement discovery has revealed the existence of August 29, 2002 minutes of the Professional Standards Board. A redacted copy of this set of minutes is attached as Attachment Q.

Second Supplemental Response at pp. 3-4.

The United States has prepared a privilege log, see United States’ Privilege Log—Medical Malpractice Litigation 3/30/2007 (the “Privilege Log”), identifying 29 responsive documents withheld as privileged pursuant to 38 U.S.C. § 5705. The plaintiffs dispute the applicability of the privilege.

II.

Discovery in the federal courts is governed by the Federal Rules of Civil Procedure, regardless of whether jurisdiction is based on a federal question or diversity of citizenship. Atteberry v. Longmont United Hospital, 221 F.R.D. 644, 646 (D.Colo.2004). Where, as here, there is a claim that discovery should not be had based on a privilege, I must determine whether federal or state law governs the existence of the claimed privilege. Id. Federal law governs the application of privileges in cases, like this one, brought under the Federal Tort Claims Act. Syposs v. United States, 179 F.R.D. 406, 411 (W.D.N.Y.1998); Galarza v. United States, 179 F.R.D. 291, 293 (S.D.Cal.1998).

The party asserting a privilege has the burden of showing that the privilege applies. Atteberry, 221 F.R.D. at 649; Epling v. UCB Films, Inc., 2000 WL 1466216 *19 (D. Kan. Aug. 7, 2000).

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Bluebook (online)
242 F.R.D. 580, 2007 U.S. Dist. LEXIS 28014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bethel-v-united-states-cod-2007.