In Re: Medical Review Panel Proceeding of Travis Porche (D), Pcf File No. 2021-00615.

• Court: Louisiana Court of Appeal
• Decided: December 8, 2022
• Docket: 2022-C-0707
• Status: Published

Opinion

IN RE: MEDICAL REVIEW * NO. 2022-C-0707 PANEL PROCEEDING OF TRAVIS PORCHE (D), PCF * FILE NO. 2021-00615 COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2022-02412, DIVISION “L” Honorable Kern A. Reese, Judge ****** Judge Joy Cossich Lobrano ****** (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Rachael D. Johnson)

David Alan Abramson Beth Abramson LEWIS, KULLMAN, STERBCOW &ABRAMSON, LLC 601 Poydras Street, Suite 2615 New Orleans, LA 70130

COUNSEL FOR RELATOR

Bryan J. Knight Mark E. Kaufman Niles, Bourque & Knight, LLC 201 St. Charles Avenue, Suite 3700 New Orleans, LA 70170

Guice Anthony Giambrone, III A. Rebecca Wilmore BLUE WILLIAMS, LLP 3421 N. Causeway Boulevard, Suite 900 Metairie, LA 70002 Harry Allan Rosenberg Maria Nan Alessandra David D. Haynes, Jr. PHELPS DUNBAR LLP 365 Canal Street, Suite 2000 New Orleans, LA 70130

COUNSEL FOR RESPONDENTS

WRIT GRANTED; VACATED AND REMANDED

DECEMBER 8, 2022 JCL Relator, Pamela Porche, seeks supervisory review of the district court’s

RLB September 26, 2022 ruling granting the Motions for Protective Order filed by Dr.

RDJ Eric Brooks, Nurse Practitioner Sydney Burchfield, and South Louisiana Medical

Associates (“SLMA”), Respondents.

On April 4, 2022, Relator filed a Request for Subpoena Duces Tecum

(“SDT”) and Notice of Deposition for Records Only for SLMA, then the current or

immediately former employer of Dr. Brooks and Ms. Burchfield. The SDT and

Notice of Deposition for Records Only requested production of documents

pertaining to the internal investigation or review of Ms. Burchfield and Dr. Brooks

as it pertains to Travis Porche and his treatment; written or recorded statements

obtained with respect to the treatment provided by Dr. Brooks and Ms. Burchfield

to Travis Porche; disciplinary records, complaints, and internal reviews associated

with Dr. Brooks and Ms. Burchfield; and the entire personnel file of Dr. Brooks

and Ms. Burchfield.

1 On April 27, 2022, Dr. Brooks and Ms. Burchfield filed a Motion for

Protective Order, or In the Alternative, an Order Limiting the Scope of Discovery,

arguing that the scope of the request was overly broad and intrusive as to privacy

interests because the matter is in the medical review panel stage and because

personnel files are primarily used for impeachment purposes. Further, they argued

the records sought by Relator are subject to the peer review privilege set forth in

La. R.S. 13:3715.31 and not subject to disclosure. SLMA filed a similar Motion on

April 29, 2022.

Relator filed an opposition to Respondents’ Motions on September 8, 2022.

Relator complained that Respondents have not identified any documents sought to

be produced, which they believe are subject to any privilege, and instead have

1 La. R.S. 13:3715.3 “was designed to protect the confidentiality of hospital peer review

committee records.” Gauthreaux v. Frank, 95-1033, p. 1 (La. 6/16/95), 656 So.2d 634, 634. In pertinent part, section (A)(2) of the statute provides:

… all records, notes, data, studies, analyses, exhibits, and proceedings of [a]ny hospital committee, the peer review committees of any medical organization, . . . group medical practice of twenty or more physicians, . . . or healthcare provider as defined in R.S. 40:1299.41(A), . . . including but not limited to the credentials committee, the medical staff executive committee, the risk management committee, or the quality assurance committee, any committee determining a root cause analysis of a sentinel event, established by the peer review committees of a medical organization . . . , shall he confidential wherever located and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee and shall not be available for discovery or court subpoena regardless of where located, except in any proceedings affecting the hospital staff privileges of a physician, dentist, psychologist, or podiatrist, the records forming the basis of any decision adverse to the physician, dentist, psychologist, or podiatrist may be obtained by the physician, dentist, psychologist, or podiatrist only. However, no original record or document, which is otherwise discoverable, prepared by any person, other than a member of the peer review committee or the staff of the peer review committee, may be held confidential solely because it is the only copy and is in the possession of a peer review committee.

2 argued a blanket privilege without identifying specifically those documents to

which any privilege attaches. Consequently, Relator maintained that Respondents

should be compelled to prepare and produce a privilege log of those documents for

an in camera inspection by the district court to determine whether the asserted peer

review privilege applies to shield the withheld document or any parts, from

discovery.

By judgment signed on September 26, 2022, the district court granted

Respondents’ Motions and issued an order protecting from discovery the

documents sought by Relator in her Notice of Deposition for Records Only and the

STD issued to SLMA.

Relator raises one assignment of error: the district court erred in granting

Respondents’ Motions for Protective Order without evidence that the requested

documents passed before a peer review committee and without conducting an in

camera inspection of the documents claimed to be protected by the privilege set

forth in La. R.S. 13:3715.3.

The standard of review of a judgment on a motion for protective order is that

of abuse of discretion. Doe v. La. Bd. of Ethics, 12-1169, p. 2 (La. App. 4 Cir.

3/13/13), 112 So.3d 339, 341. The abuse of discretion standard “is highly

deferential, but a district court necessarily abuses its discretion if its ruling is based

on an erroneous view of the law.” Id.

3 In Smith v. Lincoln General Hosp., the Louisiana Supreme Court addressed

the scope of the privilege created by La. R.S. 13:3715.3. The Court stated that the

provision was:

intended to provide confidentiality to the records and proceedings of hospital committees, not to insulate from discovery certain facts merely because they have come under the review of any particular committee. Such an interpretation could cause any fact which a hospital chooses to unilaterally characterize as involving information relied upon by one of the sundry committees formed to regulate and operate the hospital to be barred from an opposing litigant’s discovery regardless of the nature of that information.

605 So.2d 1347, 1348 (La. 1992). The Court further stated that:

when a plaintiff seeks information relevant to his case that is not information regarding the action taken by a committee or its exchange of honest self-critical study but merely factual accountings of otherwise discoverable facts, such information is not protected by any privilege as it does not come within the scope of information entitled to that privilege.

Id. The Court remanded the action to the district court to make an in camera

inspection of the records and determine to what extent they may be discoverable.

Id. See also Gauthreaux v. Frank, 95-1033 (La. 6/16/95), 656 So.2d 634 (finding

that La. R.S. 13:3715.3 does not shield any information passing before a hospital

committee or otherwise discussed in a committee meeting as that interpretation

was too expansive in light of the Smith decision); Sepulvado v. Bauman, 99-3326

(La. 12/17/99), 753 So.2d 207 (case remanded to the district court to conduct an in

camera inspection of all materials requested by plaintiffs on which defendant

asserted a peer review privilege).

4 For the foregoing reasons, we grant the writ and vacate the judgment of the

district court. We further remand the case to the district court to conduct an in

camera inspection of all documents requested by relator in the SDT and Notice of

Deposition for Records Only on which respondent asserts a peer review privilege,

and to determine whether the privilege provided under La. R.S. 13:3715.3 applies

to shield the withheld documents or any parts, from discovery.