LOUISE FREDERICK, ET AL NO. 24-C-526 C/W 24-C-528 VERSUS FIFTH CIRCUIT ST. CHARLES SURGICAL HOSPITAL, LLC, ET AL COURT OF APPEAL
C/W STATE OF LOUISIANA
LOUISE FREDERICK WIFE OF/AND STEVEN FREDERICK
VERSUS
ST. CHARLES SURGICAL HOSPITAL, LLC, ET AL
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 807-181, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
December 23, 2024
JOHN J. MOLAISON, JR. JUDGE
Panel composed of Judges Jude G. Gravois, John J. Molaison, Jr., and Timothy S. Marcel
WRIT GRANTED IN PART JJM JGG TSM COUNSEL FOR DEFENDANT/RELATOR, THE AMERICAN BOARD OF ORTHOPAEDIC SURGERY Melissa M. Lessell Casey B. Wendling
COUNSEL FOR DEFENDANT/RELATOR, ALEXIS WAGUESPACK, MD Bryan J. Knight Mark E. Kaufman
COUNSEL FOR PLAINTIFF/RESPONDENT, STEVEN FREDERICK AND LOUISE FREDERICK Thomas C. Wicker, IV Vincent E. Odom T. Carey Wicker, III Michael S. Sepcich Davida F. Packer MOLAISON, J.
The American Board of Orthopaedic Surgery (“ABOS”) and Alexis
Waguespack, M.D., seek a review of the October 7, 2024 trial court judgment that
ordered ABOS to produce all documents listed in ABOS’ “privilege log” to the
plaintiffs. We grant this writ application in part for the following reasons.
PROCEDURAL HISTORY
This writ stems from a suit filed by the plaintiffs against Dr. Waguespack, a
board-certified orthopaedic surgeon, alleging that Dr. Waguespack committed
medical malpractice in her treatment of Mr. Frederick. The plaintiffs issued a
subpoena duces tecum to ABOS, which is not a party to the lawsuit, requesting its
file on Dr. Waguespack. ABOS and Dr. Waguespack filed motions for protective
orders in response to the subpoena. After an in-camera inspection, the trial judge
ordered the production of the ABOS file, except for the ABOS “Diplomate
Database notes.” These timely writ applications followed. 1
LAW AND DISCUSSION
According to the writ applications, ABOS is an organization established to
maintain standards for the competence and education of board-certified
orthopaedic surgeons. As part of the board certification process, ABOS reviews the
credentials and practices of voluntary candidates for board certification and issues
certificates to physicians who meet the criteria established by ABOS. ABOS
explains that to assess a physician’s competence, it utilizes a peer-review process.
As part of this process, an orthopaedic surgeon seeking certification or
recertification must produce a list of names and email addresses of practice
partners, hospital chiefs of various departments, and other orthopaedic surgeons
familiar with the applicant’s practice. ABOS emails a peer-review survey to each
1 Dr. Waguespack’s writ application seeking review of the October 7, 2024 judgment is consolidated with the instant writ application.
24-C-526 C/W 24-C-528 1 of those listed, asking for feedback regarding the surgeon’s patient-care skills,
surgical skills, behavior, and communication. This process includes secondary
screenings and confidential interviews. The ABOS Credentials Committee
receives this information. ABOS requires the applicants to sign an agreement
stating that they will never request to see these surveys.
On June 27, 2024, the plaintiffs served a notice of records deposition on
ABOS, requesting:
1. Any and all documentation, electronically stored or otherwise, or correspondence and attachments thereto between the American Board of Orthopaedic Surgery and Alexis Waguespack, M.D., for the dates of January 1, 2014 until the present.
2. Any and all documentation, electronically stored or otherwise, in connection with Alexis Waguespack, M.D.’s board certification status with the American Board of Orthopaedic Surgery.
3. Any and all documentation, electronically stored or otherwise, pertaining to the certification and/or recertification of Alexis Waguespack, M.D.
In this writ application, the relators argue that the documents requested by
the plaintiffs are protected by Louisiana R.S. 13:3715.3, which provides in section
(A)(2):
... 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 be 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.
24-C-526 C/W 24-C-528 2 The Louisiana Supreme Court has recognized that R.S. 13:3715.3 does not provide
a blanket privilege to all peer review committee documents, explaining we must
balance the protection under the statute with the broad scope of discovery under
La. C.C.P. art. 1422. In Smith v. Lincoln Gen. Hosp., 605 So.2d 1347, 1348 (La.
1992), the Louisiana Supreme Court addressed the scope of the privilege created
by La. R.S. 13:3715.3, stating the legislature intended to provide confidentiality to
the records and proceedings of hospital committees, not to insulate from discovery
specific facts merely because they have come under the review of any particular
committee. The Court held that privileges, which are in derogation of such broad
discovery rules, are to be strictly interpreted, noting that the statute’s intent is “not
to insulate from discovery certain facts merely because they have come under the
review of any particular committee.” Id. The Court has continued to instruct that
courts should not interpret R.S. 13:3715.3 too broadly and has remanded matters
for an in-camera inspection to determine whether or not the privilege created by
the statute protects each item of information sought from the medical defendant.
See, Sepulvado v. Bauman, 99-3326 (La. 12/17/99), 753 So. 2d 207, and
Gauthreaux v. Frank, 95-1033 (La. 6/16/95), 656 So. 2d 634, 634.
In Gauthreaux, the Court stated, “[i]n the present case, the trial court
interpreted R.S.13:3715.3 as protecting from discovery any information passing
before a hospital committee or otherwise discussed in a committee meeting. Such a
reading of the peer review committee privilege is clearly too expansive in light of
our decision in Smith ...” and instructed the trial court to re-examine, in-camera, if
necessary, the discovery requests made by the plaintiff to determine whether or not
the privilege created by the statute protects each item of information sought from
the medical center defendant. The Court repeated these instructions in Sepulvado,
where the Court, citing Smith, remanded the case to the trial court with instructions
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LOUISE FREDERICK, ET AL NO. 24-C-526 C/W 24-C-528 VERSUS FIFTH CIRCUIT ST. CHARLES SURGICAL HOSPITAL, LLC, ET AL COURT OF APPEAL
C/W STATE OF LOUISIANA
LOUISE FREDERICK WIFE OF/AND STEVEN FREDERICK
VERSUS
ST. CHARLES SURGICAL HOSPITAL, LLC, ET AL
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 807-181, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
December 23, 2024
JOHN J. MOLAISON, JR. JUDGE
Panel composed of Judges Jude G. Gravois, John J. Molaison, Jr., and Timothy S. Marcel
WRIT GRANTED IN PART JJM JGG TSM COUNSEL FOR DEFENDANT/RELATOR, THE AMERICAN BOARD OF ORTHOPAEDIC SURGERY Melissa M. Lessell Casey B. Wendling
COUNSEL FOR DEFENDANT/RELATOR, ALEXIS WAGUESPACK, MD Bryan J. Knight Mark E. Kaufman
COUNSEL FOR PLAINTIFF/RESPONDENT, STEVEN FREDERICK AND LOUISE FREDERICK Thomas C. Wicker, IV Vincent E. Odom T. Carey Wicker, III Michael S. Sepcich Davida F. Packer MOLAISON, J.
The American Board of Orthopaedic Surgery (“ABOS”) and Alexis
Waguespack, M.D., seek a review of the October 7, 2024 trial court judgment that
ordered ABOS to produce all documents listed in ABOS’ “privilege log” to the
plaintiffs. We grant this writ application in part for the following reasons.
PROCEDURAL HISTORY
This writ stems from a suit filed by the plaintiffs against Dr. Waguespack, a
board-certified orthopaedic surgeon, alleging that Dr. Waguespack committed
medical malpractice in her treatment of Mr. Frederick. The plaintiffs issued a
subpoena duces tecum to ABOS, which is not a party to the lawsuit, requesting its
file on Dr. Waguespack. ABOS and Dr. Waguespack filed motions for protective
orders in response to the subpoena. After an in-camera inspection, the trial judge
ordered the production of the ABOS file, except for the ABOS “Diplomate
Database notes.” These timely writ applications followed. 1
LAW AND DISCUSSION
According to the writ applications, ABOS is an organization established to
maintain standards for the competence and education of board-certified
orthopaedic surgeons. As part of the board certification process, ABOS reviews the
credentials and practices of voluntary candidates for board certification and issues
certificates to physicians who meet the criteria established by ABOS. ABOS
explains that to assess a physician’s competence, it utilizes a peer-review process.
As part of this process, an orthopaedic surgeon seeking certification or
recertification must produce a list of names and email addresses of practice
partners, hospital chiefs of various departments, and other orthopaedic surgeons
familiar with the applicant’s practice. ABOS emails a peer-review survey to each
1 Dr. Waguespack’s writ application seeking review of the October 7, 2024 judgment is consolidated with the instant writ application.
24-C-526 C/W 24-C-528 1 of those listed, asking for feedback regarding the surgeon’s patient-care skills,
surgical skills, behavior, and communication. This process includes secondary
screenings and confidential interviews. The ABOS Credentials Committee
receives this information. ABOS requires the applicants to sign an agreement
stating that they will never request to see these surveys.
On June 27, 2024, the plaintiffs served a notice of records deposition on
ABOS, requesting:
1. Any and all documentation, electronically stored or otherwise, or correspondence and attachments thereto between the American Board of Orthopaedic Surgery and Alexis Waguespack, M.D., for the dates of January 1, 2014 until the present.
2. Any and all documentation, electronically stored or otherwise, in connection with Alexis Waguespack, M.D.’s board certification status with the American Board of Orthopaedic Surgery.
3. Any and all documentation, electronically stored or otherwise, pertaining to the certification and/or recertification of Alexis Waguespack, M.D.
In this writ application, the relators argue that the documents requested by
the plaintiffs are protected by Louisiana R.S. 13:3715.3, which provides in section
(A)(2):
... 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 be 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.
24-C-526 C/W 24-C-528 2 The Louisiana Supreme Court has recognized that R.S. 13:3715.3 does not provide
a blanket privilege to all peer review committee documents, explaining we must
balance the protection under the statute with the broad scope of discovery under
La. C.C.P. art. 1422. In Smith v. Lincoln Gen. Hosp., 605 So.2d 1347, 1348 (La.
1992), the Louisiana Supreme Court addressed the scope of the privilege created
by La. R.S. 13:3715.3, stating the legislature intended to provide confidentiality to
the records and proceedings of hospital committees, not to insulate from discovery
specific facts merely because they have come under the review of any particular
committee. The Court held that privileges, which are in derogation of such broad
discovery rules, are to be strictly interpreted, noting that the statute’s intent is “not
to insulate from discovery certain facts merely because they have come under the
review of any particular committee.” Id. The Court has continued to instruct that
courts should not interpret R.S. 13:3715.3 too broadly and has remanded matters
for an in-camera inspection to determine whether or not the privilege created by
the statute protects each item of information sought from the medical defendant.
See, Sepulvado v. Bauman, 99-3326 (La. 12/17/99), 753 So. 2d 207, and
Gauthreaux v. Frank, 95-1033 (La. 6/16/95), 656 So. 2d 634, 634.
In Gauthreaux, the Court stated, “[i]n the present case, the trial court
interpreted R.S.13:3715.3 as protecting from discovery any information passing
before a hospital committee or otherwise discussed in a committee meeting. Such a
reading of the peer review committee privilege is clearly too expansive in light of
our decision in Smith ...” and instructed the trial court to re-examine, in-camera, if
necessary, the discovery requests made by the plaintiff to determine whether or not
the privilege created by the statute protects each item of information sought from
the medical center defendant. The Court repeated these instructions in Sepulvado,
where the Court, citing Smith, remanded the case to the trial court with instructions
to conduct an in-camera inspection of all materials requested by the plaintiffs,
24-C-526 C/W 24-C-528 3 which the defendants claimed are protected under the statutory privilege. We
construe immunity statutes strictly against the party claiming immunity, and we
construe any doubts against the application of immunity based on a specific set of
facts. Tebault v. E. Jefferson Gen. Hosp., 18-539 (La. App. 5 Cir. 3/25/19), writ
denied, 19-0641 (La. 6/17/19), 273 So.3d 1211.
In Fields v. Ochsner Med. Ctr., Kenner, LLC, 22-64 (La. App. 5 Cir.
5/11/22), this Court ordered an in-camera review to ensure the appropriate
application of the privilege claim for each claim.
In the case before us, the trial court performed an in-camera inspection and
found that none of the documents, except the “ABOS Diplomate Database Notes,
are protected by the peer-review privilege provided by La. R.S. 13:37 15.3.” A
trial court’s ruling regarding applying a statutory privilege after an in-camera
inspection involves a question of law and is subject to de novo review. Talley v.
Louisiana Dept. of Transportation and Development, 22-983 (La. App. 1 Cir.
2/24/23), 361 So.3d 1041, 1050, writ denied, 23-557 (La. 6/7/23), 361 So.3d 976.
We will review the trial court’s October 7, 2024 judgment de novo.
ABOS filed the documents at issue in this Court under seal along with their
writ application. Our review of these documents indicates that some of these
documents are protected by La. R.S. 13:3715.3 because they are internal
documents produced and maintained by ABOS in connection with its peer review
process regarding Dr. Waguespack’s board certification and recertification process.
These documents, page numbers 8-21, 29-35, 42, 50-58, are protected because they
consist of “... records, notes, data, studies, analyses, exhibits, and proceedings” of
the peer review process under the language of R.S. 13:3715.3. These records
regarding Dr. Waguespack relate to the ABOS peer review committee’s analysis
and conclusions regarding her certification. Because these requested documents are
24-C-526 C/W 24-C-528 4 privileged, they are protected from disclosure and are not discoverable by the
plaintiffs in this litigation.
However, certain documents in the sealed documents are not privileged
because they merely contain factual information that is discoverable. These include
Dr. Waguespack’s applications for board certification, numbered pages 1-7, 38-41,
and 46-49.2 In addition, the letters sent to Dr. Waguespack from ABOS, pages 22,
28, 36, 37, 43-45, and 59-62, are not privileged because ABOS waived any
privilege that protected these letters from discovery when mailing the letters to Dr.
Waguespack; under her agreement with ABOS and Louisiana R.S. 13:3715.3, Dr.
Waguespack is not entitled to any information or data obtained by ABOS. As such,
these letters merely contain factual information which is discoverable.
CONCLUSION
For the preceding reasons, we grant this writ application in part and amend
the trial court’s October 7, 2024 judgment to exclude pages 8-21, 29-35, 42, 50-58
of the documents filed under seal in this Court from discovery.
WRIT GRANTED IN PART
2 In response to questions from the panel during oral argument before this Court, counsel for ABOS conceded that Dr. Waguespack’s applications for board certification are not protected under La. R.S. 13:3715.3.
24-C-526 C/W 24-C-528 5 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
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24-C-526 C/W 24-C-528 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE) MELISSA M. LESSELL (RELATOR) MARK E. KAUFMAN (RESPONDENT) MICHAEL S. SEPCICH (RESPONDENT) T. CAREY WICKER, III (RESPONDENT) THOMAS C. WICKER, IV (RESPONDENT) VINCENT E. ODOM (RESPONDENT)
MAILED SEAN M. CASEY (RESPONDENT) DAVIDA F. PACKER (RESPONDENT) BRYAN J. KNIGHT (RESPONDENT) ATTORNEY AT LAW ATTORNEY AT LAW ATTORNEY AT LAW 1 SANCTUARY BOUELVARD 1100 POYDRAS STREET 201 ST. CHARLES AVENUE SUITE 202 SUITE 2950 SUITE 3700 MANDEVILLE, LA 70471 NEW ORLEANS, LA 70163 NEW ORLEANS, LA 70170
CASEY B. WENDLING (RELATOR) ATTORNEY AT LAW 755 MAGAZINE STREET NEW ORLEANS, LA 70130