Nichols v. Strehle

32 Mass. L. Rptr. 363
CourtMassachusetts Superior Court
DecidedNovember 4, 2014
DocketNo. MICV201304686F
StatusPublished

This text of 32 Mass. L. Rptr. 363 (Nichols v. Strehle) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nichols v. Strehle, 32 Mass. L. Rptr. 363 (Mass. Ct. App. 2014).

Opinion

Curran, Dennis J., J.

Before this Court is a contested subpoena duces tecum served on the Massachusetts Board of Registration in Medicine by the plaintiff Mrs. Patricia Nichols. The subpoena seeks to compel the production of documents held by the Board in connection with an investigation of the defendant Dr. Emily Strehle, after Mrs. Nichols filed a complaint with that Board.

Dr. Strehle moves this Court to quash the subpoena, claiming that the documents are privileged from disclosure under G.L.c. 112, §5, G.L.c. Ill, §204, and G.L.c. 4, §7. Mrs. Nichols obviously opposes the motion, arguing that these protections do not extend to those documents, and that the Board must therefore produce the documents in response to the subpoena, under G.L.c. 112, §5.

For the following reasons Dr. Strehle’s motion to quash the subpoena is ALLOWED in part, and DENIED in part.

FACTUAL BACKGROUND

Emily Strehle, D.O. is the obstetrician/gynecologist whom Mrs. Patricia Nichols saw for a routine gynecological exam on August 15, 2012. See Board of Registration in Medicine Complaint Form; Plaintiffs Opposition at 2. During her exam, Dr. Strehle told Mrs. Nichols that she may have a cervical polyp, but Mrs. Nichols declined to have it removed at that time. See Board of Registration Complaint at 2. When Mrs. Nichols returned to Dr. Strehle on September 11, 2012, she agreed to have the polyp removed, although she did not sign a consent form. See id. Dr. Strehle removed the growth, which she determined was a fibroid, not a polyp, as she originally had thought. See id. When Mrs. Nichols returned home, she experienced excessive bleeding and significant pain. See id. Mrs. Nichols called Dr. Strehle and returned to Dr. Strehle’s office that afternoon. See id. There, Dr. Strehle performed a painful electrosurgical cauterization procedure in an attempt to stop the bleeding. See id. at 3. When that procedure proved unsuccessful, Dr. Strehle transferred Mrs. Nichols to the operating room, where she performed a total abdominal hysterectomy, and a general surgeon performed an additional procedure. See id. at 3. Since the surgery, Mrs. Nichols has experienced extreme pain and serious side effects. See id. at 3-4.

Mrs. Nichols filed a complaint with the Board of Registration in Medicine, alleging that Dr. Strehle was negligent in her treatment and also committed several ethical violations. See Board of Registration Complaint at 1. As a result, the Board initiated an investigation; that investigation continues to this day. See Defendant’s Motion at 3.

Mrs. Nichols served a subpoena duces tecum on the Board on September 11, 2014 (see Subpoena at 2), seeking “(a]ll records” relating to Mrs. Nichols’s complaint against Dr. Strehle. See Subpoena, Schedule A. The subpoena further instructs that the documents produced should include “all documents prepared or compiled by the Board of Registration in Medicine and all documents submitted to the Board of Registration in Medicine by any person or entity following the submission of Ms. Nichols’ complaint.” See id.

Dr. Strehle moves to quash this subpoena, claiming that the documents are privileged from disclosure under G.L.c. 112, §5, G.L.c. Ill, §204, and G.L.c. 4, §7. Mrs. Nichols opposes the motion, arguing that these protections do not extend to the sought-after documents, and that the Board must therefore produce the documents under G.L.c. 112, §5.

DISCUSSION

Chapter 112, section 5 of the Massachusetts General Laws calls for the confidentiality of documents and records held by the board of professional review in connection with an investigation. However, the statute delineates two exceptions under which disclosure of the documents would be permissible. The permissibility of the disclosure of the board’s documents turns on the application of the second exception and related state privacy laws.

I. Mrs. Nichols Is Entitled to Documents Related to the Board’s Investigation of Dr. Strehle by Compelling Their Production by Subpoena.

First, disclosure of the documents is appropriate after the Board’s disposal of the matter. Because the [364]*364Board’s investigation of Ms. Nichols’ complaint is ongoing, this exception does not apply to the present case.

However, the Board may disclose otherwise confidential documents in response to “requests from the person under investigation, the complainant, or other state or federal agencies, boards or institutions as the board shall determine by regulations.” G.L.c. 112, §5. Mrs. Nichols is correct in her argument that she is entitled to access the investigation-related documents because of her status as the complainant who initiated the investigation.

In Cronin v. Strayer, 392 Mass. 525, 526-27 (1984), a case that addressed an issue similar to the one presently before the court, the Supreme Judicial Court agreed with the Superior Court’s denial of the Massachusetts Medical Society’s motion to quash a subpoena duces tecum requesting the production of documents. In that case, a physician, who was the subject of a committee review, served the Massachusetts Medical Society and the reviewing committee with a subpoena duces tecum to produce documents related to the committee’s investigation. The Medical Society and the committee both moved to quash the subpoena, claiming that the documents were privileged. The Supreme Judicial Court noted that although the documents related to the investigation were statutorily privileged, the privilege did not extend to documents requested by the subject of the investigation. See G.L.c. 112, §5; Cronin, 392 Mass. at 533.

The present case is substantially similar. Like the exception to confidentiality provided for the subject of the investigation in Cronin, Mrs. Nichols is similarly entitled to disclosure of the documents because she is the board investigation’s complainant — an individual to whom the privilege of confidentiality does not apply — and thus, is entitled to any documents related to the investigation.

Moreover, the Massachusetts law permits document disclosure, at any point during the Board’s investigation, when compelled by a subpoena duces tecum. G.L.C. 112, §5. The request made here by Mrs. Nichols fits squarely within the terms of this permitted disclosure. As the investigation complainant, Mrs. Nichols seeks to compel production of investigation-related documents by a subpoena duces tecum As permitted by the statute, Mrs. Nichols may do so, and need not wait for the conclusion of the investigation, as Dr. Strehle argues.

II. Certain Categories of Documents Are Privileged from Disclosure in the Board’s Response to the Subpoena

Having concluded that Mrs. Nichols may compel the production of investigation-related documents, it remains to be determined whether documents privileged by other state or federal laws would prohibit their disclosure. The exceptions to confidentiality provided in G.L.c. 112, section 5 are subject to any restrictions found in other laws or the Board’s regulations. Consequently, privilege afforded by other laws would trump the availability of the exceptions and prohibit the documents’ disclosure.

As Mrs. Nichols presents, G.L.c. Ill, section 204 protects from compulsion by subpoena or discovery the reports and records of medical peer review committees. G.L.c. Ill, §204(a).

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Related

Beth Israel Hospital Ass'n v. Board of Registration in Medicine
515 N.E.2d 574 (Massachusetts Supreme Judicial Court, 1987)
Cronin v. Strayer
467 N.E.2d 143 (Massachusetts Supreme Judicial Court, 1984)
Wakefield Teachers Ass'n v. School Committee
731 N.E.2d 63 (Massachusetts Supreme Judicial Court, 2000)
In re a Subpoena Duces Tecum
840 N.E.2d 470 (Massachusetts Supreme Judicial Court, 2006)
Pintado v. National Carpentry Contractors, Inc.
26 Mass. L. Rptr. 255 (Massachusetts Superior Court, 2009)

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Bluebook (online)
32 Mass. L. Rptr. 363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nichols-v-strehle-masssuperct-2014.