Rutledge v. Elliot Health System, et al.

2018 DNH 015

• Court: District Court, D. New Hampshire
• Decided: January 17, 2018
• Docket: 17-cv-110-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Lonnie Rutledge

v. Civil No. 17-cv-110-JD Opinion No. 2018 DNH 015 Elliot Health System and Elliot Hospital

O R D E R

Lonnie Rutledge brings claims against her former employer,

Elliot Health System and Elliot Hospital, for age discrimination

and wrongful termination. She filed a motion for an expedited

order to compel the defendants to produce “(a) relevant

discovery related to the Elliot Hospital Exceptional Beginnings

program, and (b) the complete chart of the patient whose care at

the Elliot Hospital on May 22, 2014, was the basis for the

explanation by the Hospital of the reason for terminating Ms.

Rutledge’s [sic].” The defendants object.

In support, Rutledge states that Elliot Hospital “has

produced some documents related to both categories of the

documents” that she seeks to compel, but not all of the

documents she needs. In her motion, Rutledge did not identify

the specific request for production and the defendants’ response

that were the subject of her motion to compel. LR 37.1. In

their objection, the defendants represent that their responses to Rutledge’s third set of requests for production were not yet

due when Rutledge filed her motion to compel and that Rutledge’s

counsel did not confer in good faith with the defendants’

counsel before filing the motion to compel.1

Rutledge states in her reply that she is seeking to compel

responses to two requests that were sent in her first set of

requests for production of documents.2 The defendants provided

their responses to those requests on November 7, 2017. Rutledge

did not move to compel until December 28, 2017, and then sought

an expedited order in order to accommodate her deposition

schedule.3 Had Rutledge’s counsel addressed these issues in a

more prompt fashion, her current scheduling problems might have

been avoided.

Rutledge states that she asked for the following documents

in Request Number 8:

The investigation into the events of May 22, 2014, and the decision to terminate the employment of Lonnie Rutledge,

1 Rutledge’s counsel did not comply with Federal Rule of Civil Procedure 37(a)(1) that requires a motion to compel to “include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosures or discovery in an effort to obtain it without court action.”

2 Rutledge first filed a motion for leave to file a reply, as required under LR 7.1(e)(2). Then, before the deadline for the defendants’ response, Rutledge filed the reply. For that reason, the reply is not properly before the court.

3 In addition, by the time the motion was filed, the defendants’ counsel apparently had left on a family vacation.

2 including but not limited to the investigation and meeting associated with the EB Quality Board.

The response quoted by Rutledge is: “‘Elliot objects to Request

No. 3 on the basis of RSA 151:13-a.’”

RSA 151:13-a “protects the activities of any hospital

committee . . . ‘organized to evaluate matters relating to the

care and treatment of patients or to reduce morbidity and

mortality.’” Newland v. N. Country Healthcare, Inc., 2017 WL

6397723, at *2 (D.N.H. Dec. 14, 2017) (quoting In re K, 132 N.H.

4, 12-13 (1989)). Rutledge relies generally on Smith v. Alice

Peck Day Mem. Hosp., 148 F.R.D. 51 (D.N.H. 1993), without

analysis. In Smith, the court interpreted the application of

the protection provided by RSA 151:13-a and the exception

provided by RSA 151:13-a, II(a) for proceedings to revoke

physician’s hospital privileges. The court concluded that the

protection provided under RSA 151:13-a did not bar discovery in

federal court for physician revocation cases. Id. 148 F.R.D. at

54-56.

In Request Number 8, Rutledge asked for the following:

“‘All records relating to care provided to the patient involved

in the May 22, 2014, incident (reference Wellde testimony, at

page 80).’” The response was: “‘Elliott objects to providing

any records related to the care of the patient as this is

3 protected health information under HIPPA [sic].’”4 Rutledge

states in her reply that while she “appreciates HIPAA regulatory

concerns about confidentiality of patient information, . . .

redaction of the patient’s identity from the records should

satisfy those concerns.” In support, Rutledge cites 45 C.F.R.

§§ 160.103 and 164.512(e), along with cases applying those

regulations.

HIPAA protects the confidentiality of patients’ health-

related information. Sneed v. Pan Am. Hosp., 370 Fed. Appx. 47,

50 (11th Cir. 2010); Rodriguez v. City of Brunswick, 2017 WL

5598217, at *4 (D.N.J. Nov. 21, 2017). Applicable regulations,

however, allow disclosures of otherwise protected information in

certain circumstances. Northwestern Mem. Hosp. v. Ashcroft, 362

F.3d 923, 924-25 (7th Cir. 2004 (discussing § 164.512(e)).

Section 164.512(e) “create[s] a procedure for obtaining

authority to use medical records in litigation.” Id. at 926.

While patient consent is one means for allowing disclosure,

health care providers may also disclose patient health

information in response to a discovery request or a court order.

§ 164.512(e)(1).

It is far from clear that RSA 151:13-a would protect the

records requested in Request Number 3. Under § 164.512(e), the

4 Elliot intended to reference the Health Insurance Portability and Accountability Act (“HIPAA”).

4 complete patient chart requested in Request Number 8 may be

disclosed when certain procedures are satisfied. Because

Rutledge failed to comply with Rule 37(a)(1), however, these

matters are not properly before the court.

Conclusion

For the foregoing reasons, the plaintiff’s motion to compel

(document no. 22) is denied without prejudice.

Counsel are ordered to confer to determine whether and how

the documents in Request Number 3 and Request Number 8 can be

produced. The court expects counsel to engage in good faith

efforts to resolve these matters without further involvement of

the court. In the event counsel should determine that a court

order is required for disclosure of any of the requested

documents, an appropriate motion or assented-to motion shall be

filed with a detailed statement of the legal grounds that

support the requested relief.

In any future motion practice, counsel are directed to

comply fully with the local rules in this district and the

Federal Rules of Civil Procedure.

SO ORDERED.

__________________________ Joseph A. DiClerico, Jr. United States District Judge January 17, 2018

5 cc: Debra Weiss Ford, Esq. Samuel V. Maxwell, Esq. Leslie C. Nixon, Esq. David P. Slawsky, Esq. Martha Van Oot, Esq.