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Brown v. Sun Healthcare Group

April 14, 2008

BARBARA BROWN, INDIVIDUALLY AND AS SURVIVING WIFE AND AS NEXT OF KIN AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF HAROLD EUGENE BROWN, DECEASED, PLAINTIFF,
v.
SUN HEALTHCARE GROUP, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge

MEMORANDUM AND ORDER

This civil action is before the Court pursuant to the Scheduling Order [Doc. 32 at ¶ 4(j)] for resolution of a discovery dispute between the parties. Specifically, the parties ask the Court to resolve the defendants' objections to plaintiff's discovery requests. The parties have briefed the remaining issues [Docs. 46, 47, 48, 50] and the matter is now ripe for adjudication. The Court will address each disputed discovery request in turn, and will preface each section by quoting the discovery request at issue and the defendants' response.

I. Request for Production Nos. 9 and 19

Request No. 9

Copies of all incident reports and all documents pertaining to all investigation conducted by the Defendant concerning the occurrence in question undertaken after the incident, but prior to receiving written notice of the claim.

Defendants' Response

Objection. This request is vague, ambiguous, and is subject to multiple interpretations. Moreover, it assumes that there was an "occurrence in question," which is uncertain in meaning and not conceded by this Defendant. Furthermore, this request seeks incident reports that are privileged and/or confidential under the Tennessee Peer Review Law of 1967, Tennessee Code Annotated § 63-6-219; the Health Data Reporting Act of 2002, Tennessee Code Annotated § 68-11-211 (and especially § 68-11-211(d)(1)(9)); Rule 1200-8-6-.11(f) of the Tennessee Standards for Nursing; 42 U.S.C. § 1395i-3(b)(1)(B) and § 1396r(b)(1)(B); and 42 C.F.R. 483.75(o)(3). Any and all discoverable documentation responsive to this request, if any, will be found in the resident chart which has been produced.

Request No. 19

Copies of all incident reports prepared by any employee of the Defendants concerning HAROLD BROWN.

Defendants' Response

Objection. This request is vague, ambiguous, and is subject to multiple interpretations. Furthermore, this request is overly broad, unduly burdensome, and seeks incident reports that are privileged and/or confidential under the Tennessee Peer Review Law of 1967, Tennessee Code Annotated § 63-6-219; the Health Data Reporting Act of 2002, Tennessee Code Annotated § 68-11-211 (and especially § 68-11-211(d)(1)(9)); Rule 1200-8-6-.11(f) of the Tennessee Standards for Nursing; 42 U.S.C. § 1395i-3(b)(1)(B) and § 1396r(b)(1)(B); and 42 C.F.R. 483.75(o)(3). Any and all discoverable documentation responsive to this request, if any, will be found in the resident chart which has been or will be produced.

In Request Nos. 9 and 19, Plaintiff seeks incident reports and all documents pertaining to all investigations by Defendants concerning the incident in question. Defendants object to producing this information, citing privilege under various sources, and further argues that the request is vague, ambiguous, and subject to multiple interpretations.

With respect to Defendants' claim that the language of the requests is overly vague, the Court finds that, given the limited time frame of Mr. Brown's care by defendant Maplewood Healthcare Center of Jackson, Inc. ("Maplewood"), coupled with the allegations in the complaint, that the request is sufficiently clear. The plaintiff seeks any records relating to the alleged lapses in the care of Mr. Brown, including any investigations into the same. Given that Mr. Brown was a resident at Maplewood for a relatively short time, approximately three years, the Court does not find that a search of Defendants' records for responsive material would be overbroad or unduly burdensome.

The Court turns next to the question of privilege. Defendants have raised several possible sources of privilege. The Court addresses each of these privileges in turn.

A. Tennessee Peer Review Law of 1967, Tenn. Code Ann. § 63-6-219

The first source of privilege cited by Defendants is the Tennessee Peer Review Law of 1967, codified at Tennessee Code Annotated § 63-6-219 (the "TPRL"). The TPRL provides, in pertinent part, that:

All information, interviews, incident or other reports, statements, memoranda or other data furnished to any committee as defined in this section, and any findings, conclusions or recommendations resulting from the proceedings of such committee are declared to be privileged. All such information, in any form whatsoever, so furnished to, or generated by, a medical peer review committee, shall be privileged. The records and proceedings of any such committees are confidential 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 public records nor be available for court subpoena or for discovery proceedings. . . . Nothing contained in this subsection (e) applies to records made in the regular course of business by a hospital or other provider of health care and information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil proceedings merely because they were presented during proceedings of such committee.

Tenn. Code Ann. ยง 63-6-219(e). In interpreting this portion of the statute, the Tennessee Supreme Court, quoting with approval an opinion of the ...


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