Opinion

Rhonda Danos, Individually, and as Curatrix for the Interdict, Ronald Martin, and Scheree Martin Versus Emery A. Minnard, M.D., Jefferson Parish Hospital Service District No. 1 D/B/A West Jefferson Medical Center, Crescent Surgical Group, LLC, Dr. Michael Cook and Dr. Mark Kappelman

Court
Louisiana Court of Appeal
Filed
Aug 28, 2019
On the bench
Nancy A. Miller
Cited by
0 cases
Authority
More cited than 30.8%

The opinion

RHONDA DANOS, INDIVIDUALLY, AND AS NO. 19-C-268

CURATRIX FOR THE INTERDICT, RONALD

MARTIN, AND SCHEREE MARTIN FIFTH CIRCUIT

VERSUS COURT OF APPEAL

EMERY A. MINNARD, M.D., JEFFERSON STATE OF LOUISIANA

PARISH HOSPITAL SERVICE DISTRICT NO.

1 D/B/A WEST JEFFERSON MEDICAL

CENTER, CRESCENT SURGICAL GROUP,

LLC, DR. MICHAEL COOK AND DR. MARK

KAPPELMAN

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE

TWENTY-FOURTH JUDICIAL DISTRICT COURT

PARISH OF JEFFERSON, STATE OF LOUISIANA

NO. 784-089, DIVISION "I"

HONORABLE NANCY A. MILLER, JUDGE PRESIDING

August 28, 2019

JUDE G. GRAVOIS

JUDGE

Panel composed of Judges Jude G. Gravois,

Marc E. Johnson, and Robert A. Chaisson

WRIT GRANTED; JUDGMENT VACATED; MATTER REMANDED

WITH INSTRUCTIONS

JGG

MEJ

RAC

COUNSEL FOR PLAINTIFF/RELATOR,

RHONDA DANOS, INDIVIDUALLY, AND AS CURATRIX FOR THE

INTERDICT, RONALD MARTIN, AND SCHEREE MARTIN

Timothy R. Richardson

COUNSEL FOR DEFENDANT/RESPONDENT,

JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 1, D/B/A WEST

JEFFERSON MEDICAL CENTER

Peter J. Butler, Jr.

Richard G. Passler, Jr.

Michael C. Luquet

Lydia H. Toso

COUNSEL FOR DEFENDANT/RESPONDENT,

EMERY MINNARD MD; MICHAEL COOK MD; MARK KAPPELMAN MD

AND CRESCENT SURGICAL GROUP, LLC

Mark E. Kaufman

Bryan J. Knight

GRAVOIS, J.

Plaintiffs/relators, Rhonda Danos, individually, and as curatrix for the

interdict, Ronald Martin, and Scheree Martin, seek this Court’s supervisory review

of the trial court’s May 9, 2019 interlocutory judgment which denied their motion

to compel the production of documents that defendants/respondents, Drs. Emery

Minnard, Michael Cook and Mark Kappelman, Crescent Surgical Group, LLC, and

Jefferson Parish Hospital Service District No. 1, d/b/a West Jefferson Medical

Center (“WJMC”), claim are privileged under the Louisiana Peer Review Statute,

La. R.S. 13:3715.3. For the following reasons, we grant the writ application,

vacate the trial court judgment in question, and remand the matter with instructions

as set forth herein.

FACTS AND PROCEDURAL BACKGROUND

This case arises out of medical treatment received by relators’ decedent,

Joann Hotard, at WJMC. In their petition for damages, plaintiffs asserted various

claims of medical malpractice against defendants, respectively, and additionally a

claim of negligent credentialing against WJMC.

In the course of discovery, plaintiffs propounded the following discovery to

WJMC, to wit:

REQUEST FOR PRODUCTION NO. 3:

Please provide a copy of the entire file for Kappelman, Minnard and

Cook including but not limited to applications for credentialing

process for privilege with your facility; disciplinary records,

background searches; suits and/or review panel submission/judgments

filed against them; the entire credentialing file pre and post privilege

determination.

WJMC objected to the request, stating that the documents are privileged pursuant

to La. R.S. 13:3715.31 and La. R.S. 44.7, infra, n. 2. In response, plaintiffs filed a

1

La. R.S. 13:3715.3 provides, in pertinent part:

A. Notwithstanding the provisions of R.S. 44:7(D) or any other law to the contrary, all records,

notes, data, studies, analyses, exhibits, and proceedings of:

19-C-268 1

motion to compel, arguing that the requested information is relevant since the

medical review panel determined that the physicians committed malpractice, and

there is evidence that WJMC had prior issues with Dr. Minnard.

At the hearing on the motion to compel on April 25, 2019, plaintiffs’ counsel

stated that in addition to the medical malpractice claims asserted by plaintiffs, they

also asserted a separate negligent credentialing claim against WJMC. Plaintiffs’

(1) Any public hospital committee, medical organization peer review committee, any

nationally recognized improvement agency or commission, including but not limited to

the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), or any

committee or agency thereof, or any healthcare licensure agency of the Louisiana

Department of Health, public hospital board while conducting peer reviews, dental

association peer review committee, professional nursing association peer review

committee, extended care facility committee, nursing home association peer review

committee, peer review committee of a group medical practice of twenty or more

physicians, peer review committee of a freestanding surgical center licensed pursuant to

R.S. 40:2131 et seq., or health maintenance organization peer review committee,

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 under the

bylaws, rules, or regulations of such organization or institution, or

(2) Any hospital committee, the peer review committees of any medical organization, dental

association, professional nursing association, nursing home association, social workers

association, group medical practice of twenty or more physicians, nursing home,

ambulatory surgical center licensed pursuant to R.S. 40:2131 et seq., ambulance service

company, health maintenance organization, any nationally recognized improvement

agency or commission, including but not limited to the Joint Commission on

Accreditation of Healthcare Organizations (JCAHO), or any committee or agency

thereof, or any healthcare licensure agency of the Louisiana Department of Health, or

healthcare provider as defined in R.S. 40:1299.41(A), or extended care facility

committee, 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, dental organization,

group medical practice of twenty or more physicians, social workers association,

ambulatory surgical center licensed pursuant to R.S. 40:2131 et seq., ambulance service

company, health maintenance organization, or healthcare provider as defined in R.S.

40:1299.41(A), or private hospital licensed under the provisions of R.S. 40:2100 et seq.,

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. 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.

B. No employee, physician, dentist, public or private hospital, organization, or institution

furnishing information, data, reports, or records to any such committee with respect to any

patient examined or treated by such physician or dentist or confined in such hospital or

institution shall be liable in damages to any person by reason of furnishing such information.

C. No member of any such committee designated in Subsection A of this Section or any

sponsoring entity, organization, or association on whose behalf the committee is conducting

its review shall be liable in damages to any person for any action taken or recommendation

made within the scope of the functions of such committee if such committee member acts

without malice and in the reasonable belief that such action or recommendation is warranted

by the facts known to him.

***

19-C-268 2

counsel argued that in 2016, the Louisiana Supreme Court recognized a cause of

action for negligent credentialing, and in their discovery requests, plaintiffs were

simply seeking information concerning the credentialing of these doctors, not peer

review documentation pertaining to their decedent’s case, in order to determine

why WJMC allowed these doctors to continue practicing at WJMC.

In response, defense counsel argued that La. C.C.P. art. 1442 governs the

limits of discovery, which specifically provides that parties may obtain discovery

regarding any matter not privileged which is relevant to the subject matter involved

in the pending action. Counsel further argued that La. R.S. 13:3715.3 provides that

a hospital’s peer review committee records are privileged and not available for

discovery or court subpoena, with the only exception being that when a physician’s

hospital privileges are suspended or revoked by the hospital, he can obtain a copy

of his own credentialing file if he brings a lawsuit against the hospital to be

reinstated.

In response, plaintiffs’ counsel reiterated that since he was not seeking peer

review of plaintiffs’ decedent’s case, but rather was only seeking documentation

pertaining to negligent credentialing, he did not understand how the Louisiana

Supreme Court could indicate that there is a cause of action outside of the Medical

Malpractice Act for negligent credentialing, but that his clients did not have the

right to look at the documents that could support their negligent credentialing

cause of action.

At the conclusion of the hearing, the trial court denied plaintiffs’ motion to

compel, stating: “Mr. Richardson [plaintiffs’ counsel], I certainly understand your

case and I understand the dilemma that you are in. However, the Court is bound

by the confidentiality of the peer review statute and in deciding the Billeaudeau

case [infra], the Supreme Court did not address [La. R.S.] 13:3715.3. So I am

19-C-268 3

going to deny your motion to compel and I encourage you to take me up.” A

written judgment denying the motion to compel was signed on May 9, 2019.

In their writ application, plaintiffs argue that the trial court erred in denying

their motion to compel. They argue that in Billeaudeau v. Opelousas Gen. Hosp.

Auth., 16-0846 (La. 10/19/16), 218 So.3d 513, the Louisiana Supreme Court

recognized negligent credentialing as a cause of action arising in general

negligence, and the information they seek as to how and why the physicians were

credentialed is relevant and admissible. Plaintiffs further contend that they have

uncovered facts that WJMC had prior knowledge of issues with Dr. Minnard,

including an opinion of this Court, Daniel v. Minnard, 16-260 (La. App. 5 Cir.

6/14/16), 196 So.3d 160, and public records of a settlement in that matter.

Plaintiffs argue that WJMC’s reliance on La. R.S. 13:3715.3 is misplaced since

plaintiffs did not seek peer review committee information relating to internal

investigations of the physicians.

In their oppositions to the writ application, defendants/respondents argue

that the documents sought are not discoverable because they are privileged

pursuant to La. R.S. 13:3715.3. Respondents contend that none of the documents

sought by plaintiffs would exist but for the peer review process of obtaining

information in order to determine whether the physicians should have privileges at

WJMC. Further, respondents argue that plaintiffs have failed to establish that the

information they seek is relevant or reasonably calculated to lead to the discovery

of admissible evidence in support of their negligent credentialing claim.

Specifically, respondents argue that the public records information obtained

regarding Dr. Minnard fails to establish a connection to the negligent credentialing

claim here, and the information does not demonstrate that Dr. Kappelman and Dr.

Cook’s credentials can be questioned.

19-C-268 4

ANALYSIS

In ruling on discovery matters, the trial court is vested with broad discretion,

and an appellate court should not disturb such rulings absent a clear abuse of

discretion. Khoobehi Properties, LLC v. Baronne Dev. No. 2, L.L.C., 16-506 (La.

App. 5 Cir. 3/29/17), 216 So.3d 287, 303, writ denied, 17-0893 (La. 9/29/17), 227

So.3d 288.

La. C.C.P. art. 1422 provides the scope of discovery, in general, to wit:

Unless otherwise limited by order of the court in accordance

with this Chapter, the scope of discovery is as set forth in this Article

and in Articles 1423 through 1425.

Parties may obtain discovery regarding any matter, not

privileged, which is relevant to the subject matter involved in the

pending action, whether it relates to the claim or defense of the party

seeking discovery or to the claim or defense of any other party,

including the existence, description, nature, custody, condition, and

location of any books, documents, or other tangible things and the

identity and location of persons having knowledge of any

discoverable matter. It is not ground for objection that the

information sought will be inadmissible at the trial if the information

sought appears reasonably calculated to lead to the discovery of

admissible evidence.

(Emphasis added.)

Thus, the first determination to be made concerning whether the trial court abused

its discretion in denying relators’ motion to compel is whether the discovery

documentation requested by plaintiffs is privileged under La. R.S. 13:3715.3.

The Louisiana Supreme Court, in Smith v. Lincoln Gen. Hosp., 605 So.2d

1347, 1348 (La. 1992), in considering the scope of both La. R.S. 13:3715.3 and La.

R.S. 44:7,2 stated:

… These provisions are intended to provide confidentiality to

the records and proceedings of hospital committees, not to insulate

2

La. R.S. 44:7 provides, in pertinent part:

D. The records and proceedings (1) of any public hospital committee, medical organization

committee, or extended care facility committee established under state or federal law or

regulations or under the bylaws, rules, or regulations of such organization or institution or (2)

of any hospital committee, medical organizational committee, or extended care facility

committee established by a private hospital licensed under the provisions of R.S. 40:2100 et

seq. shall be 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 and

shall not be available for court subpoena. …

19-C-268 5

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. Such could not have been the intent of the legislature,

especially in light of broad scope given to discovery in general. La.

C.C.P. art. 1422. Further, privileges, which are in derogation of such

broad exchange of facts, are to be strictly interpreted.

… Nevertheless, 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.

This does not mean that the plaintiff is entitled to the entire

study, as such study may contain evidence of policy making, remedial

action, proposed courses of conduct, and self-critical analysis which

the privilege seeks to protect in order to foster the ability of hospitals

to regulate themselves unhindered by outside scrutiny and

unconcerned about the possible liability ramifications their

discussions might bring about. As such, the trial court must make an

in camera inspection of such records and determine to what extent

they may be discoverable. …

In 2016, in Billeaudeau v. Opelousas General Hospital Authority, 16-0846

(La. 10/19/16), 218 So.3d 513, a suit filed on behalf of a patient for medical

malpractice and negligent credentialing, the Louisiana Supreme Court resolved the

conflict between the Louisiana circuit courts as to whether negligent credentialing

causes of action arise in general negligence or within the purview of the Louisiana

Medical Malpractice Act. The court found that the cause of action for negligent

credentialing sounds in general negligence, rather than within the purview of the

Louisiana Medical Malpractice Act and its limitations on liability. Id. at 527.

In Culotta v. Ochsner Clinic Foundation, 17-41 (La. App. 5 Cir. 2/15/17)

(unpublished writ disposition), this Court stated:

The peer review privilege is not a blanket protection for all

documents included in an internal peer review. The in camera review

process necessarily ensures that the hospital/healthcare provider has

not claimed as privileged, documents and factual information that, for

whatever reason, is unavailable through the ordinary process of

discovery. That the legislature intended for the same factual

19-C-268 6

information and documentation used by the peer review committee for

its own internal analysis to be available to a litigant in the normal

course of discovery is indicated by the exception stated in the statute:

[N]o 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. La. R.S. 13:3715.3(A)(2).

Such an interpretation is additionally consistent with our rules

of evidence which allow for broad discovery and require the narrow

construction of statutes granting privilege. … (Emphasis in

original.)3

In the present case, the writ application and the oppositions thereto do not

reflect that the trial court conducted an in camera review of the discovery

documentation at issue before denying relators’ motion to compel. Because the

trial court did not conduct an in camera review of the discovery documentation at

issue, we find that it did not have sufficient information before it to determine the

applicability, if any, of La. R.S. 13:3715.3 to the discovery documentation at issue.

Accordingly, in light of the applicable statutes and jurisprudence noted above, we

find that in the present case, an in camera review by the trial court of the discovery

documentation at issue is required for a proper determination to be made by the

trial court as to whether the privilege provided in La. R.S. 13:3715.3 is applicable

to the discovery documentation at issue.

CONCLUSION

For the foregoing reasons, we grant this writ application, vacate the trial

court judgment in question, and remand this matter for the trial court to conduct an

3

Noteworthy, in Tebault, et al, v. East Jefferson General Hospital, et al, 18-539 (La. App. 5 Cir. 2/15/17)

(unpublished writ disposition), writ denied, 19-0641 (La. 6/17/19), --- So.3d ---, at issue was the trial court’s denial

of East Jefferson General Hospital’s “Motion for Summary Judgment Regarding Immunity.” After thoroughly

reviewing and addressing whether the defendants hospital and physician were immunized from damages as to a

negligent credentialing claim under La. R.S. 13:3715.3(C) and 42 U.S.C. § 11101, the federal Health Care Quality

Improvement Act (“HCQIA”), this Court concluded as follows, to-wit:

After a thorough review of both the Louisiana jurisprudence and legislative intent as to

the enactment of the immunity provisions of the HCQIA and La. R.S. 13:3715.3(C) as it relates to

hospital immunity, and jurisprudence from the other forty-nine states, as well as a de novo review

of the record before us, we find that the federal and state immunity provisions do not provide

EJGH immunity in patient-brought suits for causes of action arising from negligent credentialing

of a healthcare professional. Therefore, the relief requested in relator’s writ application is denied.

19-C-268 7

in camera review of the discovery documentation at issue to determine the

applicability, if any, of the privilege provided in La. R.S. 13:3715.3, with the

following instructions, to-wit:

Respondent WJMC shall produce to the trial court, under seal, for an in

camera review, the documents requested by relators responsive to the

discovery requests in their entirety, with proposed redactions of the analysis

and conclusions of the peer review panel claimed by WJMC to be

privileged. As to any purely factual information available to relators

through other means of discovery, WJMC shall provide a statement

indicating where and how such information is otherwise available to relators.

After conducting an in camera review of the documentation provided, the

trial court should render judgment either denying the motion to compel and

clearly stating that the documents and information sought are protected by

the statutory privilege under La. R.S. 13:3715.3 and contain no factual

accountings or documentation otherwise unavailable through ordinary

discovery, or it should render judgment granting the motion to compel and

clearly indicating which documents are to be produced, either in their

entirety or with redactions, and providing all respondents with the

opportunity to seek supervisory review of that determination prior to

production of those documents to relators. See Culotta v. Ochsner Clinic

Foundation, et al, supra.

WRIT GRANTED; JUDGMENT VACATED;

MATTER REMANDED WITH INSTRUCTIONS

19-C-268 8

SUSAN M. CHEHARDY MARY E. LEGNON

CHIEF JUDGE INTERIM CLERK OF COURT

FREDERICKA H. WICKER

CHIEF DEPUTY CLERK

JUDE G. GRAVOIS

MARC E. JOHNSON

ROBERT A. CHAISSON SUSAN BUCHHOLZ

STEPHEN J. WINDHORST

FIRST DEPUTY CLERK

HANS J. LILJEBERG

JOHN J. MOLAISON, JR. 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

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY

I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED

IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY

AUGUST 28, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES

NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-C-268

E-NOTIFIED

24TH JUDICIAL DISTRICT COURT (CLERK)

HONORABLE NANCY A. MILLER (DISTRICT JUDGE)

MARK E. KAUFMAN (RESPONDENT) BRYAN J. KNIGHT (RESPONDENT)

MAILED

PETER J. BUTLER, JR. (RESPONDENT) TIMOTHY R. RICHARDSON (RELATOR)

RICHARD G. PASSLER, JR. (RESPONDENT) ATTORNEY AT LAW

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LYDIA H. TOSO (RESPONDENT) MADISONVILLE, LA 70447

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