Mary B. Becker v. Baptist Health Medical Group, Inc., D/B/A Baptist Medical Associates ( 2023 )

RENDERED: JULY 7, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0074-MR
MARY B. BECKER APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ERIC JOSEPH HANER, JUDGE
ACTION NO. 18-CI-007275
BAPTIST HEALTH MEDICAL
GROUP, INC., D/B/A BAPTIST
MEDICAL ASSOCIATES APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND MCNEILL, JUDGES.
ACREE, JUDGE: Appellant, Mary Becker, appeals the Jefferson Circuit Court’s
December 14, 2021 Order granting summary judgment in favor of Appellee,
Baptist Health Medical Group (Baptist), and the Jefferson Circuit Court’s February
2021 Order declining to compel Appellee to produce certain documents. After
careful review, we reverse.
BACKGROUND
Becker is an Advanced Practice Registered Nurse (APRN) who
developed a sizeable client base over her twenty-five-year career. In her practice,
she focused on obstetrics and gynecology. As she transitioned from one employer
to another, many of her clients moved with her and many indicated they would use
her services until she retired. Over the years, Becker informed her clients that
when she retired, she would give them extensive notice and recommend a new
provider so their care and treatment could go on uninterrupted.
In July 2016, Baptist’s acquisition of Becker’s employer resulted in
absorption of the practice into Baptist’s network. According to Becker, she signed
a three-year contract to work for Baptist that would engage her until July 1, 2019.
Becker sought to discover Baptist’s copy of this contract, but Baptist never
provided a copy and denied its existence. Baptist claims it never had a contract
with Becker or any other APRN.
On April 12, 2018, Becker tripped and fell in Baptist’s parking lot and
suffered serious injuries, including a concussion, occipital and suborbital fractures,
and a broken left hand. She was taken to the ER for these injuries. Becker’s
supervisor, Patty Hornung, informed Operations Manager Melanie Woosley about
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Becker’s injuries and Hornung kept Chris Sizemore1 apprised of Becker’s workers’
compensation claim. Becker alleges Baptist limited her time off to three months,
with Baptist implying anything longer would not work for the hospital. Initially,
Becker’s doctor wanted her to wait six months before returning to work but, at
Becker’s request and with pressure from Baptist, Becker returned after three
months. The Closure Report from the workers’ compensation carrier is dated July
11, 2018. Before that date and her release to return to work, Becker received
erroneous, but disheartening, news about her health.
During Becker’s recovery, her doctors sent her to an oncologist to
determine if she had cancer. Several of Becker’s test results indicated she may.
On June 13, a biopsy was performed, and, on June 19, Becker received a report
from her oncologist indicating a generalized metastasis which more often than not
has a negative prognosis. Baptist claims Becker herself incorrectly interpreted the
report, while Becker indicates she and her doctor read the report to indicate she had
metastasized cancer. Nevertheless, Becker was distraught because she believed
she had terminal cancer “everywhere.” She spoke with Hornung about the news
and told Hornung she needed to spend more time with her family.
1
Chris Sizemore was the Assistant Vice President of Operations. Becker alleges Sizemore was
solely focused on Baptist’s bottom line and increasing its employees’ productivity.
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Hornung interpreted this comment as meaning Becker did not want to
continue working. She told Woosley that Becker “had gotten bad test results and
that she was going to spend time with her family.” (Record (R.) at 811-12).
According to Hornung, Becker never uttered the words “I quit.” And, shortly after
this, Hornung left for a two-week vacation. Thereafter and until the end of her
period of workers’ compensation leave, Becker’s communication with Baptist
employees was minimal at best.
Woosley began preparations for Becker to no longer work at Baptist;
as Operations Manager, she was concerned about how Baptist would service
Becker’s large client base. Around this time, someone in Baptist’s Human
Resources Department began asking Woosley whether Becker had given anyone a
resignation letter and whether Becker was quitting or retiring; the answer would
determine how Becker was offboarded. Woosley had nothing in writing from
Becker and indicated she did not know whether Becker quit or was retiring. On
July 5, Becker learned she did not have any form of cancer or terminal condition.
On July 9, Baptist’s Human Resources again inquired of Woosley
about a resignation letter from Becker. Hornung, now back from vacation, texted
Becker to ask for a resignation letter identifying what would be her last day of
work. Becker informed Hornung she did not have cancer, had not resigned or
retired, and was ready to come back to work following removal of workers’
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compensation restrictions. Hornung relayed this message to Woosley. Woosley
asked Becker to stay on workers’ compensation until September. Notwithstanding
these events, Hornung processed the payment for Becker’s DEA License renewal,
a requirement for Becker’s continued employment with Baptist.
When Woosley told Sizemore that Becker would be returning to
work, he responded that he would not allow her to return. He said, “So my
position was that we were – we were not going to allow her to return, that she had
resigned of her own volition, and my reasoning was that – again, my thinking was
that her patients would be redistributed among the existing providers.” (R. at 792.)
On July 25, Woosley relayed Sizemore’s message to Becker and told her she
would not be allowed to return, despite Becker having already scheduled
appointments with her clients well into November.
On August 24, nearly two months after Becker informed Baptist she
no longer had any health problems, Baptist sent the following to a large portion of
Becker’s client base:
This letter is to inform you that your provider, Mary
Becker, APRN, has made the difficult decision to leave
employment with Baptist Health Medical Group
Louisville Physicians for Women. While she truly
enjoyed being involved in the care of each of her patients
over the years, the decision to step away from patient care
was necessary, for reasons related to her personal health.
Her last day seeing patients in the office was June 21,
2018.
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(R. at 890) (emphasis added).
Becker initiated this lawsuit in December 2018. She alleged breach of
contract, tortious interference, workers’ compensation retaliation, age and
disability discrimination, and defamation. Becker served Baptist with discovery
requests. One of these requests asked Baptist to produce Becker’s employment
contract. Baptist did not produce it and the circuit court entered an order requiring
Baptist to make a good faith effort to locate and produce the document. Baptist
indicated it was not aware of any contract with Becker. Becker requested other
contracts Baptist had with some of its doctors, but Baptist refused to produce those.
Additionally, Baptist refused to turn over “25 email communications made
between Baptist employees but at the direction of litigation counsel[.]”
(Appellee’s brief, pp. 10-11.)
Because of Baptist’s discovery responses, Becker filed a motion to
compel and a subsequent motion for sanctions. The circuit court denied the
motion, determining the contracts Becker requested were irrelevant and the emails
were protected by the attorney-client privilege. Baptist never produced the
contracts and did not produce the twenty-five emails between Baptist employees.
In October 2021, Baptist filed a motion for summary judgment. On
December 10, 2021, the circuit court granted summary judgment in favor of
Baptist. Becker now appeals.
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ANALYSIS
Preservation Issues.
Before reaching the merits of this case, we address Baptist’s
contentions that Becker did not preserve any of her arguments on appeal. While
Becker did fail to include a preservation statement at the beginning of her
Argument section, the purpose of a preservation statement is “so that we, the
reviewing Court, can be confident the issue was properly presented to the trial
court and therefore, is appropriate for our consideration.” Oakley v. Oakley, 391
S.W.3d 377, 380 (Ky. App. 2012).
For purposes of this appeal, “[w]e are convinced that the failure to
comply with the rule is not fatal . . . where the propriety of summary disposition
was clearly joined at every stage of the proceeding.” Cornette v. Holiday Inn Exp.,
32 S.W.3d 106, 109 (Ky. App. 2000). Becker properly challenged the motion for
summary judgment to preserve an appeal of the circuit court’s ruling on that
motion. We emphasize, however, failure to substantially comply with the rules
justifies striking a brief. See Stowe v. Realco LLC, 551 S.W.3d 462, 465 (Ky. App.
2018). We strongly encourage Becker to include a preservation statement in her
brief in the future, regardless of how obvious it is that an appeal is properly
preserved.
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Discovery Order
The circuit court entered its Discovery Order dated February 8, 2021,
ruling that “Becker has not persuaded the Court that Baptist’s assertion of attorney-
client privilege as to certain documents is incorrect.” As worded, the ruling
indicates the circuit court was persuaded by Baptist’s argument that it was
Becker’s burden to defeat Baptist’s assertion of privilege. Baptist presents that
argument again to this Court, quoting a Kentucky Supreme Court opinion out of
context for the proposition that a “claim of privilege should be presumed proper
until challenged by the party seeking the materials.” (Appellant’s brief, p. 11
(quoting Collins v. Braden, 384 S.W.3d 154, 161 (Ky. 2012).) That partial quote
must be read in its context.
The fuller quotation reads: “None of this is to say that the hospital
has shown that the privilege does apply to the documents in this case. While a
claim of privilege should be presumed to be proper until challenged by the party
seeking the materials, Ms. Collins has challenged the hospital’s claim at every
turn.” Collins, 384 S.W.3d at 161 (emphasis added). It does not take much to
challenge the initial claim of privilege, if such challenge is not waived by delay or
inaction. See Commonwealth v. Steadman, 411 S.W.3d 717, 724 (Ky. 2013) (an
issue can be waived through inaction).
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“Because privileges operate to exclude relevant evidence, ‘[t]he party
asserting the privilege has the burden to prove the privilege applies.’” Stidham v.
Clark, 74 S.W.3d 719, 725 (Ky. 2002) (quoting United States v. Plache, 913 F.2d
1375, 1379 (9th Cir. 1990)). But, after objection to the initial claim, “[n]either a
blanket assertion of the privilege nor a bare showing that the recipient of the
communication is [one whose relationship with the party asserting the privilege is
recognized as engaging in privileged communication] would be sufficient.” Id.We have our Supreme Court’s quite clear instruction regarding how
Baptist should have proceeded, as it set forth in Collins v. Braden. In fact, the real
party in interest in Collins was a Baptist affiliate. In Collins, the Court said:
Parties asserting privileges have numerous ways to
establish the existence of the attorney-client privilege
when an opposing party challenges its existence.
One common method is an in camera review by the
trial court of the documents in question. This was the
method employed in Clark, 90 S.W.3d at 63. But this
method can have its limitations. For example, it requires
the trial court to “describe the documents” or “recite any
factual bases” supporting its decision to facilitate appellate
court review. Id. More importantly, in camera review can
overly burden a trial court, especially in litigation where
many documents are claimed to be privileged. Thus,
instead of in camera review, a party claiming the privilege
could produce a detailed privilege log with descriptions of
the documents sufficient to establish the existence of the
privilege (i.e., more than their titles). Or a party could
make an “offer of proof” or proffer, like the process in
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KRE[2] 105(b), describing the documents (without going
into the content of any statements or legal advice they
contain, of course).
How a party proceeds is up to it, unless the trial
judge prefers one approach over the others or declines to
allow the use of one in a given case. That call falls within
the trial court’s sound discretion. The only requirement is
that when challenged, the party claiming the privilege
must do more than merely assert the privilege. It must
provide the court with sufficient information to show the
existence of the elements of the privilege and to allow
review of that decision by higher courts.
Thus, the hospital still has the opportunity in the
future to establish that the privilege covers the documents
or at least parts of them.5 [Here footnoting that the
remaining parts would be discoverable.] But at this point,
this Court concludes that the hospital has failed to show
that the documents are actually covered by the privilege.
Collins, 384 S.W.3d at 164-65. We conclude the hospital again failed in the
instant case to show that the documents are covered by the privilege.
In this case, Baptist did not submit the emails to the circuit court for in
camera review nor did it make an offer of proof – the first and last of these
options. Nor did Baptist’s actions satisfy the second option, a detailed privilege
log.
What Baptist submitted to the circuit court did not include
“descriptions of the documents sufficient to establish the existence of the privilege
2
Kentucky Rules of Evidence.
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(i.e., more than their titles).” Id. at 164. The “privilege log” Baptist submitted
includes the “Date,” “Author,” “Recipient,” “Subject,” and “Privilege” – nothing
more. The information in the “Subject” block is the “Re:” line from the emails and
none of the descriptions of the “Subject” contain information “sufficient to
establish the existence of the privilege.”3
Furthermore, Baptist admits in its brief that these “25 email
communications [were] made between Baptist employees but at the direction of
litigation counsel[.]” (Appellee’s brief, p. 11.) On their face, communications
between a client’s employees, without more of an explanation, will not qualify as
privileged.
To explain attorney-client privilege better, we again quote our
Supreme Court. “Kentucky’s testimonial privileges are codified in Article V of the
Kentucky Rules of Evidence. KRE 501 includes no provision for common law
development of testimonial privileges:
Except as otherwise provided by Constitution or statute or by
these or other rules promulgated by the Supreme Court of
Kentucky, no person has a privilege to:
(1) Refuse to be a witness;
3
The twenty-five (25) emails claimed as privileged communications have only nine (9) different
“Subjects” and they state in their entirety: “Mary Becker APRN” (6); “Becker v. Baptist
Discovery CONFIDENTIAL” (5); “Becker v. Baptist discovery” (3); “Mary Becker
Offboarding” (2); “Mary Becker” (2); “Medical Records Agmt – Baptist” (2); “Mary Becker
call” (2); “Mary Becker adv.” (2); and “how does this look??” (1). No judge could determine
from these descriptions whether the attorney-client privilege attaches.
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(2) Refuse to disclose any matter;
(3) Refuse to produce any object or writing; or
(4) Prevent another from being a witness or disclosing any
matter or producing any object or writing. (Emphasis added.)”
Stidham, 74 S.W.3d at 723-24. KRE 501 is, therefore, the starting point. If a party
wants to claim the privilege, he will have to find authority for it in KRE 503. As
for the substance of the privilege, this is what the rule says:
(b) General rule of privilege. A client has a privilege to
refuse to disclose and to prevent any other person from
disclosing a confidential communication made for the
purpose of facilitating the rendition of professional
legal services to the client:
(1) Between the client or a representative of the client
and the client’s lawyer or a representative of the
lawyer;
(2) Between the lawyer and a representative of the
lawyer;
(3) By the client or a representative of the client or the
client’s lawyer or a representative of the lawyer to
a lawyer or a representative of a lawyer
representing another party in a pending action and
concerning a matter of common interest therein;
(4) Between representatives of the client or between
the client and a representative of the client; or
(5) Among lawyers and their representatives
representing the same client.
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KRE 503(b). Baptist claims the privilege as to 25 emails “between Baptist
employees[.]” The only way the privilege applies is if those employees fit the
definition of a type of person the Rule allows to engage in privileged
communications and that the communication satisfies the requirement that it be
“confidential” as defined by the Rule.
There is nothing in the record even suggesting the “Baptist
employees” fit the definition of “Client” or “Lawyer[.]” KRE 503(a)(1), (3). Nor
will Baptist’s assertion that the employees’ communications were “at the direction
of litigation counsel” make either party to the emails a “Representative of the
lawyer[.]” KRE 503(a)(4).
A “Baptist employee” might qualify as a “Representative of the
client[.]” KRE 503(a)(2). But the Rule requires they be invested with specific
authority before they will satisfy the definition.
The Rule defines “Representative of the client” as:
(A) A person having authority to obtain professional legal
services, or to act on advice thereby rendered on
behalf of the client; or
(B) Any employee or representative of the client who
makes or receives a confidential communication:
(i) In the course and scope of his or her
employment;
(ii) Concerning the subject matter of his or her
employment; and
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(iii) To effectuate legal representation for the client.
KRE 503(a)(2). Such a determination is fraught with necessary factual questions
to be answered; Baptist offered no evidence that the “Baptist employees” are
“Representatives of the client” that might have aided the circuit court in
determining whether the privilege applies. And there is more.
It will not be enough if only one of the parties qualifies as a
“Representative of the client” because the privilege only applies to
communications “[b]etween representatives of the client[.]” KRE 503(b)(4). If
only one of the parties to the email is a “[r]epresentative of the client[,]” that will
not be enough to affirm a finding that the privilege applies.
Finally, for the privilege to attach, each email for which the privilege
is claimed must be a confidential communication. “A communication is
‘confidential’ if not intended to be disclosed to third persons other than those to
whom disclosure is made in furtherance of the rendition of professional legal
services to the client or those reasonably necessary for the transmission of the
communication.” KRE 503(a)(5).
We strictly construe KRE 503 in accordance with “the almost
universally accepted rule that testimonial privileges are generally disfavored and
should be strictly construed.” Stidham, 74 S.W.3d at 722-23; St. Luke Hospitals,
Inc. v. Kopowski, 160 S.W.3d 771, 775 (Ky. 2005) (“The protection from
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disclosure of privileged communications between an attorney and client is one of
the foundation principles of Anglo-American jurisprudence. Where the privilege
applies its breach undermines confidence in the judicial system and harms the
administration of justice.”).
At this stage, the record does not support Baptist’s claim of attorney-
client privilege. Even though Collins v. Braden was a review of this Court’s grant
of a writ, Collins, 384 S.W.3d at 156, the decision under review here is in the same
posture as in that case and must be reversed. Our conclusion is the same as in
Collins: “Because . . . Baptist . . . has not yet shown entitlement to the attorney-
client privilege, . . . the [Jefferson Circuit Court’s February 8, 2021] order is
reversed. All further proceedings on the issue of privilege shall be consistent with
this Opinion.” Collins, 384 S.W.3d at 165.
Summary Judgment
It should go without saying that Becker’s opportunity to complete
discovery was thwarted by the erroneous ruling on privilege. “[F]or summary
judgment to be properly granted, the party opposing the motion must have been
given adequate opportunity to discover the relevant facts. Only if that opportunity
was given do we reach the issue of whether there were any material issues of fact
precluding summary judgment.” Suter v. Mazyck, 226 S.W.3d 837, 842 (Ky. App.
2007). Consequently, it is not possible that Baptist has “show[n] that the adverse
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party could not prevail under any circumstances” as to every claim. Steelvest, Inc.
v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Not knowing
to a certainty whether Baptist, on remand, can establish the right to claim the
privilege, and not knowing to a certainty what the emails might reveal if the
privilege does not attach, puts this case in the same posture as any case in which
the party was not given an adequate opportunity to complete discovery.
“[B]ecause a premature summary judgment inevitably leads the record to be fatally
incomplete, we do not address whether the . . . record supports granting summary
judgment . . . .” Bowlin Group, LLC v. Rebennack, 626 S.W.3d 177, 187 (Ky.
App. 2020) (citing Suter, 226 S.W.3d at 842).
CONCLUSION
For the aforementioned reasons, we reverse and remand this case to
the circuit court for further proceedings consistent with this Opinion.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Laura E. Landenwich Donna King Perry
Abigail V. Lewis Alina Klimkina
Louisville, Kentucky August Johannsen
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLANT: ORAL ARGUMENT FOR
APPELLEE:
Abigail Lewis
Louisville, Kentucky Alina Klimkina
Louisville, Kentucky
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