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 ( 2019 )

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)
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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
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HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
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