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Grenier v. Stamford Hospital Stamford Health System, Inc.

United States District Court, D. Connecticut

July 20, 2016



          Hon. Vanessa L. Bryant United States District Judge

         Plaintiff Marc Grenier ("Grenier"), in his capacity as administrator of the estate of Laura D. Sheehan ("Sheehan"), brings a claim against Defendants Stamford Hospital and Stamford Health System, Inc. (collectively the "Stamford Defendants") under the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd., et seq., and a medical malpractice claim against the Stamford Defendants and Defendant Emergency Medicine Physicians of Fairfield ("EMP") under Connecticut law, for injuries and the ultimate death of Sheehan while in the care of Defendants.

         I. Background

         On November 27, 2015, Plaintiff filed a motion to compel the production of a host of documents and responses to interrogatories. See [Dkt. #41]. On January 8, 2016, the Court held a hearing regarding the parties' outstanding discovery dispute. See [Dkt. #53]. At the hearing, the Court took the motion under advisement as the parties attempted to resolve some of the issues that were in dispute at the time. See [Dkt. #55]. On January 29, 2016, the Court held a follow-up telephonic hearing. See [Dkt. #53]. At the hearing, the parties represented that they had made significant progress resolving their dispute, and that the sole remaining issue was whether and to what extent the Defendants could rely upon the Connecticut peer review statute, Conn. Gen. Stat. § 19a-17b, which they invoked in support of their refusal to produce peer review materials concerning the care of Plaintiff's decedent. The Plaintiff explained that he seeks the peer review materials to see if they contain any admission of wrongdoing on the part of hospital staff, or violations of EMTALA. The Court now resolves this dispute.

         II. Discussion

         A. Federal Privilege Law Governs the Issues in this Case

         Plaintiff brings an EMTALA claim and a pendant state law medical malpractice claim. EMTALA was enacted in 1986 in response to a growing concern of "‘patient dumping, ' the practice of refusing to provide emergency medical treatment to patients unable to pay, or transferring them before their emergency conditions are stabilized." Hardy v. New York City Health & Hosps. Corp., 164 F.3d 789, 792 (2d Cir. 1999). To prohibit such discrimination, hospital emergency rooms are subject to two obligations under the EMTALA: (i) to perform an appropriate medical screening and (ii) to stabilize the patient. The screening and stabilization requirements are two separate and distinct obligations. Brown v. St. Mary's Hosp., No. 3:14-cv-228 (DJS), 2015 WL 144673, at *2 (D. Conn. Jan. 12, 2015). Thus, to state a claim under the EMTALA, a plaintiff must allege that he "(1) went to the Defendant's emergency room (2) suffering from an emergency medical condition, and that the Hospital either (3) failed to adequately screen him to determine whether he had such a condition or (4) discharged or transferred him before the emergency condition was stabilized." Eads v. Milford Hosp., No. 3:10-cv-1153 (VLB), 2011 WL 873313, at *2 (D. Conn. Feb. 23, 2011) (citing Hardy, 164 F.3d at 792).

         The Amended Complaint raises both failure to screen and stabilize claims. See [Dkt. #10, Am. Compl. at ¶ 5]. To prevail on a failure to screen claim, a plaintiff must identify a "departure from standard screening procedures" the hospital otherwise applies to patients. Fisher v. New York Health & Hosps. Corp., 989 F.Supp. 444, 449 (E.D.N.Y. 1998). To succeed on a failure to stabilize claim under EMTALA, a plaintiff must show that the hospital failed to provide "medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result . . . ." 42 U.S.C. § 1395dd(e)(3)(A); see also Brown, 2015 WL 144673, at *2 ("[I]t has been determined by some courts that ‘the stabilization requirement is not met by simply dispensing uniform stabilizing treatment, but rather, by providing the treatment necessary to ‘assure within reasonable medical probability, that no material deterioration of the condition is likely to result . . . .'") (quoting Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1259 n. 3 (9th Cir.1995)).

         Under Connecticut law, malpractice is "the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services." Jarmie v. Troncale, 306 Conn. 578, 587-88 (Conn. 2012) (quotations, emphasis, and citation omitted). Malpractice "presupposes some improper conduct in the treatment or operative skill [or] . . . the failure to exercise requisite medical skill." Id. at 588 (quotations and citation omitted). Accordingly, "[t]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury." Id. (quotations and citation omitted).

         As a general rule, federal law governs the existence of a privilege in a civil action in which federal law supplies the rules of decision, and state law governs the existence of a privilege where state law supplies the rule of decision. See Fed. R. Evid. 501. However, in a civil case such as this, where there is both a federal EMTALA claim and a state medical malpractice claim and where the facts necessary to prove both claims overlap, a single rule applies, and that rule is federal privilege law. von Bulow v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987) (stating that in mixed claim case where evidence sought "is relevant to both the federal and state claims . . . courts consistently have held that the asserted privileges are governed by the principles of federal law") (applying federal privilege law to both federal and pendant state law claims); see also Brown v. St. Mary's Hosp., No. 3:14-cv-00228 (DJS), ECF No. 71, at 3 (D. Conn. filed Feb. 25, 2014) (applying federal privilege law to action that "raises both federal (EMTALA) and state (negligence) claims").

         B. The Facts of this Case Warrant Recognition of a Peer Review Privilege

         1. Courts have recognized a federal peer review privilege in the EMTALA context.

         As the Plaintiff correctly points out, "neither the Supreme Court nor the Second Circuit . . . has recognized [a peer review privilege] as applicable in federal EMTALA actions." [Dkt. #41, Pl.'s Mot. to Compel at 4]; see also Francis v. United States, No. 09 Civ. 4004 (GBD) (KNF), 2011 WL 2224509, at *4 (S.D.N.Y. May 31, 2011) ("Neither the Supreme Court nor the Second Circuit has ruled on the existence of a peer review privilege in the context of a medical . . . malpractice action."). This does not, however, resolve the issue. This is because Rule 501 of the Federal Rules of Evidence affords district courts "flexibility to develop rules of privilege on a case-by-case basis." Francis, 2011 WL 2224509, at *4 (quoting Univ. of Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990)). In determining whether to adopt a new federal privilege in a given case, "a district court must consider: (1) whether the privilege serves private and public interests; (2) the evidentiary benefit that would result from denial of the privilege; and (3) recognition of the privilege among the States." Id. (citing Jaffee v. Redmond, 518 U.S. 1, 9 (1996)).

         Before applying these factors, the Court first notes that, "[a]lthough there appears to be consensus among lower courts and in other circuits that no federal privilege protects medical peer review materials in civil rights or antitrust actions . . . no such consensus has developed in medical or dental malpractice actions." Id. at *4 (citing cases).[1] This distinction makes sense, as federal laws which touch upon medical malpractice, like EMTALA and the Federal Tort Claims Act (FTCA), incorporate state law. Indeed, courts have noted "EMTALA's intended purpose of supplementing, rather than supplanting, state medical malpractice law . . . ." NRP Holdings LLC v. City of Buffalo, No. 11-CV-472S, 2015 WL 9463199, at *4 (W.D.N.Y. Dec. 28, 2015). Thus, it is not surprising that multiple courts have recognized state peer review privileges under federal law when presented with EMTALA or FTCA claims in addition to state law negligence claims. See, e.g., Brown, No. 3:14-cv-00228 (DJS), ECF No. 71, at 3 (recognizing federal peer review privilege in connection with EMTALA claims); Tep v. Southcoast Hosps. Grp., Inc., No. 13-11887-LTS, 2014 WL 6873137, at *5 (D. Mass. Dec. 4, 2014) (same); Francis, 2011 WL 2224509, at *5 (recognizing federal peer review privilege in FTCA context); Sevilla v. United States, 852 F.Supp.2d 1057, 1068-69 (N.D. Ill. 2012) (same); KD ex rel. Dieffenbach v. United States, 715 F.Supp.2d 587, 597-98 (D. Del. 2010) (same). Several others, including the courts in both cases cited by the Plaintiff, have stopped short of recognizing a federal peer review privilege, but they nevertheless applied the state law privilege to the plaintiff's state law claims. See Bennett v. Kent Cnty. Mem. Hosp., 623 F.Supp.2d 246, 255 (D. R.I. 2009) (applying peer review privilege to bar discovery of information ...

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