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Danos v. Minnard

Court of Appeals of Louisiana, Fifth Circuit

August 28, 2019

RHONDA DANOS, INDIVIDUALLY, AND AS CURATRIX FOR THE INTERDICT, RONALD MARTIN, AND SCHEREE MARTIN
v.
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

          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.

          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.

          Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson.

          JUDE G. GRAVOIS JUDGE.

         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. 13:3715.3[1] and La. R.S. 44.7, infra, n. 2. In response, plaintiffs filed a 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' 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 ...


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