State Law Cannot Shield Documents from Discovery in FCA Case; United States District Court for the District of Utah, Central Division No. 2:16-cv-00304-TS-EJF, U.S. ex rel. Gerald Polukoff M.D. v. St. Mark’s Hospital, Sherman Sorensen M.D., and Sorensen Cardiovascular Group
The relator’s motion to compel discovery of certain medical documents held by the defendants is granted, where the state law cited by the defendants did not extend privilege to the documents they wished to protect and where the courts are not obligated to adopt state laws that contradict federal discovery rules.
Relator Gerald Polukoff moved to compel the production of documents withheld by two defendants in his qui tam cases alleging healthcare fraud. Sherman Sorensen M.D. and Sorensen Cardiovascular Group claimed the documents were privileged under Utah state law.
The state law cited by the defendants sets out the entities who may receive certain healthcare information and provides that the information may be provided only to advance research or to evaluate and improve health care treatment. The law states that any information provided under the law in this manner is privileged and not subject to discovery during litigation.
The court found the defendants had not established that any of the documents should be privileged under the state law. Several of the documents for which the defendants claimed privilege had no indication they were provided to one of the enumerated entities for the purposes outlined in the statute, while others did not have sufficient information to allow the court to make such a determination.
While some of the entries in the defendants’ privilege log mention that the information was subject to peer review, the court found they failed to meet the requirements of the care review statute for other reasons. Specifically, nothing in the privilege log or the briefing suggested the documents were created or submitted to any of the enumerated entities or that they were submitted for the purpose of any study meant to reduce morbidity or mortality, or for the purposes of evaluation and improvement of hospital and health care.
The defendants argued that the documents related to policy and the suspension of Dr. Sorensen, but the court held that neither policy development nor disciplinary actions fell within the statute’s definitions. Further, Utah courts have held that the care review privilege applies only to documents specifically prepared to be submitted for care review purposes, and not to any and all medical documents prepared by hospital personnel, despite their tangential relationship to improvement of hospital care. In short, the court found the defendants provided no evidence that the materials they wished to shield from discovery were covered by the law they cited.
Further, even if the defendants had made such a showing, the court explained that the majority of federal courts have declined to adopt a federal care review privilege. Unless contradicted by the Constitution or federal law or regulation, the common law governs the recognition of new federal privileges. While federal courts may consider state laws in determining whether a privilege should be recognized as a matter of federal law, they should only incorporate that privilege to the extent it is consistent with the federal policies at issue.
In this case, while federal law provides some protections from liability for peer review participants, it does not shield peer review materials from discovery in litigation. The court noted that Congress specifically passed a law to encourage medical care peer review and did not include any type of discovery or evidentiary privilege, which it held weighed heavily against finding the existence of one. The FCA itself carves out no such protections, and the court found it would be illogical to extend this privilege to healthcare fraud cases when it has not been adopted elsewhere, such as in cases involving national security or defense contracts.
