In Re: Medical Review Panel Proceeding of Travis Porche (D), Pcf File No. 2021-00615.

IN RE: MEDICAL REVIEW                   *        NO. 2022-C-0707
PANEL PROCEEDING OF
TRAVIS PORCHE (D), PCF                  *
FILE NO. 2021-00615                              COURT OF APPEAL
                                        *
                                                 FOURTH CIRCUIT
                                        *
                                                 STATE OF LOUISIANA
                                     *******



                 APPLICATION FOR WRITS DIRECTED TO
               CIVIL DISTRICT COURT, ORLEANS PARISH
                       NO. 2022-02412, DIVISION “L”
                       Honorable Kern A. Reese, Judge
                                 ******
                         Judge Joy Cossich Lobrano
                                 ******
(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge
Rachael D. Johnson)


David Alan Abramson
Beth Abramson
LEWIS, KULLMAN, STERBCOW &ABRAMSON, LLC
601 Poydras Street, Suite 2615
New Orleans, LA 70130

      COUNSEL FOR RELATOR


Bryan J. Knight
Mark E. Kaufman
Niles, Bourque & Knight, LLC
201 St. Charles Avenue, Suite 3700
New Orleans, LA 70170

Guice Anthony Giambrone, III
A. Rebecca Wilmore
BLUE WILLIAMS, LLP
3421 N. Causeway Boulevard, Suite 900
Metairie, LA 70002
Harry Allan Rosenberg
Maria Nan Alessandra
David D. Haynes, Jr.
PHELPS DUNBAR LLP
365 Canal Street, Suite 2000
New Orleans, LA 70130

      COUNSEL FOR RESPONDENTS



                                        WRIT GRANTED;
                                VACATED AND REMANDED

                                      DECEMBER 8, 2022
JCL         Relator, Pamela Porche, seeks supervisory review of the district court’s

RLB   September 26, 2022 ruling granting the Motions for Protective Order filed by Dr.

RDJ   Eric Brooks, Nurse Practitioner Sydney Burchfield, and South Louisiana Medical

      Associates (“SLMA”), Respondents.

            On April 4, 2022, Relator filed a Request for Subpoena Duces Tecum

      (“SDT”) and Notice of Deposition for Records Only for SLMA, then the current or

      immediately former employer of Dr. Brooks and Ms. Burchfield. The SDT and

      Notice of Deposition for Records Only requested production of documents

      pertaining to the internal investigation or review of Ms. Burchfield and Dr. Brooks

      as it pertains to Travis Porche and his treatment; written or recorded statements

      obtained with respect to the treatment provided by Dr. Brooks and Ms. Burchfield

      to Travis Porche; disciplinary records, complaints, and internal reviews associated

      with Dr. Brooks and Ms. Burchfield; and the entire personnel file of Dr. Brooks

      and Ms. Burchfield.




                                                1
       On April 27, 2022, Dr. Brooks and Ms. Burchfield filed a Motion for

Protective Order, or In the Alternative, an Order Limiting the Scope of Discovery,

arguing that the scope of the request was overly broad and intrusive as to privacy

interests because the matter is in the medical review panel stage and because

personnel files are primarily used for impeachment purposes. Further, they argued

the records sought by Relator are subject to the peer review privilege set forth in

La. R.S. 13:3715.31 and not subject to disclosure. SLMA filed a similar Motion on

April 29, 2022.

       Relator filed an opposition to Respondents’ Motions on September 8, 2022.

Relator complained that Respondents have not identified any documents sought to

be produced, which they believe are subject to any privilege, and instead have


1 La. R.S. 13:3715.3 “was designed to protect the confidentiality of hospital peer review

committee records.” Gauthreaux v. Frank, 95-1033, p. 1 (La. 6/16/95), 

. In
pertinent part, section (A)(2) of the statute provides:

               … all records, notes, data, studies, analyses, exhibits, and
               proceedings of [a]ny hospital committee, the peer review
               committees of any medical organization, . . . group medical
               practice of twenty or more physicians, . . . or healthcare provider as
               defined in R.S. 40:1299.41(A), . . . 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 . . . , shall he 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.


                                                 2
argued a blanket privilege without identifying specifically those documents to

which any privilege attaches. Consequently, Relator maintained that Respondents

should be compelled to prepare and produce a privilege log of those documents for

an in camera inspection by the district court to determine whether the asserted peer

review privilege applies to shield the withheld document or any parts, from

discovery.

      By judgment signed on September 26, 2022, the district court granted

Respondents’ Motions and issued an order protecting from discovery the

documents sought by Relator in her Notice of Deposition for Records Only and the

STD issued to SLMA.

      Relator raises one assignment of error: the district court erred in granting

Respondents’ Motions for Protective Order without evidence that the requested

documents passed before a peer review committee and without conducting an in

camera inspection of the documents claimed to be protected by the privilege set

forth in La. R.S. 13:3715.3.

      The standard of review of a judgment on a motion for protective order is that

of abuse of discretion. Doe v. La. Bd. of Ethics, 12-1169, p. 2 (La. App. 4 Cir.

3/13/13), 

. The abuse of discretion standard “is highly

deferential, but a district court necessarily abuses its discretion if its ruling is based

on an erroneous view of the law.” 

                                            3
      In Smith v. Lincoln General Hosp., the Louisiana Supreme Court addressed

the scope of the privilege created by La. R.S. 13:3715.3. The Court stated that the

provision was:

             intended to provide confidentiality to the records and
             proceedings of hospital committees, not to insulate 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.

 (La. 1992). The Court further stated that:

             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.

 The Court remanded the action to the district court to make an in camera

inspection of the records and determine to what extent they may be discoverable.

 See also Gauthreaux v. Frank, 95-1033 (La. 6/16/95), 

 (finding

that La. R.S. 13:3715.3 does not shield any information passing before a hospital

committee or otherwise discussed in a committee meeting as that interpretation

was too expansive in light of the Smith decision); Sepulvado v. Bauman, 99-3326

(La. 12/17/99), 

 (case remanded to the district court to conduct an in

camera inspection of all materials requested by plaintiffs on which defendant

asserted a peer review privilege).




                                         4
      For the foregoing reasons, we grant the writ and vacate the judgment of the

district court. We further remand the case to the district court to conduct an in

camera inspection of all documents requested by relator in the SDT and Notice of

Deposition for Records Only on which respondent asserts a peer review privilege,

and to determine whether the privilege provided under La. R.S. 13:3715.3 applies

to shield the withheld documents or any parts, from discovery.


                                                           WRIT GRANTED;
                                                   VACATED AND REMANDED




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