A woman underwent a lithotripsy procedure. The physician who performed the procedure used ultrasound to destroy a kidney stone. The woman sustained second and third degree burns as a result of this procedure.
The woman and her husband sued the hospital where the procedure was performed and the physician who performed the procedure for medical malpractice. During discovery, the couple served a subpoena on the hospital seeking production of the physician’s credentialing file and the hospital’s incident file. The physician and the hospital jointly moved for a protective order and to quash the subpoena, arguing that the documents were privileged. The couple responded that the Utah statutes on which the doctor and the hospital relied were not operative because they had been adopted in violation of the Utah Constitution, which vested the authority to adopt rules of procedure and evidence in the Utah Supreme Court.
The Fourth District Court, American Fork, agreed with the couple, denied the motion for a protective order, ordered the hospital to produce the physician's credentialing file, and ordered the hospital to produce the incident file for in camera review. The physician and hospital sought interlocutory review.
The Supreme Court of Utah reversed. The court held that the rule of civil procedure governing disclosure and discovery was a valid source of evidentiary privilege with regard to the discoverability of the physician's credentialing file and the incident file, the determination of whether in camera review of purportedly privileged documents is necessary lies within the sound discretion of the trial court after it considers the foundational material provided by the party seeking to assert the privilege, and the court clarified the procedure to be followed by the trial court on remand when it considered the propriety of conducting the in camera review.
The rule of civil procedure governing disclosure and discovery was a valid source of evidentiary privilege with regard to the discoverability of the physician's credentialing file and the incident file relating to the lithotripsy procedure performed on the patient. The trial court erred when it relied solely on the former version of the Utah Rules of Civil Procedure to determine the discoverability of the physician’s credentialing file and the incident file. The court remanded both matters to the trial court with instructions to consider their discoverability in light of the privilege in Rule 26(b)(1) of the Utah Rules of Civil Procedure, as amended by the Legislature in 2012.
The determination of whether an in camera review of purportedly privileged documents is necessary lies within the sound discretion of the trial court after it considers the foundational material provided by the party seeking to assert the privilege. Parties may discover any matter, not privileged, which is relevant to the claim or defense of any party. This places the burden on the party asserting a privilege to establish that the material sought is protected from discovery. Utah rules set forth the procedure by which parties can meet this burden.
The court clarified the procedure to be followed by the trial court on remand when it considered the propriety of conducting the in camera review. A party seeking to withhold relevant, but arguably privileged, material from discovery will prepare and produce a privilege log sufficient to allow the opposing party to evaluate the claim of privilege. The opposing party may then raise any objections to the asserted privilege. The trial court may undertake in camera review when, in its sound discretion, it deems such a review necessary to properly evaluate whether the documents or items withheld from discovery qualify for the privilege. A proper privilege log must provide sufficient foundational information for each withheld document or item to allow an individualized assessment as to the applicability of the claimed privilege in order to ensure that any non-privileged documents or items, such as patient medical records, that have made their way into a care-review or peer-review file are not shielded from discovery.
The Supreme Court of Utah vacated the trial court’s rulings denying the motions for protective order as to the physician’s credentialing file and its order that the incident file be submitted for in camera review.
See: Allred v. Saunders, 2014 WL 5334034, 2014 UT 43 (Utah, October 21, 2014) (not designated for publication).
See also Medical Law Perspectives, July 2014 Report: Injuries Resulting From Laser Procedures: Risks for Physicians, Technicians, and Manufacturers
See also Medical Law Perspectives, November 2012 Report: Liability for Electronic and Other Medical Record Information Disclosure