State ex rel. HCR Manorcare, LLC v. Stucky

• Citation: 235 W.Va. 677,776 S.E.2d 271
• Decision Date: 09 June 2015
• Docket Number: No. 15–0094.,15–0094.
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia ex rel. HCR MANORCARE, LLC ; HCR Manorcare, Inc.; MC Operations Investments, Inc.; HCRMC Operations, LLC; HCR Manorcare Operations II, LLC ; HCR Manorcare Heartland, LLC; Manorcare, Inc; HCR Healthcare, LLC; HCR Manor Care Services, Inc. ; Health Care and Retirement Corporation of America, LLC; Heartland Employment Services, LLC ; Joseph Donchatz; John Does 1 Through 10; and Unidentified Entities 1 Through 10 (as to Heartland of Charleston), Petitioners v. The Honorable James C. STUCKY, Judge of the Circuit Court of Kanawha County, West Virginia; and Tom Hanna, individually, and on behalf of the Estate and wrongful death beneficiaries of Sharon Hanna, Respondents.

235 W.Va. 677

776 S.E.2d 271

STATE of West Virginia ex rel. HCR MANORCARE, LLC ; HCR Manorcare, Inc.; MC Operations Investments, Inc.; HCRMC Operations, LLC; HCR Manorcare Operations II, LLC ; HCR Manorcare Heartland, LLC; Manorcare, Inc; HCR Healthcare, LLC; HCR Manor Care Services, Inc. ; Health Care and Retirement Corporation of America, LLC; Heartland Employment Services, LLC ; Joseph Donchatz; John Does 1 Through 10; and Unidentified Entities 1 Through 10 (as to Heartland of Charleston), Petitioners

v.The Honorable James C. STUCKY, Judge of the Circuit Court of Kanawha County, West Virginia; and Tom Hanna, individually, and on behalf of the Estate and wrongful death beneficiaries of Sharon Hanna, Respondents.

No. 15–0094.

Supreme Court of Appeals of West Virginia.

Submitted April 22, 2015.

Decided June 9, 2015.

Robert M. Anspach, Esq., David E. Rich, Esq., William E. Murray, Esq., J. Jarrod Jordan, Esq., John A. Hess, Esq., R. Tyler Brewer, Esq., Anspach Meeks Ellenberger, LLP, Huntington, WV, Counsel for the Petitioners.

James B. McHugh, Esq., Michael J. Fuller, Jr., Esq., Kendra R. Fokakis, Esq., A. Lance Reins, Esq., Amy J. Quezon, Esq., McHugh Fuller Law Group, PLLC, Hattiesburg, MS, Counsel for Respondent Hanna.

Opinion

Justice KETCHUM :

This is an original proceeding in prohibition filed by petitioners HCR ManorCare, LLC, et al., a group of corporate entities and individuals engaged in the operation of nursing homes and assisted living facilities throughout the United States. HCR ManorCare, LLC, et al. (collectively “ManorCare”) are defendants in an action filed in the Circuit Court of Kanawha County by respondent Tom Hanna (“Hanna”), individually, and on behalf of the Estate and wrongful death distributees of Sharon Hanna (the “decedent”). Hanna alleges that the decedent died as a result of substandard care she received at Heartland of Charleston, a ManorCare nursing home located in Charleston, West Virginia.

ManorCare's petition for a writ of prohibition raises two discovery issues. The first issue concerns ManorCare's challenge to circuit court orders directing ManorCare to produce certain nurse consultant reports known as Center Visit Summaries. ManorCare contends that the Summaries are excluded from discovery under this State's statutory peer review privilege. The second issue concerns ManorCare's challenge to the circuit court's order directing ManorCare to produce certain documents known as board of director Briefing Packets. ManorCare contends that the Briefing Packets are excluded from discovery pursuant to the attorney-client privilege. Emphasizing that the circuit court did not conduct an in camera proceeding as to either discovery issue, ManorCare asks for relief in prohibition to prevent the enforcement of the orders requiring production of the Center Visit Summaries and the Briefing Packets.

Although this Court concludes that ManorCare's requested relief concerning the Center Visit Summaries is without merit, we are of the opinion that the circuit court exceeded its jurisdiction in ordering production of the board of director Briefing Packets. The circuit court should have conducted an in camera proceeding to make an independent determination as to whether the Briefing Packets are excluded from discovery pursuant to the attorney-client privilege. Accordingly, ManorCare's requested relief in prohibition is granted, as moulded.

I.The Underlying Action

The decedent, Sharon Hanna, was an intermittent resident of Heartland of Charleston from June 2011 until her death on September 23, 2011. In June 2013, Hanna, the decedent's son, instituted an action in the circuit court against ManorCare. Also named as a defendant was Joseph Donchatz, an administrator of Heartland of Charleston. An amended complaint was later filed in February 2014. Demanding compensatory and punitive damages, Hanna alleged that the decedent received substandard care while at Heartland and that among the consequences to the decedent were falls, fractures, pneumonia

and death.¹

A.Discovery Requests Concerning the Center Visit Summaries

Soon after the action was filed, Hanna served a first request for production of documents pursuant to Rule 34 of the West Virginia Rules of Civil Procedure. The request specified that “a statement of the specific basis on which privilege is claimed” was to be furnished by ManorCare for any document withheld under a claim of privilege or other exemption from discovery. ManorCare employed nurse consultants to do periodic evaluations of ManorCare facilities. In request numbers 16 and 26, Hanna sought production of nurse consultant reports (“Center Visit Summaries”), concerning the care and treatment of patients at Heartland of Charleston during the decedent's residency.²

Approximately two months later, in September 2013, ManorCare filed a response to request numbers 16 and 26 in which ManorCare asserted that it was unaware of the existence of, and did not have in its possession, sufficient information to formulate a reply. Moreover, ManorCare asserted that, even if the documents existed, i.e., the Center Visit Summaries, the documents would be excluded from discovery pursuant to the peer review privilege described in W.Va.Code, 30–3C–1 [2004], et seq. ManorCare did not allege in its response that it had a designated peer review organization in place which would have reviewed the purported Summaries.

In February 2014, Hanna filed a Rule 37 motion to compel with regard to request numbers 16 and 26. Hanna asserted that the requests sought information outside the scope of the peer review privilege. Following a hearing, the circuit court entered an order on May 12, 2014, directing ManorCare to produce the documents requested. The order provided that the identity of residents at Heartland of Charleston, other than the decedent, be redacted from the material. The order stated further:

If Defendants [ManorCare, etc. ] are going to attempt to assert a quality assurance privilege to any documents responsive to this ordered production, they must file a privilege log identifying when said document was created, who created said document by name and position in the facility, the title of the document, and a general description of the type of information contained in the document for the Court's review.³

Soon after, Hanna filed a motion to compel compliance with the May 12, 2014, order. In a separate letter to ManorCare, Hanna indicated that ManorCare was on notice of the Center Visit Summaries because ManorCare had been present during the discovery process in an unrelated action where information about the Summaries was obtained.

The unrelated action was styled McClanahan v. HCR ManorCare, LLC, et al., no. 13–C–1705 (Kanawha County). ManorCare asserts that it was not aware of the Center Visit Summaries until the deposition, in McClanahan, of Debra Blair on June 11, 2014. Blair was a nurse consultant who testified that she made reports after visiting ManorCare facilities in West Virginia. ManorCare states that the reports were made by nurse consultants, such as Blair, exclusively for ManorCare's Quality Assurance and Performance Improvement Program.

According to ManorCare, the Summaries in the current matter were only given to individuals permitted to be part of Heartland of Charleston's quality assurance, or peer review, committee as defined by its Quality Assurance and Performance Improvement Program. Thus, in August 2014, ManorCare filed a privilege log in the circuit court concerning the Center Visit Summaries pertaining to the decedent's residency at Heartland. ManorCare again asserted that the Summaries were protected from discovery pursuant to the statutory peer review privilege.

On September 4, 2014, the circuit court conducted a hearing on Hanna's motion to compel compliance with the May 12, 2014, order. Counsel for ManorCare argued that, in view of the filing of the privilege log, the next step would be for the circuit court to grant ManorCare an extension of time to demonstrate, by affidavit or otherwise, that ManorCare had a quality assurance committee. As stated by Hanna, however, ManorCare had been arguing peer review privilege since its original discovery response in September 2013, and yet, a year later at the September 4, 2014, hearing, ManorCare was “not prepared to establish the quality assurance privilege they claimed.”

On November 7, 2014, the circuit court granted Hanna's motion to compel compliance with the May 12, 2014, order and directed ManorCare to produce the Center Visit Summaries identified in the privilege log. The November 7, 2014, order stated that ManorCare “failed to put forth any evidence that a quality assurance committee existed or that the documents at issue were submitted to any such quality assurance committee.”⁴

ManorCare filed a motion to alter or amend the November 7, 2014, order. ManorCare alleged that the circuit court committed error by failing to conduct an in camera proceeding to determine the status of each document claimed to be privileged. The circuit court, however, entered an order on February 2, 2015, denying the motion. The order stated that

the evidence before this Court at the September 4, 2014 hearing was that during Sharon Hanna's residency at Heartland of Charleston there were Center Visit Summaries conducted by nurses that were not part of the quality assurance committee. Additionally, these nurses not only provided the Center Visit Summaries to staff at Heartland of Charleston, but also to a supervisor. While Defendants claim to have a quality assurance committee they have not offered any evidence of by-laws or any other support to the Court to establish that such committee is a “review organization” as defined in W.Va.Code, 30–3C–1. * * *

[T]he Court finds that the “Center Visit Summaries” are being sought from a non-review organization, or in other words, from an original source. Accordingly, the Defendants have not provided evidence to demonstrate their asserted

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