Estate v. Mid Coast Hosp.
| Decision Date | 29 September 2020 |
| Docket Number | Docket: Cum-18-445 |
| Citation | 239 A.3d 604 |
| Parties | ESTATE OF Carol A. KENNELLY v. MID COAST HOSPITAL |
| Court | Maine Supreme Court |
Philip M. Coffin III, Esq., and Abigail C. Varga, Esq. (orally), Lambert Coffin, Portland, for appellant Mid Coast Hospital
Travis M. Brennan, Esq. (orally), and Taylor A. Asen, Esq., Berman & Simmons, P.A., Lewiston, for appellee Estate of Carol A. Kennelly
Karen Frink Wolf, Esq., and Rachel M. Wertheimer, Esq., Verrill Dana LLP, Portland, for amici curiae Maine Hospital Association and Maine Medical Association
Thomas L. Douglas, Esq., Douglas, McDaniel & Campo LLC, PA, Westbrook, for amicus curiae Maine Trial Lawyers Association
Panel: MEAD, JABAR, HUMPHREY, and HORTON, JJ., and HJELM, A.R.J.*
Majority: MEAD, HUMPHREY, and HORTON, JJ., and HJELM, A.R.J.
[¶1] In this appeal, arising in a medical malpractice case, we must decide whether medical records of individuals who are not parties to these proceedings, even when redacted to remove personally identifying information, are protected from discovery by statutes providing for patient and medical records privacy, 42 U.S.C.S. § 1320d-6 (LEXIS through Pub. L. No. 116-158 ); 22 M.R.S. § 1711-C (2020),1 or the physician-patient privilege, M.R. Civ. P. 26(b)(1) ; M.R. Evid. 503(a)(1)(A), (a)(2)(A), (b).
[¶2] Mid Coast Hospital (MCH) appeals from an order entered by the Superior Court (Cumberland County, L. Walker, J .) compelling discovery of (1) the redacted medical records of fifty MCH patients who are not parties to these proceedings and (2) the personnel file of Dr. Mia Marietta, a former employee of MCH who performed the surgery at issue in this case.2 MCH argues that these records are not subject to discovery because they are not relevant, they are protected under state and federal law, and they are privileged under the Maine Rules of Evidence. See 42 U.S.C.S. § 1320d-6 ; 22 M.R.S. § 1711-C(2) ; M.R. Civ. P. 26(b)(1) ; M.R. Evid. 503. The Estate of Carol A. Kennelly ("the Estate")3 argues that the appeal is interlocutory because it does not satisfy any of the exceptions to the final judgment rule and that the records at issue are discoverable. We conclude that MCH's appeal from the portion of the order compelling production of the personnel file is interlocutory and does not fall within any of the exceptions to the final judgment rule, but we reach the merits of MCH's appeal from the court's order compelling discovery of the fifty nonparty patient records, and we vacate that part of the order.
[¶3] The pertinent facts are largely procedural and are drawn from the trial court record, which includes discovery materials already produced. See Doe v. McLean , 2020 ME 40, ¶ 2, 228 A.3d 1080. On September 2, 2015, Dr. Marietta performed a laparoscopic cholecystectomy—a gallbladder removal—on Carol A. Kennelly at MCH in Brunswick. The Estate alleges that Dr. Marietta, who is not a party to this action, negligently cut the incorrect duct during the procedure, causing bile to leak into Kennelly's abdomen, which required surgical repair, an extended recovery, and other medical treatments. The Estate further alleges that MCH is vicariously liable as Dr. Marietta's employer.
[¶4] In November 2016, the Estate filed a notice of claim of medical malpractice against MCH, and the parties proceeded through the prelitigation screening panel process. See 24 M.R.S. § 2853(1) (2020) ; M.R. Civ. P. 80M(b)(1). After the prelitigation screening process concluded without the parties reaching a settlement, the Estate filed a complaint in 2018 alleging medical malpractice. See 24 M.R.S. § 2903 (2020).
[¶5] The Estate alleges that MCH breached its duty to Kennelly when Dr. Marietta performed the surgery in a manner that violated the appropriate standard of care. It contends that the standard of care in this procedure is called the Critical View of Safety (CVS). According to the Estate, MCH's expert testified before the screening panel that, although CVS is the safest way to perform this procedure and is the standard of care in major cities, "a surgeon in Maine is within the standard of care as long as [the surgeon] use[s] an approach that [the surgeon] feel[s] comfortable with." Dr. Marietta testified in a deposition that she performs roughly 200 surgeries per year, the majority of which are laparoscopic cholecystectomies
, and that she does not use the phrase "critical view of safety" because she believes the term is unclear, and prefers instead to describe the specific steps she takes in a procedure.
[¶6] The Estate requested, and later filed a motion to compel the production of, Dr. Marietta's operative notes, with certain redactions, for the twenty-five gallbladder removal surgeries she performed on nonparty patients before Kennelly's surgery and the twenty-five gallbladder removal surgeries she performed on nonparty patients after Kennelly's surgery.4
[¶7] MCH objected to the production of the operative notes, arguing that the notes were privileged, confidential, and protected by state and federal law; that the request was not reasonably calculated to lead to the discovery of admissible evidence; and that the notes would be unduly burdensome to produce. The Estate argued that the redacted operative notes were relevant to determine whether Dr. Marietta had followed her standard practice during Kennelly's surgery and that production of those records would not violate privilege or confidentiality requirements.
[¶8] By written order entered on October 15, 2018, the Superior Court granted the Estate's motion to compel discovery and ordered MCH to produce, subject to redaction, Dr. Marietta's operative notes from the twenty-five nonparty surgeries she performed before Kennelly's procedure and the twenty-five she performed after it. The court ordered that the records be redacted and produced as follows:
(Emphasis in original.)
[¶9] MCH did not produce the requested materials but rather, on November 5, 2018, filed a notice of appeal from the discovery order. The Estate filed motions to dismiss the appeal as interlocutory and to supplement the record with certain materials. We denied both of the Estate's motions but ordered that the appellate justiciability of the issues raised would be addressed with the merits of the appeal.5
[¶10] On appeal, MCH challenges the court's order compelling production of the fifty nonparty operative notes. Much as it did before the trial court, MCH argues here that no portion of the nonparty medical records is discoverable because the records are not relevant, see M.R. Civ. P. 26(b)(1), and are protected by both state and federal privacy laws, see 22 M.R.S. § 1711-C(2) ; 42 U.S.C.S. § 1320d-6, and the physician-patient privilege, see M.R. Evid. 503. MCH asserts that the court therefore abused its discretion by ordering it to produce the requested material.
[¶11] MCH first argues that the court abused its discretion by ordering production of the operative notes because the way Dr. Marietta performed nonparty surgeries has no bearing on whether she breached her duty of care to Kennelly. The trial court found that the Estate's discovery request was "[m]ore than a mere fishing expedition for irrelevant surgical errors in other surgeries" and sought "to better establish what procedures would be consistent with the applicable standard of care and whether the procedure Dr. Marietta used in [Kennelly]’s surgery breached that standard." We agree but only as to the surgical procedures preceding Kennelly's.
[¶12] We review for clear error the court's determination that the nonparty operative notes are relevant. See Pinkham v. Dep't of Transp. , 2016 ME 74, ¶ 17, 139 A.3d 904. Pursuant to M.R. Civ. P. 26(b)(1), a party "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party." The scope of discoverable materials at this stage in the proceedings is broader than the scope of relevant evidence at trial. Compare id. with M.R. Evid. 401 . Therefore, the issue presented to the trial court was whether the nonparty operative notes were either relevant to the standard of care Dr. Marietta owed Kennelly...
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