Guzman-Ibarguen v. Sunrise Hosp.
| Decision Date | 01 June 2011 |
| Docket Number | Case No. 2:10-cv-1228-PMP-GWF,Case No. 2:10-cv-1983-PMP-GWF |
| Parties | ERINDIRA ESPERANZA GUZMAN-IBARGUEN, et. al., Plaintiffs, v. SUNRISE HOSPITAL AND MEDICAL CENTER, et. al., Defendants. |
| Court | U.S. District Court — District of Nevada |
This matter is before the Court on Plaintiffs' Motion to Compel Answers to Interrogatories and Requests for Production (#50), filed on March 28, 2011; Defendant's Opposition to the Motion to Compel (#58), filed on April 14, 2011; and Plaintiff's Reply to Response to Motion to Compel (#59), filed on April 14, 2011. The Court conducted a hearing in this matter on May 10, 2011.
These consolidated actions arise out of the suicide of Plaintiffs' decedent Oscar Mejia-Estrada on July 27, 2008 at Sunrise Hospital and Medical Center in Las Vegas, Nevada. The Plaintiffs filed their complaint in the United States District Court, Case No. 2:10-cv-1228, against Defendant Sunrise Hospital and Medical Center ("Sunrise") on July 22, 2010. The amended complaint in this action alleges a claim against Sunrise for violations of the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395(d)(2)(A) et seq. Plaintiffs also filed an action in the Nevada District Court against Sunrise, certain nurses and other employees of Sunrise, and Southwest Emergency Associates and Fremont Emergency for medical malpracticeunder Nevada law. The Defendants removed this action to federal court on November 12, 2010. See Notice of Removal (#1), Exhibit A, Case No. 2:10-cv-1983. The two actions were consolidated into Case No. 2:10-cv-1228 on December 6, 2010. Order (#27). The allegations in both actions are essentially the same.
On July 25, 2008, an ambulance was dispatched to Harrah's [Hotel/Casino] in regard to a report that an individual later identified as Oscar Mejia-Estrada was "displaying suicidal and homicidal ideation." The ambulance attendants transported Mr. Mejia-Estrada to the Sunrise Emergency Room for evaluation. The doctor and nurse(s) who examined and evaluated Mr. Mejia-Estrada concluded that he did not have an "acute/emergent medical condition" and was not a suicide or homicide risk. Mr. Mejia-Estrada was discharged from the Sunrise Emergency Room approximately 1 hour and 2 minutes after his arrival. Amended Complaint (#8), Case No. 2:10-cv-1228, ¶¶ 15-21. See also Plaintiffs' Motion to Compel (#50), Exhibit 2, Affidavit of Plaintiff's Expert Medical Witness Dr. Paul Bronston ("Bronston Affidavit"), ¶¶ 5-14.
Mr. Mejia-Estrada returned to the Sunrise Emergency Room on July 27, 2008 at 12:40 A.M. accompanied by family members. The hospital records stated that the reason for this return visit was: "Depressed anxious here 2 day." Bronston Affidavit, ¶ 15. Mr. Mejia-Estrada was examined and evaluated by a triage nurse and by a Dr. Weng. Mr. Mejia-Estrada appeared to have altered thought processes, and reported restlessness and anxiety that was moderate in severity. He denied suicidal ideation or plan. He also appeared agitated, had hyperactive body language and respiratory distress was present. The hospital staff concluded that Mr. Mejia-Estrada did not have any physical illness or injury, but based on his chief complaints of depression and anxiety, he was assessed as a suicide risk. Bronston Affidavit, ¶ 23. Dr. Weng executed a form at 2:30 A.M. giving medical clearance for Mr. Mejia-Estrada to have a psychiatric evaluation and also admitting him to the hospital for appropriate medical care. The Emergency Room nurse initiated "suicide precautions" at or about 5:25 A.M., which apparently required that Mr. Mejia-Estrada be checked at 15 minute intervals. Mr. Mejia-Estrada was issued a hospital gown and socks and he remained in the hospitalemergency department awaiting a mental health evaluation. Bronston Affidavit, ¶¶ 25-26.1
At 12:45 P.M. a nurse assistant found Mr. Mejia-Estrada lying face down with his hands folded under him. He was unresponsive and had a faint pulse. The nurse assistant called security, who in turned contacted an Emergency Room nurse. A respiratory technician examined Mr. Mejia-Estrada and found two socks stuck in his mouth or throat. Efforts to revive Mr. Mejia-Estrada were unsuccessful and he was pronounced dead at or about 1:00 P.M. Bronston Affidavit, ¶¶ 27, 33-39. Plaintiffs allege that Defendants failed to properly monitor Mr. Mejia-Estrada or to timely initiate efforts to revive him.
Plaintiffs' counsel sent a letter to Sunrise's risk management department on September 11, 2008, notifying it that his law firm represented all of the heirs of Mr. Mejia-Estrada arising out of all claims for his death on July 27, 2008 and offering to settle the heirs' claims for Sunrise's liability insurance coverage limits. Defendants' Opposition to Motion to Compel (#58), Exhibit B. Plaintiffs' counsel also filed a complaint against Sunrise with the Nevada Department of Health and Human Services (NV-DHHS) based on Sunrise's alleged violation of its emergency care obligations under 42 CFR § 489.24.2 The NV-DHHS conducted a survey of Sunrise on August 6, 2008 in regard to the allegation of noncompliance and thereafter reported its findings to the United States Department of Health and Human Services/Centers for Medicare and Medicaid Services ("HHS-CMS"). See Motion to Compel (#50), Exhibit 3, HHS-CMS's October 19, 2008 letter to Plaintiffs' counsel and HHS-CMS's October 19, 2008 letter to Sunrise Hospital.
In its October 19, 2008 letter to Sunrise, HHS-CMS stated that it had preliminarily determined that Sunrise had violated 42 CFR § 489.24 by failing to provided an appropriate medical screening examination and that its Medicare program provider agreement was thereforesubject to termination. HHS-CMS stated that Sunrise could avoid termination of its provider agreement and public notice of the same by "providing credible allegation or credible evidence of correction of the deficiencies or by successfully proving that the deficiencies did not exist." Plaintiffs' Exhibit 3. Sunrise submitted a written response and plan of correction to HHS-CMS on October 28, 2008. Motion to Compel (#50), Exhibit 4. In its response letter, Sunrise stated that "[t]he actions taken to correct the deficiencies include review and revisions, when appropriate, to the policies and procedures relating to EMTALA regulations, Medical Screening Examinations and patient monitoring." Id. In its responses on the HHS-CMS Statement of Deficiencies form, Sunrise further stated:
The Hospital initiated an internal review and in depth root cause analysis of this case on July 27, 2008. Sunrise Hospital and Medical Center does not have licensed psychiatric beds. As the Hospital does not provide psychiatric services, the Hospital does not have a psychiatrist listed in the physician ED on call roster. All of the Sunrise ED physicians are qualified and competent to perform a Medical Screening Examination (MSE) to determine if an Emergency Medical Condition (EMC) related to a psychiatric condition is present.
Sunrise further stated:
A Medical Screening Exam was performed on this patient, and was still in progress at the time of the patient's death. The ED Physician determined as required by NRS. 433A.170 (See Exhibit B1) and noted on the Nevada Legal 2000 (L2K) R form (See Exhibit B2), the patient had "no medical disorder or disease other than a psychiatric problem that required hospitalization." As part of the ongoing MSE, monitoring was required. The patient was placed in the Emergency Department Discharge Observation Unit (DOU) to await evaluation by the County Mobile Crisis providers. Staff assigned to this geographic location do not have responsibility for other patients.
Plaintiffs' Exhibit 4, Sunrise's response to Statement of Deficiencies, pages 1, 3.
Plaintiffs served Requests for Production of Documents on Defendant Sunrise which seek practically every document in its possession, custody or control that contains information about Mr. Mejia-Estrada's visits to Sunrise Hospital, including any and all witness statements and investigation reports. See Motion to Compel (#50), Exhibit 5, Defendant Sunrise Hospital'sResponses to Requests for Production Nos. 1, 2, 7, 15, 16, 21, 22, and 32.3 Sunrise objected to these requests on the grounds that they seek "information protected by the Peer Review Patient Safety and Quality Assurance Committees Privilege pursuant to Nevada Revised Statute [NRS] 49.117, 49.119, 49.265, 439.860 and 439.875." Id. Sunrise also objected to Request Nos. 1, 2, 7 and 15 on the grounds that the requests seek information protected by the attorney-client privilege and attorney-work product doctrine. In addition to objections based on privilege, Sunrise objected that the requests are over broad and ambiguous as to time and scope.
Plaintiffs argue that the Nevada statutory privileges do not apply in a federal action alleging claims arising under federal law and that there are no comparable medical peer review or self analytical privileges recognized under federal common law. Plaintiffs also argue that Defendants have not provided a privilege log or other evidence to support their claims of attorney-client privilege or work-product immunity.
The Court first addresses the Nevada statutory privileges asserted by Defendants and the scope of those privileges under Nevada law. In their objections to Plaintiffs' requests for production, the Defendants asserted the medical peer review privilege under NRS 49.117, NRS 49.119 and NRS 49.265. NRS 49.117 and NRS 49.119 apply to the proceedings of a "review committee" which includes an organized committee of a hospital responsible for evaluating and improving the quality of care rendered by the parent organization or "a peer review committee of a medical . . . society." See NRS 49.117.1 and 2....
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