Snibbe v. Superior Court of L. A. Cnty.

• Decision Date: 27 February 2014
• Docket Number: B252210
• Citation: 168 Cal.Rptr.3d 548,224 Cal.App.4th 184
• Court: California Court of Appeals Court of Appeals
• Parties: Jason C. SNIBBE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Bruce Gilbert et al., Real Parties in Interest.

224 Cal.App.4th 184

168 Cal.Rptr.3d 548

Jason C. SNIBBE, Petitioner,

v. The SUPERIOR COURT of Los Angeles County, Respondent;Bruce Gilbert et al., Real Parties in Interest.

B252210

Court of Appeal, Second District, Division 4, California.

Filed February 27, 2014

Review Denied May 14, 2014

Cole Pedroza, Kenneth R. Pedroza and Matthew S. Levinson ; Law Brandmeyer & Packer, Robert B. Packer and Corey E. Krueger, Los Angeles, for Petitioner.

No appearance for Respondent.

Law Offices of Harold J. Light and Harold J. Light, Santa Monica, for Real Parties in Interest.

EPSTEIN, P.J.

Jason C. Snibbe, an orthopedic surgeon, has petitioned for a writ of mandate to compel the trial court to vacate a discovery order that required him to produce 160 postoperative orders in a wrongful death case. Petitioner contends the orders are irrelevant to the litigation, the physician-patient privilege and patient privacy rights preclude their discovery, and the discovery order is unduly burdensome. We grant the petition in part, limiting discovery to the pain management provisions of the orders, including the type of surgery, date and signature fields, and directing that all other information be redacted. We deny the petition in all other respects.

FACTUAL AND PROCEDURAL SUMMARY

Mildred Gilbert passed away in January 2011 after a hip replacement surgery petitioner performed on her at Cedars Sinai Medical Center (Cedars). Mrs. Gilbert's sons, real parties in interest Bruce Gilbert and Scott Gilbert, sued Cedars,¹ petitioner, and the anesthesiologist for their mother's wrongful death.

The postoperative order in Mrs. Gilbert's case included, among other directions for her care, a provision for the administration of morphine

, Dilaudid (hydromorphone ), or other pain medication to be filled in by the physician. The form order left blank spaces for the doses and intervals at which the chosen medication was to be administered for mild, moderate, and severe pain. Handwritten notations provided for the administration of a maximum dose of two milligrams of hydromorphone

every two hours for severe pain. Mrs. Gilbert was found unresponsive several hours after a nurse administered a two milligram dose by IV push.

Hydromorphone is a schedule II controlled substance. ( Health & Saf.Code, § 11055, subd. (b)(1)(J).) In a declaration, an expert for real parties in interest stated that hydromorphone

presents a high risk of fatal respiratory depression. The expert opined that the order of a maximum of two milligrams of hydromorphone

for postoperative pain relief was below the standard of care and a substantial factor in Mrs. Gilbert's death.²

At his deposition, petitioner testified that the postoperative order was filled out and signed by his physician assistant Jennifer Cabrera.³ Petitioner testified that it is his "standard of practice" to have Ms. Cabrera prepare all postoperative orders, which he "dictates[s] to her." He claimed that the two of them discuss pain relief with an anesthesiologist and refer some cases to a pain management service. He also claimed they decided together what pain relief to order for Mrs. Gilbert based on such factors as her age and the bone fracture she suffered during surgery.

In another part of the deposition cited by real parties' in interest's, petitioner testified he did not remember whether he consulted with the anesthesiologist about the maximum dose of hydromorphone

to be administered in Mrs. Gilbert's case. The expert also cited the anesthesiologist's deposition testimony that he would not have recommended the two milligram maximum had petitioner dictated the drug order to Ms. Cabrera in the anesthesiologist's presence. The expert opined that making postoperative orders after a major surgery was not included in the delegation of services agreement between petitioner and Ms. Cabrera, and even if it were, a physician assistant would be "totally unqualified to make the medical decisions" regarding Mrs. Gilbert's postoperative care.

In requests for production Nos. 23 and 24, real parties in interest sought to discover all postoperative orders signed by petitioner between June 2010 and June 2011 and by Ms. Cabrera between June 2009 and June 2011, that provided for the administration of opioids, including hydromorphone. The requests allowed for the redaction of patients' names and personal identifying information. Petitioner objected to these requests as overbroad, irrelevant, and violative of third party privacy rights. Real parties in interest moved to compel production. After allowing additional briefing and argument, the court granted the motion to compel, but limited the scope of discovery to 160 postoperative orders including provisions for the administration of opioids, split equally between surgeries petitioner performed at Cedars before and after Mrs. Gilbert's surgery. Upon seeking clarification, petitioner was given 15 days to produce the entire postoperative orders, not limited to their pain management provisions.

On petitioner's request, we issued an alternative writ directing the trial court to vacate its order granting the motion to compel as to requests for production Nos. 23 and 24 and to deny the motion as to those requests, or show cause for not doing so. We also stayed the discovery order.

DISCUSSION

Petitioner argues the discovery order violates the physician-patient privilege and third party privacy rights, seeks production of irrelevant evidence, and is unduly burdensome. We generally review discovery orders for abuse of discretion, but we independently review issues of law, such as those involving statutory interpretation. ( Pomona Valley Hospital Medical Center v. Superior Court (2012) 209 Cal.App.4th 687, 692–693, 147 Cal.Rptr.3d 376.)

I

We begin with relevance. "Unless otherwise limited by order of the court ... any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." ( Code Civ. Pro., § 2017.010.) In the trial court, the parties disagreed whether the entire postoperative orders or only the provisions for the administration of opioids were subject to the discovery order. In response to petitioner's request for clarification, real parties in interest argued in a conclusory fashion that other provisions in the orders, such as whether a patient is ordered returned to the orthopedic floor or how often vital signs are to be checked, are highly relevant to the litigation. The trial court apparently agreed since it directed petitioner to produce the entire postoperative orders, even though real parties in interest's separate statement supporting the motion to compel and the court's findings on the motion were limited only to the relevance of provisions for the administration of opioids.

In their return, real parties in interest argue that discovery of other patients' postoperative orders is relevant to "whether the Dilaudid Order arose from Dr. Snibbe's practice of always dictating to Ms. Cabrera as she makes the postoperative orders with the two of them discussing the case with the anesthesiologist; or instead the Dilaudid Order was made because Dr. Snibbe regularly permitted Ms. Cabrera to rely on boilerplate drug orders for the administration of opioid pain medication." Real parties in interest do not argue that all provisions in petitioner's postoperative orders are "boilerplate." Nor do they explain the independent relevance of provisions for other patients' return to the orthopedic unit and vital signs checks. Significantly, the trial court denied real parties in interest's separate requests to discover all postoperative orders, finding no evidence that orders not involving provisions for "opioid pain medications would be relevant to the issues in this case," and concluding that the discovery of such orders "would essentially constitute a fishing expedition" and infringe on third-party privacy rights without a compelling need.

As it stands, the discovery order is too broad. Based on real parties in interest's limited showing and the trial court's finding of relevance only as to the opioid provisions of postoperative orders, allowing discovery of the orders in their entirety is unreasonable. It is all the more so because production of entire orders may raise legitimate concerns about the scope of intrusion into patient privacy rights, which we discuss later in this opinion. But we do not agree with petitioner's argument that the opioid provisions in postoperative orders are irrelevant as well.

Petitioner relies on Bowen v. Ryan (2008) 163 Cal.App.4th 916, 78 Cal.Rptr.3d 128 ( Bowen ) to argue that his treatment of other patients is irrelevant to whether his treatment of Mrs. Gilbert fell below the standard of care and that real parties in interest essentially seek to discover inadmissible character evidence. In Bowen, supra, 163 Cal.App.4th 916, 78 Cal.Rptr.3d 128, a dentist was sued for choking and shoving a difficult child against a wall during an appointment. At trial, evidence was introduced of nine other incidents of alleged mistreatment of difficult children by the defendant during appointments. ( Id. at p. 918, 78 Cal.Rptr.3d 128.) The Court of Appeal rejected the plaintiff's argument that evidence of the unrelated incidents was admissible to demonstrate that the defendant acted in accordance with his usual custom or habit. The court explained that "[c]ustom or habit involves a consistent, semiautomatic response to a repeated situation. [Citations.]" The court concluded that the defendant's mistreatment of "nine of some 45,000 patients," in different ways and under different circumstances, did not qualify as custom or habit; it was, rather, improper character evidence. ( Id. at p. 926, 78 Cal.Rptr.3d 128.)

Bowen is distinguishable because, here, petitioner himself placed at issue his custom and...