Jane Doe, John Doe v. W. Kiernan O’Callaghan, M.D. Sansum Clinic; Sansum Santa Barbara Medical Clinic, Inc

Case Number

21CV03762

Case Type

Hearing Date / Time

Wed, 03/27/2024 - 10:00

Nature of Proceedings

1) Compel Further Deposition of Sansum Clinic’s PMQ; 2) Quash Subpoenas issued by Defendants; and, 3) Compel Compliance with Subpoenas issued to Plaintiff’s Healthcare Providers

Tentative Ruling

Plaintiff: Jennifer Fiore, Sophia Achermann

Defendant: William Clinkenbeard, Maureen Clark

Non Party: Denise Lawrence

Issue

These are three motions to compel that had been partially addressed previously and were continued for a further meet and confer. These motions were originally set for hearing on March 20. The Court tentatively set them for April 3 when other motions were calendared; counsel objected and asked that they be addressed on March 20; the Court accommodated counsel and set them for March 27.   

Motions to:

(1) Compel Further Deposition of Sansum Clinic’s PMQ.

(2) Quash Subpoenas issued by Defendants.

(3) Compel Compliance with Subpoenas issued to Plaintiff’s Healthcare Providers.

RULINGS

The Court has issued rulings below. Monetary Sanctions and/or Evidentiary Sanctions are DENIED; the Court finds they are not appropriate under the circumstances.

Analysis

Plaintiffs Motion to Compel and Request for Sanctions re 12/19-20/2023 Deposition.

On 2/9/23 Plaintiff filed a Motion to Compel further deposition for Sansum Clinic’s PMQ and Dr. O’Callaghan and sanction deposition questions, and reasonable follow-up questioning, in connection with the depositions of Defendant Sansum Clinics’ Person Most Qualified (“PMQ”) Dr. Marjorie Newman and Defendant W. Kiernan O’Callaghan.  Plaintiffs moves to compel pursuant to C.C.P. § 2025.010, et seq., including Sections 2025.230, 2025.410 and 2025.480, and all applicable California statutory and case law.  

A significant portion of the previous briefing relates to Section 1157 issues that Plaintiffs did not get answers to at the deposition; contends that during the December 19-20, 2023 depositions, in addition to instructing the doctors not to answer questions as to Jane Doe II, defense counsel improperly instructed the doctors to not answer questions on the basis of Evid. Code § 1157. The 31 questions that Plaintiffs seek to compel further testimony of Dr. Newman on along with reasonable follow-up questions are set forth in the following Topics in their Separate Statement:

Topic 1: What Dr. Newman reviewed in preparation for her deposition?

Topic 2: Dr. Newman’s Communications with the Santa Barbara Police Department & the Police Report.

Topic 3: Background Checks & Reference Checks.

Topic 4: Supervision of Physicians and Prevention of Sexual Assaults.

Topic 5: Policies and Procedures of Adverse Events & Sexual Assaults 

Topic 6: Complaints of Sexual Misconduct and Terminations for Sexual Misconduct. 

Plaintiffs contend that Sansum Clinic’s meet and confer letter of January 24, 2024 is devoid of any information, either in the letter itself or a privilege log, for Plaintiffs to assess Sansum Clinic’s claims of peer review pursuant to Evidence Code § 1157. Courts have recognized a need for supporting factual information specifically as to Evidence Code section 1157 because its protection is limited in scope. Plaintiff argues Defendants are improperly employing an overly broad and restrictive use Section 1157 that is wasting resources and time by having to address unmeritorious assertions; that good cause exists for compelling what Dr. Newman reviewed in preparation for her deposition; that what Dr. Newman reviewed in preparation for the PMQ deposition is discoverable and not automatically protected by Section 1157; good cause exists for compelling Dr. Newman’s communications with the Santa Barbara Police Department and the Police Report and background checks and reference checks; supervision of physicians and prevention of sexual assaults; etc.

Plaintiffs seek appropriate sanctions, including monetary sanctions, issue and/or evidentiary sanctions; Plaintiffs’ counsel was essentially ambushed minutes before appearing at the Sansum Clinics office to take the depositions. Defendants served no timely objection, nor intimated in any way they were going to impede the depositions prior to December 19; defense counsel produced Jane Doe No. II’s records without objection just the day before when Plaintiffs’ counsel stated they were needed before the depositions; support for sanctions is Defendants’ pattern of misusing the discovery process; they hid the identity of a key employee who checked Plaintiff in on the day of the appointment and created the initial chart notes; those notes also were not produced until Ms. Fiore kept pressing for them in December 2023. Ms. Fiore’s billable rate is $900 per hour; Plaintiffs are seeking $600 per hour given this type of motion for approximately 11 hours (5 hours related to this motion and 6 hours travel time), plus travel expenses of $1,000.

Plaintiffs request that the Court order Sansum Clinic’s PMQ Dr. Newman and Dr. O’Callaghan to provide further deposition testimony on the questions at issue, plus any and all reasonable follow-up questions as well as sanctions.

Plaintiffs Motion for an Order To Quash Six Subpoenas

Filed 2/8/24; Plaintiffs claim subpoenas were improperly issued by Defendants W. Kiernan O’Callaghan, M.D., Sansum Clinic and Sansum-Santa Barbara Medical Clinic, Inc. The subpoenas were issued to the following locations: (1) Santa Barbara Cottage Hospital; (2) Goleta Valley Cottage Hospital; (3) Jackson Medical Group; (4) CVS Pharmacy; (5) Goleta Neighborhood Clinic; (6) Blue Cross Blue Shield of Texas; (7) Riviera Therapy; and (8) Lauren Cumberbatch, LMFT. The exact language of the records sought from each location is different and is set forth in defendants' separate statement filed in support of this motion.

Defendants Motion To Compel Enforcement of Subpoenas

Filed 2/26/24; 168 pages; set for hearing 3/20/24; The parties have agreed to a stipulated protective order in this matter. Defendants are agreeable to having all records produced be subject to that protective order, such that any privacy concerns of the plaintiffs are protected in order to minimize disclosure of the records to those without a need to know. Defendants have no way of obtaining the records sought, other than through these subpoenas, as plaintiff will not produce them to defendants voluntarily and they cannot be obtained from other sources. Defendants' subpoenas do not seek plaintiff’s medical records for an unlimited amount of time but have been narrowly drawn to seek records for limited periods of time. As to Riviera Therapy and Lauren Cumberbatch, the subpoenas are seeking merely updated mental health records since the last date of production to defense counsel, consistent with the court's prior orders.

Plaintiffs Status Report

Filed 3/11/24: The following issues remain as to the Motion to Compel.

A. Questions 1 and 2. On February 23, 2024, Ms. Fiore and Mr. Clinkenbeard essentially agreed that Plaintiffs are allowed to discover any items that Dr. Newman reviewed, such as documents in administrative files or those created outside the 1157 process. Plaintiffs are willing to ask Questions 1 and 2 with the addition of the phrase outside of the 1157 process.  Then on February 27, Mr. Clinkenbeard stated that Defendants stand by their objections. Defendants, however, admit that the file that Dr. Newman reviewed contains some documents that fall outside of 1157, such as Plaintiffs’ complaint, the Physician’s Policy and Procedure Manual from 2007 (which has yet to be produced and should be produced without further delay). Mr. Clinkenbeard also advised that the file also contained a communication from him, a part of which might not be privileged, but he was going to check with Dr. Newman and get back to Plaintiffs. It has been nearly two weeks and no further response from Mr. Clinkenbeard. 

Ruling: Plaintiffs are allowed to discover any items that Dr. Newman reviewed, such as documents in administrative files or those created outside the 1157 process. Plaintiffs will ask Questions 1 and 2 with the addition of the phrase outside of the 1157 process. The Physician’s Policy and Procedure Manual from 2007 shall be produced on or before April 4, 2024. If Mr. Clinkenbeard finds that a communication from him, a part of which might not be privileged, it shall be produced redacted on or before April 4, 2024.

B. Questions 3-8. On February 23, 2024, Ms. Fiore and Mr. Clinkenbeard essentially agreed that Plaintiffs are allowed to ask those questions with adding a phrase of outside committee activities for the group of questions – again because administrative duties are outside the 1157 committee process. Mr. Clinkenbeard stated, for example, that the police report is not privileged per se.  Following the meet and confer, Mr. Clinkenbeard previewed on February 27 that there were no activities outside the scope of 1157. Plaintiffs’ counsel, therefore, intends to ask foundational questions, the questions at issue to determine and reasonable follow up questions to flesh out that there were apparently no activities outside of peer review committees.  

Ruling: Plaintiffs’ counsel is authorized to ask foundational questions, the questions at issue and reasonable follow up questions to flesh out that there were apparently no activities outside of peer review committees.  

C. Questions 10-13. Mr. Clinkenbeard agrees that Plaintiffs are entitled to a yes or no answer to Question 12, and previewed the answer is yes. Mr. Clinkenbeard advised on February 23 that he would further review the other questions. On February 27, he reported: Defendants’ position is that Plaintiffs cannot ask Questions 10, 11 and 13, as phrased, because they get into the specifics of what was done to vet Dr. O’Callaghan, and such questions are prohibited by 1157 and Brown v. Superior Ct. (1985) 168 Cal.App.3d 489. Plaintiffs strongly disagree as they are entitled to any information contained within the administrative files, which are outside the 1157 process. Brown supports compelling answers to the questions. Reviews undertaken as a matter of course are not protected from disclosure. (Santa Rosa Memorial Hosp. v. Superior Ct. (1985) 174 Cal.App.3d 711, 727.) Section 1157 also potentially provides immunity the peer review materials themselves, specifically the documents and testimony related to the peer review committee’s proceedings. Matters that are not “records” or “proceedings” of a peer review committee are not protected from discovery under Evidence Code § 1157. That the request “may include materials generated by hospital committees” is not enough. (Brown, 168

10 Cal.App.3d at 495.) Other committees that do not have these evaluative purposes and functions are not protected at all by section 1157 – it is wholly inapplicable to them.

Ruling: The Court overrules Mr. Clinkenbeard’s objections. Plaintiffs can ask Questions 10, 11 and 13, as phrased, and Defendants are ordered to answer them.

D. Questions 14-17. The parties essentially agree that Plaintiffs can ask the same questions with the implicit understanding that the questions are inquiring about non-peer review activities/documents only. The parties discussed reasonable follow-up questioning as well as. Plaintiffs are entitled to know about what the Defendants do in the ordinary course of business to supervise physicians and because Plaintiffs have the burden of proof on negligent hiring, supervision and retention. The case law shows that Plaintiffs are clearly entitled to discovery any and all evidence that exists outside of the peer-review process, e.g., in administrative files, policies and procedures, etc. and any and all evidence that shows what Defendants did to supervise physicians and preventing sexual assaults of patients by physicians. 

 Ruling: Plaintiffs can ask the same questions with the implicit understanding that the questions are inquiring about non-peer review activities/documents only. Plaintiffs can ask reasonable follow-up questioning as well. Plaintiffs are entitled to know about what the Defendants do in the ordinary course of business to supervise physicians.

E. Questions 18-26 and 27-31. As to Questions 18-26, Mr. Clinkenbeard has agreed that questions about policies can be asked and answered but believes questions about specific activities will be more problematic. The policies and procedures should also be produced (as they were requested in the deposition notice, and Plaintiffs also sent a list of what policies remain at issue from the deposition notice; Defendants have yet to address the production the policies that should be produced). As with Questions 14-17, Plaintiffs are entitled to know about what the Defendants do in the ordinary course of business to

physicians and because Plaintiffs have the burden of proof on negligent hiring, supervision and retention. The case law shows that Plaintiffs are clearly entitled to discovery any and all evidence that exists outside of the peer-review process, e.g., in administrative files, policies and procedures, etc. and any and all evidence that shows what Defendants did to supervise physicians and preventing sexual assaults of patients by physicians. 

Ruling: Questions about policies can be asked and will be answered; questions about specific activities may be asked and will be answered. The policies and procedures will be produced by April 4, 2024. Plaintiffs were sent a list of what policies remain at issue from the deposition notice; Defendants will address the production of the policies by April 4, 2024.

6. Questions 27-31, during the February 23 meet and confer, Mr. Clinkenbeard stated that

Plaintiffs might be able to get a yes or no response to Questions 30, and answers to Questions 29 and 31. He was supposed to provide further information about Defendants’ position by February 27. The only response he provided was with Questions 18-26, which was that questions about policies can be asked and answered but believes questions about specific activities will be more problematic. Defendants, therefore, have apparently not agreed to Questions 27-31. Please see Plaintiffs’ separate statement “Basis For Compelling Topic 6” for the law and supporting arguments as to why these questions and reasonable follow up are discoverable and necessary for Plaintiffs to meet their burden of proof at trial.

Ruling: Questions 29 and 31 may be asked and will be answered; questions about specific activities may be asked and will be answered.

Questions 27-28 about termination are not protected.

As to Questions 29 and 31, facts of sexual assaults is discoverable as they are facts – evidence of what happened at Sansum Clinic’s facility by their physicians or other staff. Prior and subsequent assaults and what actions Defendants have undertaken to prevent them go to their notice and breach of duties and are clearly discoverable. Defendants cannot hide the existence of other assault under peer review activities. 

Ruling: Questions 29 and 31 may be asked and will be answered.

The Following Issues Remain as to the Motion to Quash

Plaintiff, Jane Doe, moved to quash the six subpoenas issued to (1) Blue Cross & Blue Shield of Texas; (2) Cottage Hospital – Santa Barbara; (3) Goleta Valley Cottage Hospital; (4) Jackson Medical Group; (5) Goleta Neighborhood Clinic; and (6) CVS Pharmacy. No issues have been resolved. Instead of trying to resolve this issue in good faith, such as (1) withdrawing the ineffective subpoena to the out-of-state insurance company, (2) limiting CVS to mental health prescriptions instead of the entire CURES database that is for any Schedule II through V drugs, or (3) withdrawing the subpoenas to providers like Jackson Medical Group and Goleta Neighborhood Clinic where Defendants have presented no evidence that Plaintiffs treated there, Defendants filed a motion to enforce compliance with the subpoenas. Since filing the motion to quash, Plaintiffs have withdrawn or limited their claims, which is further support for why the subpoenas should be quashed: (1) Jane and John Doe have advised that they are not presenting any loss of consortium claim at trial; and (2) Jane Doe has advised that she is not seeking past or future economic damages for mental health treatment at trial. Thus, any documents on those issues are not directly relevant or likely to lead to the discovery of admissible evidence.

Defendants Response to Plaintiffs’ Opposition to Defendants' Motion.

On 3/13/24 Defendants filed a Response to plaintiffs’ opposition to defendants' motion for an order compelling plaintiffs' healthcare providers and health plan insurer to comply with defendants' deposition subpoenas for production of business records served on them. This reply concerns the subpoenas issued to: (1) SBCH; (2) GVCH; (3) Jackson Medical Group; (4) CVS Pharmacy; (5) Goleta 28 Neighborhood Clinic; (6) BCBS of Texas; (7) Riviera Therapy; and (8) Lauren Cumberbatch, LMFT. Plaintiff previously signed an authorization for the release of her records from BCBS of Texas, and the records were produced to Ronsin on December 1, 2022 for treatment dates up to 10/12/22 (34 pages). However, that authorization expired as soon as Ronsin obtained the records. The current subpoena that is the subject of defendants' motion to enforce seeks the following updated records only: "claims records, billing records, explanation of benefits records, relating to mental health only from 10/12/2022 to present." When plaintiffs' counsel met and conferred with defense counsel about the BCBS subpoena, she argued that the billing records were an inadmissible collateral source. When defense counsel responded that collateral sources are admissible in medical negligence cases under MICRA, there was no further discussion from plaintiffs' counsel on the issue. Then, plaintiffs' motion to quash and plaintiffs' opposition to this motion argue that the subpoena violates plaintiffs’ privacy rights and that it was an improper "out of state" subpoena. Both arguments are incorrect. Protecting privacy rights is the precise reason that the parties entered into a protective order in this case, and the court should order that the records to be produced be subject to that protective order. The protective order serves no function if documents subject to privacy concerns are nonetheless withheld from discovery.

On 3/13/24 Plaintiffs filed a Reply to the Response and report and Defendants’ motion to compel compliance; it flat out ignores the Court’s prior ruling in June 2022 regarding subpoenas for physical injuries. Despite knowing the nature and extent of Plaintiff’s claimed injuries, Defendants are unnecessarily wasting Plaintiff and her counsel’s time in issuing subpoenas for records they are not entitled to obtain.  The subpoenas to Jackson Medical Group, Cottage Hospital, Goleta Valley Cottage Hospital, and Goleta Neighborhood Clinic are particularly suspect since Plaintiff Jane Doe did disclose these facilities in discovery, nor discuss them at her deposition. Evidently, Defendants are using Sansum Clinic’s electronic medical records databases to gain unauthorized access to Plaintiff’s health information from outside providers (e.g., Cottage Hospital records). This not only violates Plaintiff’s privacy for unrelated health conditions but also gives Defendants an unfair advantage. HIPAA violations may be at play.  Plaintiffs request her motion to quash be granted in its entirety.  

Ruling: The subpoenas are not quashed. There is a Protective Order in place. The Court will enforce the subpoenas issued by defendants for plaintiffs' records from the above-mentioned locations, and orders that the records to be produced are subject to the parties' protective order.

Plaintiffs Further Status Report

Filed on 3/18/24; Additional deposition testimony was taken last week and some of the Evid. Code Section 1157 issues were resolved. This statement is an update as to what questions and reasonable follow-up questions remain with respect to the motion to compel. 

A. Deposition of Dr. Newman/Sansum Clinics PMQ.

Question 10 (As Numbered in Plaintiffs’ Separate Statement of Items in Dispute) “In terms of background checks, what does Sansum Clinic do with respect to background checks of physicians?” (Newman Depo. at 33:18-20.) 

Ruling: The question will be answered.

Question 11. “You mentioned checking references. What does Sansum Clinic do to check references.” (Newman Depo. at 33:24-34:1.) 

Ruling: The question will be answered.

Question 13. “Were Dr. O’Callaghan’s references checked prior to being allowed to work on the premise at Sansum Clinic?” (Newman Depo. at 34:9-11.) 

Ruling: The question will be answered.

Question 28. “Were any physicians terminated for inappropriate sexual misconduct from approximately 2010 to 2020?” (Newman Depo. at 151:15-17.) 

Ruling: The question will not be answered. The objection to the question is sustained.

Question 29. “And how many allegations of inappropriate misconduct by physicians have been made since 2010 to present?” (Newman Depo. at 151:19-21.) 

Ruling: The question will not be answered. The objection to the question is sustained.

Question 31. “Okay. How -- going to 7(a), I know I asked -- before I get to (a), I had asked about physicians, and you were instructed not to answer under 1157. How many complaints of inappropriate sexual misconduct have occurred against physician assistants or nurse practitioners?” (Newman Depo. at 157:21-158:2.)

Ruling: The question will not be answered. The objection to the question is sustained.

B. Dr. O’Callaghan Deposition 

Question 2. “Is it your understanding that Sansum Clinic determined that there was no inappropriate sexual misconduct by you at any time?” (Dr. O’Callaghan Depo. at 34:18-20.)

Ruling: The question will not be answered. The objection to the question is sustained.

Plaintiffs Request for Dismissal

Filed 3/19/24. Dismisses Plaintiff John Doe's causes of action only.

Plaintiff’s Status Conference in Response to Defendants’ Further Statement Filed           3/19/23 regarding Kansas and South Carolina Subpoenas

Dated 3/19/24. After having completed a deposition in this case, Plaintiff’s counsel just had the opportunity to review Defendants’ further statement conference statement served and filed earlier today that addresses new issues related to the subpoenas to Dr. O’Callaghan’s previous employers. Defendants continue to improperly use Evidence Code Section 1157 to prevent discoverable facts. Plaintiffs request that since Defendants raised this issue today, the Court consider Plaintiff’s response.

Yesterday, March 18, 2024, Mr. Clinkenbeard sent a one line email to Plaintiff’s counsel, Jennifer Fiore, stating: “We will be moving to quash all subpoenas and related efforts in connection with the attachments. Monetary sanctions will be requested from plaintiffs and their counsel for making such motions necessary, in light of the court’s prior ruling on plaintiffs’ subpoena for records and/or testimony from the Medical Board of California, which held that plaintiffs were entitled to only that information which had been made public by the MBC, and nothing more.”

Ms. Fiore responded forty minutes later, asking Mr. Clinkenbeard to please provide a more detailed meet and confer as the California Medical Board order does not apply to prior employers; nor does it trump Plaintiff's right to discovery on whether Dr. O'Callaghan was terminated, lost his privileges or was subject to other complaints of sexual misconduct.

These PMQ subpoenas to his former Kansas and South Carolina employers were narrowly tailored to fit within California Evidence Code Section 1157 and case law interpreting it. By way of example of the subpoena to St. Francis Hospital, the PMQ subject matters are:

1. The date and description of any complaints, concerns and/or allegations of sexual harassment, sexual assault and/or sexual battery committed by Dr. William Kiernan O’Callaghan. [This does not include the disclosure of identifying information of any person who made the complaint, concern or allegation.]

Ruling: Defendants may file a motion to quash subpoenas issued by plaintiffs to out of state entities in South Carolina and Kansas by Monday, March 25, 2024 and have it heard on shortened time.  Opposition to be filed and served by 3/28 at 5 p.m. and reply to be filed and served by 3/29 at 5 p.m.  The motion will be heard on shortened notice on April 3, 2024 at 10:00 a.m. in Department 3. 

2. The date and description of any complaints, concerns and/or allegations regarding any inappropriate or questionable behavior of Dr. William Kiernan O’Callaghan of a sexual nature. [This does not include the disclosure of identifying information of any person who made the complaint, concern or allegation.]

Ruling: Plaintiff may file a motion to compel further deposition questions, which will be heard on shortened time on April 11, 2024 at 10 a.m. in Department 3.  The motion is to be filed and served by 3/29 at 5 p.m. with opposition to be filed and served by 5 pm on 4/5/24.  The reply is due on 4/8 by 5 p.m.

3. Whether any disciplinary or remedial action was taken against Dr. William Kiernan O’Callaghan during his tenure with St. Francis Hospital.

Ruling: Plaintiff may file a motion to compel further deposition questions, which will be heard on shortened time on April 11, 2024 at 10 a.m. in Department 3.  The motion is to be filed and served by 3/29 at 5 p.m. with opposition to be filed and served by 5 pm on 4/5/24.  The reply is due on 4/8 by 5 p.m.

4. Whether any of Dr. William Kiernan O’Callaghan’s privileges were restricted or terminated during his tenure with St. Francis Hospital.

Ruling: Plaintiff may file a motion to compel further deposition questions, which will be heard on shortened time on April 11, 2024 at 10 a.m. in Department 3.  The motion is to be filed and served by 3/29 at 5 p.m. with opposition to be filed and served by 5 pm on 4/5/24.  The reply is due on 4/8 by 5 p.m.

5. Whether Dr. William Kiernan O’Callaghan is eligible to reapply for privileges with The University of Kansas Health System St. Francis Campus (formerly St. Francis Hospital).

Ruling: Plaintiff may file a motion to compel further deposition questions, which will be heard on shortened time on April 11, 2024 at 10 a.m. in Department 3.  The motion is to be filed and served by 3/29 at 5 p.m. with opposition to be filed and served by 5 pm on 4/5/24.  The reply is due on 4/8 by 5 p.m.

6. Whether anyone from Dr. William Kiernan O’Callaghan’s subsequent places of practicing medicine contacted The University of Kansas Health System St. Francis Campus (formerly St. Francis Hospital) regarding Dr. William Kiernan O’Callaghan’s tenure and/or privileges with St. Francis Hospital.

Ruling: Plaintiff may file a motion to compel further deposition questions, which will be heard on shortened time on April 11, 2024 at 10 a.m. in Department 3.  The motion is to be filed and served by 3/29 at 5 p.m. with opposition to be filed and served by 5 pm on 4/5/24.  The reply is due on 4/8 by 5 p.m.

Ms. Fiore explained the following in her March 18, 2024 email to Mr. Clinkenbeard. Questions 1-4 were drafted so as to comply with the leading case law on background checks and denials or termination of privileges. The scope of the peer review privilege is limited. It does not apply to previous denials of privileges, patient medical records, hospital actions based on committee investigations, information known by peer review participants, etc. It only applies to bodies “having the responsibility of evaluation and improvement of the quality of care rendered in the hospital.” (Evid. Code § 1157.) “These committees evaluate physicians applying for staff privileges, establish standards and procedures for patient care, assess the performance of physicians currently on staff, and review such matters as the need for and results of each surgery performed in the hospital, the functioning of the patient records system, the control of in-hospital infections, and the use and handling of drugs within the hospital. [Citations.]” (Fox v. Kramer (2000) 22 Cal.4th 531, 538 (citations and quotations omitted).

The fact of a background check or reference check is not protected under Section 1157 both as to it being part of an administrative task and whether a peer review committee did in fact evaluate a physician for staff privileges. (Brown v. Superior Ct. (1985) 168 Cal.App.3d at 501-502 (holding permissible to require “a ‘yes’ or ‘no’ answer to a question directed to the fact of evaluation”); see also Mt. Diablo Hosp. Dist. v. Superior Ct. (1986) 183 Cal.App.3d 3, 35, n. 6; Hinson v. Clairmont Comm. Hosp. (1990) 218 Cal.App.3d 1110, 1128-1129). Likewise, the previous denials of privileges is discoverable. The fact that a physician was denied privileges at another hospital is not immune from discovery when a committee considers that fact in the peer review process. (Alexander v. Superior Ct. (1993) 5 Cal.4th 1218, 1223, n. 4.)

This is further bolstered by the fact that facility actions based on committee investigations are not immune from discovery. While the committee’s recommendation may be protected, the actions taken are not. See, for example, Hinson, supra, 218 Cal.App.3d at 1128-1129, where the Court held section 1157 did not prevent discovery information whether a hospital has ever denied, suspended, revoked, or terminated a physician’s staff privileges. Since actions resulting from a committee’s findings and conclusions are not immune from discovery, section 1157 should not bar discovery of any limitations that were placed on a physician’s hospital privileges even though the hospital may have acted based on a committee’s recommendation. As to Questions 5 and 6, facts are discoverable. It does not matter that those facts made their way to a peer review committee or activity. The Santa Rosa Memorial Hospital Court explained this very clearly.

Defendants Further Status Conference Statement

Filed 3/19/24. 29 pages; summarized: Reports: On March 18, 2024, defendants were notified of deposition subpoenas issued by plaintiffs to obtain testimony from the person most qualified on behalf of Hilton Head Hospital in South Carolina and on behalf of Stormont-Vail, Inc. and St. Francis Hospital in Kansas. These subpoenas seek testimony regarding description of any complaints, concerns and/or allegations of sexual harassment, sexual assault and/or sexual battery committed by Dr. William Kiernan O'Callaghan, disciplinary or remedial actions taken against Dr. O'Callaghan, restriction of Dr. O'Callaghan's privileges, eligibility to reapply for privileges, investigations by any subsequent health care facilities/employers of Dr. O'Callaghan's regarding Dr. O'Callaghan's tenure/privileges at the subpoenaed locations. These depositions are set for March 29, 2024 and April 1, 2029. Defendants were not previously notified regarding these subpoenas. This Court has previously ruled on this issue in the context of discovery motions, including defendants' motion to quash a subpoena issued by plaintiffs to the California Medical Board. This Court held in pertinent part that plaintiffs were only entitled to documents which are expressly made disclosable to the public, but plaintiffs were not entitled to documents which are expressly made not subject to discovery (Court order issued on or about 3/1/23. This Court further discussed the protections from civil discovery afforded under Evid. Code §1157, including documents relating to the investigative and evaluative functions of medical staff committees (Id.). South Carolina affords similar protection to medical quality assurance committees (see, SC Code 44-7-392) as does Kansas (see Kansas Statutes, §65-4915).

Hearing Date April 3.

Plaintiff’s Points and Authorities in Support of Opposition to Defendants Motion to Compel Compliance with Subpoenas Issued to Plaintiff’s Mental Health Care Provider

Filed 3/20/24; Defendants’ motion to compel compliance with subpoenas issued to (1) MedVidi, (2) LifeStance Health, and (3) World Class Psychiatry of Santa Barbara is moot because Defendants already have a copy of Plaintiff’s mental health records from these providers. Since Defendants have possession of the records, and billing records are not relevant to any defenses or claims in this action, any effort by Defendants to pursue this motion would be a further waste of the parties, Court’s, and medical facilities’ time. Defendants’ motion should accordingly be denied. Plaintiff Jane Doe has withdrawn her claim for past and future economic damages for mental health treatment at trial. John Doe is no longer a party to this case. Jane Doe’s loss of consortium claim has also been withdrawn. Plaintiff received psychological treatment in 2023 with Dr. David McCall, of MedVidi, and in 2023-2024 with Dr. Adham Malaty, of LifeStance Health. The treatment was disclosed during discovery in this case. On March 18, 2024, Plaintiff’s counsel provided Defendants’ counsel with a copy of the psychological treatment records in their possession, from MedVidi and LifeStance Health. World Class Psychiatry, whom Dr. Malaty is affiliated with, does not possess any treatment records pertaining to Plaintiff. The inexistence of records was communicated to defense counsel. Plaintiff’s counsel requested Defendants withdraw the pending motion from the Court’s calendar since they have the psychological treatment records they sought to compel from the three facilities. Defense counsel has not responded to Plaintiff’s counsel’s request. Defendants lack good cause in their pursuit of Plaintiff’s mental health treatment and billing records from Dr. McCall (MedVidi) and Dr. Malaty (LifeStance Health). There is no need for them to pursue this motion any further, and any effort to do so is unreasonable and unwarranted. The motion to compel should be denied on this basis. Jane Doe requests that the motion to compel compliance with subpoenas be denied.

Supported by the Declaration of Sophia Achermann.

Hearing Date April 3.

Plaintiff’s Response to Defendants’ Separate Statement in Support of Defendants’ Motion to Compel Compliance with Subpoenas issued to Plaintiff’s Mental Health Providers

Filed 3/20/24. This motion concerns three of defendants' subpoenas issued February 23, 2024 for Jane Doe's mental health and mental health billing records from MedVidi, LifeStance Health and World Class Psychiatry of Santa Barbara. Plaintiff identified these providers in discovery for the first time on February 21, 2024. (Exh. A, p. 3.)

Hearing Date April 3.

Declarations of Sophia Achermand and Richard Shaw  in Support of Plaintiff’s Opposition to Compel Mental Examination of Jane Doe

Filed 3/20/24.

Hearing Date April 3.

Defendants Motion to Quash Plaintiff’s Deposition Subpoenas in South Carolina and Kansas; Request for $2,460 Sanctions

Filed 3/25/24.

Hearing Date April 3.

The Court’s Conclusions

The Court has done its best to address the issues presented for hearing on 3/27/24 and recognizes there are additional hearings on motion(s) on 4/5 and 4/11. The Court is aware of the CMCO filed 3/22/24: The court ruled as follows:

1. The three motions previously scheduled for hearing on 3/20/24 are continued to 3/27/24 at 10 am in Department 3.  

2. Defendants may file a motion to quash subpoenas issued by plaintiffs to out of state entities in South Carolina and Kansas by Monday, March 25, 2024 and have it heard on shortened time.  Opposition to be filed and served by 3/28 at 5 p.m. and reply to be filed and served by 3/29 at 5 p.m.  The motion will be heard on shortened notice on April 3, 2024 at 10:00 a.m. in Department 3.  

3. Plaintiff may file a motion to compel further deposition questions, which will be heard on shortened time on April 11, 2024 at 10 a.m. in Department 3.  The motion is to be filed and served by 3/29 at 5 p.m. with opposition to be filed and served by 5 pm on 4/5/24.  The reply is due on 4/8 by 5 p.m. 

4. Courtesy copies of all documents shall be emailed to the court at the time of filing and service.

NOTICE: We will not have a court reporter for your case. If counsel want a court reporter, it will be your obligation to retain one for the trial. There can only be one official record of court proceedings, and only a reporter appointed by the court may report a court proceeding.  Only one reporter will be allowed to report a court proceeding at any given time.  If the parties cannot agree on a reporter, the Court will make the selection after you submit the name and address of the Court reporter each counsel has engaged. Counsel will notify the Court 10 days in advance of the trial date if you are going to provide a court reporter. Court reporters will not be permitted to work via Zoom.