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Thomas v. United States

United States District Court, D. Colorado

June 7, 2019

ORA THOMAS, individually, and as the next friend of ROBERT THOMAS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          DISCOVERY ORDER RE: RELEASES FOR THIRD-PARTY MEDICAL PROVIDERS

          S. KATO CREWS U.S. MAGISTRATE JUDGE.

         This Discovery Order addresses the Parties' dispute over medical releases Defendant seeks to obtain the deceased's medical records from third-party medical providers. Defendant raised the issue in the Parties' proposed Scheduling Order [ECF. #13], stating that “[a]n initial discovery issue has arisen that will significantly affect the course of discovery in this case and where the parties would greatly benefit from early judicial resolution.” The Court heard oral argument from counsel during the Scheduling Conference on June 5, 2019, and took the matter under advisement.

         The Court has considered the description of this discovery dispute contained in the Parties' proposed Scheduling Order [ECF. #13], the arguments of counsel during the Scheduling Conference, applicable case law, and the entire court file.

         A. FACTS RELEVANT TO THIS ORDER

         On March 25, 2017, the deceased, Mr. Thomas, was an 80-year-old United States Army Veteran. That day, he experienced chest pain and presented to the Denver VA Medical Center (“VAMC”) Emergency Department with a complaint of chest pain. He reported to the VAMC caregivers his history of taking Viagra on March 24, 2017. Plaintiff alleges that medical personnel provided Mr. Thomas with nitroglycerin, which was contraindicated within 24 hours of taking Viagra.

         According to Plaintiff, VAMC did not have the appropriate services to care for Mr. Thomas, who was undergoing a myocardial infarction. As a result, Defendant transferred Mr. Thomas to the University of Colorado Hospital even though Rose Medical Center (which had the closest Percutaneous Coronary Intervention Center) was across the street. In the ambulance, Mr. Thomas underwent CPR, and was subsequently diverted to Rose Medical Center where efforts to save his life were continued. Mr. Thomas subsequently died. The cause of death was documented as myocardial infarction.

         Plaintiff brings this action under the Federal Tort Claims Act (FTCA) alleging that VAMC was negligent in its care provided to Mr. Thomas. In relevant part, Plaintiff alleges Defendant: (a) failed to properly assess and treat him; (b) failed to obtain a reasonable history prior to administering nitroglycerin; (c) administered nitroglycerin, which was contraindicated based on Mr. Thomas' use of Viagra; (d) failed to perform a reasonable physical examination; (e) failed to order, perform, and obtain necessary and reasonable laboratory tests, including an INR or digoxin level, particularly given that Mr. Thomas was on warfarin and digoxin; and, (f) failed to provide reasonable care. Plaintiff alleges that Mr. Thomas died as a direct and proximate result of Defendant's negligence. Defendant denies that it breached the applicable standard of care or otherwise caused Mr. Thomas' death.

         Regarding Mr. Thomas' medical records in the custody of third-party providers, Defendant seeks a release (specific to the relevant providers) to obtain all records relevant to Plaintiff's claim, including records from the Denver Paramedics and Rose Hospital, who provided medical care and treatment to Mr. Thomas immediately prior to his death. Defendant also seeks records from the Office of the Medical Examiner for the City and County of Denver related to Mr. Thomas' death. However, Plaintiff has indicated that she will not provide a release for these medical records in the custody of third-parties.

         Plaintiff claims that these records are protected by a patient-physician privilege under state law, and that producing them raises issues of the deceased's privacy. Regardless, Plaintiff is voluntarily producing these records and has agreed to use a privilege log for any records she concludes are not discoverable, relevant, or which are otherwise privileged or private. Plaintiff fears that allowing Defendant to obtain these records directly by way of releases would equate to a fishing expedition into the whole of the deceased's medical history.

         Defendant's position is that federal common law, and not state law, determines what privileges apply in this FTCA case-there is no physician-patient privilege recognized by federal common law. Defendant further argues that it is insufficient to allow Plaintiff to serve as the gatekeeper over the deceased's medical records when Plaintiff has put the deceased's medical history at issue in this case.

         B. LEGAL PRINCIPLES

         The scope of discovery in federal court is broad:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). Rule 26 permits discovery regarding any nonprivileged matter that is relevant to any party's claim or defense, while the proportional needs of the case serve as guardrails for further reasonably tailoring the scope of discovery. Id. The Court may limit the scope of discovery to protect a party from undue burden or expense. Fed.R.Civ.P. 26(c)(1). In addition, “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible ...


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