United States District Court, D. Colorado
ORA THOMAS, individually, and as the next friend of ROBERT THOMAS, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
DISCOVERY ORDER RE: RELEASES FOR THIRD-PARTY MEDICAL
KATO CREWS U.S. MAGISTRATE JUDGE.
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
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
FACTS RELEVANT TO THIS ORDER
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.
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.
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.
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.
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.
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.
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 ...