MOVING PARTY: Defendants The Healthcare Center of Downey, LLC dba Lakewood Healthcare Center and Rockport Administrative Services, LLC
RESPONDING PARTY(S): Plaintiffs Louise Robertson, in and through her Successor-In-Interest, Jackie Armstrong, and Jackie Armstrong
PROOF OF SERVICE:
- Correct Address: Yes.
- 16/21 (CCP § 1005(b)): OK. Served by mail on June 14, 2019; advanced to this date per June 17, 2019 minute order.
- DENY motion for protective order in part and GRANT motion for protective order in part as set forth below;
- DENY Plaintiffs’ request for sanctions.
ANALYSIS
Motion for Protective Order
Defendants move for a protective order regarding the deposition of Rockport Administrative Services’ former Quality Assurance Nurse, Cyril Tena, to preclude Quality Assurance matters from being inquired into, and any review completed by Tena with respect to Robertson and this lawsuit, on the basis of attorney-client and/or attorney work product privileges.
Defendants argue that Tena was the Quality Assurance Nurse for Rockport, providing services to Lakewood during the time period at issue in this case, including identifying areas of the facility that need improvement by discussing such matters with the Administrator or Director of Nursing, reviewing patient care, visiting patients, making observations about the facility, making recommendations for improvement in patient care, and following up on those recommendations. Accordingly, Defendants argue, certain topics to which Tena may be asked to testify come within the Evid. Code § 1157 privilege against discovery.
Evid. Code § 1157 provides:
(a) Neither the proceedings nor the records of organized committees of medical, medical-dental, podiatric, registered dietitian, psychological, marriage and family therapist, licensed clinical social worker, professional clinical counselor, pharmacist, or veterinary staffs in hospitals, or of a peer review body, as defined in Section 805 of the Business and Professions Code, having the responsibility of evaluation and improvement of the quality of care rendered in the hospital, . . . shall be subject to discovery.
(b) Except as hereinafter provided, a person in attendance at a meeting of any of the committees described in subdivision (a) shall not be required to testify as to what transpired at that meeting.
. . .
Evid. Code, § 1157 (bold emphasis and underlining added).
Here, none of the Defendants are alleged to be a hospital. Moreover, Defendants have not shown that Tena was a member of an organized committee or a peer review body as defined by B & P Code § 805(a)(1)(B)(i).
However, although Tena may be considered a medical or professional staff of a health care facility, the purpose of a “peer review body” must be considered. That is, a “peer review body” must be engaged in a “peer review,” as defined by B & P Code § 805(a)(1)(A).
Thus, the peer review body must review “licentiates,” which are defined in B & P Code § 805(a)(2) as follows:
(2) “Licentiate” means a physician and surgeon, doctor of podiatric medicine, clinical psychologist, marriage and family therapist, clinical social worker, professional clinical counselor, dentist, licensed midwife, or physician assistant. “Licentiate” also includes a person authorized to practice medicine pursuant to Section 2113 or 2168.
Bus. & Prof. Code, § 805 (a)(bold emphasis added).
There is no indication that Tena was on a peer review body which reviewed “licentiates” as defined in B & P Code § 805(a)(2).
Although Santa Rosa Mem’l Hosp. v. Superior Court (1985) 174 Cal.App.3d 711 was decided before B & P Code § 805(a)(1)(A) was amended in 1990 to include the above definition of “peer review body,” that case makes clear that the individual must have served on a committee that engaged in a review in order for Evid. Code § 1157 to be applicable. This is to be distinguished from the individual’s job duties and professional responsibilities/obligations and personal knowledge—which does not bring the person within Evid. Code, § 1157.
Accordingly, because Defendants have not demonstrated that Tena’s deposition testimony would reveal the contents of the records and proceedings of an organized committee or a peer review body, the Evid. Code § 1157 does not apply. The motion for protective order is DENIED in this regard.
As for the attorney-client privilege and attorney work product doctrine, the Court will issue a protective order prohibiting Plaintiffs’ counsel from inquiring as to any communications from Tena to Defendants’ counsel, or any documents prepared for the purpose of transmission to Defendants’ counsel. The motion for protective order is GRANTED in this regard.
However, Plaintiffs’ counsel is not prohibited from asking, and may ask, questions pertaining to underlying facts of which Tena had personal knowledge independent of or prior to engaging in any attorney-client communications or preparation of documents protected by the attorney work product privilege.
The attorney-client privilege does not apply to a witness’s independent knowledge of underlying facts. State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 639-40.
The fact that the information may eventually be disclosed to an attorney would not render the information privileged when it was not initially disclosed pursuant to a confidential attorney-client communication. Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 735.
Given Defendants’ partial success on this motion, and the fact that Defendants acted with substantial justification, Plaintiffs’ request for sanctions is DENIED.