Judge: John J. Kralik, Case: 22STCV08456, Date: 2023-01-06 Tentative Ruling

Case Number: 22STCV08456    Hearing Date: January 6, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.          Allegations

Plaintiffs Linda Heigle and Matthew Zabelle (“Plaintiffs”), individually and as successors in interest on behalf of Decedent Ruth S. Zabelle (“Decedent”) allege that Decedent was a resident at Defendant ICC Convalescent Corp. dba Imperial Care Center (“Facility”) beginning August 21, 2020 until her discharge on March 8, 2021.  Decedent is alleged to have been over the age of 65.  Defendant David Friedman (individually and as agent for Facility, “Friedman”) is alleged to be the Facility’s director and owner of 39 nursing facilities.  Plaintiffs allege that Decedent was transferred to Providence St. Joseph Medical Center.  When she presented at Providence, Plaintiffs allege that Decedent was profoundly dehydrated and has sepsis, chronic kidney disease, acute hypoxic respiratory failure, and acute chronic encephalopathy.

  Defendant Keino Rutherford, M.D. (“Dr. Rutherford”) was Decedent’s physician and Plaintiffs claim that he made no effort to speak to the family or obtain consent for treatments and did not recognize Decedent’s lesions from scabies.  Plaintiffs allege that Dr. Rutherford knew or should have known that scabies, if left untreated, can cause sepsis.

            The First Amended Complaint (“FAC”), filed May 17, 2022, alleges causes of action for: (1) wrongful death; (2) elder/dependent abuse and neglect (Welf. & Inst. Code, §§ 15600 et seq.); and (3) violation of patient’s rights.

            On September 19, 2022, Plaintiffs dismissed the 3^rd cause of action as against David Friedman only.

B.     Motions on Calendar

On October 17, 2022, Defendant Facility filed a motion to quash Plaintiffs’ Deposition Subpoena for Production of Business Records to Custodian of Records of County of Los Angeles Public Health. 

On December 22, 2022, Plaintiffs filed an opposition brief.

On December 28, 2022, Facility filed a reply brief.

DISCUSSION

            Facility moves to quash the Deposition Subpoena for Production of Business Records to Custodian of Records of County of Los Angeles Public Health issued by Plaintiffs, arguing that good cause exists because the subpoena violates the privacy rights of third parties’ health and medical conditions under the California Constitution and HIPAA.  Facility also argues that the subpoena seeks documents regarding Ruth Zabelle’s residency at Facility that would invade her privacy.  It argues that it cannot release such information without prior written consent of the impacted individuals and/or their guardians.  Facility also argues that Plaintiffs improperly seek documents about quality issuance records, which are immune from discovery. 

            The deposition subpoena seeks the following documents from County of Los Angeles Public Health: “Any and all reports, notes, findings, test results, investigation files, and photographs, pertaining to Ruth S. Zabelle; DOB: 4/3/1941; SS# XXX-XX-4165 [redacted]. DOD 3/8/2021.”  (Mot., Ex. B.)  Facility objected to the deposition subpoena.  (Mot., Ex. C.) 

            First, Facility argues that the deposition subpoena violates third party privacy rights because it includes documents of former/current residents, their family members, and staff who worked at Facility.  However, the deposition subpoena seeks records of Ruth Zabelle, the relevant Decedent of this action.  This lawsuit was commenced by Plaintiffs, who are the children of Decedent, based on allegations that Facility failed to properly care for Decedent during her residency.  The documents sought here are relevant and/or are reasonably calculated to lead to the discovery of relevant and admissible evidence as this is a wrongful death and elder abuse case regarding Deceased Ruth Zabelle.  Further, although Facility argues that prior written consent must be obtained, Decedent is now deceased and it is her children who are seeking the documents.  Also, to the extent that Facility is arguing that prior written consent of other third parties/residents and staff is necessary, such a request is speculative as it is unclear who Plaintiffs would even seek such consent from.  (As suggested by Plaintiffs in opposition, if specific third parties’ medical information would be disclosed, Facility should identify the individual(s) so that Plaintiffs may provide the proper notice.)  To the extent that any third-party health and medical information of other patients at Facility would be disclosed, such information may be redacted as the deposition subpoena does not seek any information regarding other patients.  Thus, the objection based on third party privacy rights is overruled.

            Second, Facility argues that any complaints of suspected elder abuse are confidential and protected from disclosure pursuant to Welfare & Institutions Code, §§ 15633 and 15633.5.  Section 15633 states that any report of suspected elder or dependent adult abuse made shall be confidential and may be disclosed to persons or agencies to whom disclosure of information of the identity of the reporting party is permitted under section 15633.5, persons who are trained and qualified to serve on multidisciplinary personnel teams, and a trusted contact person pursuant to section 15630.2(h).  Section 15633.5 states that information relevant to an elder abuse incident shall be given to “an investigator from an adult protective services agency, a local law enforcement agency, the office of the district attorney, the office of the public guardian, the probate court, the division, the Department of Financial Protection and Innovation, or an investigator of the Department of Consumer Affairs, Division of Investigation, who is investigating a known or suspected case of elder or dependent adult abuse.”  (Welf. & Inst. Code, § 15633.5(a)(1).)  The identity of the person who reports under the chapter shall be confidential and disclosed only among certain agencies and persons, but the identity of the person who reports may also be disclosed by court order.  (Welf. & Inst. Code, § 15633.5(b), (c).)

The Court does not read sections 15633 and 15633.5 as a bar to civil discovery.  Section 15633 states that the report shall be confidential and may be disclosed to certain persons, while section 15633.5 states who the report shall be made to and limitations to disclosing the identity of the reporter in certain circumstances.  While there may be reporting requirements to certain agencies under section 15633.5, this section does not bar the disclosure of reports (or the reporter) pursuant to court order.  Further, section 15633 maintains the confidentiality of the report and states who the report may be disclosed to, but does not provide a bar against disclosing the documents in civil discovery pursuant to a court order.  As such, the objection on this basis will be overruled and the Court will allow discovery of such reports/complaints—if any reports were made in Decedent’s file.  To maintain the confidentiality of the report, the Court will order the parties to meet and confer to enter a protective order.

Lastly, Facility argues that quality assurance records are immune from discovery under Evidence Code, § 1157 and 42 U.S.C. § 1395i-3(b)(1)(B).  Evidence Code, § 1157(a) states: “Neither the proceedings nor the records of organized committees of medical … 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, or for that peer review body, or medical … review … having the responsibility of evaluation and improvement of the quality of care, shall be subject to discovery.”  42 U.S.C. § 1395i-3(b)(1)(B) states: “A skilled nursing facility must maintain a quality assessment and assurance committee, consisting of the director of nursing services, a physician designated by the facility, and at least 3 other members of the facility's staff, which (i) meets at least quarterly to identify issues with respect to which quality assessment and assurance activities are necessary and (ii) develops and implements appropriate plans of action to correct identified quality deficiencies. A State or the Secretary may not require disclosure of the records of such committee except insofar as such disclosure is related to the compliance of such committee with the requirements of this subparagraph.”  Facility argues that Plaintiffs’ deposition subpoena includes quality assurance documents which it shared with Public Health relating to an investigation. 

To the extent that there are records arising from a proceeding or from an organized committee of licensed nursing facility regarding the evaluation and improvement of the quality of care of Facility is not subject to discovery.  However, the deposition subpoena does not seek only quality assurance documents regarding the Facility; rather, Plaintiffs seek documents related to Decedent.  Thus, Facility’s objection regarding quality assurance records is not fully relevant to the deposition subpoena as requested by Plaintiffs.

The motion to quash the deposition subpoena is denied. 

Facility did not request sanctions.

In opposition, Plaintiffs request sanctions in the amount of $8,137.50 against Facility and its attorney of record.  The Court will allow a modest amount of sanctions for Plaintiffs’ opposition to Facility’s motion in the total sum of $4,000. 

CONCLUSION AND ORDER

Defendant ICC Convalescent Corp. dba Imperial Care Center’s motion to quash Plaintiffs’ Deposition Subpoena for Production of Business Records to Custodian of Records of County of Los Angeles Public Health is denied.  As discussed above, the parties should meet and confer and submit a protective order for the Court’s signing.  

Defendant and its counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $4,000 to Plaintiffs, by and through counsel, within 20 days of notice of this order.

Defendant shall provide notice of this order.