Judge: Lynne M. Hobbs, Case: 20STCV42444, Date: 2024-06-10 Tentative Ruling

Case Number: 20STCV42444    Hearing Date: June 10, 2024    Dept: 61

GERGIS R. GHOBRIAL, M.D. vs LONG BEACH MEMORIAL MEDICAL CENTER, A CALIFORNIA CORPORATION, et al.

TENTATIVE

Defendant Long Beach Memorial Medical Center, Memorial Health Services, and Desiree Thomas RN.’s Motion to Quash Six Subpoenas is GRANTED. Sanctions are ordered against Plaintiff in the amount of $2,535.00.

Defendants to give notice.

DISCUSSION

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc. § 1987.1, subd. (a).) A party may bring a motion under this section. (Code Civ. Proc. § 1987.1, subd. (b)(1).)

Defendants Long Beach Memorial Medical Center (LBMMC), Memorial Health Services, and Desiree Thomas (collectively Defendants) seek to quash six deposition subpoenas sent by Plaintiff Gergis Ghobrial to LBMMC seeking the medical records for the following patients: Todd Dinand, Rahan Dakhil, Omar Awaida, Melody Keidel, Javier Lopez Vargas, and Alberto Lopez. The subpoenas seek, for each patient, the following information, without limitation as to time:

Admission history and physical examination

Physician orders

Progress notes

Nursing notes

Consultation reports

Discharge summary

Operative reports

Emergency department records

Treatment Plans and Protocols

Death certificate if applicable

Complaints and Grievances

Organ donation records if applicable

Any complaints or grievances filed by the patient or on behalf of the patient

Internal investigation reports

Related to patient complaints

Incident Reports

Incident reports related to the patient’s care or treatment

Signed consent forms for treatments, procedures, or surgeries

(Motion Exhs. 1–6.)

Defendants argue that the information sought implicates each patient’s private medical information, and that no good cause supports the subpoenas, as this court has previously admonished that underlying patient-care issues that were the subject of Plaintiff’s workplace complaints are of limited relevance to the present action for retaliation and harassment. (Motion at pp. 6–8.) Defendants also argue that the subpoenas seek peer-review documents privileged under Evidence Code § 1157 to the extent they seek the patient’s complaints, grievances, or investigations related thereto. (Motion at p. 8.)

Plaintiff in opposition argues that his need for the information contained in the medical records outweighs the privacy interests in the records themselves. (Opposition at pp. 3–7.) He argues that the present motion does not contain a separate statement, in violation of CRC Rule 3.1345, subd. (a)(5). (Opposition at p. 7.) Plaintiff also argues that the motion is untimely. (Opposition at p.10.)

Plaintiff’s procedural objections are without merit. The separate statement requirement of CRC Rule 3.1345 does not apply “[w]hen no response has been provided to the request for discovery.” (CRC Rule 3.1345, subd. (b)(1). Nor is Plaintiff’s contentions as to timeliness persuasive, as the requirement of Code of Civil Procedure § 1987.1, subd. (a), is that a motion to quash be “reasonably made.” Here, Defendants filed their motion the day before Plaintiff’s appointed date of production. As Defendants were the parties charged with producing the relevant records, there was little danger of inadvertent production resulting from belated service of the motion, and Plaintiff articulates no other prejudice resulting from the time of filing.

Plaintiff’s subpoenas implicate patient privacy rights. “It is established that patients do have a right to privacy in their medical information under our state Constitution.” (Medical Bd. of California v. Chiarottino (2014) 225 Cal.App.4th 623, 631.) “In determining whether disclosure is required [against a privacy objection], the court must indulge in a ‘careful balancing’ of the right of a civil litigant to discover relevant facts, on the one hand, and the right of the third parties to maintain reasonable privacy regarding their sensitive personal affairs, on the other. The court must consider the purpose of the information sought, the effect that disclosure will have on the affected persons and parties, the nature of the objections urged by the party resisting disclosure and availability of alternative, less intrusive means for obtaining the requested information. Based on an application of these factors, the more sensitive the nature of the personal information that is sought to be discovered, the more substantial the showing of the need for the discovery that will be required before disclosure will be permitted.” (Hooser v. Superior Court (2000) 84 Cal.App.4th 997, 1004, internal citations omitted.)

Plaintiff articulates the following purpose for the subpoenas sought here. The records of Raihan Dakhil and her three year old son Omar Awaida are sought to allow Plaintiff to prove that his activation for emergency operations upon the both of them was intentional, retaliatory, and calculated to cause him emotional distress. Plaintiff reasons that the medical records at issue will reveal his lack of qualifications as a pediatric surgeon, the failure to activate the pediatric surgeon who was on call at the time, records of communications between emergency department nurses and physicians and Defendant Thomas, as well as communications from Thomas to Plaintiff himself, while he was already engaged in another surgery. (Opposition at pp. 4–5.)

Plaintiff argues that the records of Melody Keidel and Alberto Lopez will rebut Defendants’ characterization of the reasons for his discharge — namely that he was not a “team player” — by showing that he had partnered with other physicians to perform and proctor surgeries on the patients when he was not otherwise required. (Opposition at pp. 5–6.)

As to Javier Lopez Vargas’ records, Plaintiff claims that they will show that he “was not aware of the pilot study being conducted by surgeon Steven Grant,” and that “the operating room scheduler did not document any knowledge of the pilot study, and that Plaintiff was allowed to schedule robotic inguinal hernia without any restrictions.” (Opposition at pp. 6–7.)

Finally, Plaintiff argues that the records of Todd Dinind will show that his records were altered after Plaintiff made complaints, in order to discredit Plaintiff. (Opposition at p. 7.)

Plaintiff’s justification for seeking these records is out of step with the expansive requests he makes for each patient. The most substantial showing of good cause that Plaintiff makes is in relation to the care of Raihan Dakhil and Omar Awaida, because he alleges in his Fourth Amended Complaint that his activation to operate upon both was an effort to retaliate against him for prior complaints he made in relation to patient care. The circumstances of his activation, the non-activation of other surgeons at this time, and contemporaneous communications between Thomas and other physicians and nurses thus bears upon Plaintiff’s claims. But Plaintiff has not tailored his subpoena to seek such information, but seeks, as with all other patients at issue, broad swaths of information for which he provides no justification in opposition to this motion.

Indeed, it is not apparent from the subpoenas or the moving papers which categories of information are most likely to yield the information that Plaintiff claims is necessary for each patient. Plaintiff was given an opportunity to define the documents he sought and the reasons therefore prior to this motion in informal meet-and-confer correspondence with Defendants’ counsel, but Plaintiff’s only justification for the requested records consisted of the following statement:

Each patient’s medical records are germane to specific complaints made by the plaintiff, which the defendants deny. While the defendants’ employees’ deposition responses often lacked recollection regarding the plaintiff’s complaints, the medical records represent the primary source likely to yield admissible evidence corroborating my claims.

(Motion Exh. 7.) Plaintiff’s informal explanation for the subpoena thus not only offered an unhelpful level of generality, but also contradicts the justifications he now presents to the court, which have nothing to do with corroborating the fact of his complaints.

Plaintiff does not address Defendants’ arguments related to the privileged nature of those documents related to patient complaints or investigations thereof under Evidence Code § 1157, which provides in pertinent part: Neither the proceedings nor the records of organized committees of medical . . . staffs in hospitals, or of a peer review body, having the responsibility of evaluation and improvement of the quality of care rendered in the hospital, or for that peer review body . . . shall be subject to discovery.” (Evid. Code § 1157, subd. (a).) In any event, whether the privilege applies to any records sought here need not be decided, as Plaintiff has not made any attempt to justify requests for such documents against the privacy interests of the patients at issue.

The motion to quash is therefore GRANTED.

II. SANCTIONS

“Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2, subd. (a).)

Defendants here seek $2,560.00 in sanctions against Plaintiff, representing 5.5 hours of attorney work at $450 per hour, plus a $60 filing fee. (Mino Decl. ¶ 3.) By the court’s calculation, 5.5 hours of work at $450 per hours, plus a $60 filing fee, yields a lesser amount of $2,535.00. However, as Plaintiff opposed the motion without substantial justification, sanctions are ordered against him in this lesser amount.