The Court finds Peer Review Privilege and Medical Committee privileges apply. However, the other asserted privileges are better characterized as confidential. Because a Protective Order is in place in this matter, the Court Orders any documents withheld based on confidentiality be produced in accordance with the Protective Order. Further, the Court finds some of the disputed Requests for Production are no longer relevant or proportional to the needs of the case. Finally, the Court orders the Hospital to provide a supplemental privilege log and clarify the use of “confidential” and “privileged.”

This is a medical malpractice case arising from a nasal surgery performed by Defendant Dr. Swift on October 7, 2014. The operation was an effort to correct Plaintiff April Polk's chronic sinusitis and inferior turbinate hypertrophy. The surgical orders and pre-operation forms directed Defendant Swift to perform a submucosal turbinate reduction and functional endoscopic sinus surgery. After the surgery, Plaintiff experienced adverse symptoms that prompted her to see other providers. Further examination determined Plaintiff's turbinates had been removed rather than reduced as directed by the surgical orders and pre-operation forms. Dr. Swift's removal of Plaintiff's turbinates caused her to suffer from empty nose syndrome which is incurable.[1]

In addition to the medical malpractice claim against Dr. Swift, Plaintiff alleges various claims against the Hospital. On October 1, 2020, the trial court granted in part the Hospital's Motion for Summary Judgment (ECF. No. 39). The trial court found the Hospital was entitled to judgment as a matter of law on Plaintiff's claims of (1) fraud by misrepresentation and concealment; (2) negligent or reckless disregard and upcoding; and (3) negligent credentialing, privileging, hiring, retention, and supervision of Dr. Swift. Summary judgment was otherwise denied for Plaintiff's claim against the Hospital for vicarious liability of Dr. Swift's alleged negligence.

Prior to the Court's ruling on Summary Judgment, Plaintiff filed the present Motion to Compel (ECF No. 50). Plaintiff requests this Court order the Hospital to answer four requests for production (RFP) and provide a supplemental privilege log. Plaintiff alleges the Hospital is improperly withholding documents when there is no applicable privilege for the following reasons: (1) there are inconsistencies between the privilege log and the responses to the four RFP; and (2) the Hospital is withholding documents that are confidential rather than privileged, even though the parties have a Protective Order in place. The four Requests for Production at issue are:

(ECF No. 55, at 4–5).

In response, the Hospital asserts it is properly withholding documents based on privileges provided under the: (1) Quality Management Function, Wyo. Stat. Ann. § 35-2-910; (2) Medical Staff Committee Privilege, Wyo. Stat. Ann. § 35-2-618; (3) Peer Review Privilege, Wyo. Stat. Ann. § 35-17-105; (4) Wyoming Public Records Act, Wyo. Stat. Ann. § 16-4-203 (d) (vii); National Practitioner Data Bank, 45 CFR § 60.20; (5) and the Health Insurance Portability and Accountability Act, 45 CFR § 164.502(a). (ECF No. 67). The Hospital also states they are working on a supplemental privilege log to address some of Plaintiff's concerns about the use and distinction of “confidential” and “privileged.”

Standard of Review

The Federal Rules of Civil Procedure entitle a party to discover

Fed. R. Civ. P. 26(b)(1). After the 2015 amendments to Rule 26, the scope of discovery is no longer defined by any information that is “reasonably calculated to lead to admissible evidence.” Brandt v. Von Honnecke, No. 15-CV-02785-RM-NYW, 2018 WL 510277, at *3 (D. Col. Jan 3, 2018). The applicable test now consists of two parts: whether the discovery sought is relevant to any party's claim or defense, and whether the requested discovery is proportional to the needs of the case. Id.; Fed. R. Civ. P. 26(b)(1). Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Brandt, 2018 WL 510277 at * 3; Fed. R. Evid. 401. Relevance is to be “construed broadly to encompass any matter that bears on, or that reasonably could lead to the other matter that could bear on any party's claim or defense.” State Farm Mut. Auto. Ins. Co. v. Fayda, No. 14CIV9792WHPJCF, 2015 WL 7871037 at *2 (S.D.N.Y. Dec. 3, 2015), aff'd, No. 14CV9792, 2016 WL 4530890 (S.D.N.Y. Mar. 24, 2016) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).

*3 “The burden of demonstrating relevance remains on the party seeking the discovery.” Kennicott v. Sandia Corp., 327 F.R.D. 454, 470 (D.N.M. 2018) (citing Fed. R. Civ. P. 26(b)(1) advisory committee's notes to the 2015 amendment). The burden of “addressing all proportionality considerations” is not on the party seeking discovery, rather, the burden to prove disproportionality remains with the party resisting discovery. See Fed. R. Civ. P. 26 (advisory committee notes to the 2015 amendments); Nat'l R.R. Passenger Corp. l v. Cimarron Crossing Feeders, 16-cv-1094-JTM-TJJ, 2017 WL 4770702, at *4 (D. Kan. Oct. 19, 2017) (discussing how the purpose of the 2015 amendments was to restore “proportionality to the definition of the scope of discovery”).

The district court has broad discretion over the control of discovery. Cummings v. Gen. Motors Corp., 365 F.3d 944, 952 (10th Cir. 2004). “The purpose of this rule is to allow broad discovery of relevant information, even if that information is not admissible at trial.” Hedquist v. Patterson, 215 F. Supp. 3D 1237, 1243 (D. Wyo. 2016). Broad discovery is not unlimited however, and a court has considerable discretion to balance the rights of both the plaintiff and defendant. Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995); Fed. R. Civ. P. 37(a). The court may constrain a party's right to obtain discovery “where the court determines that the desired discovery is unreasonable or unduly burdensome given the needs of the case, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Simpson v. Univ. of Colo., 220 F.R.D. 354, 356 (D. Colo. 2004) (internal citations omitted).

If a party fails to provide documents through proper discovery, a non-responsive party may move to compel production under Rule 37. See Lane v. Page, 727 F. Supp. 2d 1214, 1236 n.15 (D. N.M. 2010). “A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if ... (iv) a party fails to produce documents ... as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B). In short, Rule 37(a) provides an enforcement mechanism for Rules 33 and 34 and allows a party to move a court to compel a response in situations where the opposing party has failed to respond to an interrogatory or request for production. Landry v. Swire Oilfield Servs., L.L.C., 323 F.R.D. 360, 383 (D. N.M. 2018). Evasive or incomplete responses, answers, or disclosures are to be treated as a failure to respond, answer, or disclose. Id. (internal citations omitted). Rule 37 vests broad discretion with the trial court. Woodworker's Supply, Inc. v. Principal Mutual Life Insurance Co., 170 F.3d 985, 993 (10th Cir. 1999).

Federal Rule of Evidence 501 governs the application of privileges:

*4 Fed. R. Evid. 501. When a federal civil case is brought as a diversity action, state privilege law controls. See Homeland Ins. Co. v. Goldstein, No. 15-cv-31, 2019 U.S. Dist. LEXIS 74488, at *4 (D. Wyo. 2019); Fed. R. Evid. 501. Accordingly, the scope of privileges is determined by Wyoming law in this case. See id.; Frontier Refining Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 699 (10th Cir. 1998) (“Rule 501 of the Federal Rules of Evidence provides that state law supplies the rule of decision on privilege in diversity cases. Wyoming law thus controls this issue.”). However, matters pertaining to procedural issues, such as protective orders, relevancy, and proportionality, are subject to the Federal Rules. See American Ben. Life Ins. Co. v. Ille, 87 F.R.D. 540, 542 (D. Okla.1978); see Fed. R. Civ. P. 26(b)(5); Fed. R. Evid. 401.

The party resisting disclosure bears the burden of proving privilege. Greenwood v. Wierdsma, 741 P.2d 1079, 1089 (Wyo. 1987). A person withholding information due to privilege must: (1) “expressly make the claim;” and (2) “describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.” Id. While claiming privilege is necessary where privileged information is requested, “blanket assertions of privilege are improper.” Evanston Ins. Co. v. Aminokit Labs., Inc., No. 15-cv-02665-RM-NYW, 2016 U.S. Dist. LEXIS 192659, at *12 (D. Colo. Oct. 21, 2016).

The Hospital has withheld documents based on multiple privileges. However, the Court finds the federal statutes relied on, the Health Insurance Portability and Accountability Act, (HIPAA) 45 CFR § 164.502(a) and the National Practitioner Data Bank (NPDB), 45 CFR 60.20, characterize documents as confidential rather than privileged. Additionally, documents pertaining to Wyoming's Quality Management Function, Wyo. Stat. Ann. § 35-2-910, and Wyoming's Public Records Act, Wyo. Stat. Ann. § 16-4-203(d)(vii), are also confidential rather than privileged. While Wyoming law governs privileges, claims of confidentiality are governed by the Federal Rules. Thus, the Court will start by addressing which statutes characterize documents as confidential rather than privileged. See In re Zyprexa Prods. Liab. Litig., 254 F.R.D. 50, 52 (E.D.N.Y.2008) (“Confidentiality is not provided the same level of protection as privileges, as Rule 26(b)(1) only addresses privileges.”). The Court will then address the applicable privileges.

I. Confidentiality

A. Health Insurance Portability and Accountability Act (HIPAA)

The Hospital argues HIPAA regulations prohibit the discovery of patient medical records. See 45 C.F.R. § 164.502(a). However, the hospital's reliance on HIPAA as a privilege is misplaced. It is well established that HIPAA regulations do not create a federal physician-patient or hospital-patient privilege. See BNSF Ry. Co. v. Lafarge S.W., Inc., No. CIV 06-1076, 2008 WL 11322949, at *5 (D. N.M. May 9, 2008) (citing Cutting v. United States, No. 07–cv–02052008, WL 1775278 at *2 (D. Colo. Apr. 14, 2008) (citing N.W. Mem'l Hosp. v. Ashcroft, 362 F.3d 923, 926 (7th Cir. 2004))). HIPAA is “purely procedural in nature.” N.W. Mem'l Hosp., 362 F.3d at 925–26. “In other words, HIPAA regulations do not trump the rules of civil procedure with respect to discovery obligations or questions of relevance.” See BNSF R.R. Co., 2008 WL 11322949 at *5. Because documents created under HIPAA are not privileged, they are discoverable under a Rule 26(b) analysis. See Bayne v. Provost, 359 F.Supp.2d 234, 237 (N.D.N.Y. 2005) (“it is evidently denudate that a purpose of HIPAA was that health information, that may eventually be used in litigation or court proceedings, should be made available during the discovery phase.”) (citing C.F.R. § 164.512(e)(1)(ii)))).

*5 As HIPAA does not create a privilege, the proper analysis is under Federal Rule of Civil Procedure 26(b). Here, the Hospital is a covered entity under HIPAA. 45 C.F.R. § 164.501. Generally, “[a] covered entity or business associate may not use or disclose protected health information” without receiving prior written authorization. Id. § 164.502 (a). However, there are exceptions where the Hospital may disclose protected health information in a judicial proceeding without first receiving written authorization of the individuals. See id. § 164.512 (e) (1)(ii). To do so, the hospital must first receive “satisfactory assurance .... from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order[.]” Id. § 164.512(e)(1)(ii)(B). Defendant claims this process is not conducive for production in this case because the act of seeking written authorization from each individual patient or providing them “satisfactory assurance” would be extremely burdensome and costly.

The validity of these concerns notwithstanding, Defendant's argument is insufficient under the controlling law. “Satisfactory assurance” is satisfied if there is an enforceable qualified protective order in place. See id. § 164.512(e)(1)(iv)(A). The qualified protective order must: (1) prohibit using or disclosing patient health information outside the scope of the judicial proceeding; and (2) require the return or destruction of it at the end of the proceeding. Id. at § (e)(1)(v)(A)–(B). Here, the parties have entered a Protective Order in this matter. (ECF No. 21). The Protective Order provides, in part:

The terms under the Protective Order also require,

(Id. at 7, ¶ 13). Thus, the Protective Order in place complies with HIPAA requirements. Therefore, to the extent the Hospital is withholding documents or information based on HIPPA, they must produce those documents in accordance with the terms outlined in the Protective Order.

B. National Practitioner Data Bank Confidentiality (NPDB)

*6 The hospital also argues the NPDB prohibits the discovery of information reported to the databank. See 45 C.F.R. § 60.20. As with HIPAA, the threshold issue is whether the NPDB provides a privilege or if it is procedural in nature.

The NPDB is the second part of the Health Care Quality Improvement Act of 1986 (HCQIA). Congress enacted the Health Care Quality Improvement Act in 1986 to combat the increasing rates of medical malpractice and “to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance.” 42 U.S.C. § 11101 (1)–(2). Congress found that two solutions were to encourage “effective professional peer review” and to “prescrib[e] mandatory review and reporting requirements for health care entities.” Id. § 11101 (3); Doe v. Rogers, 139 F. Supp. 3d 120, 126 (D.D.C. 2015) (internal citations omitted). Thus, the second part of the HCQIA authorizes the Secretary of the Department of Health and Human Services to establish “a National Practitioner Data Bank (NPDB) to collect and release certain information relating to the professional competence and conduct of physicians, dentists, and other health care practitioners.” 45 C.F.R. § 60.1. The regulation requires each state to report to the Secretary “adverse licensure or certification actions taken against health care practitioners, health care entities, providers, and suppliers, as well as certain final adverse actions taken by state law and fraud enforcement agencies against health care practitioners, providers, and suppliers.” Id.

The Hospital relies on 45 C.F.R. § 60.20(a), which limits the “Disclosure of Information by the National Practitioner Data Bank” to support its claim of privilege. See 45 C.F.R. Subpart C. It reads:

45 C.F.R. § 60.20(a). The plain language of the statute classifies information in the NPDB as confidential, not privileged. See Harvey v. Gorospe, No. CIV-14-219-RAW, 2015 WL 13390336, at *4 (E.D. Okla. June 23, 2015) (“[o]n the issue of disclosure, the regulations do not state the information contained in the NPDB is privileged but, rather, it is confidential.”). The Court will not recognize a federal privilege “in an area where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself.” University of Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990). Additionally, the HQIA also does not use the term “privilege,” instead it states “[i]nformation reported under this subchapter is considered confidential” and “[n]othing in this subsection shall prevent the disclosure of such information by a party which is otherwise authorized, under applicable State law, to make such disclosure.” 42 U.S.C. § 11137(b)(1); see also, e.g., Johnson v. Nyack Hospital, 169 F.R.D. 550 (S.D.N.Y 1996) (finding Congress did not intend for the HQIA to create a federal privilege); Teasdale v. Marin General Hospital, 138 F.R.D. 691, 694 (N.D. Cal. 1991) (“[c]ongress spoke loudly with its silence in not including a privilege against discovery of peer review materials in the HCQIA.”).[2] Thus, the Court finds the Hospital cannot assert the NPDB as a privilege.

*7 However, while nonprivileged, the Court struggles to see how information reported to the NPDB is relevant at this juncture. Plaintiff directs the Court to Klaine v. Southern Illinois Hospital Services, 47 N.E.3d 966 (Ill. 2016). There, the court looked at the relationship between the NPDB and the HCQIA and found “information reported to the NPDB though confidential, is not privileged from discovery in instances where, as here, a lawsuit has been filed against the hospital and the hospital's knowledge of information regarding the physician's competence is at issue.” Id. at 975; see 45 C.F.R. 60.18 (v) (describing one stated exception to prohibition of disclosure as “[a]n attorney, or individual representing himself or herself, who has filed a medical malpractice action or claim in a state or Federal court or other adjudicative body against a hospital, and who requests information regarding a specific health care practitioner who is also named in the action or claim. This information will be disclosed only upon the submission of evidence that the hospital failed to request information from the NPDB, as required by § 60.17(a) of this part, and may be used solely with respect to litigation resulting from the action or claim against the hospital.”). Here, the only claim remaining against the hospital is vicarious liability for Dr. Swift's actions. The hospital's failure to request required information from NPDB about Dr. Swift is irrelevant. Likewise, were Plaintiff attempting to receive information directly from the NPDB, she would not meet the requisite statutory requirements. Therefore, considering the dismissed claims against the Hospital, documents reported to the NPDB are no longer relevant. To the extent the Hospital may be withholding documents reported to the NPDB, they do not need to be produced. (See ECF. 21).

C. Quality Management Function

The Hospital also argues Wyoming's Quality Management Function prohibits the disclosure of documents related to the evaluation or improvement of health care services. See Wyo. Stat. Ann. § 35-2-910 et. seq. Under Wyoming's Quality Management Function, the Hospital is required to “implement a quality management function to evaluate and improve patient and resident care and services in accordance with rules and regulations promulgated by the division.” Wyo. Stat. Ann. § 35-2-910(a). Additionally, “quality management information relating to the evaluation or improvement of the quality of health care services is confidential.” Id. (emphasis added).

In Homeland Ins. Co. v. Goldstein, No. 15-cv-31, 2019 U.S. Dist. LEXIS 74488, at *6 (D. Wyo. 2019), the court analyzed whether a hospital could raise the Quality Management Function as a privilege. The court began by noting the statute designated information as confidential rather than privileged. Id. at *19. The court found this “significant as the Wyoming legislature did apply privilege to some types of medical review information.” Id. (emphasis added). Thus, the legislature would have made it clear by using express language if it intended for documents created in accordance with the Quality Management Function to be privileged. See id. Therefore, when “read in the context of the series of Wyoming statutes which are designed to protect the process, but not the facts which underlie the process,” the court found “[t]he statute characterizes the documents as confidential, and thus the level of protection is substantially less than those which fall within a privilege.” Id. (internal quotations omitted).

Thus, the Hospital's reliance on the Quality Management Function as a privilege is erroneous. Because they are confidential, the documents in the Hospital's possession that were produced in accordance with the Quality Management Function shall be produced in accordance with the Protective Order in this case. (See ECF No. 21).

D. Wyoming Public Records Act

Additionally, the Hospital maintains it is properly withholding documents under the Wyoming Public Records Act privilege. See Wyo. Stat. Ann. § 16-4-203 (d) (vii). The Wyoming Public Records Act permits any person to access public records from a custodian of public records. Houghton v. Franscell, 870 P.2d 1050, 1052 (Wyo. 1994). However, the Act prohibits disclosure of public records relating to the “[m]edical, psychological and sociological data on individual persons.” Wyo. Stat. Ann. § 16-4-203(d)(i). Additionally, the custodian of public records can deny inspection of hospital records. Wyo. Stat. Ann. § 16-4-203(d)(vii) (“Hospital records relating to medical administration, medical staff, personnel, medical care and other medical information, whether on individual persons or groups, or whether of a general or specific classification.”).

*8 The Hospital argues any and all quality assurance or reviews of Dr. Swift's work from anyone at the hospital or its affiliates constitutes a hospital record relating to medical staff, medical care, and other medical information. Additionally, the Hospital asserts the infection control records are the “hospital records” the exception is intended to protect. See Wyo. Stat. Ann. § 16-4-203(d)(vii).

The Hospital relies on a Wyoming state district court order from the eighth judicial district. (ECF No. 55, at Ex. A, Stephanie Baca v. Campbell County Health, Campbell County Memorial Hospital, and Powder River Surgical Center, Civil No. 38308). In Baca, the petitioner requested access to hospital records, including infection control reports, through the Public Records Act. See Baca, Civil No. 38308; Wyo. Stat. Ann. § 16-4-203(f). The hospital objected, claiming the records were protected from disclosure under exceptions to the Public Records Act, as well as other statutory privileges. See Baca, Civil No. 38308. The court agreed and ultimately found exceptions to the Wyoming Public Records Act barred the disclosure of infection control records. Id.

Notably, the differentiating factor between Baca and the present case is the medium the hospital records were requested through. Baca was a public records request case. Here, Plaintiff is seeking records through discovery in a civil lawsuit. Thus, the Court does not find the Public Records Act relevant nor controlling here. Therefore, Defendant is to produce any documents withheld as a privilege under the Public Records Act. If there are additional issues about confidentiality, Defendant is to produce the documents in accordance with the Protective Order in place. (See ECF No. 21).

Nevertheless, while the Public Records Act does not provide a privilege in this matter, the Court finds Plaintiff's Request for Production Number 10 is neither relevant nor proportional to the needs of the case. See Fed. R. Civ. P. 26(b). Plaintiff's Request for Production Number 10 states: “Produce a copy of any and all infection control reports produced by Dr. Swift in October and November of 2014 including any that he made regarding the surgery conducted on Ms. Polk.” (ECF No. 55, at 4). Under State law, the Hospital must maintain infection control reports so state public health officers can investigate communicable diseases and take corrective action if necessary. See Wyo. Stat. Ann. § 35-4-101, 103. Section 107 explains when the hospital may disclose infection control disease reports:

*9 Wyo. Stat. Ann. § 35-4-107 (b) (emphasis added).

The Baca court found the clear language of this statute prohibits disclosure of infectious control disease reports outside of reporting to the state health officer, or their designee, or “for any other purpose other than to investigate disease control efforts.” See Baca, Civil No. 38308. The Court agrees. Thus, to find confidential infection control disease reports both relevant and proportional in a case, the request should be relatively “necessary for the control, investigation and prevention of disease conditions dangerous to the public health.” Wyo. Stat. Ann. § 35-4-107(b). While there may be an appropriate situation where this nonprivileged information could be addressed with a Protective Order, that is not the case here.

First, this information is hardly relevant. See Fed. R. Evid. 401. “Any and all” of Dr. Swift's infection control reports for two months prior to Plaintiff's surgery do not appear to have any information that would be of consequence in this action. See Fed. R. Civ. P. 26(b)(1). Additionally, the Court finds the request is not proportional to the needs of the case. Id. The infection control reports contain medical data, specifically a patient's name and when they had a procedure, whether they developed an infection, and what happened as a result of the infection. The burden of disclosing two months of this particularly sensitive, private information likely outweighs any potential benefit in this case. See Fed. R. Civ. P. 26(b)(1). Therefore, the Court denies in part Plaintiff's Motion to Compel Request for Production Number 10. The Hospital should disclose Dr. Swift's infection control reports specifically pertaining to Ms. Polk.[3] If issues of confidentiality arise in her infection control reports, the Hospital should produce them in accordance with the Protective Order. (See ECF No. 21).

II. Privileges

Although the above statutes do not provide valid privileges, the Court finds two of the Hospital's asserted privileges do apply.[4] The parties do not dispute the following privileges, rather they dispute if exceptions to the privileges apply in the given situation.

A. Peer Review Privilege

The Hospital is withholding documents based on peer review privilege. Wyoming's peer review privilege reads:

*10 Wyo. Stat. Ann. § 35-17-105. (emphasis added). The law is clear that documents resulting from a peer review are privileged. See, e.g., Homeland Ins. Co., 2019 U.S. Dist. LEXIS 74488 at *15. However, the “privileged data does not include the materials reviewed by the committee, only those documents produced by the committee as notes, reports and findings in the review process.” Id. (internal citations omitted). Id. This specifically includes “documents or other records otherwise available from original sources.” Wyo. Stat. Ann. § 35-17-105. Thus, to the extent the Hospital is withholding documents based on this privilege, the Hospital is reminded it must produce any document “not specifically created for directly related to a peer review,” including “any notes, documents or other pieces of evidence that may have been discovered during a review process that were not specifically created to aid in the review.” Homeland Ins. Co., 2019 U.S. Dist. LEXIS 74488 at *15 (emphasis added).

The Court also notes “[t]here is no formality requirement in the statute” thus if the document was made by a member of the committee in furtherance of recommendations to improve care, it will be privileged. Nadler v. W. Park Hosp., 254 F.3d 1168, 1180 (Wyo. 2001). This contrasts with any documents that have “merely passed before the eyes of a professional standard review organization” that are not privileged. Id. Finally, any concerns the Hospital has that nonprivileged materials contain confidential information should be handled in accordance with the Protective Order. (See ECF. 21).

B. Medical Staff Committee Privilege

Like the peer review privilege, the medical staff committee privilege protects “[a]ll reports, findings, proceedings and data of medical staff committees.” Wyo. Stat. Ann. § 35-2-618. A medical staff committee is defined as “any committee within a hospital, consisting of medical staff members or hospital personnel, which is engaged in supervision, discipline, admission, privileges or control of members of the hospital's medical staff, evaluation and review of medical care, utilization of the hospital facilities or professional training[.]” Id. § 35-2-618(b).

As with the peer review privilege, it is well established that the privilege protects documents specifically created by the medical staff committees. However, it does not protect “materials reviewed by the committee, only those documents produced by the committee as notes, reports and findings in the review process.” Greenwood v. Wierdsma, 741 P.2d 1079, 1089 (Wyo. 1987). The Court will reiterate the caution in Homeland and remind the Hospital that any document “not specifically created by the committee to assist in a review of his care is not protected under the Medical Staff Committee Privilege.” Homeland Ins. Co., 2019 U.S. Dist. LEXIS 74488 at *18 (emphasis added). Again, any concerns the Hospital has that nonprivileged materials also contain confidential information should be handled in accordance with the Protective Order. (See ECF. 21).

III. Disputed Requests for Production

Plaintiff compels production for Request for Production Numbers 14, and 15.[5] Request for Production Number 11 states:

Plaintiff concedes quality assurance reviews are protected by the Peer Review Privilege and has clarified she is rather

The Court finds Plaintiff's clarified request is for nonprivileged materials. However, the Hospital raises concerns that their “quality assurance committee” relies on peer reviews in making recommendations for handling patient care issues. (ECF No. 55, at 8). The Court finds those documents are privileged if the quality assurance committee relied on the exact peer review documents produced by the peer review committee as notes, reports and findings in the review process. The only caveat is information is privileged if an individual serving on the professional review organization conducted an individual review that was then used for a formal report to the relevant committee. See Nadler v. W. Park Hosp., 254 F.3d 1168, 1180 (Wyo. 2001) (finding that a nurse's notes from a meeting were privileged because the nurse was “a member of a committee that reviewed obstetrical emergencies and made recommendations to improve care” and her notes were then used for a formal report to the relevant medical staff committee). Defendant shall answer Request for Production 11 in accordance with this Order.

Next, Request for Productions Numbers 14 and 15 read:

These modified requests specifically only ask for documents reviewed by the appropriate committees, which are not privileged. Thus, Defendant shall respond accordingly. Defendant should handle confidentiality concerns in accordance with the Protective Order.

IV. Alleged Deficiencies

Finally, Plaintiff is concerned inconsistencies between the privilege log and objections suggest the Hospital is improperly withholding documents. Plaintiff is primarily concerned with the apparently conflated use of “privilege” and “confidentiality.” The Hospital may supplement the privilege log to address the discrepancies, so both the privilege log and the raised objections are consistent.

IT IS HEREBY ORDERED THAT:

NOW, THEREFORE IT IS ORDERED Plaintiff's Motion to Compel is GRANTED IN PART and DENIED IN PART.

Dated this 22nd day of January, 2021.

These facts are taken as true for the purposes of this Order.

However, Wyoming state law, not the HCQIA will ultimately govern peer review privilege. See infra II. Privileges. This is merely referenced because the NPDB is the regulation associated with the HCQIA.

The Court assumes Ms. Polk consents to their release.

The Court will not address the Patient Safety Work Product Privilege because the Hospital did not sufficiently claim this privilege. See Greenwood v. Wierdsma, 741 P.2d 1079, 1089 (Wyo. 1987) (explaining a person withholding information due to privilege must: (1) “expressly make the claim;” and (2) “describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.”).

For analysis on Request for Production 10, see supra I. at D, Wyoming Public Records Act.