Opposition_opposition_to_motion_to_compelMotionCal. Super. - 2nd Dist.June 26, 2017JE NK IN S § RE D \ Br ac k «C Electronically FILED by Superior Court of California, County of Los Angeles on 01/28/2019 11:59 AM Sherri R. Carter, Executive Officer/Clerk of Court, by C. Perez,Deputy Clerk Thomas E. Beach - State Bar No. 096321 Sean D. Cowdrey - State Bar No. 156115 mail beachcowdrey.com Attorneys for Defendants, BLYTHE/WINDSOR COUNTRY PARK HEALTHCARE CENTER, LLC dba WINDSOR GARDENS CONVALESCENT CENTER OF LONG BEACH; S&F MANAGEMENT COMPANY, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT STANLEY MOSK COURTHOUSE ANNIE BRYANT, in and through her Case No. BC666423 Successor-In-Interest, Stevie Bryant, and | Complaint Filed 06/26/2017 STEVIE BRYANT, an individual, First Appearance Fee Paid 08/07/2017 Plaintiff, Assigned to Hon. Patricia D. Nieto Dept. 24 V. DEFENDANTS’ OPPOSITION TO WINDSOR GARDENS OF LONG BEACH; PLAINTIFF’S MOTION TO COMPEL SNF MANAGEMENT; and DOES 1 through FURTHER RESPONSES OT REQUESTS 20, inclusive, FOR PRODUCTION OF DOCUMENTS, SET SEVEN, NOS. 4 THROUGH 6 Defendants. | Date: February 5,2019 Time: 8:30 a.m. | Dept.: 24 I INTRODUCTION This action arises out of the care and treatment of decedent Annie Bryant at the skilled nursing facility WINDSOR GARDENS CONVALESCENT CENTER OF LONG BEACH (“the facility”). Plaintiff has asserted causes of action for Elder Abuse. Violation of Patient’s Bill of Rights pursuant to Health and Safety Code section 1430(b), Willful Misconduct, and Wrongful 1 OPPOSITION TO MOTION TO COMPEL S O Le N N 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Death. More specifically, the plaintiff alleges that the Windsor Gardens’ staff neglected Ms. Bryant over a two-day period during which Ms. Bryant was displaying symptoms of lung infection, ultimately causing Ms. Bryant’s death on July 22, 2015. The three requests for production at issue are all overly broad and infringe on the state and federal prohibition on discovery of quality assurance documents. The plaintiff's requests for production at issue are as follows: 4. Produce YOUR quarterly mock survey results for the FACILITY from January 1, 2014 through August 1, 2015. 5. Produce YOUR compliance report(s) for the FACILITY from January 1, 2014 through August 1, 2015. 6. Produce YOUR compliance report(s) for all of YOUR affiliated skilled nursing facilities located in Los Angeles County, from January 1, 2014 through August 1, 2015. Plaintiff's requests seek annual quality reviews or “mock surveys,” which are surveys the facility performs to prepare for the California Department of Public Health’s annual survey. The requests also seek documents regarding compliance with recommendations made in the annual surveys. These documents are subject to the protection of the quality assurance immunity to discovery. The requests are also overly broad as they are not limited to the issues in plaintiff's allegations and, in the case of request 6, are not limited to documents concerning the facility. For these reasons, plaintiff’s motion should be denied. Il. DOCUMENTS ARISING FROM QUALITY ASSURANCE ASSESSMENTS ARE PROTECTED FROM DISCLOSURE The documents requests at issue all encompass documents bearing directly on the quality of care provided to residents at the facility. They are, therefore, protected from discovery by Evidence Code section 1157, 42 USC § 1395i-3(b)(1)(B), and 42 USC §1396r(b)(1)(B). Evidence Code section 1157 protects from disclosure records and documents assembled for and/or by committees organized to improve the quality of patient care in healthcare facilities. As a skilled nursing facility, Windsor Gardens Convalescent Center of Long Beach is a healthcare facility, as defined in Evidence Code section 1157. (Evid Code § 1157(a); see also Bus. & Prof. 2 OPPOSITION TO MOTION TO COMPEL Bi JA C UY + JE NK IN S No © a ON S O 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Code § 805.) In addition, licensing regulations require Windsor Gardens Convalescent Center of [ong Beach, as a skilled nursing facility, to have a “patient care policy” committee, which shall, “review the effectiveness of policy implementation and shall make recommendations for the improvement of patient care.” (22 CCR § 72525.) According to case law, a hospital quality assurance committee need not maintain minutes, conduct regular meetings, and/or consist of only licensed personnel to qualify as a “committee” permitted to invoke the protections of section 1157. While the application of Evidence Code section 1157 precludes a party from discovering certain information, California courts have long acknowledged that this statutory provision also represents a legislative choice between competing public concerns. “It embraces the goal of medical staff candor at the cost of impairing plaintiffs’ access to evidence.” (Matchett v. Superior Court (1974) 40 Cal. App.3d 623, 629.) Section 1157 is, therefore, “an exception to the general doctrine mandating broad discovery.” (County of Los Angeles v. Superior Court (1990) 224 Cal.App.3d 1446.) The California Supreme Court has held that the language of section 1157 is to be broadly construed so as to include within its immunity information and documents which are submitted to quality assurance committees from outside sources, such as letters of reference and complaints. “In the same vein, we agree with amicus curiae on behalf of Hospital, that the approach advanced by petitioners and the Court of Appeal would lead to absurd and unintended results. Under petitioners’ view, ‘every document submitted to a protected medical staff committee from an individual outside the committee . . . arguably will be subject to discovery. The immediately predictable result will be that physicians [or other professionals] . . . will cease providing . . . negative information or constructive criticism. . .. Without this frank exchange of information, medical staffs will have no legal grounds upon which to initiate corrective action (such as restricting privileges, or requiring monitoring or further education) that could be critical to the protection of patients. Clearly such a result would be contrary to the Legislature’s intent in enacting section 1157.” (Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1228.) In this action, the plaintiff's requests as noted above seek specific documents that are compiled for and/or by defendants for use by the patient care policy committee at Windsor Gardens Convalescent Center of Long Beach so as to enable the committee to “review the effectiveness” of patient care policies. (22 CCR § 72525.) Because the documents sought bear 3 OPPOSITION TO MOTION TO COMPEL Br ac CO WD RE Y + JE NK IN S © O X N A O R N L ¢ S D R N N 11 12 13 14 15 16 17 18 19 20 Z1 22 23 24 25 26 27 28 directly on quality assurance investigations conducted at a healthcare facility, Evidence Code section 1157 applies. California courts have consistently given effect to the legislative intent behind the quality assurance protection by interpreting the scope of Evidence Code section 1157 broadly to encompass a wide variety of panels and functions directed to promoting and improving quality of healthcare. In Santa Rosa Memorial Hospital v. Superior Court (1985) 174 Cal. App.3d 711, 717-718 the court made clear that section 1157 is not limited in application to peer review of physicians. The court held that, because the function of the infection control committee was for evaluation and improvement of the quality of patient care, its records fell under the protection of Evidence Code section 1157. (Id. at p. 720.) In Alexander v. Superior Court, supra, the Supreme Court clarified that section 1157 protection is not limited to documents created by the committee or committee members. The court in University of Southern California v. Superior Court (1996) 45 Cal. App.4th 1283, then expanded on the Alexander holding, ruling that all records “assembled” for the use of the quality assurance committee are protected from disclosure under section 1157. (See also Santa Rosa Memorial Hospital, supra, 174 Cal.App.3d 771 [explaining that records that “derive from an investigation into the quality of care or evaluation thereof by a medical staff committee” are protected under section 1157].) Section 1157 has also been held to cover sub-committees appointed by the quality assurance committee to address quality of care issues. See, e.g., Santa Rosa Memorial Hospital, supra, 174 Cal.App.3d at 715-717 (the infection control sub-committee given immunity). Further, section 1157 has been held to protect product evaluations (Mr. Diablo Hospital District v. Superior Court (1986) 183 Cal.App.3d 30, 34-35), and the simple fact that a patient’s chart has been reviewed by a quality assurance committee (Santa Rosa Memorial Hospital, supra, 174 Cal.App.3d at 729). See, also, University of Southern California v. Superior Court (1996) 45 Cal. App.4th 1283 [documents assembled for committee use are generally exempt from discovery™]. In fact, each time the opportunity has presented itself, the courts have upheld the 4 OPPOSITION TO MOTION TO COMPEL » J EN KI NS 1 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discovery immunity afforded by section 1157 and interpreted it broadly consistent with the Legislature’s intent. III. FEDERAL LAW PROVIDES A SIMILAR IMMUNITY SPECIFICALLY APPLICABLE TO SKILLED NURSING FACILITIES THAT BARS A STATE FROM REQUIRING DISCLOSURE OF QUALITY ASSURANCE RECORDS In 1987, the federal government likewise recognized that the benefits to be gained from maintaining the confidentiality of quality assurance committee records and proceedings far exceed any interest a private litigant, or even a state attorney general conducting a criminal investigation, might have. The federal government therefore enacted a statute, essentially identical to Evidence Code section 1157, which prohibits the states from requiring disclosure of the records and proceedings of skilled nursing facility quality assurance committees: *A skilled nursing facility must maintain a quality assessment and assurance committee . . . which (1) 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.” 42 U.S.C. §1395i-3(b)(1)(B); see also 42 U.S.C. § 1396r-(b)(1)(B). To promote frankness and candor in the identification and correction of “quality deficiencies,” and thereby optimize the improvement of the quality of resident care, Congress expressly provided that: “[a] State or the Secretary may not require disclosure of the records of such committees except insofar as disclosure is related to the compliance of such committee with the requirements of this subparagraph.” 42 U.S.C. § 1395i-3(b)(1)}(B) (emphasis added); see also 42 U.S.C. § 1396r-(b)(1)(B). These federal provisions unambiguously prohibit the disclosure of quality assessment and assurance documents. See, e.g.. State ex rel. Boone Retirement Center, Inc. v. Hamilton (Mo. S.Ct. 1997) 946 S.W.2d 740 [section 1935i-3(b)(1)(B) prohibited state grand jury from requiring skilled nursing facility or nursing facility to disclose records of quality assurance committee]. The prohibition is absolute. A state is precluded from seeking disclosure of such documents. Here, the facility is required to have a patient care policy committee employed to assess the quality of care being provided to patients. If investigations regarding nursing and medical care 5 OPPOSITION TO MOTION TO COMPEL Voi ce ne rm B A C H 2 No S W © DO Le N N Wn 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 are conducted and/or patient surveys or outcomes are assessed, these investigations, reports, and assessments are necessarily conducted by the patient care policy committee employed to conduct just such investigations. Because records of investigations, including records showing results or decisions made, necessarily “derive from an investigation into the quality of care” provided to residents of the facility, the records sought cannot be disclosed. Accordingly, the plaintiff's motion should be denied. The legitimate scope of the federal quality assurance privilege is broad and sweeping. It encompasses any reports or documents generated by, or at the behest of a quality assurance committee for quality assurance purposes. Defendants agree that when the committee receives or simply duplicates existing records from clinical files, no privilege would attach. However, anything in the nature of a compilation or a study or comparison of clinical data derived from multiple records, created by or for the use of committee personnel or for committee use, are “the records of such committee” and are entitled to protection from disclosure pursuant to federal law. IV. THE REQUESTS AT ISSUE ARE OVERLY BROAD IN SCOPE Plaintiff’s requests are overly broad in scope because they are not limited to the subject matter of plaintiff's claims. While plaintiff argues that she is entitled to information that addresses issues raised in her claims, the requests are appropriately limited in scope. In fact, request no. 6 is not limited to the facility, but instead seeks compliance reports for every skilled nursing facility in Los Angeles County for which defendant provides services. Such a request is the epitome of an overly broad request. For that reason, defendant requests that plaintiff’s motion be denied. V. SANCTIONS ARE NOT WARRANTED AND SHOULD NOT BE IMPOSED AGAINST DEFENDANT The plaintiff seeks monetary sanctions from defendant S&F Management for S&F Management’s alleged failure to provide discovery responses and/or participate in the meet and confer process. The defendant, however, provided appropriate responses, which contained appropriate objections to protect its quality assurance documents. Sanctions are warranted only if the court finds the defendant acted without substantial Justification in asserting objections. (Code Civ. Proc. § 2023.030(a).) The authorities cited above, 6 OPPOSITION TO MOTION TO COMPEL re C o w Bi a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 however, unequivocally establish that defendant was, and is, justified in raising the protections herein asserted. The defendants objections are supported by state and federal case law, statutes, and regulations. For these reasons, defendant at all times acted with substantial justification, rendering sanctions unwarranted and improper. VI. CONCLUSION For the reasons set forth above, defendants, BLYTHE/WINDSOR COUNTRY PARK HEALTHCARE CENTER, LLC dba WINDSOR GARDENS CONVALESCENT CENTER OF LONG BEACH and S&F MANAGEMENT COMPANY, LLC, respectfully request that the court deny the plaintiff’s motion and the corresponding request for monetary sanctions. Dated: January 23, 2019 BEACH + COWDREY ¢ JENKINS, LLP By: 1% Lo Sean D. Cotvdrey Eligio J. Luevanos Attorneys for Defendants, BLYTHE/WINDSOR COUNTRY PARK HEALTHCARE CENTER, LLC dba WINDSOR GARDENS CONVALESCENT CENTER OF LONG BEACH and S&F MANAGEMENT COMPANY, LLC 7 OPPOSITION TO MOTION TO COMPEL B r a c e C o w n r e y « JE NK IN G 0 N N Wn BA S O 11 12 13 14 15 16 17 18 19 20 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF VENTURA [ am employed in the County of Ventura, State of California. 1 am over the age of 18 and not a party to the within action. My business address is 500 E. Esplanade Drive, Suite 1400, Oxnard, California 93036. On January 23, 2019, I served the foregoing document(s) described as: DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES OT REQUESTS FOR PRODUCTION OF DOCUMENTS, SET SEVEN, NOS. 4 THROUGH 6 on the interested parties in this action, by placing [1 the original XJ a true copy thereof enclosed in a sealed envelope addressed as follows: SEE ATTACHED SERVICE LIST O (BY FIRST CLASS MAIL) I caused such envelope with postage thereon fully prepaid to be placed in the United States mail at Oxnard, California. Iam “readily familiar” with the firms practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. 0 (BY FACSIMILE TRANSMISSION) I transmitted from a facsimile transmission machine in Oxnard, California, whose telephone number is (805) 388-3414, the above-named document to the interested parties herein whose facsimile transmission telephone numbers are included in the attached Service List. The above-described transmission was reported as complete without error by a transmission report issued by the facsimile transmission machine upon which the said transmission was made immediately following the transmission. A true and correct copy of the said transmission report is attached hereto and incorporated herein by this reference. X (BY OVERNIGHT CARRIER) I placed the above-named document in an envelope or package designated by [GoldenState Overnight/UPS/Federal Express/Overnite Express] (“express service carrier”) addressed to the parties listed on the service list herein, and caused such envelope with delivery fees paid or provided for to be deposited in a box maintained by the express service carrier. [ am “readily familiar” with the firm’s practice of collection and processing of correspondence and other documents for delivery by the express service carrier. It is deposited in a box maintained by the express service carrier on that same day in the ordinary course of business. UL (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the office of the addressee. OU (BY ELECTRONIC MAIL) I e-mailed the above-named document to the parties listed on the service list herein. Xl (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on January 23, 2019 at Oxnard, California. T-upita Castor 4 8 OPPOSITION TO MOTION TO COMPEL SERVICE LIST 1 Bryant v. Windsor Gardens of Long Beach, et al. Los Angeles County Superior Court Case No. BC666423 \] ATTORNEYS FOR PLAINTIFFS Michael F. Moran, Esq. Alex H. Feldman, Esq. Moran Law 5 Hutton Centre Drive, Suite 1050 Santa Ana, CA 92707 Phone: (714) 549-0333 Fax: (714) 549-0444 mmoran/¢ moranelderlaw.com afeldman/@moranelderlaw.com SS Ov 0 9 S N nn k W —_— e m e m pe s w h W N = B { No No DD No [N S] NJ No [\ S] ND — ri t — Ee o o ~ aN wn B N wo No — o \O =e ] ~ AN 9 OPPOSITION TO MOTION TO COMPEL
