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Russo v. The Brattleboro Retreat

United States District Court, D. Vermont

January 25, 2016

MARGARET A. RUSSO, Administratrix/ Personal Representative of the Estate of Laura B. DiPillo, Plaintiff,
v.
THE BRATTLEBORO RETREAT, Defendant.

OPINION AND ORDER ON MOTION TO COMPEL (DOC. 19)

Geoffrey W. Crawford, Judge United States District Court

This wrongful-death action arises out of the suicide of a young woman in May 2014 at The Brattleboro Retreat ("The Retreat") where she was a patient. The case is brought within the court's diversity jurisdiction. Under Fed.R.Evid. 501, Vermont state-law provisions concerning privilege and confidentiality apply in this case.

Plaintiff has filed a Motion to Compel (Doc. 1s9). Following discussions between counsel and the submission of supplemental answers to discovery, the parties have reduced their dispute to three areas:

1. Production of records of contact between The Retreat and the Joint Commission;

2. Production of records of contact between The Retreat and Health New England; and

3. Production of records of similar incidents.

The court held a hearing on the Motion to Compel on January 13, 2016, and has reviewed in camera the records supplied by The Retreat in response to (1) and (2). Both sets of records are identified in the privilege log prepared by counsel for The Retreat at pages 4 and 5. (See Doc. 25-3 at 5-6.)

I. Vermont's Medical Peer-Review Statute

Under Fed.R.Civ.P. 26(b)(1), discovery is limited to "nonprivileged matter." As noted above, Vermont state-law provisions concerning privilege and confidentiality apply in this case. Vermont's medical peer-review statute provides that the "proceedings, reports, and records" of peer-review committees "shall be confidential and privileged, and shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are subject to evaluation and review by such committee . ..." 26 V.S.A. § 1443. A "peer review committee" means:

the Vermont professional standards review organization or its subsidiary committees, the Vermont Program for Quality in Health Care, Inc. or its subsidiary committees, a peer review committee or other comparable committee established by a health maintenance organization in accordance with the provisions of 18 V.S.A. § 9414, or a committee of a state or local professional association or of a hospital or other health care provider which is formed to evaluate and improve the quality of health care rendered by providers of health services or to determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care or that the cost of health care rendered was considered reasonable by the providers of professional health services in the area.

Id. § 1441.

II. Joint Commission and Health New England Documents

Section 1441 lists four entities that qualify as a "peer review committee": (1) the Vermont professional standards review organization or its subsidiary committees; (2) the Vermont Program for Quality in Health Care, Inc. or its subsidiary committees; (3) a peer-review or other comparable committee established by an HMO in accordance with 18 V.S.A. § 9414; and (4) a committee of a state or local professional association or of a hospital or other health care provider. Under a literal reading of § 1441, the Joint Commission and Health New England do not appear to fit within any of those categories. The court is nevertheless satisfied that Vermont's peer-review statute prevents the disclosure of the Joint Commission and Health New England documents for the following reasons.

The Joint Commission (formerly known as the Joint Commission on Accreditation of Healthcare Organizations) fulfills an accrediting function for the Centers for Medicare and Medicaid Services ("CMS"), which regulates the provision of health care through those two programs. In the case of so-called "sentinel events" such as an untimely death, the Joint Commission conducts a review focused on the reasons for the incident and the steps taken to improve care in ...


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