United States District Court, D. Massachusetts
H. HENNESSY UNITED STATES MAGISTRATE JUDGE.
Order of Reference dated November 20, 2017, pursuant to 28
U.S.C. § 636(b)(1)(A) (Docket #69), this matter was
referred to me for a ruling on Plaintiff Deepa Soni's
Motion to Compel third party Catholic Medical Center
(“CMC”) to disclose and deliver to Dr. Soni the
documents described in a Subpoena Duces Tecum served on CMC
on September 15, 2017. (Docket #52). An opposition to that
motion has been filed (Docket #59) as well as a reply (Docket
#64) and a sur-reply (Docket #67), and the matter is now ripe
for adjudication. By the same order of reference (Docket
#69), this matter was also referred to me for a ruling on the
parties' Joint Motion to Amend the Discovery Schedule.
(Docket #54). For the reasons that follow, the Motion to
Compel is ALLOWED and the Joint Motion to Amend is ALLOWED.
Soni is a Harvard-trained neurosurgeon of Indian descent.
(Docket #1 at ¶ 9). Dr. Soni began working at Defendant
Berkshire Medical Center, Inc. (“BMC”) under
contract with Defendant Berkshire Faculty Services, Inc.
(“BFS”) in November 2008. (Id. at ¶
16). Dr. Soni's direct supervisor was Defendant Timothy
Counihan, BMC's Chairperson of Surgery and acting
Division Chief. (Id. at ¶ 23). Dr. Soni was
also supervised by Defendant Robert Wespiser, BMC's Chief
of Staff. (Id. at ¶ 26). Dr. Soni left BMC on
May 9, 2010. (Id. at ¶ 39).
Soni alleges that Dr. Counihan displayed discriminatory and
retaliatory behavior towards her throughout her employment
due to the fact that she was a minority woman who had
achieved greater stature than he, because she raised concerns
to him about unsafe practices in the Neurosurgery Department,
and because she had sued other male doctors for gender
discrimination. (Id. at ¶ 24). Dr. Soni openly
and repeatedly told the BMC administration that Dr. Counihan
lacked leadership, was not supportive of her or the other
surgeons, and was not providing clinical support to her as
the Chief of Surgery. (Id. at ¶ 25). Dr. Soni
alleges that Dr. Wespiser was passive and deferred to Dr.
Counihan's wishes, including participating in
discrimination and retaliation against Dr. Soni.
(Id. at ¶ 28).
spring of 2013, Dr. Soni accepted a position at New Hampshire
NeuroSpine Institute. (Id. at ¶ 44). Because
she was to provide care for patients at Elliot Medical
Center, Concord Hospital, and CMC, she sought privileges at
those three hospitals. (Id.). Dr. Soni was granted
privileges at both Elliot Medical Center and Concord
Hospital. (Id. at ¶ 45). However, in July 2013,
Dr. Soni was contacted by the Director of Medical Staff
Support Services at CMC and advised that CMC would not be
granting Dr. Soni privileges. (Id. at ¶ 46).
for privileges at CMC must first provide references from
other qualified practitioners attesting to their education,
training, clinical abilities, and competence. (Docket #59-4
at ¶ 5). These references are provided to CMC on a
confidential basis in order to promote candor, and are
verified through direct personal communication with the
referring professional. (Id.). In addition to
contacting references, CMC will also solicit additional
information about a given applicant from other professionals
with whom the applicant has trained and worked. (Id.
at ¶ 6). Individuals and institutions who provide input
to the credentialing committees are given assurances that the
information they provide will be kept in confidence.
(Id.). All of the actions and recommendations taken
by the CMC credentialing committees, and all of the
information gathered and generated in the course of the
credentialing process are treated as confidential by CMC.
(Id. at ¶ 9).
significant inquiry, Dr. Soni came to understand that she had
been denied privileges at CMC based on information contained
in a letter sent to the Credentialing Committee at CMC by Dr.
Counihan, and a subsequent conversation that Dr. Counihan had
with Dr. Patrick Mahon, the Chairperson of the Credentialing
Committee. (Docket #1 at ¶ 47). Dr. Soni had not given
Dr. Counihan's name as a reference for credentialing.
(Id. at ¶ 48).
a phone call in late July 2013, Dr. Mahon explained to Dr.
Soni that Dr. Counihan's remarks were the reason that CMC
had decided not to move forward with her credentialing.
(Id. at ¶ 49). Dr. Counihan admitted to Dr.
Soni that he had provided a letter to CMC in which he claimed
that she had certain unspecified difficulties while working
at BMC. (Id. at ¶ 51). In August 2013, a member
of the CMC Credentialing Committee informed Dr. Soni that Dr.
Counihan had made vicious and defamatory statements about her
in a letter, and that the letter was followed by a telephone
conversation that was even more critical. (Id. at
¶ 57). While the Committee member did not give Dr. Soni
the details of all of the statements, he did relate that Dr.
Counihan had said, in essence, that Dr. Soni would be trouble
for the hospital because she had filed multiple lawsuits
against other hospitals. (Id.).
result of her failure to obtain privileges at CMC, Dr. Soni
was unable to work at a position for which she had otherwise
been hired. (Id. at ¶ 60). Dr. Soni filed suit
against the defendants on March 31, 2016.
September 15, 2017, Dr. Soni served a Subpoena Duces Tecum on
CMC. (Docket #52-1). In response to the subpoena, CMC
supplied a copy of Dr. Soni's communications with CMC and
a copy of the application she submitted to CMC for
credentialing purposes in 2013. (Docket #59-2). CMC, citing
New Hampshire's Quality Assurance Privilege, codified at
RSA 151:13-a, declined to produce documents about CMC's
credentialing process, including any minutes of internal
deliberations or candid assessments of Dr. Soni's fitness
received from external sources. (Id.). Dr. Soni filed
the instant motion, seeking production of the disputed
documents, on November 8, 2017. (Docket #52).
otherwise limited by court order, the scope of discovery is
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the ...