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Kirkwood-Boulter v. Coleman

Superior Court of Massachusetts, Suffolk

March 23, 2018

Kimberly Kirkwood-Boulter[1] et al.[2]
Carrie A. Coleman, M.D. et al.[3]

          File Date: March 26, 2018


          Anthony M. Campo, Justice of the Superior Court

         The court now gives full reconsideration to its February 6, 2018 order (Campo, J.) denying Massachusetts General Hospital’s (" MGH" ) motion for a protective order. A discovery dispute in this case raises the important questions of: (1) peer review privilege; and (2) the difference between expert testimony and a hospital’s obligation to designate officers, directors, or managing agents, or other persons to testify on its behalf under Massachusetts Rule of Civil Procedure 30(b)(6). The plaintiffs brought this medical malpractice action against MGH, its employees who provided the care, and a staffing agency for injuries sustained during Kimberly Kirkwood-Boulter’s labor and delivery of her son, Aiden Boulter. The plaintiffs noticed a Rule 30(b)(6) deposition for MGH to testify about its internal policies (" Topic 7" ):

Topic 7: Whether, how and why the rules, regulations, customs, policies, practices, guidelines, and procedures referenced in paragraphs 1-5 were or were not followed with respect to the labor of Kimberly Boulter and the delivery of Aiden Boulter.

         MGH filed this response:

Response No. 7: Objection: The defendant objects to this topic as it seeks information that is overly broad in scope, has no reasonable time limitation, is unduly burdensome, seeks information not relevant to the case at bar, and is not reasonably calculated to lead to the discovery of admissible evidence. The burden is on the plaintiffs to affirmatively establish negligence, not on the defendant to affirmatively establish that it, and its agents and employees, were not negligent. The defendant further objects to this topic to the extent that it improperly seeks to obtain expert testimony from the defendant.

         The plaintiffs thereafter moved to compel several discovery disputes. The court granted the plaintiffs’ motion but permitted MGH to submit a brief regarding Topic 7, which they did. MGH moved for a protective order under Mass.R.Civ.P. 26(c) to preclude any discovery related to Topic 7. After a hearing, the court (Campo, J.) denied MGH’s motion on February 6, 2018. MGH now moves for reconsideration under Superior Court Rule 9D, seeking an order precluding discovery on Topic 7. The court held another hearing on March 16. After additional review and full reconsideration. MGH’s motion is DENIED .


         I. Massachusetts Rule of Civil Procedure 30(b)(6)

         At issue is whether MGH must comply with Mass.R.Civ.P. 30(b)(6).[4] Case law pertaining to hospital designees under Mass.R.Civ.P. 30(b)(6) is sparse. Therefore, it is instructive to refer to the Federal Rules of Civil Procedure. Reporters’ Notes to Mass.R.Civ.P. 1 (1973); see Strom v. American Honda Motor Co., 423 Mass. 334, 335 (1996) (" ° ’Because the Massachusetts Rules of Civil Procedure are patterned after the Federal rules, we interpret our rules consistently with the construction given their Federal counterparts,’ Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 800 (1987), ‘absent compelling reasons to the contrary or significant differences in content.’ Rollins Envtl. Servs., Inc. v. Superior Court, 368 Mass. 174, 180 (1975)" ). The Federal rules were amended in 1970 to include Rule 30(b)(6) as a method to curb organizations from using their size and complexity to their advantage by " bandying" their opponents with a series of organizational employees who are " deposed in turn but each disclaims knowledge of facts that are clearly known to the persons in the organization and thereby to it." [5] Committee’s Note to Fed.R.Civ.P. 30(b)(6) (1970).

         II. Peer Review Privilege

         In its motion for protective order, MGH asserted that it did not employ anyone it could designate to discuss Topic 7.[6] MGH takes the position on reconsideration that it does have a Rule 30(b)(6) witness it could designate, but doing so would violate medical peer review privilege.[7] Specifically, MGH contends that the court cannot compel: (1) testimony from a MGH official who participated in any medical peer review process regarding the care and treatment of Kimberly Kirkwood-Boulter; and (2) MGH to designate an individual who did not participate in its medical peer review process to offer comparable testimony to information protected by the peer review privilege.[8]

         Privileges are exceptions to the general duty imposed on a person to testify. Chadwick v. Duxbury Pub. Sch., 475 Mass. 645, 653 (2016) (citations omitted). The scope of a privilege is determined by its purpose. The Legislature, recognizing that medical peer review is integral to regulating the practice of medicine, created the peer review privilege, G.L.c. 111, § § 204, 205, to promote uninhibited investigation and exchanges of opinion in the medical peer review context. Carr v. Howard, 426 Mass. 514, 518 (1998). Consistent with that goal, the Legislature enacted G.L.c. 111, § 204 " to foster aggressive critiquing of medical care by the provider’s peers." See Beth Israel Hosp. Ass’n v. Board of Registration in Med., 401 Mass. 172, 182 (1987). The statute provides that " proceedings, reports, findings, and records of a peer review committee are confidential and ... shall not be subject to subpoena, discovery or introduced into evidence ..." G.L.c. 111, § 204(a). But information available from other sources is not privileged simply because the information was submitted to a peer review committee. G.L.c. 111, § 204(b). Even more, " [a] person who testifies before such committee or who is a member of such committee shall not be prevented from testifying as to matters known to such person independent of the committee’s proceedings ..." G.L.c. 111, § 204(c) (emphasis added); See Carr, 426 Mass. at 533 (1988); see also Montejunas v. Sioufi, 2002 WL 1362835 at *1 (Mass.Super. 2002) [14 Mass.L.Rptr. 625] (reasoning that peer review privilege acts not as a personal privilege, but to exempt certain information from disclosure).

         In 1987, the Legislature augmented the scope of peer review privilege to include " [i]nformation and records which are necessary to comply with risk management and quality assurance programs established by the board of registration in medicine and which are necessary to the work product of the medical peer review committees ..." G.L.c. 111, § 205(b). Indeed, to fall within § 205(b), the party asserting peer review privilege must produce evidence demonstrating: (1) that the information sought is " necessary to comply" with a risk management and quality assurance program established by the Board of Registration of Medicine; ...

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