Prouty et. al. v. Southwestern Vermont Med. Ctr., Inc., No. 89-2-13 Bncv (Wesley, J., Oct.. 26, 2013).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                              VERMONT SUPERIOR COURT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Bennington Unit                                                                                        Docket No. 89-2-13 Bncv

Jean Prouty, individually and in her
Capacity as Executrix of the Estate of
Donald E. Prouty, Jr., Late of Pownal,
Vermont,
Plaintiff.

v.

Southwestern Vermont Medical Center,
Inc.,
Defendants.
                                    Opinion & Order
  Granting Plaintiff’s Motion to Compel and Denying Defendant’s Motion for Protective
                                         Order

Background

        Plaintiff sues Defendant for negligence and wrongful death, alleging the following facts.
Donald Prouty was admitted to the Southwestern Vermont Medical Center on August 22, 2011.
Prouty suffered from pains, dizziness, and liver damage. Defendant determined Prouty was in
danger of falling and decided he should be monitored, placed in a bed with a pressure-sensitive
alarm, and roomed near the nurses’ station. On August 25, 2011, Prouty left his bed and fell. The
fall produced a fracture to Prouty’s hip. On September 6, 2011, Prouty died from complications
related to his hip fracture. Plaintiff filed her complaint on February 26, 2013.

        On March 25, 2013, Defendant answered the complaint. The answer denies almost all of
Plaintiff’s allegations. Plaintiff admits that it is a hospital and that Plaintiff was admitted to the
hospital on August 22, 2011. Although Defendant references Prouty’s medical records, it denies
that Prouty fell, that he suffered injuries as a result of his fall, and that the fall caused his death.
Defendant also lists eight affirmative defenses citing no facts to support them: failure to state a
claim, statute of limitations, comparative fault, superseding cause, discharge in bankruptcy,
assumption of the risk, negligence of a third party, and an unidentified future affirmative
defense.

        On March 25, 2013, Plaintiff served Defendant with interrogatories and requests to
produce. Defendant responded on June 27, 2013. Plaintiff’s counsel contacted Defendant’s
counsel on August 15, 2013 to raise concerns about the adequacy of those responses. Counsel for
both parties had a phone conversation on September 3, 2013 and were unable to resolve their
differences. On September 16, 2013, Plaintiff filed a motion to compel, accompanied by a
certification as required by V.R.C.P. 26 (h) regarding efforts at avoiding seeking judicial relief.
Through oversight, and failure to determine whether the time for response had passed, the Court
mistakenly granted the motion on September 18, 2013. On October 2, 2013, Defendant
responded to Plaintiff’s motion to compel and filed a cross-motion for a protective order.
Plaintiff replied to the opposition and cross motion on October 11, 2013. The Court vacates its
earlier summary determination, and grants relief as described below based on the issues framed
by the pleadings.

        The disagreements relate to the discoverability of documents that may have been
generated pursuant to a peer review process and also attorney-client privilege. Plaintiff also seeks
information about employment status of certain individuals and information about Defendant’s
affirmative defenses. The parties further dispute whether turning over business records was a
sufficient form of disclosure to some requests for information. Defendant seeks a protective
order and Plaintiff seeks expenses.

Discussion

        Decisions on discovery requests “are left to the sound discretion of the trial judge.”
Schmitt v. Lalancette, 2003 VT 24, ¶ 9, 175 Vt. 284. In exercising its, the trial court must apply
the rules and statutes governing discovery. As provided by V.R.C.P. 26(b), the scope of
discovery is broad. “Parties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action.” V.R.C.P. 26(b)(1). To withhold
information based on privilege, a “party shall make the claim expressly and shall describe the
nature of the documents, communications, or things not produced or disclosed in a manner that,
without revealing information itself privileged or protected, will enable other parties to assess the
applicability of the privilege or protection.” V.R.C.P. 26(b)(5)(A). A party invoking a privilege
has the burden of showing the privilege applies. Douglas v. Windham Superior Court, 157 Vt.
34, 43 (1991) (quoting King v. Conde, 121 F.R.D. 180, 189 (E.D.N.Y. 1988)).

   1. Peer Review Privilege under 26 V.S.A. § 1443

         The Court starts by reviewing Defendant’s claim that much of the information sought is
protected by the peer review privilege. Vermont recognizes a privilege for information generated
by a hospital after an adverse event. See 26 V.S.A. §§ 1441, 1443. The purpose of the privilege is
to encourage hospitals “to evaluate and improve the quality of health care rendered by providers
of health services.” Id. § 1441. The statute therefore protects materials that a peer review
committee generated. See id. § 1443(a). The statute protects neither the underlying information
that allowed the creation of those materials nor materials generated for other purposes but
submitted to the peer review committee. See id. 18 V.S.A §§ 1912–19 also create protections for
information generated by hospitals to improve safety. Like 26 V.S.A § 1443, Title 18 does not
protect the original information. See 18 V.S.A. § 1917(g).

         The privilege for peer view committees is narrow. In one case, the Vermont Supreme
Court discussed whether an expert could testify about how a peer review process could give a
hospital knowledge of risk. See Wheeler v. Centr. Vt. Med. Ctr., Inc., 155 Vt. 85, 88–89 (1990).
Of most importance to this case, the Vermont Supreme Court clarified that while information
generated by a peer review committee is privileged, independently discoverable information is
not. Id. at 90–91. The Federal District Court for Vermont also has discussed the peer review

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privilege on a motion to compel. See Robinson v. Springfield Hosp., 109-CV-75, 2010 WL
503096, *1 (D. Vt. Feb. 5, 2010). In Robinson, the plaintiff sought to compel two medical
providers to describe what occurred in meetings after a patient’s death. Id. The medical providers
refused on the grounds of privilege. Judge Murtha noted “the dividing line between peer review
and normal business operations can be unclear” and the privilege only applies where the parties
observe proper formalities. Id. *2. He then required disclosure because the discussions occurred
in the context of normal business operations. Id. *2–3.

        A case from the Missouri Court of Appeals also provides guidance. See Dixon v.
Darnold, 939 S.W.2d 66, 70 (Mo. Ct. App. 1997). In Dixon, plaintiff in a medical negligence
action appealed an order that protected documents from discovery. Id. at 68. The appeals court
noted that Missouri, like Vermont, has a statute protecting the findings of a peer review
committee. Id.; see also Mo. Ann. Stat. § 537.035 (protecting peer view committees). The
appeals court noted “the burden rests on the party claiming the privilege to establish that the
material is, in fact, not discoverable.” Dixon, 939 S.W.2d at 70. The court concluded the hospital
did not meet its burden because blanket assertions are insufficient to invoke the privilege. Id.

        Defendant must answer Plaintiff’s interrogatories 7, 10, 13, 28, 29, and 33–35 because
Defendant has not stated a valid claim for privilege. As described above, the Court recognizes
that reports produced by a peer review committee are not discoverable. See 26 V.S.A § 1443(a).
Nevertheless, the party invoking a privilege must show the privilege applies. Defendant cannot
exclude all information considered by a peer review committee. See Wheeler, 155 Vt. at 90–91.
Instead, Defendant may only refuse to disclose material that Defendant shows was created as
part of a formal peer view process. See id.; see also Robinson, 2010 WL 503096, *2–3
(discussing types of privileged conversations). In this case, as in Dixon, Defendant has done little
more than make a blanket assertion of privilege. See 939 S.W.2d at 70. Blanket assertions are
insufficient to invoke a privilege. See id. Moreover, Defendant must comply with the
requirements of V.R.C.P. 26(b). Because Defendant has failed to provide sufficient information
demonstrating circumstances justifying the claim of privilege, Defendant may not properly
refuse to respond by invoking privilege. See Douglas, 157 Vt. at 43.

        Defendant’s argument relying on Title 18 is similarly unpersuasive. 18 V.S.A. § 1917(a)
creates protections for documents hospitals submit to the government to improve safety. The
purpose of this law is to improve hospital safety. See 18 V.S.A. § 1913(a). On the other hand,
Title 18 does not create additional discovery protections for hospitals. 18 V.S.A. § 1917(g).
Moreover, Defendant’s argument is too vague to properly assert a privilege and Defendant has
not met its burden. See Douglas, 157 Vt. at 43; see also Dixon, 939 S.W.2d at 70 (discussing the
difficulties with blanket assertions of medical privileges).1

        Defendant shall respond within 15 days with all non-privileged information that responds
to Plaintiff’s interrogatories. The Court’s order does not require Defendant to disclose a report
produced by a peer review committee. See Wheeler, 155 Vt. at 89, fn. 3. Nevertheless, as

1
  Defendant’s answer further illustrates the Court’s problems with its unadorned assertion of privilege. According to
the answer, the fall did not occur. If the fall did not occur, then there would be nothing to review and no privileged
information. Although a party may make alternative defenses under V.R.C.P. 8(e)(2), a party may not use the broad
rules of pleading to circumvent the discovery rules.

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discussed above, except for the formal peer review report, much of the information that
conceivably was reviewed by a peer review committee is not privileged. Defendant must state
what it withholds with sufficient information to allow Plaintiff and the Court to evaluate its
claim. Any information Defendant withholds must be expressly identified, including in cases
where Defendant answers part of a question.

   2. Attorney-Client Privilege

        The Court next considers whether information requested by Plaintiff is protected by
attorney-client privilege. See V.R.E. 502. In response to Interrogatories number 12–17 Defendant
asserts attorney client privilege. These interrogatories seek the factual basis for Defendant’s
theory of the case. For example, Interrogatory number 12 seeks to determine if Defendant agrees
that Prouty suffered hip fractures while at the hospital. Similarly, Interrogatory number 16 seeks
information about the factual basis of Defendant’s affirmative defenses.

        Again, the Court recognizes the existence of attorney-client privilege but can not
conclude that Defendant has properly asserted it. See V.R.E. 502. The burden to show a privilege
lies with the party holding the privilege and the asserting party must comply with V.R.C.P.
26(b). Blanket statements that facts related to Plaintiff’s claims are covered by attorney-client
privilege are insufficient to invoke the privilege. See Hayworth v. Schilli Leasing, Inc., 669
N.E.2d 165, 169 (Ind. 1996) (noting “courts disfavor blanket claims of privilege” in the context
of an assertion of attorney-client privilege). Considering that Defendant’s answer verged on a
general denial, and that it appears to have plead a host of affirmative defenses reflexively with no
discernible, or even plausibly imagined, factual basis for most, the Court expresses extreme
skepticism that Defendant can validly meet a request for the facts underlying its pleadings by
invoking attorney-client privilege in a similarly sweeping fashion. See V.R.C.P. 11(b).
Therefore, the Court grants Plaintiff’s motion to compel.

   3. Business Records under V.R.C.P. 33(c)

       In interrogatories 24–29, Plaintiff sought information relating to the precautions
Defendant took to protect Mr. Prouty against a fall. Defendant objected to the questions as
exceeding the scope of discovery permitted by V.R.C.P. 33(c). This response is puzzling. While
V.R.C.P. 33(c) allows a party to submit business records in response to interrogatories, the rule
does not establish limits to the scope of discovery. The Court also notes that V.R.C.P. 33(c)
requires a party that invokes the rule to specify where the requesting party can find the
information. Defendant is required to respond to interrogatories 24–29.

   4. Employment Status

       In Interrogatory 9, Plaintiff requested information about the employment status of Mr.
Prouty’s caretakers. Defendant argued employment status is irrelevant. As indicated by its
motion, Plaintiff requested this information because its attorneys wish to determine which
witnesses they may contact without seeking permission from Defendant’s counsel. See Vermont
Rule of Professional Conduct 4.2. Plaintiff’s justification shows the employment status is
relevant, and Plaintiff’s motion to compel is granted.

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   5. Privilege Log

         As previously discussed, in response to Defendant’s objections based on privilege,
Plaintiff requests Defendant document the privileges it asserts with accompanying information
that allows Plaintiff to assess those privileges. As described above, a party asserting a privilege
must provide context for the opposing party to support justification for the assertion. Defendant’s
continuing refusal in the absence of the proffer of a privilege log runs afoul of both V.R.C.P.
26(b)(5)(A) and V.R.C.P. 26(h).

   6. Defendant’s Motion for Protective Order under V.R.C.P.26(c)

        Defendant requests the Court grant a protective order to avoid disclosure of privileged
information. For good cause, the Court may issue a protective order. See V.R.C.P. 26(c).
Protecting privileged information is often good cause. In this case, however, Defendant has made
no showing that its refusal to make disclosure was properly grounded in any claim of privilege.
Therefore, the Court must deny Defendant’s request for a protective order.

   7. Attorney’s Fees & Costs

        V.R.C.P. 37(a)(4) provides that the Court shall grant fees and costs to the party moving
for a discovery order if the moving party prevails. Having prevailed as to virtually every request
to compel, based on Defendant’s failure as to most items to supply any reasoned basis for its
refusal to comply, Plaintiff is entitled to its expenses associated with these proceedings to
compel. Plaintiff shall submit its request for reimbursement within 15 days, to which Defendant
may respond within 10 days.

                                              Order

        The Court GRANTS Plaintiff’s motion to compel. Defendant must answer Plaintiff’s
interrogatories within 15 days. The Court DENIES Defendant’s motion for a protective order.
Plaintiff shall submit its request for fees and costs within 15 days, to which Defendant may
respond within 10 days.

       Dated at Bennington, Vermont on October 30, 2013


                                                             John P. Wesley
                                                             Superior Court Judge




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