IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

BLANCHE NEWBORN,
Individually and as Executrix of the
Estate of Lindsay Hurley Ballas,

Plaintiff,

V. C.A. No. N16C-05-047 VLM
CHRISTIANA PSYCHIATRIC
SERVICES, P.A. and LEATRICE S.
ALBERA, as EXecutriX of the

Estate of Jorge A. Pereira-Ogan, M.D.

Defendants.
Q_U

Subrnitted: January 9, 2017

Decided: January 25, 2017

Upon Consideration ofDefendant Leatrice S. Albem, as Execuz‘rz`x ofthe
Estate of.forge A. Pereira-Ogan, MD. ’S Motz`on to Reconsl'der the Courz‘ ’s
November 30, 2016 Order. GRANTED.

AND NOW this 25th day of January, 2017, upon consideration of Defendant
Leatrice S. Albera, as EXeoutriX of the Estate of Jorge A. Pereira-Ogan, M.D’s
Motion to Reconsider the Court’s November 30, 2016 Order, the response thereto,
and the parties’ oral arguments, IT IS HEREBY ORDERED that the Motion to

Reconsider the Court’s Novernber 30, 2016 Order is GRANTED for the following

1'€3501'181

1. On November 30, 2016, this Court entered an Order (“Order”)
granting, in part, Defendants’ and the State/Division of Professional Regulation’s
Motions to Quash and for a Protective Order.l Specifically, Plaintiff, Blanche
Nevvborn, Individually and as Executrix of the Estate of Lindsey Hurley Ballas
(“Plaintiff’), successfully argued, in part, that she should be permitted access to
documents related to a former investigation of Jorge Pereira-Ogan, M.D.
(“Dr. Ogan”). Defendant Estate of Jorge A. Pereira-Ogan, M.D (“Estate”) now
moves pursuant to Superior Court Civil Rule 59(e) for
Reargurnent/Reconsideration.

2. Briefly, this case involves a Wrongful death and medical malpractice
action against the Estate’s decedent, Dr. Ogan, and his former practice group,
Defendant Christiana Psychiatric Services, P.A. (“CPS”, collectively
“Defendants”), alleging that Dr. Ogan provided negligent medical treatment to
Plaintiff` s decedent, Ms. Ballas, vvhich caused her to commit suicide in August
2014.2

3. As part of the inquiry into Ms. Ballas’ death, an investigation
regarding her professional and personal relationship vvith Dr. Ogan ensued. For

purposes of this Motion, the relevant State agencies that participated in the

 

‘ see D.I. #59892622 [hereinaaer order].

2 Order at 3-4.

investigation included the Division of Forensic Science (formerly known as the
“Office of the Chief Medical Examiner” or “OCME”), the Board of l\/Iedical
Licensure and Discipline (“Board”), the Division of Professional Regulation
(“DPR”), and the Department of Justice (“D()J”).

4. After filing her civil claim, Plaintiff issued a subpoena to DPR and
Deputy Attorney General Stacey Stewart of the DOJ seeking the production of
DPR’s investigative file. In response to this subpoena, DPR inadvertently
forwarded the file to Plaintiff` s counsel.3 When counsel for the State and DPR
noticed this mistake, both the State and DPR filed their respective Motions to
Quash and for a Protective Order.4 Defendants filed their joint Motion to Quash
and for Protective Order shortly thereafter.5

5. In this Court’s Order, Plaintiff was permitted access to portions of
DPR’s investigative tile. Specifically, the Court permitted discovery of Ms.

Ballas’ medical records that were incorporated into the DPR file.6 The Court

 

3 order ar 12-13.

4 DPR did not file its own Motion to Quash, but later joined the State’s Motion to Quash and for
Protective Order following oral arguments on the Motions.

5 The Motions were consolidated and oral arguments were heard on the Motions on November 1,
2016.

6 DPR’s investigative file contained Ms. Ballas’ mental health/psychiatric records from Dr.
Ogan’s time in solo practice. These records Were transferred to CPS’s records department and
turned over to DPR as part of its investigation

further permitted discovery of what had been represented as Dr. Ogan’S statements
made to the DPR during its investigation7

6. Of particular relevance to this Motion, this Court determined that
Delaware’s peer review privilege, 24 Del. C. § 1768, did not apply to bar discovery
of Dr. Ogan’s statements in the present civil suit.8 The facts-as they existed at
that time--established that DPR initiated its investigation into Dr. Ogan absent
evidence of any involvement by the Board.9 Thus, DPR, in its capacity as an
independent investigator, was not operating as the mandatory investigatory arm of
the Board and this Court held that the file was not subject to the peer review
privilegedO

7. The Estate now moves under Superior Court Civil Rule 59 for this
Court to reconsider its ruling on the basis of newly discovered evidence. The
Estate has reviewed the DPR file and now represents that the Board--and not

DPR-initiated the investigation into Dr. ()gan after two email complaints were

 

7 Order at 22-23.

8 Order at 13-17 (discussing peer review privilege and holding DPR was not acting as “peer
review committee or organization” when it investigated Dr. Ogan).

9 Order at 15 (“In this case, DPR received the initial complaint regarding Dr. Ogan without the
involvement of the Board. . . .”).

10 Order at 15-16.

filed with DPR in mid-November 2014.ll The Estate further clarifies that the
original representations that there were statements of Dr. Ogan in the investigative
file are actually notations made by a DPR investigator following his
communications with Dr. Ogan. As such, the statements sought to be protected are
more akin to the investigator’s impressions than actual statements provided by Dr.
Ogan.

8. Plaintiff opposes the Motion on both procedural and substantive
bases. Although Plaintiff concedes that the peer review privilege does apply when
the Board initiates an investigation, she argues that this new evidence should not
be considered because a motion to reconsider “seeks only a re-examination of the
facts in record at the time of the decision or the law as it applies to those facts.”12
Notwithstanding this general rule, however, “[i]n appropriate circumstances . . . a

litigant may seek reargument based on newly discovered evidence.”13 The burden

is on the moving party to show the newly discovered evidence “came to his

 

ll The Estate confirmed that Dr. Ogan’s correspondence with the Division of Forensic
Science/OCME occurred before the initiation of the Board’s investigation in mid-November
2014. The Estate therefore concedes that this correspondence is not subject to the peer review
privilege and, thus, is discoverable The Court’s ruling in this Order focuses only on the
documents produced for the purposes of the Board’s investigation into Dr. Ogan after the Board
initiated its investigation in mid-November 2014.

12 Plaintiff’ s Response at 11 7. See Ml`les, lnc. v. Cookson Am., Inc., 677 A.2d 505, 506 (Del. Ch.
1995) (quoting Mala’onaa'o v. Flynn, 1980 WL 272822, at *3 (Del. Ch. July 7, 1980)).

13 R€Serves Dev. LLC v. Severn Sav. chk, FSB, 2007 WL 46447()8, at *l (Del. Ch. Dec. 31,
2007) (citing Bala v. Bata, 170 A.2d 711, 714 (Del. 1961)).

knowledge” since the motion and could not, “in the exercise of reasonable
diligence, have been discovered for use at the time” of the motion.14 Plaintiff also
argues in the alternative that the Estate has not met its burden of proving that this
new evidence, even if considered, would change the outcome of this Court’s
decision. Specifically, Plaintiff maintains that the information in the DPR file was
not used exclusively by the Board in its investigation and, therefore, the peer
review privilege does not apply.15 This Court finds both grounds unavailing

9. Superior Court Civil Rule 59(e) permits the Court to reconsider “its
findings of fact, conclusions of law, or judgment.”16 “Delaware law places a heavy
burden on a [party] seeking relief pursuant to Rule 59.”17 To prevail on a motion
for reargument, the movant must demonstrate that “the Court has misapprehended
the law or facts such as would have changed the outcome of the underlying

decision.” 8 Further “ a motion for rear jrument is not a device for raisin new
9

 

“‘ 1a reitng Bam, i70 A.2d at 7i4>.

‘5 Cf. opace @f Chi¢fMed. Exam’r v. Dover Behavz@ml Heazzh sys., 976 A.2d 160, i64 (D@i_
2009) (quoting Connolly v. Labowitz, 1984 WL 14132, at *1 (Del. Super. Dec. 17, 1984)) (the
peer review privilege applies to records, including “any paperwork, reports or compilation of
date [sic] which are used exclusively by the [peer review] committee.”).

‘6 Hesszer, ma v. Fawell, 260 A.2d 701, 702 <Dei. 1969). see also Bd. QfManagers Q/D@z.
Criml`nal Justz'ce ]r;fr). Sys. v. Gannetr Co., 2003 WL 1579170, at *1 (Del. Super. Jan. 17, 2003),
ajj”’d in part, 840 A.2d 1232 (Del. 2003); Cumml`ngs v. Jz'mmy’s Grl`lle, Inc., 2000 WL 1211167,
at *2 (Del. Super. Aug. 9, 2000).

" Koszyshyn v. Comm vs ofBeH¢/Ome, 2007 wL 1241875, ar *i (Dei. super. Apr. 27, 2007).

18 Ba’. ()fManagers ofDel. Crimirzal Juslz`ce Info. Sys., 2003 WL 1579170, at *1.
6

arguments,”19 nor is it “intended to rehash the arguments already decided by the
court."w Such tactics frustrate the interests of judicial efficiency and the orderly
process of reaching closure on the issue.21 The moving party has the burden of
demonstrating “newly discovered evidence, a change of law, or manifest
injustice.”22

10. Given the immunity and privilege issues in the underlying Motions,
the Estate took the position in the earlier Motions that the contents of the DPR’s
investigative file were absolutely privileged under 24 Del. C. § 1768 and,
accordingly, could not review it. Only after this Court’s ruling did the Estate view
the contents of the file.23 The Estate’s review of the file revealed new evidence-
contrary to what had been represented at the oral arguments on the underlying
Motions to Quash and for Protective Order-that the Board, and not DPR, initiated

the investigation into Dr. Ogan. Accordingly, the Court finds that the Estate has

met its burden of proving that these new facts constitute “newly discovered

 

l9 161

20 Kennedy v. lnvacare Corp., 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006).

21 See Plummer v. Shermcm, 2004 WL 63414, at *2 (Del. Super. Jan. 14, 2004).

22 E.I. du Pom de Nem@urs & Co. v. Aa’mzml lns. C@., 7ii A.2d 45, 55 (r)@i. super 1995)_

23 Notably, the contents of the file had been inadvertently disclosed to Plaintiff”s counsel in
advance of the earlier l\/[otions. At no time during oral argument on the earlier l\/lotions to Quash
or for Protective Order did any of the parties or non-parties suggest that the Board had initiated

this investigation Plaintiff"s counsel maintained that there was no evidence to suggest that the
Board had initiated the investigation, claiming it was only tangentially involved.

evidence” that could not have been discovered in the exercise of reasonable
diligence.24

11. This Court further finds that, had this evidence been presented, it
would have changed the outcome of the Court’s Order. l\/lost important to the
analysis of the applicability of the peer review privilege was where the Board fit
into this investigation The new evidence demonstrates that the Board initiated the
investigation into Dr. Ogan. As such, since DPR acted as a mandatory investigator
of the Board, DPR is clothed with the peer review privilege pursuant to 24 Del. C.
§ 1768(3).25

12. This new evidence also now requires the Court to consider the
previously mooted issue of whether the Board exclusively used the DPR file within
the scope of § 1768(b).26 Section 1768(b) applies to all records, including “any

paperwork, reports . . . which are used exclusively by the [peer review]

 

24 The Court disagrees with Plaintiff`s reliance on both Court of Chancery cases Miles, lne. v.
C()()kson Amerz`ca Inc., 677 A.2d 505 (Del. Ch. 1995), and Mala’onado v. Flynn, 1980 WL
272822 (Del. Ch. July 7, 1980). Both cases are distinguishable Miles involved a post-trial
opinion where the Court held the Rule 59 arguments merely rehashed arguments presented
during trial, Maldc)nado concerned an affidavit that could have been discovered with reasonable
diligence.

25 24 Del. C. § 1768(a) (“The Board of Medical Licensure and Discipline and the Medical
Society of Delaware, their members, and the members of any committees appointed by the Board
or Society; . . . .”).

26 See Order at 16 n. 46.

cornmittee.”27 This qualification on § 1768(b)’s scope recognizes “the
Legislature’s purpose in enacting the statute[:] to prevent the chilling effect caused
by the prospect of public disclosure of statements made to, or information prepared

for and used by, medical review committees in the accomplishment of their

- 28
assigned tasks. . . .”

13. To that end, Delaware law codifies substantial privileges for the inner
workings of the Board, notwithstanding the Board’s need to engage other State
agencies to assist in its investigatory and disciplinary functions For instance, the
Board is required by law to investigate complaints “concerning any aspect of the
practice of medicine against a person [licensed] to practice medicine in this State. .
. .”29 Among other statutory requirements, the Board must communicate monthly
with the DOJ regarding “the status of complaints filed by law enforcement . . .”30
Additionally, the Board’s records are exempt from Freedom of Information Act

requests31 Finally, and of particular relevance to this Motion, § 1768(b) provides

that: “[I]n cases in which any disciplinary action by the Board was issued, the

 

27 Offl`ce ()fChl`e_/`Med. Exam ’r v. Dover Behavioral Heall‘h Sys., 976 A.2d 160, 164 (Del. 2009)
(emphasis added) (quoting Comwlly v. Labowz`lz, 1984 WL 14132, at *1 (Del. Super. Dec. 17,
1984)).

28 Dw@rkm v. sr ancis Hosp., lnc., 517 A.2d 302, 307 (Dei. super. 1986).
29 24 Del. C. § 1733(3).
30 § 1733(3)(2).

3‘ § i737. see also 29 Del. C. § 10002(1)(3).

formal complaints prepared by the Delaware Department of Justice and the results
of the hearings are not confidential and are public records. . . .”32 Logic, therefore,
suggests that the structure of § 1768(b), read in conjunction with the Board’s
statutory duties, permits the Board to engage in interdepartmental communication
regarding a pending investigation of a medical practitioner without the Board
unwittingly relinquishing its right to the peer review privilege To read § 1768(b)
as strictly as Plaintiff contends functions to cabin §l768(b) and the Board’s
functions too narrowly.

14. In this case, the results of DPR’s investigation culminated in two
formal complaints filed by the DOJ against Dr. Ggan. The new evidence
demonstrates that the Board initiated the investigation and provided assistance to
the DPR investigator assigned The Board provided the investigator a Board
member to review the findings of the investigation The results of the investigation
were then forwarded to the DOJ for potential prosecution DOJ ultimately chose to
file two formal complaints With the Board regarding Dr. Ogan’s conduct.
However, the DOJ withdrew the formal complaints because Dr. Ogan passed
away. This process_from initiation of the investigation until the filing of the

formal complaints-followed the anticipated process recognized in § l768(b) and

 

32 24 Del, C. § i768(b).
10

the Board’s enabling statute33 Therefore, the Court finds that this new evidence
shows that the Board used the contents of DPR’s investigative file exclusively
within the confines of the peer review privilege

15. Consequently, the two formal complaints filed by the DOJ after
DPR’s investigation are confidential and not discoverable34 Since the Court finds
that the peer review privilege applies to the file, and that the file was exclusively
used by the Board, § l768(b)’s language controls: “Notwithstanding the foregoing,
in cases in which any disciplinary action by the Board was issued, the formal
complaints prepared by the [DOJ] . . . are not confidential and are public records .
. .”35 Since the DOJ withdrew the formal complaints before the Board issued a
disciplinary action, the necessary implication from § 1768(b)’s language is that the

two formal complaints remain confidential and not subject to discovery.36

 

33 See § 1768(b). See also §§ 1710-1715 (enabling statute).
34 see § 1768(1>).
35 ]a', (emphasis added).

36 Additionally, the Court finds the parties’ clarification concerning the nature of Dr. Ogan’s
statements in the investigative file significant At the time of the Order, Dr. Ogan’s putative
statements were reportedly formal statements authored, recorded, or otherwise verbalized by Dr.
Ogan to a DPR investigator. The parties now represent to the Court that the one statement in the
investigative file derives from notes made by the DPR investigator about his communications
with Dr. Ogan. This characterization of the statement bolsters the privileged nature of the
information contained in the investigative file

ll

The Court finds that the Estate has met its burden under Rule 59(e) of
demonstrating that the new facts in the DPR file constitute newly discovered
evidence permitting the Court to reconsider its Order. The Court further finds that
this new evidence is sufficient to change the outcome of the Court’s Order.

Therefore, the Estate’s Motion to Reconsider the Court’s Order is GRANTED.

;%/\

Judge Vivian L. Medinilla

IT lS SO ORDERED.

oc: Prothonotary
cc: All Counsel of Record (via e-filing)

12

