Opinion
DBDCV186025335S
11-21-2019
Kristian Best, Administratrix of the Estate of Rohan K. Williams v. CCWC Professional Practice Group, LLC dba Connecticut Childbirth and Women’s Center
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):D’Andrea, Robert A., J.
MEMORANDUM OF DECISION ON MOTION TO COMPEL
D’Andrea, Robert A., Judge
This issue began when the plaintiff, Kristian Best ("plaintiff"), filed a motion to compel, dated July 15, 2019 (#143), with attachments, requesting that the court compel the re-notice of the deposition of Lindsay Lachant, and others, agents, servants, and/or employees of the defendant, CCWC Professional Practice Group, LLC d/b/a Connecticut Childbirth and Women’s Center ("defendant") to testify regarding their knowledge of the Connecticut Department of Public Health’s ("CDPH") investigation that occurred at the defendant’s facility shortly after the death of the infant-minor, child of the plaintiff, on or about July 16, 2017. The motion to compel and depositions involved three meetings by the defendant’s staff. The first meeting involved discussion by all midwifery staff, and occurred immediately following the July 16, 2017 incident, to review P&P for routine documentation of maternal vital signs and fetal heart tones; the second being a formal staff meeting, which took place on August 15, 2017, to again review the policies regarding timing of both maternal and fetal parameters; and the third being a January 11, 2018 meeting involving nursing and midwifery staff to review current requirements and regulations regarding reporting adverse events to the Connecticut State Agency. At the short calendar hearing on October 21, 2018, the defendant indicated that he was not claiming the peer review privilege as to the January 11, 2018 meeting but was continuing to maintain that the peer review privilege applies to the first two meetings listed above.
The plaintiff’s counsel was in the middle of the deposition of Ms. Lachant, after having read to her an excerpt from the CDPH investigation report, and questioning her regarding her knowledge of the CDPH investigation. During the questioning, Ms. Lachant was advised by counsel for the defendant not to answer the questions, as the defendant claimed a peer review privilege. The plaintiff, in the motion to compel, only asked that the court compel the deponent to respond to questions pertaining to her knowledge of CDPH’s investigation. There was no request to permit inquiry into Ms. Lachant’s knowledge of any potential peer review discussions that occurred during the staff meeting subsequent to the death of the infant-minor, child of the plaintiff, on or about July 16, 2017, or second meeting of August 15, 2017. The plaintiff only requested the following:
"Plaintiff filed this motion to compel, requesting that the court compel the re-deposition of Lindsay Lachant, C.N.M, and to compel Ms. Lachant and all other agents, servants, and/or employees of the defendant, including, but not limited to, Amanda Copley, Erin Zaffis, R.N., Catherine Parisi, C.N.M., and Kenneth Blau, M.D., to testify regarding their knowledge of the Connecticut Department of Public Health’s investigation that occurred at the defendant’s facility shortly after infant plaintiff’s death on July 17, 2017."
In response to the motion to compel, defendant filed an objection to plaintiff’s motion to compel, dated September 13, 2019. In addition to the objection, the defendant attached excerpts of the deposition of Ms. Lachant. In the objection, as counsel for the defendant claimed, he did not object to any of the questions that the plaintiff’s counsel posed to Ms. Lachant regarding the CDPH investigation, but when plaintiff’s counsel began questioning Ms. Lachant on peer review discussions that occurred subsequent to the death of the infant-minor, defendant’s counsel instructed Ms. Lachant not to answer the questions, as they were protected by the peer review privilege. After several reviews of all the motions and attachments, and after the first short calendar argument, the court issued order #143.05 which states: "By no later than 9/30/2019, counsel shall select a mutually agreeable date and time between 10/1/2019 and 10/30/2019 to schedule and conduct the re-deposition of Lindsay Lachant, C.N.M, and including, but not limited to, Amanda Copley, Erin Zaffis, R.N., Catherine Parisi, C.N.M., and Kenneth Blau, M.D. to testify regarding their knowledge of the Connecticut Department of Public Health’s investigation that occurred at defendant’s facility shortly after infant plaintiff’s death on July 17, 2017. If the deponents fail to appear for deposition on the dates selected, the plaintiff may move for the entry of a judgment of default by filing a motion that references this order and the defendant’s failure to comply with same."
Subsequent to the receipt of the court order, the defendant filed a motion to reargue/articulation dated September 23, 2019. In its motion, the defendant alleged that the court did not rule on its objection to plaintiff’s motion to compel dated September 13, 2019, and it was therefore, unclear, whether the court took notice of the defendant’s position that the plaintiffs are attempting to solicit testimony that is protected by the peer review and consideration privilege. While the court fully reviewed and examined defendant’s objection, and took full notice of the defendant’s position, and did not feel that the motion had merit, it did, however, grant the motion to reargue/articulation to ensure that the defendant felt that it was fully heard by the court. The specific issue expressed by the defendant was that the court did not address the specific issue presented by the plaintiff in their motion to compel. Subsequent to the court order, the parties were unable to agree on the intention of the court’s limited order, which only required that the deponent respond to questions pertaining to her knowledge of CDPH’s investigation.
PLAINTIFF’S POSITION
During this deposition of Lindsay Lachant, plaintiff’s counsel began questioning the witness regarding her knowledge of the CDPH investigation report, including any conversations that she had with other members of the defendant’s staff after the investigation. Ms. Lachant was instructed by defense counsel not to answer the posed questions, on the basis of peer review privilege. Plaintiff claims that the defendant is not protected by peer review under General Statutes § 19a-17b or Connecticut case law. The law is clear that records made, or knowledge gained, independent of a peer review proceeding does not protect them from answering questions about their knowledge of and discussions regarding this CDPH investigation. The party asserting that discovery of certain facts is barred by the Connecticut medical peer review statute bears the burden of proving facts that establish the applicability of that statute to the documents at issue. Babcock v. Bridgeport Hospital, 251 Conn. 790, 847-49, 742 A.2d 322 (1999). "Confidentiality properly attaches to peer review documents only when the moving party has provided ‘sufficient information to enable the court to determine that each element of the privilege is satisfied ... A failure of proof as to any element of the privilege causes the claim of privilege to fail.’ " Id., 828-29. "[A]lthough a statutory privilege must be applied so as to effectuate its purpose, it is to be applied cautiously and with circumspection because it impedes the truth-seeking function of the adjudicative process." Id. at 819.
In Babcock, the Supreme Court placed the burden on the defendant to prove that "the documents in question were generated principally for the purpose of peer review." Id., 835. Similarly, "evidence of a practitioner’s negligence is immune from discovery only to the extent that it is disclosed solely during the course of peer review." (Emphasis added.) Id. at 826. The Court also identified that "[t]he legislative history surrounding the statute further indicates that the privilege applies to the peer review committee’s self-generated analysis, but not to the underlying facts that provide the basis for that analysis when such facts have been collected by an independent source." Id. at 823. The CDPH investigation substantiated that the defendant had violated both hospital policy and state regulations and support an independent finding of negligent conduct by the defendant staff outside of any peer review process. As such, any knowledge of or discussion about these findings is independent of the peer review process. The defendant cannot claim privilege to avoid staff testifying as to their knowledge of and participation in any discussions about the CDPH site visit and report. Wherefore, the plaintiffs request that the court compel the re-notice of deposition of Lindsay Lachant, and all other agents, apparent agents, servants, and/or employees of the defendant, to testify regarding their knowledge of the CDPH investigation that occurred at the defendant’s facility shortly after the death of the infant-plaintiff, on or about July 16, 2017.
The plaintiff filed an objection to defendant’s motion to reargue/articulate dated October 15, 2019, basically claiming that there is no confusion in the court order, and the defendant’s objection only makes the conclusory, and unsupported claim that the peer review privilege applies. The plaintiff further claims that counsel did not "conflate" the CDPH investigation with peer review privilege alleged by the defendant, rather the documents and discussion created explicitly for the CDPH investigation are not protected by the peer review privilege.
The defendant offers no facts or case law that the court may have overlooked when the court granted the plaintiff’s motion to compel. Our case law is clear that the party asserting the medical peer review privilege bears the burden of showing that the information sought is in fact protected by such privilege. Babcock at 849. ("the party opposed to discovery has the burden of both asserting and establishing the applicable privilege"); see also Woodbury Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn. 750, 778 (2012) ("[i]n Babcock, we determined that the burden rests on the party asserting the statutory privilege to demonstrate that the materials sought to be discovered relate to a committee’s peer review, as the statute precluded the discovery of only those materials generated by a medical review committee"). The defendant’s objection made conclusory statements that the peer review privilege applies. The defendant’s burden, pursuant to § 19a-17b(d), is to show that the documents and discussions at issue constituted the proceedings of a medical review committee, and that the committee was specifically conducting a peer review proceeding.
The defendant must support its assertion of the peer review privilege with affidavits or other evidence that the discussions and meetings at issue are protected by the privilege. "[C]ounsel’s unsupported statements ... that a document is subject to the peer review privilege is not enough when no testimony or affidavit is submitted to support that position when it is unclear from the face of the document that it is privileged." Pizzoni v. Essent Healthcare of Conn., Inc., Superior Court, judicial district of Litchfield, Docket No. CV-16-6014136-S, 2019 Conn.Super. LEXIS 481, at (Mar. 8, 2019, Bentivegna, J.) ("the burden is on the party claiming the privilege to show by affidavit or testimony and/or by submitting the document for in camera review, that the document meets the criteria for the claimed privilege"). "A failure of proof as to any element of the privilege causes the claim of privilege to fail." Babcock at, 828-29.
The defendant made conclusory statements that any discussions or meetings that occurred amongst the staff at the defendant’s facility, regarding the CDPH investigation, constitutes peer review, without any evidentiary showing whatsoever that these discussions or meetings in fact meet the statutory definition of a peer review proceeding. As in Babcock, this total lack of evidentiary support requires the court to reject the defendant’s peer review privilege claim. Finally, the public policy reasons for invoking the peer review privilege are not at issue, as there is no concern here about "encouraging" committee members to "take positions that they might not otherwise take," or about discovery impacting "medical staff candor." The defendant was required to have these meetings and discussions in order to respond to the CDPH’s site visit and investigation, not to provide staff members with an evaluation about the quality or efficiency of their care.
The defendant has made no showing that the questions directed to the CDPH investigation, and any discussions or meetings convened in response to the investigation, are subject to the peer review privilege. The defendant cannot claim that documents and discussions that occurred principally for the purposes of responding to the CDPH investigation constitute peer review proceedings. The plaintiffs respectfully request that this court grant the plaintiffs’ motion to compel the re-notice of deposition of Lindsay Lachant, C.N.M., and to compel all other agents, apparent agents, servants, and/or employees of the defendant CCWC, to testify regarding their knowledge of the CPDH investigation that occurred at CCWC shortly after the death of the infant-plaintiff.
DEFENDANT’S POSITION
General Statutes § 19a-17b defines "peer review" as "the procedure for evaluation by professionals of the quality and efficiency of services ordered or performed by other professionals, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review and claims review." C.G.S. § 19a-17(a)(2). Plaintiff’s counsel is seeking information regarding the substantive discussions that occurred as part of the peer review proceeding. The transcript supports the assertion that plaintiff’s counsel was specifically inquiring about peer review meetings and the substantive discussions that occurred during same, as opposed to plaintiff’s assertion that they were merely inquiring about the CDPH investigation. The plaintiff’s counsel continued that line of inquiry in an attempt to ascertain information about corrective actions stemming from that peer review as a means to invade the privilege. Plaintiff’s counsel attempts to frame the issue as merely inquiring about the CDPH investigation; however, it is clear that plaintiff’s counsel was actually inquiring about discussions between the defendant healthcare providers that occurred after the subject incident to review same. Plaintiff’s counsel is confusing the peer review meetings that occurred in July and August 2017 with the CDPH investigation which took place several months later. Plaintiff’s counsel mistakenly relies on Babcock, but that case is distinguishable because the issue in Babcock revolved around the production of documents relative to peer review and not deposition testimony regarding substantive discussions that occurred as part of a peer review. The difference between compelling of documents in relation to peer review versus compelling testimony regarding substantive discussions in relation to peer review must not be overlooked. Plaintiff’s counsel downplays the fact that the court in Babcock found that the privilege afforded by § 19a-17b applies to substantive exchanges that transpire during the course of a peer review meeting and that confidentiality is provided for such exchanges. Babcock at 824.
The court in Babcock concluded that "by using the word ‘proceedings’ the legislature intended to restrict the privilege to the substantive discourse that takes place at actual meetings during which ‘matters which are subject to evaluation and review by such committee’ are discussed." Babcock at 822. In the context § 19a-17b, the Babcock court "read [the term] proceedings as encompassing the sequence of events or the course of action undertaken by a committee engaged in peer review, such as the dialogues, debates and discussions that transpire at a peer review meeting, as well as opinions and conclusions reached by committee members." Babcock, at 822-23. The Babcock court concluded that "the privilege afforded by § 19a-17b applies to the substantive exchanges that transpire during the course of a peer review meeting, and that confidentiality is provided for such exchanges, but not for any knowledge gained by a committee member independent of that meeting." Babcock at 824.
As Babcock points out, the aim of the peer review privilege is to encourage committee members to "take positions that they might not otherwise take if they thought they were going to be subpoenaed in the middle of a malpractice case." (Citation omitted.) Id. at 825. The testimony that plaintiff’s counsel is seeking falls within the scope of the privilege because the discussions were had as a part of a peer review of the subject incident. Furthermore, any quality assurance measures that were undertaken as a result of the peer review, such as the monitoring of patient charts, is also protected by the peer review privilege. Plaintiff’s counsel is attempting to invade the peer review privilege under the guise of the CDPH investigation. Peer review discussions should be encouraged in order to improve the quality of health care services and should not be discouraged by subjecting same to discovery on litigation, and that substantive exchanges that transpire during the course of a peer review meeting are covered by the confidentiality the peer review privilege provides for such exchanges.
Subsequent to the receipt of the court order, the defendant filed a motion to reargue/articulation dated September 23, 2019. In its motion, the defendant alleged that the court did not rule on its objection to plaintiff’s motion to compel September 13, 2019, and it was therefore, unclear, whether the court took notice of the defendant’s position that the plaintiffs are attempting to solicit testimony that is protected by the peer review privilege. Defendant claims that plaintiff’s counsel was specifically inquiring about peer review meetings, and the substantive discussions that occurred during the meetings, as opposed to the plaintiff’s claim that they were only inquiring about the CDPH investigation. As asserted in defendant’s objection to plaintiff’s motion to compel, the plaintiffs are attempting to solicit peer review testimony under the guise of the CDPH investigation. The defendant respectfully requests that the court deny the motion to compel as the requested discovery is prohibited by the peer review privilege.
LEGAL ANALYSIS
The controlling case in this matter is Babcock v. Bridgeport Hospital, 251 Conn. 790, 742 A.2d 322 (1999). As stated by the Supreme Court, "This appeal presents the court with its first opportunity to address General Statutes § 19a-17b ... Specifically, we must consider the extent to which § 19a-17b ... create statutory privileges for the nondisclosure of medical records to a tort claimant. We must determine what information relating to medical peer reviews ... these statutes shelter from disclosure and what burdens of proof must be assumed by those who seek to avail themselves of the privilege." Babcock at 793-94. The facts of Babcock, although lengthy, are necessary, at least from an edited view, for an understanding of the peer review privilege claim.
The plaintiffs filed actions alleging that the defendants, the hospital and its parent company, had been negligent and reckless, as there had been an epidemic of methicillin-resistant staphylococcus aureus (MRSA) infection in the hospital, the defendants had failed to prevent its spread, and conspired to cover up the epidemic. The plaintiffs filed notices of depositions and production requests directed to the hospital’s infection control officer, the hospital’s risk manager, and to the clinical services manager of the hospital. The defendants moved for a protective order, asserting that the requested material was protected from disclosure by § § 19a-17b and 19a-25, as it was prepared by the hospital’s infection control committee the documents in the log were involved in and protected under the morbidity and mortality studies privilege. Additionally, the plaintiffs filed several sets of interrogatories, and accompanying requests for production, to all of which the defendants objected, asserting essentially the same privileges. The defendants submitted memoranda of law in reply to the plaintiff’s opposition to their motion for a protective order, and included the affidavit of Dr. David Baker, a member of the hospital’s infection control committee. The record does not reflect that the defendants requested an evidentiary hearing. Briefs were submitted by the parties, and the defendants submitted a privilege log to the court. They did not submit any documents for in camera review. The trial court issued a memorandum of decision denying the defendants’ motion for protective order and overruling their objections based on the peer review privileges.
The Babcock court stated "Specifically, as to the defendants’ peer review privilege claim under § 19a-17b, the trial court found that the documents listed in the privilege log were statistics, graphs, flow charts, memos and chronologies, and that, although they allegedly had been prepared by the hospital’s infection control committee, ‘the bare titles’ of the documents listed did not ‘suggest that their focus is the performance of any health care professional, nor have the defendants supplied any affidavits to the effect that peer review was the task to which the documents are addressed’ ... The court concluded that although the defendants knew of their burden to prove the facts relevant to their claim of privilege ... they ... ‘offered only the assumptions and conclusions of their counsel ... in lieu of competent evidence on the actual issues concerning the nature of the documents in view of the limits of the statutory privilege.’ " Babcock at 815-16.
One the concerns of this court and every court facing this issue is that we are mindful that, as with any claim of privilege, a statutory privilege "has the effect of withholding relevant information from the factfinder ..." Shew v. Freedom of Information Commission, 245 Conn. 149, 157, 714 A.2d 664 (1998). Accordingly, although a statutory privilege must be applied so as to effectuate its purpose, it is to be applied cautiously and with circumspection because it impedes the truth-seeking function of the adjudicative process. Babcock at 819. General Statutes § 19a-17b(a) defines "peer review" and "medical review committee" as follows: (2) "Peer review" means the procedure for evaluation by health care professionals of the quality and efficiency of services ordered or performed by other health care professionals, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review and claims review. (4) "Medical review committee" includes any committee of a state or local professional society or a committee of any health care institution established pursuant to written bylaws, and any utilization review committee established pursuant to Public Law 89-97, and a professional standards review organization or a state-wide professional standards review council, established pursuant to Public Law 92-603, engaging in peer review, to gather and review information relating to the care and treatment of patients for the purposes of (A) evaluating and improving the quality of health care rendered; (B) reducing morbidity or mortality; or (C) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. "Medical review committee" also means any hospital board or committee reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto.
When reviewing the applicable language, the court must be concerned with the scope of § 19a-17b which clearly requires this it is not the nature of the committee that controls, but by whether the committee was engaged in peer review. "Furthermore, the privilege applies only to those documents that reflect the ‘proceedings’ of a peer review, or that were created primarily for the purpose of being utilized during the course of peer review. In addition, the privilege does not apply to those documents that were independently ‘recorded’ or ‘acquired.’ " See General Statutes § 19a-17b(d)(1) and (2). Id. at 822.
Up until Babcock, the Supreme Court had never clearly elaborated on the peer review proof requirement and stated "[w]e have not articulated the burden of proof scheme applicable to claims of privilege asserted under § § 19a-17b ... with respect to privilege claims generally, we have held that where the confidential status of otherwise discoverable information is apparent, a claim of privilege may be disposed of without further inquiry. See Ullmann v. State, 230 Conn. 698, 714, 647 A.2d 324 (1994). Where the nature of a document is not patently discernible from the face of the discovery request, however, the burden of establishing immunity from discovery rests with the party asserting the privilege. See Wilson v. Freedom of Information Commission, supra, 181 Conn. 324, 341, 435 A.2d 353 (1980). That burden is discharged by the presentation of evidence in the form of testimony or affidavit concerning the document’s content and use." Id. at 848-49. (Emphasis added.) The Supreme Court finally concluded that "Neither the defendants’ motion nor their objections to interrogatories conveyed the nature or purpose of the documents in question." Babcock at 850.
Based on the foregoing, it is apparent from Babcock, that "[W]here the nature of a document is not patently discernible from the face of the discovery request, however, the burden of establishing immunity from discovery rests with the party asserting the privilege." Id. (Emphasis added.) Since this court has been presented with nothing but defense counsel’s two well-drafted and articulate pleadings, that while clearly defining the issue of peer review privilege, they both are totally devoid of any "testimony or affidavit," and that the defendant "provides no information from which this court can determine whether the information" requested was in any way covered by the peer review privilege. See Babcock. As the Supreme Court stated "we are mindful that, as with any claim of privilege, a statutory privilege has the effect of withholding relevant information from the factfinder ... Accordingly, although a statutory privilege must be applied so as to effectuate its purpose, it is to be applied cautiously and with circumspection because it impedes the truth-seeking function of the adjudicative process." Id. at 819. "Confidentiality properly attaches to peer review ... only when the moving party has provided sufficient information to enable the court to determine that each element of the privilege is satisfied ... A failure of proof as to any element of the privilege causes the claim of privilege to fail." Id., 828-29.
In its September 13, 2019 objection to plaintiff’s motion to compel, the defendant claims that plaintiff’s counsel is seeking information regarding the substantive discussions that occurred as part of a peer review proceeding involving quality assurance measures that were undertaken after the death of the infant-minor on or about July 16, 2017. A clear statement, but devoid of any information that would lead the court to be able to conclude that it was a peer review proceeding covered by the privilege. Although no information was presented to the court, it is much more likely that the purpose of the meeting held nearly immediately after death of the infant-minor, was to prepare for, what the defendant knew, would inevitably result in an investigation by the CDPH of the untimely death of the infant-minor. Instead of providing discussions regarding quality assurances, the meeting appears to have been fortuitously timed directly after the infant death, equally or more plausible that the meeting was a reaction to the glaring realization that the infant death would going to cause significant consequences to the defendant, and it better begin immediate preparation for, and to be able to defend against a CDPH violation investigation and an ensuing legal action, and not just as the defendant stated a "peer review proceeding involving quality assurance measures." A bald logical allegation without "testimony or affidavits," still remains a bald allegation. The defendant alleges further that plaintiff’s counsel was specifically inquiring about peer review meetings, and the substantive discussions that occurred during the meeting, and that plaintiff’s counsel continued that line of inquiry in an attempt to ascertain information about corrective actions stemming from that peer review, as a means to invade the privilege. Defendant alleges that discussions took place to take correction action in regard to the death of the infant-minor on or about July 16, 2017. While this may in fact be true, the only thing the court has before it is only counsel’s contention that it is in fact true. That statement, while clear and straightforward, alone is completely insufficient to allow the court to make a finding that the claim of peer review privilege applies, as nothing was presented to the court to substantiate the defendant’s allegation regarding any discussions involving correction action, for corrective action sake, and not the beginning phases of preparing a defense to the infant death.
This is nearly the same as the facts in Babcock, where the defendant alleged that the peer review meeting generated studies of morbidity or mortality or that they were procured for the purpose of reducing morbidity or mortality. To apply Babcock analysis using the facts here, the defendants have not filed any affidavit or produced any testimony in which any competent witness has stated whether any discussions involving quality assurance measures or corrective action was undertaken after the death of the infant-minor on or about July 16, 2017. Without more, the defendant has provided the court with a clear, concise statement as to what the defendant claims occurred at the meetings, but has failed in its burden to provide evidence to show that the peer review privilege applies. Defendant asserts this case is distinguishable from the issue in Babcock, because that case revolved around the production of documents relative to peer review, and not deposition testimony regarding substantive discussions, as occurred in this case. This would contradict what the Babcock court stated when the court determined that we must "In the context of § 19a-17 we read [the term] proceedings as encompassing the sequence of events or the course of action undertaken by a committee engaged in peer review, such as the dialogues, debates and discussions that transpire at a peer review meetings, as well as opinions and conclusions reached by committee members ." Babcock, at 822-23. (Emphasis added.) This would put both the "discussions" (dialogues, debates and discussions) and the "documents" (opinions and conclusions reached), on the level playing field, both being equally important when doing a peer review privilege analysis. Thus, this court, as directed by Babcock, finds that the same burden of proof applies when one attempts to have the peer review privilege apply to discussions, as well as documents. Even if the court flatly accepts the defendant’s premise that the disclosure of discussions is more significant than the disclosure of mere documents, as they relate to the peer review privilege, which this court doesn’t, the defendant still has the burden to produce evidence that the discussions rise to the level of peer review privilege as defined by § 19a-17b, which has not been done.
The court fully agrees with the defendant’s general proposition that peer review discussions should be encouraged in order to improve the quality of health care services and should not be discouraged by subjecting same to discovery on litigation, and that the substantive exchanges that transpire during the course of a peer review meeting are covered by the confidentiality the peer review privilege provides for such exchanges. While the court agrees with the position, there was no evidence presented to the court by the defendant to support that position that the peer review privilege applies here. The letter dated January 18, 2018, attached as exhibit B, to plaintiff’s motion to compel, from Catherine Parisi, clinical director for CWCC to the CDPH, describes the first meeting as a "discussion with all midwifery staff occurred immediately following the incident to review P & P for routine documentation of maternal vital signs and fetal heart tones, (July 2017)," and the second meeting as "Formal staff meeting took place on 8/15/17 to review again the policies regarding timing of both maternal and fetal parameters." The defendant admits in its brief that the testimony that plaintiffs’ counsel sought involved discussions were had as a part of a peer review of the subject incident, i.e., infant death. (Emphasis added). While the defendant tempers that position that this meeting was for the purpose of "peer review proceeding involving quality assurance measures," it is just as likely, and even more likely, that the meeting was, as stated above, a fast, defensive reaction by defendant to a fatality occurring under the care of the defendant’s staff, and Ms. Parisi, being the clinical director, knew full well that an investigation would be fast approaching, and likely a law suit, and everyone needs to get together, review what happened, and prepare for, and to be able to defend against a CDPH violation investigation and a law suit. Since both scenarios are equally plausible, and without more, the defendant has failed to provide the court with any evidence that was a peer review meeting for the purposes envisioned by § 19a-17b(a), as opposed to being a defensive preparation for an inevitable CDPH investigation, which is not part of the peer review or medical review committee definition. As such, the defendant has failed in its burden to show by evidence or testimony that the peer review privilege applies to these meetings.
Taking it a step further, the results of these two meetings became public knowledge when the Parisi letter became part of the CDPH investigation report. Once the report became public, with the Parisi letter included in the report with the corrective actions, the defendant took in response to the infant death, and inevitable CDPH investigation, the Babcock court’s concern that peer review privilege is "intended to prohibit the chilling effect of the potential public disclosure of statements made to or information prepared for and used by the committee in carrying out its peer-review function" disappears, as it became public. Babcock at 825. (Emphasis added.)
Therefore, after review of all the pleadings and supporting documents presented to this court by both parties, it is apparent that the defendant has presented no testimony, no privilege log; has not requested a hearing for the court’s in camera review of any documents, minutes, logs, etc.; has not provided any testimony or any affidavit in which any competent witness can present facts to the court that will allow it to conclude whether the peer review privilege, first applies to the two meetings, and if so, to what extent; and finally, the date and subject of discussion of the meetings, and corrective action taken by the defendant, was released in a public document by the CDPH, thus, the defendant has failed in its burden of demonstrating that the peer review privilege applies.
CONCLUSION
Based on the foregoing, it is the order of this court that the motion to compel be granted, and the objections thereto are denied, and the parties are instructed as follows: "By no later than 12/2/2019, ‘counsel shall select a mutually agreeable date and time between 12/2/2019 and 12/31/2019, to schedule and conduct the re-deposition of Lindsay Lachant, C.N.M, and including, but not limited to, Amanda Copley, Erin Zaffis, R.N., Catherine Parisi, C.N.M., and Kenneth Blau, M.D.; to testify regarding their knowledge of the Connecticut Department of Public Health’s investigation that occurred at CCWC shortly after infant plaintiff’s death on July 17, 2017 and the two meetings that are the subject of this motion. If the parties are unable to begin or conclude the depositions within the timeframe described above, they may be continued to a time mutually agreed upon by the parties. If the deponents fail to appear for deposition on the dates selected, the plaintiff may move for the entry of a judgment of default by filing a motion that references this order and the defendant’s failure to comply with same."