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Snibbe v. Superior Court (Bruce Gilbert)

California Court of Appeal, Second District, Fourth Division

February 27, 2014

Jason C. SNIBBE, Petitioner,
v.
The SUPERIOR COURT of Los Angeles County, Respondent; Bruce Gilbert et al., Real Parties in Interest.

ORIGINAL PROCEEDINGS in mandate. Ernest M. Hiroshige, Judge. Petition granted in part and denied in part. (Los Angeles County Super. Ct. No. BC481372)

COUNSEL

Cole Pedroza, Kenneth R. Pedroza and Matthew S. Levinson; Law Brandmeyer & Packer, Robert B. Packer and Corey E. Krueger, Los Angeles, for Petitioner.

No appearance for Respondent.

Law Offices of Harold J. Light and Harold J. Light, Santa Monica, for Real Parties in Interest.

OPINION

EPSTEIN, P.J.

Jason C. Snibbe, an orthopedic surgeon, has petitioned for a writ of mandate to compel the trial court to vacate a discovery order that required petitioner to produce 160 postoperative orders in a wrongful death case. Petitioner contends the orders are irrelevant to the litigation, the physician-patient privilege and patient privacy rights preclude their discovery, and the discovery order is unduly burdensome. We grant the petition in part, limiting discovery to the pain management provisions of the orders, including the type of surgery, date and signature fields, and directing that all other information be redacted. We deny the petition in all other respects.

FACTUAL AND PROCEDURAL SUMMARY

Mildred Gilbert passed away in January 2011 after a hip replacement surgery petitioner performed on her at Cedars Sinai Medical Center (Cedars). Mrs. Gilbert's sons, real parties in interest Bruce Gilbert and Scott Gilbert, sued Cedars,[1] petitioner, and the anesthesiologist for their mother's wrongful death.

The postoperative order in Mrs. Gilbert's case included, among other directions for her care, a provision for the administration of morphine, Dilaudid (hydromorphone), or other pain medication to be filled in by the physician. The form order left blank spaces for the doses and intervals at which the chosen medication was to be administered for mild, moderate, and severe pain. Handwritten notations provided for the administration of a maximum dose of two milligrams of hydromorphone every two hours for severe pain. Mrs. Gilbert was found unresponsive several hours after a nurse administered a two milligram dose by IV push.

Hydromorphone is a schedule II controlled substance. (Health & Saf.Code, ยง 11055, subd. (b)(1)(J).) In a declaration, an expert for real parties stated that hydromorphone presents a high risk of fatal respiratory depression. The expert opined that the order of a maximum of two milligrams of hydromorphone for postoperative pain relief was below the standard of care and a substantial factor in Mrs. Gilbert's death.[2]

At his deposition, petitioner testified that the postoperative order was filled out and signed by his physician assistant Jennifer Cabrera.[3] Petitioner testified that it is his " standard of practice" to have Ms. Cabrera prepare all postoperative orders, which he " dictates[s] to her." He claimed that the two of them discuss pain relief with an anesthesiologist and refer some cases to a pain management service. He also claimed they decided together what pain relief to order for Mrs. Gilbert based on such factors as her age and the bone fracture she suffered during surgery.

In another part of the deposition cited by real parties' expert, petitioner testified he did not remember whether he consulted with the anesthesiologist about the maximum dose of hydromorphone to be administered in Mrs. Gilbert's case. The expert also cited the anesthesiologist's deposition testimony that he would not have recommended the two milligram maximum had petitioner dictated the drug order to Ms. Cabrera in the anesthesiologist's presence. The expert opined that making postoperative orders after a major surgery was not included in the delegation of services agreement between petitioner and Ms. Cabrera, and even if it were, a physician assistant would be " totally unqualified to make the medical decisions" regarding Mrs. Gilbert's postoperative care.

In requests for production nos. 23 and 24, real parties sought to discover all postoperative orders signed by petitioner between June 2010 and June 2011 and by Ms. Cabrera between June 2009 and June 2011, which provided for the administration of opioids, including hydromorphone. The requests allowed for the redaction of patients' names and personal identifying information. Petitioner objected to these requests as overbroad, irrelevant, and violative of third party privacy rights. Real parties moved to compel production. After allowing additional briefing and argument, the court granted the motion to compel, but limited the scope of discovery to 160 postoperative orders including provisions for the administration of opioids, split equally between surgeries petitioner performed at Cedars before and after Mrs. Gilbert's surgery. Upon seeking clarification, petitioner was given 15 days to produce the entire postoperative orders, not limited to their pain management provisions.

On petitioner's request, we issued an alternative writ directing the trial court to vacate its order granting the motion to compel as to requests for production nos. 23 and 24 and to deny the motion as to those requests, or show ...


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