Preview
1 KEVIN P. KENNEDY, ESQ. (SBN 157019)
kkennedy@kennedysouza.com
2 CHRIS LAMPROU, ESQ. (SBN 86291)
E-FILED
clamprou@kennedysouza.com 10/19/2020 4:42 PM
3 KENNEDY & SOUZA, APC
Superior Court of California
7964 Arjons Drive, Suite I
4 San Diego, California 92126 County of Fresno
Telephone: (858) 267-4127 By: I. Herrera, Deputy
5 Facsimile: (858) 267-4128
6 Attorney for Defendant/Cross-Complainant,
SIERRA MEADOWS SENIOR LIVING, LLC
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF FRESNO
10
ADDIE HUFF, Case No.: 18CECG03644
11
SIERRA MEADOWS SENIOR LIVING
12 Plaintiff, LLC’S SEPARATE STATEMENT IN
SUPPORT OF MOTION TO COMPEL
13 COMPLIANCE OF GOLDEN LIVING
vs. CENTER WITH DEPOSITION
KENNEDY & SOUZA, APC
14 SUBPOENA FOR PRODUCTION OF
PLAINTIFF’S BUSINESS RECORDS
15 SIERRA MEADOWS SENIOR LIVING,
LLC; and DOES 1 through 250, inclusive, Judge: Hon. Rosemary McGuire
16 Dept.: 402
17 Date: February 17, 2021
Defendants. Time: 3:30 p.m.
18 Dept: 502
19 Action Filed: October 1, 2018
Trial Date: February 22, 2021
20 AND RELATED CROSS ACTION.
21
22
23 SIERRA MEADOWS SENIOR LIVING, LLC’S DEPOSITION SUPBOENAS FOR
24 PRODUCTION OF BUSINESS RECORDS AT ISSUE:
25 1. GOLDEN LIVING CENTER (MEDICAL RECORDS)
26 St. Agnes Medical Center
27 Name: Addie Huff
28 Treatment dates: Any and all times to the present date
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SIERRA MEADOWS SENIOR LIVING LLC’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA TO GOLDEN LIVING CENTER
1 REQUESTED DOCUMENTS:
2 1. Any and all DOCUMENTS for the above referenced treatment date(s), including, but
not limited to, all medical records, all color photographs of any and all wounds, hospital
3 charts and records, emergency room records, inpatient and outpatient charts and records,
doctors’ reports and notes, nurses’ reports and notes, color photographs, therapy records,
4
program records, rehabilitation records, laboratory records, pathology records and
5 reports, sign-in sheets, in-take sheets, information sheets, progress notes and reports,
SOAP notes, assessments, diagnosis, care plans, memoranda, correspondence,
6 videotapes, audio takes, results of all tests, including diagnosis as to condition and
prognosis for recovery, prescriptions and pharmacy records, and all other records of
7 medications pertaining to the care, treatment, and examination of the above-named
patient for the above-listed treatment dates.
8
9 PLAINTIFF’S OBJECTION:
10 PLEASE TAKE NOTICE that the Plaintiff hereby objects to the deposition subpoena for
11 production of business records issued by the Defendants upon…Golden Living Center (Medical
12 Records Department) 111 Barstow Avenue, Clovis, California 93612…in that the language in this
13 subpoena is overbroad, not reasonably calculated to lead to admissible evidence, and seeks to violate
KENNEDY & SOUZA, APC
14 the Plaintiff’s statutory physician-patient and constitutional right of privacy. A detailed meet-and-
15 confer letter was sent to opposing counsel, identifying the subpoena at issue and grounds for
16 objection. A true and correct copy of this letter is attached hereto as Exhibit “1”.
17 All parties and witnesses are expressly advised that any violation of the patient-physician
18 privilege and constitutional right of privacy will be met by the Plaintiff immediately availing of all
19 remedies made available by law. The Plaintiff does not waive the patient-physician privilege and
20 constitutional right to privacy except to the extent as relates to issues actually tendered in
21 controversy in this litigation.
22 ARGUMENT
23 Plaintiff filed a Complaint on October 1, 2018, alleging causes of action for Elder Abuse
24 (Neglect) and Negligent Hiring, Training and Supervision. Plaintiff alleges in her Complaint ¶ 24
25
that on August 24, 2018, while a resident at SIERRA MEADOWS, she fell and fractured her hip.
26
She also alleges in her Complaint ¶ 31 that on September 8, 2018, she developed a Stage IV pressure
27
ulcer on her coccyx while a resident at SIERRA MEADOWS. Prior to Plaintiff’s placement as a
28
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SIERRA MEADOWS SENIOR LIVING LLC’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA TO GOLDEN LIVING CENTER
1 resident at SIERRA MEADOWS on July 30, 2018, Plaintiff was a patient at Clovis Community
2 Medical Center (“Clovis”) in Clovis, California. While a resident at SIERRA MEADOWS,
3
Plaintiff was followed by primary care physician, Constantine Phiripes, M.D., who had been her
4
primary doctor for many years. After Plaintiff sustained a fall and hip fracture on August 24, 2018,
5
she was transported by American Ambulance to St. Agnes Medical Center (“St. Agnes”) in Fresno,
6
California for treatment. Plaintiff returned to SIERRA MEADOWS on August 28, 2018. On
7
8 September 9, 2018, Plaintiff’s daughter, Crystal Stansberry, terminated Plaintiff’s residency at
9 SIERRA MEADOWS and had American Ambulance transport Plaintiff to St. Agnes Medical
10 Center. Plaintiff did not return to reside at SIERRA MEADOWS after her hospital stay at St. Agnes
11
but instead was transferred to a skilled nursing facility, Golden Living Center (“Golden Living”),
12
where Plaintiff received home health services from Healthy Living Home Health. Plaintiff was
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KENNEDY & SOUZA, APC
admitted to St. Agnes in October 2018 for a Stage IV pressure sore on her coccyx, among other
14
15 issues. Plaintiff passed away on November 2, 2018.
16 A. Plaintiff’s Medical Records Are Relevant to this Action and Discoverable
17 The Civil Discovery Act provides the framework for discovery in civil cases in the State of
18 California. CCP § 2017.010 provides:
19
Unless otherwise limited by order of the court in accordance with this title, any party
20 may obtain discovery regarding any matter, not privileged, that is relevant to the
subject matter involved in the pending action or to the determination of any motion
21 in that action if the matter is either itself admissible in evidence or appears to be
reasonably calculated to lead to the discovery of admissible evidence. Discovery may
22
relate to the claim or defense of the party seeking discovery or of any other party to
23 the action….
24 CCP § 2017.010. It is explicit that documents that are reasonably calculated to lead to the
25 discovery of admissible evidence are discoverable. Statutes relating to discovery are to be liberally
26
construed in favor of disclosure. Harabedian v. Superior Court (1961) 195 Cal. App. 2d 26, 31.
27
Plaintiff’s pertinent records which are relevant to the issue of proximate causation are discoverable
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SIERRA MEADOWS SENIOR LIVING LLC’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA TO GOLDEN LIVING CENTER
1 upon a showing of good cause. Slagle v. Superior Court (1989) 211 Cal. App. 3d 1309, 1314. The
2 history of treatment received by a Plaintiff to the part of the body brought in issue is relevant and
3
the records relating to that prior treatment are relevant and discoverable. Id. at p. 1315.
4
Plaintiff has placed her physical condition and alleged injuries sustained at SIERRA
5
MEADOWS at issue. Not only are the records related to treatment she received while a resident at
6
SIERRA MEADOWS relevant, but the records showing treatment received for the same condition
7
8 to the same part of her body both before residing at SIERRA MEADOWS and after she terminated
9 her residency at SIERRA MEADOWS are relevant.
10 The incomplete records received from Plaintiff through discovery show that Plaintiff suffered
11
from a pressure sore to her coccyx in 2014 while hospitalized at St. Agnes and again in 2017 while
12
hospitalized at Clovis. The records also show that the first time she was diagnosed with a Stage IV
13
KENNEDY & SOUZA, APC
pressure sore to her coccyx was while she was residing at Golden Living Center. The records of St.
14
15 Agnes and Clovis from 2014 and 2017 onward are relevant to understand this longstanding issue
16 the Plaintiff suffered from. The records of her hospitalization at St. Agnes after she left SIERRA
17 MEADOWS are critical to learn what diagnosis was set forth and what treatment Plaintiff received
18 at St. Agnes before moving on to Golden Living Center. Thus, the Plaintiff’s medical records that
19
SIERRA MEADOWS subpoenaed are clearly relevant and discoverable.
20
B. Plaintiff’s Medical Records are Not Entitled to the Physician-Patient Privilege on
21
Issues Plaintiff has Tendered in this Litigation
22
23 The physician-patient privilege is waived when a litigant tenders an issue involving her physical
24 condition in litigation. California Evidence Code § 996, relating to the patient-litigant exception,
25 provides that there is no privilege to a communication relevant to an issue concerning the condition
26
of the patient when the issue has been tendered by the patient in litigation. Evid. Code § 996(a). A
27
patient tenders the issue of her physical health upon filing an action alleging personal injuries. Britt
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SIERRA MEADOWS SENIOR LIVING LLC’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA TO GOLDEN LIVING CENTER
1 v. Superior Court (1978) 20 Cal. 3d 844, 862-864.
2 In this case, SIERRA MEADOWS subpoenaed Plaintiff’s healthcare providers to obtain
3
complete sets of documents related to the issues tendered by Plaintiff. Those issues involve a hip
4
fracture and a Stage IV pressure sore to her coccyx. The Plaintiff’s medical and radiology records,
5
including not only those records related to diagnosis and treatment Plaintiff received during the
6
narrow window of time that she was a resident of SIERRA MEADOWS, but going back to earlier
7
8 dates when documentation shows she suffered similar pressure sore issues on the same part of her
9 body, are clearly relevant and not subject to any privilege.
10 As noted above, the Plaintiff’s medical records from Golden Living Center that have been
11
received and reviewed by SIERRA MEADOWS to date reflect that Plaintiff was diagnosed for the
12
first time with a Stage IV pressure ulcer on her coccyx while residing at Golden Living Center in
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KENNEDY & SOUZA, APC
late September 2018, long after she had terminated her residency at SIERRA MEADOWS. This
14
15 information is critical to SIERRA MEADOWS’ defense and SIERRA MEADOWS, therefore,
16 requires the complete records of Golden Living Center to perform its evaluation of Plaintiff’s claims.
17 The Golden Living Center records are clearly relevant and discoverable and must be produced.
18 2. GOLDEN LIVING CENTER (RADIOLOGY RECORDS)
19 Name: Addie Huff
20 Treatment dates: Any and all times to the present date
21 REQUESTED RECORDS:
22 1. All FILMS or radiological films and studies for the above referenced treatment date(s)
23 including, but not limited to, x-rays, MRI’s, CT scans, ultrasounds, all color photographs
of any and all wounds, and any other radiology images pertaining to the care, treatment,
24 and examination of the above-named patient for the above-listed treatment dates.
2. Any and all DOCUMENTS for the above referenced treatment date(s), regarding reports
25 pertaining to radiology films and studies of x-rays, MRIs, CT scans, ultrasounds, all
color photographs of any and all wounds, any reports, and other information pertaining
26
to the care, treatment, and examination of the above-named patient for the above-listed
27 treatment dates.
28 PLAINTIFF’S OBJECTION:
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SIERRA MEADOWS SENIOR LIVING LLC’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA TO GOLDEN LIVING CENTER
1
PLEASE TAKE NOTICE that the Plaintiff hereby objects to the deposition subpoena for
2
production of business records issued by the Defendants upon…Golden Living Center (Radiology
3
Department) 111 Barstow Avenue, Clovis, California 93612…in that the language in this subpoena
4
is overbroad, not reasonably calculated to lead to admissible evidence, and seeks to violate the
5
Plaintiff’s statutory physician-patient and constitutional right of privacy. A detailed meet-and-
6
confer letter was sent to opposing counsel, identifying the subpoena at issue and grounds for
7
objection. A true and correct copy of this letter is attached hereto as Exhibit “1”.
8
All parties and witnesses are expressly advised that any violation of the patient-physician
9
privilege and constitutional right of privacy will be met by the Plaintiff immediately availing of all
10
remedies made available by law. The Plaintiff does not waive the patient-physician privilege and
11
constitutional right to privacy except to the extent as relates to issues actually tendered in
12
controversy in this litigation.
13
KENNEDY & SOUZA, APC
ARGUMENT
14
Defendant hereby incorporates all arguments above as though fully set forth herein.
15
3. GOLDEN LIVING CENTER (BILLING RECORDS)
16
17 Name: Addie Huff
18 Treatment dates: Any and all times to the present date
19 RECORDS REQUESTED
20
Any and all DOCUMENTS for the above referenced treatment date(s), pertaining to billing
21 records, including, but not limited to, ALL ITEMIZED CHARGES AND ALL
PAYMENT INFORMATION, INCLUDING ANY ADJUSTMENTS, WRITE-OFFS,
22 LIENS, AND ANY OUTSTANDING BALANCES, any and all itemized statements of the
billing charges and/or consolidated statement of benefits, including any source used to
23 prepare such statement, payment history, payment and write-off records, any insurance
24 billing or payments information, any insurance billing adjustments, emergency room
physicians’ bills, hospital bills, statements of charges, payment transactions and procedure
25 codes/CPT codes/ICD codes for all sources, including any computer generated billing and
payment software that contains said information, regarding the care, treatment or
26 examination of the above-named patient for the above-listed treatment dates.
27 ///
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SIERRA MEADOWS SENIOR LIVING LLC’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA TO GOLDEN LIVING CENTER
1 PLAINTIFF’S OBJECTION:
2 PLEASE TAKE NOTICE that the Plaintiff hereby objects to the deposition subpoena for
3 production of business records issued by the Defendants upon…Golden Living Center (Billing
4 Department) 111 Barstow Avenue, Clovis, California 93612…in that the language in this subpoena
5 is overbroad, not reasonably calculated to lead to admissible evidence, and seeks to violate the
6 Plaintiff’s statutory physician-patient and constitutional right of privacy. A detailed meet-and-
7 confer letter was sent to opposing counsel, identifying the subpoena at issue and grounds for
8 objection. A true and correct copy of this letter is attached hereto as Exhibit “1”.
9 All parties and witnesses are expressly advised that any violation of the patient-physician
10 privilege and constitutional right of privacy will be met by the Plaintiff immediately availing of all
11 remedies made available by law. The Plaintiff does not waive the patient-physician privilege and
12 constitutional right to privacy except to the extent as relates to issues actually tendered in
13 controversy in this litigation.
KENNEDY & SOUZA, APC
14 ARGUMENT
15 Defendant hereby incorporates all arguments above as though fully set forth herein.
16
Dated: October 19, 2020
17 KENNEDY & SOUZA, APC
18
19 By:
KEVIN P. KENNEDY, ESQ.
20 CHRIS LAMPROU, ESQ.
Attorney for Defendant/Cross-Complainant,
21 SIERRA MEADOWS SENIOR LIVING,
LLC
22
23
24
25
26
27
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SIERRA MEADOWS SENIOR LIVING LLC’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA TO GOLDEN LIVING CENTER
1 KEVIN P. KENNEDY, ESQ. (SBN 157019)
kkennedy@kennedysouza.com
2 CHRIS LAMPROU, ESQ. (SBN 86291)
clamprou@kennedysouza.com
3 KENNEDY & SOUZA, APC
7964 Arjons Drive, Suite I
4 San Diego, California 92126
Telephone: (858) 267-4127
5 Facsimile: (858) 267-4128
6 Attorneys for Defendant/Cross-Complainant,
SIERRA MEADOWS SENIOR LIVING, LLC
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF FRESNO
10
ADDIE HUFF, Case No.: 18CECG03644
11
Plaintiff, PROOF OF SERVICE OF SIERRA
12 MEADOWS SENIOR LIVING LLC’S
vs. SEPARATE STATEMENT IN SUPPORT
13 OF MOTION TO COMPEL
SIERRA MEADOWS SENIOR LIVING, COMPLIANCE OF GOLDEN LIVING
14 LLC; and DOES 1 through 250, inclusive, CENTER WITH DEPOSITION
SUBPOENA FOR PRODUCTION OF
15 PLAINTIFF’S BUSINESS RECORDS
Defendants.
16
Date: February 17, 2021
17 Time: 3:30 p.m.
Dept: 502
18
Action Filed: October 1, 2018
19 Trial Date: February 22, 2021
20
21 I, the undersigned, declare and state as follows:
22 I am, and was at the time of service of the papers herein referred to, over the age of 18 years,
and not a party to this action. My business address is 7964 Arjons Drive, Suite I, San Diego, CA
23
92126.
24
I served the following document(s) SIERRA MEADOWS SENIOR LIVING
25 LLC’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
COMPLIANCE OF GOLDEN LIVING CENTER WITH DEPOSITION SUBPOENA FOR
26 PRODUCTION OF PLAINTIFF’S BUSINESS RECORDS
27 on the parties in this action addressed as follows:
28
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PROOF OF SERVICE
1 Via Email:
Counsel for PLAINTIFF
2 Stephen M. Garcia, Esq.
3 GARCIA, ARTIGLIERE & MEDBY
One World Trade Center, Suite 1950
4 Long Beach, CA 90831
Tel: 562-216-5270; Fax: 562-216-5271
5 Email: edocs@lawgarcia.com
6
BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on an agreement or
7 stipulation between all parties, I caused the document(s) to be sent from e-mail address
vlacey@kennedysouza.com to the persons at the e-mail addresses listed in the Service
8 List. I did not receive, within a reasonable time after the transmission, any electronic
message or other indication that the transmission was unsuccessful.
9
10 Via U.S. Mail:
Golden Living Center
11 Medical Records Department
Radiology Department
12 Billing Department
111 Barstow Avenue
13 Clovis, CA 93612
KENNEDY & SOUZA, APC
14
BY MAIL: I am readily familiar with our business practice for collecting,
15 processing, and mailing correspondence and pleadings with our overnight express
service carrier. Such correspondence and pleadings are deposited in a box or other
16 facility regularly maintained by or delivered to a courier or driver authorized by to
receive documents, in an envelope or package designated by which indicates that
17 overnight delivery is demanded with delivery fees paid or provided for, and
addressed to the person(s) served hereunder. (C.C.P. § 1013(c))
18
19
I declare under penalty of perjury under the laws of the State of California that the foregoing
20 is true and correct and that this declaration was executed on October 19, 2020 at San Diego,
California.
21
22
23
Vicki Lacey
24
25
26
27
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PROOF OF SERVICE