required the disclosure of statements made by parties to the litigation.” Finally,
the Court ordered a protective order over the documents to protect from public
disclosure of the compelled documents throughout the litigation.“

Similarly, the Court in Griffin ordered the production of records used in the
criminal investigation into the circumstances of plaintiffs’ decedent’s death due to
alcohol poisoning during a fraternity initiation “ritual.” The Griffin Court
conducted an in camera review of the subpoenaed records and concluded that
plaintiffs’ need for the records outweighed the asserted governmental privilege.
The Court followed Williams and ordered the production of the subpoenaed
records pursuant to a protective order ensuring the confidentiality of the records
throughout the litigation.*

The present case involves largely similar policy issues the Court in Williams,
Griffin, and Ribbons & Bows addressed in the context of governmental privilege.
One significant factor in this case, however, is that both Ms. Ballas and Dr. Ogan
are deceased. In this context, Dr. Ogan’s statements to DPR and the OCME take

on an added importance, as Plaintiff will be unable to depose Dr. Ogan in the

8 See id. (“As I see it, the Defendant should know what is in her own statement.”).

& See id. (requiring Attorney General’s Office to draft and submit a protective order within ten
days).

§ See generally Griffin, 2011 WL 2120064.

© See id. at *2-4,
20


organization; members of hospital and osteopathic
medical society committees; members of a professional
standards review organization established under federal
law; and members of other peer review committees or
organizations whose function is the review of medical
records, medical care, and physicians' work, with a
view to the quality of care and utilization of hospital or
nursing home facilities, home visits, and office visits. . .
40
Defendants contend that DPR, acting as the investigatory “arm” of the
Board, is a “peer review committee[] or organization[] whose function is the
review of medical records . . . with a view to the quality of care and utilization of
[medical facilities].”“' The argument being that DPR’s function, when acting as
the mandatory investigator of the Board,” brings DPR into the purview of
subsection (a) and, therefore, DPR oscillates in and out of the peer review
privilege.
Defendants’ argument carries some intuitive logic, but Defendants fail to

cite to any authority to support this interpretation. Initially, the Court notes that

DPR is defined in the general provisions of Delaware’ Medical Practice Act, but

4 § 1768(a).

41 Id.

® See 29 Del. C. § 8735(a)(10).

* The two non-parties do not join Defendants on this position, instead arguing that the policy

considerations apparent in § 1768 support their principal argument regarding governmental
privilege and work product.

14


After the Office of the Chief Medical Examiner (“OCME”)'* investigated
the circumstances of Ms. Ballas’ death, a report was filed directly with DPR
regarding alleged administrative, civil, criminal and/or ethical violations related to
Dr. Ogan’s relationship and medical care of Ms. Ballas. DPR Investigator
Hernandez was assigned to investigate and report his findings to DPR for
consideration of any further proceedings against Dr. Ogan.

Investigator Hernandez reportedly interviewed employees of Defendant
Christiana Psychiatric Services, P.A., requested records from Dr. Ogan and his
prior practice group, and interviewed Dr. Ogan. The investigative file and
accompanying documents were then forwarded to the Delaware Department of
Justice’s (“DOJ”) Affirmative Litigation Unit, headed by DAG Stewart, for further
consideration.

The DOJ’s review of the DPR file led to the filing of two formal complaints
(“DOJ Complaints”) with the Board of Medical Licensure and Discipline
(“Board”). However, no further action was taken by DPR, the Board, or the DOJ
related to Dr. Ogan because he passed away on August 16, 2016. The DOJ

Complaints were dismissed on the basis of prosecutorial discretion.

'S See 29 Del. C. § 4701 (effective July 4, 2014). The Office of the Chief Medical Examiner was
abolished in 2014 and is now the “Division of Forensic Science” within the Department of
Safety and Homeland Security. For purposes here, it will be referred to as OCME.


prosecution of her case. Moreover, Dr. Ogan’s alleged failure to maintain any
records of his prescriptions to Ms. Ballas leaves a significant lacuna of relevant
medical records from which Plaintiff may litigate her claims of negligence.

Conversely, the State’s case against Dr. Ogan, now defunct due to his death,
lessens the State’s and DPR’s argument on the privileged nature of the
investigative file. Contrasted to the ongoing—though suspended—criminal case in
Ribbons & Bows, the present case simply lacks the same concerns about future
prosecution of a relevant party found in the latter case.

As in Williams, Plaintiff has shown that she will be prejudiced absent
disclosure of some of the information contained in the investigative file. Plaintiff
has shown a need for the disclosure of the statements Dr. Ogan made to the OCME
and to Investigator Hernandez. Moreover, Plaintiff has demonstrated that she
cannot obtain the statements elsewhere. Therefore, both non-parties are directed to
produce any statements by Dr. Ogan contained in the file that have not already
been disclosed to Plaintiff's counsel. However, as in Griffin, any notes or thought
processes of DPR or the DOJ are privileged and shall not be disclosed or used in
any manner. No statements by third-parties shall be disclosed pursuant to the
Court’s holding in Williams. Furthermore, the investigative results, conclusions, or
findings of DPR or the State, other than that which is found in the DOJ

Complaints, continue to remain protected under governmental privilege and shall

21


and are not barred from use in the underlying action. A protective order shall
apply to the disclosed records for the period of this litigation.

Though unaddressed by the parties in their respective filings, but as noted by
this Court during oral arguments, any of Ms. Ballas’ psychiatric/medical records
obtained by the State from Dr. Ogan’s private practice are not privileged under
governmental privilege and, therefore, shall be disclosed to Plaintiffs counsel
without limitation.

Accordingly, Defendants’ and State/DPR’s Motion(s) to Quash Subpoena
and for Protective Order are GRANTED in part, DENIED in part.

IT IS SO ORDERED.

Judge Viviant. Medinilla

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

23


litigant’s interest in the information outweighs this presumption.* Accordingly, it
is Plaintiffs burden to prove the materiality of the information and an inability to
obtain the information from another source, in addition to a burden of proving her
interest outweighs the State’s interest.

The State and DPR direct the Court to analogize the present situation to the
situation in White v. Ribbons & Bows Daycare, Inc. where the Court denied
defendant’s motion to compel the production of material contained in the State’s
related homicide investigation. Reviewing the cases of Williams v. Alexander”
and Griffin v. Sigma Alpha Mu,” the Court distinguished those cases on the basis
that, “the criminal investigation remains open and involves possible murder
charges for the death of an infant who had been in the care of the Parties to this
civil litigation. . . .”°* Finding it “improvident” to “open the doors to its criminal
file at th[at] juncture,” the Court denied defendant’s motion to compel the State’s
criminal file on the basis that the defendant failed to overcome the broad

presumption against disclosure under Delaware’s governmental privilege.”

55 White v. Ribbons & Bows Daycare. Inc., 2016 WL 4394726, at *3 (Del. Super. Aug. 12, 2016)
(Order).

56 1999 WL 743082 (Del. Super. June 29, 1999).
57011 WL 2120064 (Del. Super. Apr. 26, 2011).
58 Ribbons & Bows, 2016 WL 4394726, at *3.

59 Ig.
18


was discharged as a patient. Since these records are non-existent, Plaintiff alleges
that she has a greater interest in the investigative file than she would have had if
Dr. Ogan had documented Ms. Ballas’ care.

The parties’ and non-parties’ final contentions deal with the issue of waiver.
During oral arguments only, Plaintiff argued that DPR waived any privilege when
it disclosed the records in its letter dated October 4, 2016. The non-parties
responded that there was no waiver where the actions of DPR were inadvertent and
performed while the State was drafting its Motion to Quash the Subpoena.
Defendants argue that the non-parties do not have a right to waive any privilege
associated with the records because the peer review privilege applies, thus, the
privilege is only Dr. Ogan’s to waive. Having now considered the respective
positions, the matter is ripe for review.

STANDARD OF REVIEW

Where Defendants and the non-parties have submitted joint Motions, the
Court considers Rules 26 and 45 accordingly. Rule 26 governs discovery between
the parties to the action.”’ It permits discovery “regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending action,

whether it relates to the claim or defense of the party seeking discovery. . . .””*

27 Dei. SUPER. CT. CIV. R. 26.

28 Rule 26(b)(1).
10


DAG Stewart (i.e., the State)—without knowledge of DPR’s disclosure—moved to
quash the subpoena."

The next day, on October 13, 2016, Defendants filed the present Motion to
Quash under the peer review privilege established under 24 Del. C. § 1768.” They
further sought a protective order to bar the use of the disclosed records they claim
were inadvertently disclosed by the Deputy Director of DPR.”

Plaintiff responded in opposition to Defendants’ Motion to Quash and
Motion for Protective Order and the State/DPR’s Motion to Quash on October 26,
2016. All parties argued their respective positions on the Motions at oral argument
on November 1, 2016. This is the Court’s ruling on the Motions after considering
the parties’ respective filings, oral arguments, and the record.

CONTENTION OF THE PARTIES

Defendants contend that DPR is protected as a “peer review organization or
committee” under 24 Del. C. § 1768(a), and its results would be categorically
privileged pursuant to § 1768(b). Defendants further argue that no exception to

this statutory privilege is applicable to the present subpoenas.

DL #30.
20 D1. #32.

2! The State joined the Motion for Protective Order on the bases stated in the initial Motion to
Quash and for the reasons stated in Defendants’ Motion.


Procedural Background

Plaintiff's Estate filed this medical malpractice action on May 4, 2016. At
the time of filing, Plaintiff's counsel had already received a copy of the DOJ
Complaints from the State. Plaintiff became aware of additional information not
provided by the State, including a letter sent from Dr. Ogan to the OCME
regarding Ms. Ballas’ death and statements made by Dr. Ogan during the DPR
investigation.

Accordingly, Plaintiff issued two subpoenas duces tecum to DAG Stewart
and Investigator Hernandez on September 28, 2016.'° The subpoenas requested
“complete and accurate copies of any and all records including but not limited to:
all notes; statements; medical records; and other tangible things regarding the
investigation of [Dr. Ogan], conducted by or on behalf of [DPR].”””

The Deputy Director of DPR produced “all responsive records” on CD in a
letter dated October 4, 2016. The letter did not outline any asserted privileges or

make reference to any withheld documents.'® On October 12, 2016, counsel for

'6 The subpoenas were later filed as “Records Only Depositions” on October 11, 2016. See D.I.
#28.

'7 DI. #28. Except for substitution of their respective names, the subpoena to Investigator
Hernandez is identical to the subpoena served on DAG Stewart.

'8 This letter is attached as Exhibit C to Plaintiff's Opposition to Defendants’ Motion.


This case stands on somewhat different footing. First, Defendant’s
decedent, Dr. Ogan, is no longer subject to criminal or administrative prosecution.
In Ribbons & Bows, the homicide investigation was ongoing, albeit several years
removed from the date of the incident. Second, the present case involves
overlays of medical care not implicated in Ribbons & Bows. As discussed above,
the role of DPR—in some cases as an investigative “arm” of the Board—adds an
additional policy consideration: the chilling effect of disclosing confidential
statements made by medical professionals during DPR’s investigation into other
medical professionals. In this case, DPR was not functioning in this manner.

This Court finds the decisions in Williams and Griffin more persuasive
regarding the issue of governmental privilege in this case.°' The Williams Court
ordered the disclosure of “all material relating to the factual investigation of the
[alleged arson], including reports regarding scientific and physical evidence and
any conclusions drawn therefrom by State officials,” but barred production of

“information relating to interviews with non-parties.”” Additionally, the Court

© See id. at *1.

- Griffin v. Sigma Alpha Mu, 2011 WL 2120064 (Del. Super. Apr. 26, 2011) (requiring partial
disclosure of records used in criminal investigation into plaintiffs’ decedent’s death
notwithstanding asserted government privilege); Williams v. Alexander, 1999 WL 743082 (Del.
Super. June 29, 1999) (requiring partial disclosure of arson investigation file where State argued
governmental privilege).

© Williams, 1999 WL 742082 at *2.

19


Plaintiff maintains that the provisions of 24 Del. C. § 1768 are inapplicable
to the subpoenaed records and should be disclosed. Plaintiff focuses on DPR’s
enabling statute, 29 Del. C. § 8735, and argues that, where DPR is mandated to
conduct investigations, issue a final report, and list evidence forming the basis of
DPR’s investigative findings,”® its role falls outside the scope of the immunity
provisions under § 1768. Even if the Court determined that DPR is a “peer review
committee or organization” for purposes of § 1768(a), Plaintiff argues that,
because the investigative file was not used exclusively by DPR when it was
forwarded to the DOJ for eventual prosecution, the peer review privilege under
§ 1768(b) remains inapplicable.

With respect to governmental privilege and the work product doctrine,
Plaintiff contends that both are qualified privileges. Accordingly, both are subject
to exceptions where the interest of the party seeking discovery outweighs the
application of the asserted privilege. In this case, where both Dr. Ogan and Ms.
Ballas are deceased and unavailable for deposition, Plaintiff argues that her interest
in the production of the DPR file is manifest. Further, Plaintiff contends that Dr.
Ogan’s death undermines any asserted privacy interest in the investigative file.
Finally, Plaintiff notes that the underlying action alleges Dr. Ogan negligently

failed to maintain records of the medical treatment rendered to Ms. Ballas after she

26 99 Del. C. § 8735.


IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

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

Plaintiff,

Vv. 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.

eens se eres

Defendants.

MEMORANDUM OPINION AND ORDER

Submitted: November 3, 2016
Decided: November 30, 2016

Upon Consideration of Defendants’ and State/DPR’s Motion(s) to Quash
Subpoena and Motion for Protective Order.

GRANTED in part, DENIED in part.

Tiffany M. Shrenk, Esquire. MacElree Harvey, Ltd. of Centreville, Delaware.
Attorney for the Plaintiff:

Lorenza A. Wolhar, Esquire, and Bradley J. Goewert, Esquire. Marshall Dennehey
Warner Coleman & Goggin of Wilmington, Delaware. Attorneys for the
Defendants.

Stuart B. Drowos, Esquire. Delaware Department of Justice. Attorney for Deputy
Attorney General Stacey X. Stewart.

Patricia A. Davis, Esquire. Delaware Department of Justice. Attorney for
Delaware Division of Professional Regulation.

MEDINILLA, J.


non-privileged source.** This determination is made on a case-by-case basis.> A
party to the action may also move for a protective order under Rule 26(c). The
Court shall issue any order—upon a showing of good cause—that “justice requires
to protect a party or person,” including directing the other party not to inquire into
certain matters or use privileged material.°°
DISCUSSION
Inadvertent Waiver of Privilege

As a threshold matter, the Court finds that DPR did not waive any privilege
when it inadvertently disclosed the subpoenaed records on October 4, 2016.
Inadvertent waiver of privilege is addressed under D.R.E. 5 10.27 Where an
inadvertent disclosure is made, the party asserting the privilege must show: (1) the
disclosure was inadvertent; (2) the holder of the privilege “took reasonable steps to
prevent disclosure;” and (3) the holder promptly sought to rectify the error.® The

only issue in this case is whether the holder of the privilege took reasonable steps

34 See id. (citing Beckett v. Trice, 1994 WL 319171, at *4 (Del. Super. June 6, 1994)).
3 See id.

36 Rule 26(c). See also Ramada Inns, Inc. v. Drinkhall, 490 A.2d 593, 598-99 (Del. Super. 1985)
(analyzing “balancing test” for competing interests inherent in motion for protective order).

37D. RE. 510.

DRE. 510(c).

12


Thus, the scope of discovery is broad, as relevancy—not admissibility—is the
crucial test in determining what documents are discoverable between the parties.”
Rule 45 governs motions to quash subpoenas served on non-parties to the civil
action.” Pursuant to subsection (3)(A), “On a timely motion, the Court shall quash
or modify the subpoena if it . . . (ii) requires disclosure of privileged or other
protected matter and no exception or waiver applies. . . pl

Under either Rule, where a party or non-party asserts the requested
documents are privileged, the general rule is that the defending party carries the
burden of establishing the applicability of the privilege.” If the defending party
meets this burden, the burden then shifts to the requesting party. To overcome this
privilege, the requesting party must show good cause for the documents’

production.*? A showing of good cause must reveal the documents’ materiality to

a claim or defense, and the party’s inability to obtain the information from another,

2° Cf Brett v. Berkowitz, 706 A.2d 509, 513 (Del. 1998) (discussing scope of discovery where
privilege is raised to defend against production)

3° DEL. SUPER. CT. Civ. R. 45.

3! Rule 45(c)(3)(A). See also Humes v. Charles H. W. Farms, Inc., 2006 WL 2242715, at *1
(Del. Super. July 14, 2006).

> See White v. Ribbons & Bows Daycare, Inc., 2016 WL 4394726, at *2 (Del. Super. Aug. 12,
2016) (Order) (quoting Commw. Land Title Ins, Co. v. Funk, 2015 WL 3863192, at *2 (Del.
Super. June 17, 2015)).

33 See id. (citing Brady v. Suh, 2009 WL 6312181, at *2 (Del. Super. July 8, 2009).

11


The non-parties, State and DPR, jointly move to quash the subpoena and for
protective order on different grounds.” Principally, both non-parties argue that
governmental privilege applies.”> The State and DPR rely on Beckett v. Trice,"
D.R.E. 508, and a recent Superior Court ruling in White v. Ribbons & Bows
Daycare, Inc.” to argue that Plaintiff has failed to meet her burden to overcome
the applicable governmental privilege in this case. Additionally, the State and
DPR argue that the investigative record is protected as work product made in
anticipation of litigation.

Alternatively, the non-parties posit that, though they do not maintain that
DPR is a “peer review committee or organization” immunized under § 1768, the
privileged nature of some of the information found in DPR’s investigative file
invokes policy considerations under § 1768. Thus, they argue that the privileged
nature of the investigative files may trigger the applicability of the peer preview

privilege.

22 DPR did not appear at oral argument nor respond independently. It joined the State’s Motions
after the Court, at oral argument, directed counsel for DPR to file a statement of their position.
See D.I. #40.

3 Notably, both non-parties concede that the DOJ Complaints were publicly disclosed and are
not privileged under either a common law privilege or § 1768.

24 1994 WL 319171 (Del. Super. June 6, 1994).

259016 WL 4394726 (Del. Super. Aug. 12, 2016) (Order).


not be disclosed or used in the underlying action. A protective order shall apply to
the disclosed information to protect it from publication.”
CONCLUSION

Plaintiff has shown good cause for why she must be permitted access to Dr.
Ogan’s statements made to the State and DPR in connection with the investigation
into his medical care of Ms. Ballas. However, any statements made by third-
parties are privileged and shall not be disclosed. Furthermore, any investigative
results, conclusions, or findings found in the file shall not be disclosed, nor shall
they be used in this case as they remain privileged under governmental privilege.

The DOJ Complaints previously disclosed to Plaintiff's counsel are not privileged

67 The Court finds that the work product argument raised by both non-parties is sufficiently
addressed in the Court’s ruling on governmental privilege. Rule 26(b)(3) codifies the common
law work product doctrine. See DEL. SUPER. CT. Civ. R. 26(b)(3). Rule 26(b)(3) states in
relevant part:

[A] party may obtain discovery of documents and tangible things
otherwise discoverable under subdivision (b)(1) of this Rule and
prepared in anticipation of litigation or for trial by or for another
party .. . only upon a showing that the party seeking discovery has
substantial need of the materials in the preparation of the party's
case and that the party is unable without undue hardship to obtain
the substantial equivalent of the materials by other means.

Rule 26(b)(3). This doctrine generally “shelters the mental processes of the attorney, providing a
privileged area within which he can analyze and prepare his client’s case.” Tackett v. State Farm
Fire and Cas. Ins. Co., 653 A.2d 254, 261 (Del. 1995) (quoting United States v. Nobles, 422 U.S.
225, 238 (1975)). Assuming that the work product doctrine applies to the investigative file in the
present case, the doctrine largely overlaps with the more protective governmental privilege
addressed above. Therefore, the Court need not analyze the applicability of the work product
doctrine other than note that the governmental privilege provides a stronger basis for non-
disclosure of the relevant records than does the work product doctrine.

22


1993 to 2014.8 Moreover, Plaintiff alleges that Dr. Ogan never maintained any
medical records of his ongoing treatment of Ms. Ballas, nor did he conduct
appropriate medical evaluations when he prescribed these medications.” Their
romantic relationship ended after only several months; yet, they remained friends
until 2014.'°

In the summer of 2014, Ms. Ballas purportedly explained to Dr. Ogan that
her Prozac was ineffective at treating her underlying psychiatric conditions.'' He
allegedly provided her samples of a new medication, Brintellix, as a replacement
for her Prozac. Plaintiff claims that the Brintellix caused Ms. Ballas to suffer
physical, psychological, and emotional side effects.’ She committed suicide on

August 21, 2014.4

8 See id. at 4 12-15.
° See id. at § 15.
10 See id. at § 16-17.
"| See id. at § 20.
” See id. at § 20-22.
3 See id. at § 21.

"4 See id. at | 23.


DPR is not mentioned in the text of § 1768(a).“* Case law on the provision,
furthermore, fails to adequately address the present issue on the applicability of
§ 1768(a) to DPR. To consider Defendants’ contention, this Court relies, in part, on
Office of Chief Medical Examiner v. Dover Behavioral Health System,"* where the
Supreme Court held that the Office of Health Facilities Licensing and Certification
(OHFLC) was a “peer review committee or organization” within the statutory
language of § 1768(a).

In this case, DPR received the initial complaint regarding Dr. Ogan without
the involvement of the Board or other “peer review committees or organizations.”
As such, DPR functioned as a general investigatory body and its results were
forwarded to the DOJ upon completion of the investigation. The matter never
went before a peer group of any kind and it never went to the Board.

While there may be some situations where the peer review privilege applies
to DPR investigative files, such as when DPR acts as a mandatory investigative
“arm” of the Board similar in some respect to the OHFLC in Dover Behavioral
Health, here DPR did not act as a “peer review committee or organization” within

the purview of the peer review privilege. It is apparent, therefore, that DPR’s role

* Compare 24 Del. C. § 1768(a) (silent as to DPR’s inclusion in peer review privilege) with 24
Del. C. § 1702(4) ‘Division’ means the Division of Professional Regulation.”).

976 A.2d 160 (Del. 2009).

15


information is protected on public policy grounds; to be “regarded as secrets of the
State, or matters the disclosure of which would be prejudicial to the public

interest.”*”

' Tf the civil litigant

The governmental privilege is not absolute, however.’
shows that her interest in the privileged information outweighs the State’s interest
in maintaining the information’s secrecy, then the privilege is defeated. Thus, the
Court must engage in a balancing test, pitting the interest of the Plaintiff against
the State’s interest.”

Delaware law recognizes that the State holds a strong interest in maintaining
the secrecy of confidential material obtained in the furtherance of a criminal
investigation. The strength of this interest manifests itself in two ways. First,
4

there is a presumption that the State’s file is privileged absent good cause shown.>

Second, the burden is placed on the civil litigant to persuade the Court that the

5° Williams, 1999 WL 743082, at *1 (quoting Brown, 36 A. at 463-64).

5! See, e.g., Brady, 2009 WL 6312181, at *3 (citing Alexander, 1999 WL 743082, at *1) (“the
privilege is not absolute, but qualified”).

° See id. See also Alexander, 1999 WL 743082, at *2.
°3 See Alexander, 1999 WL 743082, at *2.

*4 See Brady, 2009 WL 6312181, at *3 (citing Guy v. Judicial Nominating Comm’n, 659 A.2d
777, 785 (Del. Super. 1995)).

17


Subpoenas and Motion for Protective Order are GRANTED in part, DENIED in
part.
FACTUAL AND PROCEDURAL HISTORY
Factual Background

Ms. Ballas began receiving psychiatric treatment with Dr. Ogan in 1991 in
Wilmington, Delaware.’ Before joining Defendant Christiana Psychiatric Services,
P.A., and during some relevant time periods when psychiatric treatment was
rendered, Dr. Ogan initially operated an individual practice in Wilmington.’ While
under his care, Dr. Ogan prescribed Xanax and Prozac to Ms. Ballas for anxiety
and depression.” Dr. Ogan later diagnosed Ms. Ballas with major depression,
dysthymic disorder, and dependent personality disorder.°

Their formal medical relationship ended in 1993 when Ms. Ballas and Dr.
Ogan began a romantic relationship.’ Although formally discharged as a patient,

Dr. Ogan is alleged to have continued to prescribe medication to Ms. Ballas from

3 Complaint at ¥ 10.
4 See id. at] 9.

5 See id. at J 10.

6 See id. at ] 11.

7 See id. at § 12-14.


INTRODUCTION

This is a medical malpractice action where the Estate of Lindsay Hurley
Ballas (“Plaintiff”) alleges that Jorge A. Pereira~-Ogan, M.D. (“Dr. Ogan”),
provided negligent psychiatric care to Ms. Ballas that caused her to commit suicide
in August 2014. Plaintiff brings this action against the Estate of Dr. Ogan and
Defendant Christiana Psychiatric Services, P.A. (“Defendants”). During
discovery, Plaintiff's Estate served two subpoenas duces tecum on two non-parties
to the underlying civil action: Deputy Attorney General Stacey X. Stewart (“State”
or “DAG Stewart”) and Division of Professional Regulation (“DPR”) Investigator
Anthony Hernandez. The subpoenas sought the production of documents related
to DPR’s investigation into the late Dr. Ogan’s medical treatment and alleged
relationship with Plaintiff's decedent. Defendants now move to quash the
subpoenas served on both non-parties on the basis of the immunity provision found
in Delaware’s statutory peer review privilege.' Both non-parties also move to
quash the subpoenas, raising governmental privilege and the work product
doctrine.” After consideration of the parties’ briefings and oral arguments, for the

reasons stated below, Defendants’ and State/DPR’s Motion(s) to Quash the

'24 Del. C. § 1768(b).

2 See D.R.E. 508 (governmental privilege); DEL. SUPER. CT. Civ. R. 26(b)(3) (work product
doctrine).


to prevent disclosure notwithstanding the disclosure of the records in a letter absent
any claim of privilege.”

The Court finds that DPR and the State took reasonable steps to protect from
disclosure of the privileged information. While the Deputy Director’s letter fails to
assert any privilege in the enclosed records, it is clear that this was reportedly an
oversight and a reasonable one at that. Given the many State departments and
requests the State receives for records, inadvertent disclosures are expected to
occur. However, the swift response—by filing a Motion to Quash—ameliorated
the initial error and manifests its effort to rectify the inadvertence of the Deputy
Director’s disclosure. Since no waiver of privilege occurred, the Court next turns
to the substantive arguments regarding privilege.

Delaware’s Peer Review Privilege

Delaware’s peer review privilege is codified in 24 Del. C. § 1768.
Section 1768(a), entitled “Immunity of boards of review; confidentiality of review
board record,” provides that the peer review privilege applies to the following
entities and persons:

(a) The [Board] and the Medical Society of Delaware,
their members, and the members of any committees

appointed by the Board or Society; the members of any
committee appointed by a certified health maintenance

3° Defendants contend that the statutory peer review privilege is for Dr. Ogan to waive.
However, since the Court finds below that the peer review privilege does not apply, this
contention is moot.

13


in this case did not invoke the application of the peer review privilege found in
more traditional contexts.*® Thus, in this case, this Court finds that DPR’s
investigative file is not subject to Delaware’s peer review privilege. The Court
next turns to the arguments of the State and DPR related to governmental privilege
and the work product doctrine.
Governmental Privilege

The existence of a governmental privilege is recognized in D.R.E. 508."7 On
several occasions, this Court has interpreted the scope of this privilege in the
context of a civil litigant’s asserted need to obtain information contained in a state
agency’s investigative file used in preparation of possible criminal prosecution of a
relevant party or non-party to the civil action."® At its essence, this privilege
prohibits a civil litigant from requiring the DOJ to “disclose facts coming to [its]

knowledge for the use of the state in its prosecution of the accused.”*? Such

4© Since the Court finds that DPR was not a “peer review committee or organization” for
purposes of this case, the Court does not need to address the argument addressed to § 1768(b),
i.e., whether DPR’s investigative file was used “exclusively” for purposes of the policy reasons
inherent in the statutory peer review privilege.

7D RE. 508.

48 See, e.g., White v. Ribbons & Bows Daycare, Inc., 2016 WL 4394726, at *2 (Del. Super. Aug.
12, 2016) (Order); Griffin v. Sigma Alpha Mu Fraternity, 2011 WL 2120064 (Del. Super. Apr.
26, 2011); Brady v. Suh, 2009 WL 6312181 (Del. Super. July 8, 2009); Williams v. Alexander,
1999 WL 743082 (Del. Super. June 29, 1999); Beckett v. Trice, 1994 WL 319171 (Del. Super.
June 6, 1994).

Beckett, 1994 WL 319171, at *3 (quoting State v. Brown, 36 A. 458, 463 (Del. Oyer and Term,
1896)).

16