diagnoses made. See Production Requests B-1 through B-7 and Interrogatories Numbers 1 through
7.

The Hospital has records of each of the patients who presented to the ER during the
designated time period. The identity of such patients is readily determinable without significant
burden by the use of the Hospital’s computer system which reveals patient names and their account
and/or record numbers. The records of such patients also generally and often reflect the symptoms
presented, the tests administered and the diagnoses made. These symptoms, tests and diagnoses have
been assigned codes that are searchable by the Hospital’s computer, either individually or by
combination. Thus, it appears, and I find, that the Hospital can readily, promptly and without
significant burden, identify the names, chart numbers/account numbers of patients who presented
to the Hospital during the relevant time period, presented one or more of the symptoms presented
by Aylor, and received one or more of the tests and/or diagnoses received by those patients. I find
that the documents requested by Plaintiffs in their Production Requests Nos. B-1 through B-7 are
relevant, indeed, crucial, for the Plaintiff to make the appropriate comparison mandated under
EMTALA. Therefore, I conclude that Defendant’s Objections to Interrogatories Nos. 1 through 7
and Production Requests Nos. B-1 through B-7 should be, and are hereby, OVERRULED.

3. By Interrogatories Nos. 10 and 11 and Production Requests Nos. 10 and 11, Plaintiffs
sought records of persons who had been admitted to the Hospital’s Critical Care Unit (“CCU”) or
Progressive Care Unit (“PCU”) “to rule in or rule out” certain conditions. I find that the Hospital’s
computer records were not “coded” in such a manner as to allow a computer search to identify the
persons whose records are responsive to discovery Requests 10 and 11. To make the determination

of the purpose for the referral to the CCU or PCU would require an interpretation of the medical

MEMORANDUM AND ORDER Page 5


information that may be disclosed by Defendant by reason of Plaintiffs’ review of documents

produced by Defendant in discovery in this cause:

(1) Noparty shall use or disclose protected health information, including information contained
in patients’ charts to be inspected, for any purpose other than the litigation for which such
information was requested. See 45 C.F.R. 164.512(e)(1)(v)(A).

(2) Atthe end of the litigation, Plaintiffs shall return to Defendant URHCS any and all protected
health information (including copies thereof). See 45 C.F.R. 164.512(e)(1)(v)(B).

(3) Counsel for the parties shall give notice of this Order and its terms to each person to whom
protected health information is disclosed by them, and each such person shall be required to

comply with the provisions of this Order.

IT IS SO ORDERED, this 14" day of ust, 2007.

ROBERT K. ROACH
UNITED STATES MAGISTRATE JUDGE

MEMORANDUM AND ORDER Page 10


to examine all the records to locate those particular files. I find that the Hospital provided sufficient
proof of the burdensomeness of producing the requested documents. Accordingly, Defendant’s
Objections as to relevance and burdensomeness of Production Requests Nos. 8 and 9 should be, and
are hereby, SUSTAINED. All of Defendant’s other objections to said Requests should be, and are
hereby, are OVERRULED.

5. By Production Requests Nos. C-1 and C-2, Plaintiffs sought the original credentialing
file and/or any original record related to the credentialing of Armando Todd Moreno, M.D., the
physician who saw patient Aylor in the ER. The Hospital resists the production of the credentialing
file on the grounds that since Plaintiffs have assiduously asserted that this is an EMTALA case and
not a medical malpractice case, the credentialing process and credentialing files of Moreno are
wholly irrelevant and protected from disclosure by Texas statutory privilege and Moreno’s own
privacy rights. Furthermore, Defendant has produced the Affidavit of one of its record keepers to
the effect that there is nothing in Dr. Moreno’s credentialing file that in any way relates to the Aylor
incident. Plaintiffs responds that under EMTALA the Hospital is “responsible” for the conduct of
Moreno as a staff member either as an employee or independent contractor, since he performed the
screening of patient Aylor; that as the “responsible” person his previous qualification and
performance history are or may lead to admissible evidence; and that Plaintiffs do not trust the
Hospital’s employee to tell the truth in her affidavit following her examination of Moreno’s
credentialing file, especially since her chosen Affidavit language seems to be “tailored” to make it
appear that the file contains no incriminating/relevant materials. I find that the Texas legislature has
adopted a strong public policy against the willy nilly disclosure of physicians’ credentialing files,

and that since this case is an-EMTALA and not a medical malpractice case, the physician’s

MEMORANDUM AND ORDER Page 7


records of all of the Hospital patients who had been admitted to CCU or PCU during the relevant
time period. That determination requires medical judgment by a medical professional which I find
to be overly burdensome to the Defendant with marginal relevance to the Plaintiffs. Accordingly,
Defendant’s Objections as to relevance and burdensomeness of Production Requests Nos. B-10 and
B-11 are SUSTAINED. Defendant’s other objections thereto are overruled.

4. By Production Requests Nos. B-8 and B-9, Plaintiffs seek review of the chart of each
person who presented to the ER during the relevant time period whose chart “contains a copy of the
Hospital’s ‘Chest Pain Care Management Guidelines,” (“Guidelines”) either signed or unsigned
by the attending physician. Those Guidelines, though in existence during the relevant time period,
and though included within the chart of some patients who presented to the ER during the relevant
time period, are not coded in the Hospital computer system to be used as search terms to identify
patient charts in whose files such Guidelines are physically filed and/or were signed. Searching
through all of the records of all of the patients who presented to the ER to locate only those in which
such Guidelines were physically included and/or signed would consume too much time and effort
and would be overly burdensome to the Hospital. The physical inclusion or exclusion of such
Guidelines from the charts of some ER patients may have statistical relevance to the Plaintiffs’ case’,

but that statistical relevance is marginal in comparison to the burdensomeness requiring the Hospital

' Atthe end of the day, all the examination of all those charts to determine the inclusion vel
non of signed or unsigned copies of the Guidelines within the chart would simply produce a
statistical number (i.e., a percentage) that the Plaintiffs might use to support their comparability
analysis and presentation on the disparate treatment issue. That percentage could be derived at by
Plaintiffs in a lesser examination of a large sample of patient charts. Since this Court has directed
the Hospital to produce the charts responsive to Production Requests Nos. B-1 through B-7, that
estimated sample size was approximately 532 charts. That sample is statistically large enough to
produce a meaningful result.

MEMORANDUM AND ORDER Page 6


“screening” procedure was simply to plug patients like Aylor into a cardiac enzyme machine and let
itmake the screening and/or diagnostic decisions. Plaintiffs also surmise that the manuals and other
documentation provided by the manufacturers of the cardiac enzyme testing devices may actually
contain the “screening” protocols that were then incorporated by reference in (or as) the Hospital’s
“screening” protocols.

Although this supposition smacks of a fishing expedition, I find that “cardiac enzyme testing
and evaluation” will likely be the subject matter of extensive testimony and evidence during the trial
and that the items sought by Plaintiffs’ Production Requests Nos. A-2 through A-S are relevant and
may lead to admissible evidence under Plaintiffs’ theory of the case. Accordingly, I conclude that
each and every Objection of Defendant to Production Requests Nos. A-2 through A-5 should be, and
are hereby, OVERRULED.

By reason of the overruling of certain of Defendant’s objections, Defendant is required to
supplement certain of its Answers and produce certain of the documents requested. IT IS
ORDERED that Defendant supplement its Answers to Interrogatories and produce the requested
documents on or before September 15, 2007. All original patient documents shall be produced at
the business office of Defendant Hospital which shall make examination room(s) available to
Plaintiffs’ representatives for such reasonable period or periods of time as Plaintiffs’ counsel deems
necessary to examine said records.

Since by other parts of this Order I have directed the Hospital to produce certain medical
records of certain of its patients, the confidentiality of those medical records should be maintained
by the following protective order.

This Protective Order shall govern the inspection, production and use of protected health

MEMORANDUM AND ORDER Page 9


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

DEDRA SOUTHARD, Individually §

and as Independent Administrator of

the ESTATE OF TROY LEE AYLOR, §

and DeWAYNE AYLOR

vs. § NO. 7:06-CV-011-R

UNITED REGIONAL HEALTH §

CARE SYSTEM, INC. dba UNITED

REGIONAL HEALTH CARE SYSTEM. §

MEMORANDUM AND ORDER

This is a case brought by Plaintiffs under the Emergency Medical Treatment and Active
Labor Act (EMTALA), Title 42, USCA § 1399(4)(B) properly called the “Anti-Dumping Act.”
Plaintiffs are the survivors of Troy Lee Aylor (“Aylor”) who died shortly after being discharged
from the Emergency Room of United Regional Health Care System (“Hospital”). Plaintiffs claim
that Hospital failed to provide Aylor with “adequate medical screening” and discharged him while
he was in an “unstable emergency medical condition,” thereby contributing to or causing his ultimate
death. Plaintiffs assiduously assert that they are not bringing a medical malpractice action.

This is not the first discovery dispute among the parties. In 2006 Plaintiffs propounded a set
of interrogatories and discovery requests to the Hospital, to which the Hospital levied numerous and
various objections. Following a hearing on Plaintiffs’ first Motion to Compel, on December 6, 2006
this Court entered an order disposing of the Hospital’s objections (docket entry #23) and directed
supplementation of the Hospital’s answers and production responses. Thereafter, in May 2007

Plaintiffs propounded a second set of interrogatories with production requests to the Hospital. Once

again the Hospital answered with a battery of objections and qualifications of its answers and

MEMORANDUM AND ORDER Page I



qualification and/or disciplinary history is wholly irrelevant, specially where there is no reference
to the Aylor incident. I conclude that Plaintiffs’ Production Requests No. C-1 and C-2 are outside
the permitted scope of discovery under Rule 26b; and that Defendant’s objections thereto should be,
and are hereby, are SUSTAINED.

6. Next out of the chute is Defendant’s challenge to Plaintiffs” Production Request A-1
directed toward Hospital’s policies and procedures with regard to its PCU. First, the Defendant says
that its PCU procedures manual does not have a “table of contents” and the term “similar document”
is too “ambiguous.” I find that the phrasing of the production request is not ambiguous, especially
since the Hospital should know darn well the name and/or category under which it maintains its PCU
written policies or procedures, certainly better than the outsider Plaintiffs would. Accordingly, I
conclude that Defendant’s objections to Production Request No. A-1 should be, and are hereby,
OVERRULED.

7. Defendant then levied objections to the production requests directed toward the
equipment and equipment manufacturer of the device used to test patient Aylor’s cardiac enzymes
level when he presented at the ER on August 29, 2004. Plaintiffs’ request regarding the equipment
and manufacturer are set out in Production Requests Nos. 2, 3, 4 and 5. Defendant has hopped on
these Production Requests as being (i) vague, (ii) unclear, (iii) too broad, (iv) overly broad, (v) so
overly broad as to be burdensome, and then Defendant jumps off and provides the documents
responsive to the requests. The essential thrust of Defendant’s argument is any documents that relate
to the device used by the Hospital to evaluate cardiac enzymes (indeed even the device used to
analyze patient Aylor’s own cardiac enzymes) are wholly irrelevant to the EMTALA cause of action

as to justify the production of the documents, Plaintiffs counter this by suggesting that the Hospital’s

MEMORANDUM AND ORDER Page 8


language of the exceptions permitted under HIPAA), Judge Bleil had no difficulty in disposing of

the Hospital’s privilege/confidentiality objections. Texas Health & Safety Code §161.032; Irving
Healthcare System v. Brooks, 927 SW 2d 12 (Tex. 1996)

In this case, Plaintifffs have restricted their interrogatories and production requests to a single
one-year time period immediately preceding Aylor’s death. Plaintiffs have identified and articulated
seven symptoms they allege Aylor presented to the ER personnel and have likewise identified and
articulated two cardiac tests that had been administered to Aylor (an ECG/EKG and a cardiac
enzymes test). Under the holdings of the Supreme Court, the Fifth Circuit and the Judges of the
Northern District of Texas, “appropriateness” is measured by comparison to other patients and their
symptoms and to an extent by the scope of the Hospital’s screening protocol. If the Hospital’s
screening protocol for the Emergency Room were merely a flip of the coin, that protocol would not
be “appropriate screening,” even if used consistently among all patients presenting to the Emergency
Room. On the other hand, a hospital is not required to perform every single bodily function test for
every person who presents to the Emergency Room, even if such protocol were equitably applied to
all patients. The appropriateness of screening is necessarily dependent upon the symptoms
presented, the tests run, the diagnoses made and the actions taken after diagnosis. Necessarily, a
comparison must be made between or among the symptoms presented by Aylor, the tests run and the
diagnoses made as compared to other patients. It is not every patient other Aylor who presented at
the ER that is appropriate for comparison. Similarly, it is not just patients who presented all of the
seven symptoms alleged to have been presented by Aylor to whom comparison should be made.
Plaintiffs have struck a fair balance among these extremes within their production requests and

interrogatories. Plaintiffs have tied their discovery requests to symptoms presented, tests run and

MEMORANDUM AND ORDER Page 4


both with this Defendant and with others in other cases, reflect that unless definitions are employed
with inclusive tight language, the Defendant here, and defendants generally, can engage in semantic
games so as to skirt their production and/or response obligations.

Finding nothing untoward or erroneous with the language adopted in the terms and phrases
used by Plaintiffs, I conclude that Defendant’s objections thereto should be, and are hereby,
OVERRULED.

2. Turning now to Defendant’s substantive objections to production of the Hospital
records of patients other than Aylor, this is not the parties’ first rodeo, and not even their first event
in the second rodeo. Plaintiffs’ counsel and the Hospital’s counsel have locked horns over the same
and similar issues before Magistrate Judge Bleil last year in Martinez v. Porta, 2006 WL 3289187
(N.D. TX). Magistrate Judge Bleil’s decision was affirmed by Judge Terry: Means over the
Hospital’s objections. In Martinez, also an EMTALA case arising from the death of a patient
discharged from the Hospital’s Emergency Room, Judge Bleil ordered the production of medical
records of “each person who was a patient in the Emergency Dept... and presented with symptoms

similar to Martinez’ or received cardiac-type treatment,” but reduced the time period sought by the

Plaintiff from six years to three years predating Martinez’ discharge from the Hospital. Judge Bleil
also made further restrictions and modifications of the production requirements. In affirming Judge
Bleil’s decision, Judge Means iterated that under EMTALA a hospital must provide “appropriate”
medical screening. Appropriateness is adjudged by whether the screening at issue “was performed
equitably in comparison to other patients with similar symptoms” citing Marshal v. E. Carroll Parish
Hospital, 134 F.3d 319, 322-24 (5" Cir. 1998). Since Judge Bleil had incorporated special

confidentiality protections in his Order for disclosure of the medical records (paraphrasing the exact

MEMORANDUM AND ORDER Page 3


responses to the second set of discovery requests. And again, Plaintiffs have filed a second Motion
to Compel (docket entry #35). The Motion was specially referred to the undersigned by Order of
Reference by the Honorable Sam Lindsay who had been assigned the case following the former
judge’s recusal. Plaintiffs’ Second Motion was accompanied by a Brief and extensive Appendix.
Within the court-ordered shortened response time, Defendant Hospital timely filed its Response with
an accompanying Briefand extensive Appendix composed of affidavits of Hospital personnel setting
forth factual information regarding the burdensomeness upon the Hospital to meet Plaintiffs’ various
interrogatories and production requests. Plaintiffs timely supplemented its Appendix with copies
of the pleadings filed during the interim and with another Brief. A lengthy telephone conference was
conducted on August 8, 2007 with a court reporter present at the Magistrate Judge’s office to make
a record and transcript of the proceedings.

After reviewing the parties’ written submissions and the arguments of counsel, I find and
conclude as follows:

1. First out of the chute the Defendant has objected to the Plaintiffs’ definitions of terms
and phrases set forth in the production requests and interrogatories. Defendant assets that the
definitions are “self-serving and expand or alter the Federal Rules of Civil Procedure.” This is
especially so, the Defendant assets, where the definitions relate to words of common usage within
the English language. Defendant’s arguments seem a bit disingenuous since Defendant has
previously argued that the term “symptom” was too broad and undefined. See Defendant’s Reply
Brief on prior Motion to Compel, docket entry #20. Plaintiffs respond by observing that Defendant
has levied no objection as to the correctness of the definitions, but only that they may be too “tight,”

not allowing the Defendant any wiggle room. Plaintiffs ardently argue that experience in the past,

MEMORANDUM AND ORDER Page 2