Nevada hospital must produce documents

Jessica M. Karmasek May 12, 2011, 9:29am


CARSON CITY, Nev. (Legal Newsline) - The Nevada Supreme Court, in a ruling last week, denied a hospital's petition for a writ of mandamus directing a district court to change its order requiring it to produce requested documents.

The Eighth Judicial District Court, after a hearing, adopted a discovery commissioner's report and recommendation and ordered petitioner, Valley Health System LLC/Centennial Hills Hospital Medical Center, to produce certain documents.

Valley Health, in its petition for a writ of mandamus, says the district court erred in ordering the production of the documents. It argues that its petition for extraordinary relief should be granted because the district court's order allows for discovery of material privileged under Nevada Statute 439.875, and it has no other adequate remedy at law.

However, as the Court noted in its opinion, Valley Health failed to raise its privilege argument before the discovery commissioner; instead, it raised the issue for the first time during the district court hearing.

Chief Justice Michael L. Douglas authored the Court's opinion, filed Friday.

The Court said because Valley Health failed to raise its privilege argument before the discovery commissioner, that argument was waived.

"A contrary holding would lead to the inefficient use of judicial resources and allow parties to make an end run around the discovery commissioner by making one set of arguments before the commissioner, waiting until the outcome is determined, then adding or switching to alternative arguments before the district court," it wrote.

"All arguments, issues, and evidence should be presented at the first opportunity and not held in reserve to be raised after the commissioner issues his or her recommendation."

The Court said neither it nor the district court will consider new arguments raised in objection to a discovery commissioner's report and recommendation that could have been raised before the discovery commissioner but were not.

In its opinion, the Court elected to consider Valley Health's privilege argument on its merits.

According to 439.875, "(t)he proceedings and records of a patient safety committee are subject to the same privilege and protection from discovery as the proceedings and records" described in 49.265, which provides that "proceedings and records" of "(o)rganized committees of hospitals" responsible for the "evaluation and improvement of the quality of care" and peer review committees are not subject to discovery.

Therefore, 439.875's privilege only applies to protect internal documents and records of the patient safety committee from discovery, the Court said.

Because the documents and records being sought are not those of the patient safety committee, the information is not privileged, it explained.

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