Newborn v. Christiana Psychiatric Services, P.A.
N16C-05-047 VLM
| Del. Super. Ct. | Nov 30, 2016Background
- Plaintiff (estate of Lindsay Ballas) sued Dr. Jorge Pereira-Ogan's estate and Christiana Psychiatric Services for alleged malpractice after Ballas's 2014 suicide, alleging negligent prescribing and lack of medical records.
- DPR investigated following an OCME report; DPR Investigator Hernandez compiled an investigative file that was forwarded to the Department of Justice, which filed complaints but took no further action after Dr. Ogan died.
- Plaintiff subpoenaed DPR/Deputy AG Stacey Stewart for DPR's investigative records; DPR inadvertently produced a CD of records, and the State, DPR, and Defendants then moved to quash and for a protective order.
- Defendants argued the peer review privilege (24 Del. C. § 1768) protects DPR records; State/DPR asserted governmental privilege (D.R.E. 508) and work-product protection.
- Court found no inadvertent-waiver due to prompt motion to quash, held DPR’s file was not covered by the statutory peer-review privilege in this case, but ordered limited disclosure under a protective order: statements by Dr. Ogan must be produced; third-party statements, DPR/DOJ mental impressions, and investigative conclusions remain privileged.
Issues
| Issue | Plaintiff's Argument | Defendant/Non‑Party Argument | Held |
|---|---|---|---|
| Applicability of Delaware peer‑review privilege (24 Del. C. § 1768) to DPR investigative file | DPR is a mandatory investigator under 29 Del. C. § 8735 but statute does not shield DPR here; §1768 inapplicable | DPR acts as an investigatory arm of the Board and thus falls within §1768(a) and is privileged | §1768 did not apply: DPR was not acting as a peer‑review committee/organization in this investigation, so peer‑review privilege not available here |
| Governmental privilege (D.R.E. 508) over DPR/DOJ investigatory file | Privilege is qualified; Plaintiff needs records because both decedents are unavailable and medical records are missing | State/DPR argued strong public interest in secrecy and that privilege should bar disclosure | Qualified privilege outweighed in part: statements by Dr. Ogan must be produced; investigative conclusions, DPR/DOJ opinions, and third‑party statements remain protected; production under protective order |
| Work product protection (Rule 26(b)(3)) | Work product is qualified; Plaintiff has substantial need and cannot obtain equivalent information elsewhere | State/DPR asserted work product to bar disclosure | Court treated work product as overlapping with governmental privilege and relied on the governmental‑privilege balancing; limited disclosure ordered (Ogan statements) |
| Waiver by inadvertent disclosure (DPR’s October 4 production) | DPR waived privilege by producing records without asserting privilege | DPR/State said disclosure was inadvertent and promptly remedied by motion to quash | No waiver: disclosure was inadvertent, State/DPR took reasonable steps and promptly moved to quash; privilege protections preserved subject to Court's rulings |
Key Cases Cited
- Office of Chief Medical Examiner v. Dover Behavioral Health Sys., 976 A.2d 160 (Del. 2009) (interpreting §1768 peer‑review privilege and when a government health agency may qualify as a peer‑review organization)
- Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254 (Del. 1995) (work‑product doctrine protects counsel mental impressions and trial preparation)