Newborn v. Christiana Psychiatric Services, P.A., N16C-05-047 VLM

Background

Plaintiff (Newborn, executrix for Lindsay Ballas) sued Estate of Dr. Jorge Ogan and Christiana Psychiatric Services for wrongful death/medical malpractice alleging negligent treatment led to Ballas' suicide.
DPR (Division of Professional Regulation) investigated Ballas/Ogan; DPR's investigative file included Ballas' medical records and notes from DPR investigators.
Plaintiff subpoenaed DPR/DOJ; DPR inadvertently produced the investigative file to Plaintiff's counsel, prompting Motions to Quash/for Protective Order by the State, DPR, and Defendants.
On Nov. 30, 2016 the court partially granted motions and allowed discovery of Ballas' medical records and what appeared to be statements by Dr. Ogan, reasoning DPR had initiated the investigation and thus peer review privilege did not apply.
After that order, the Estate reviewed the DPR file (having previously asserted privilege) and discovered new evidence showing the Board of Medical Licensure and Discipline, not DPR, initiated the investigation in mid-November 2014; DPR acted as the Board's investigator and some "statements" were investigator notes.
The Estate moved under Superior Court Civil Rule 59(e) for reconsideration based on this newly discovered evidence; the court granted reconsideration, held the peer review privilege applies, and concluded the DPR file (and subsequently the DOJ formal complaints that were withdrawn before Board disciplinary action) remain confidential and not discoverable.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether DPR file is protected by Delaware peer review privilege (24 Del. C. §1768)	DPR initiated investigation; peer review privilege does not apply; discovery of Ogan's statements and Ballas' records permitted	Board initiated investigation; DPR acted as Board s mandatory investigator; file is privileged and not discoverable	Reconsideration granted; peer review privilege applies because Board initiated investigation and DPR acted for Board; file is privileged
Whether Estate's post-order review constitutes "newly discovered evidence" for Rule 59(e)	Opposes reconsideration as motion should re-examine existing record only; new evidence not permissible	Estate says it could not review file earlier due to privilege claim and only learned facts upon reviewing file after order	Court found Estate met Rule 59(e) burden: evidence was newly discovered and could not have been found earlier with reasonable diligence
Whether statements attributed to Dr. Ogan in DPR file are his formal statements or investigator notes	Plaintiff contended file contained Ogan s statements usable in civil discovery	Estate clarified the purported statements were investigator notations, not formal Ogan statements, supporting privilege	Court accepted parties' clarification that entries were investigator notes, strengthening privileged character of the file
Whether DOJ formal complaints are public under §1768(b) despite privilege	Plaintiff argued DOJ involvement/usage made some materials non-privileged	Estate argued DOJ filed complaints only after Board process using DPR file; complaints were withdrawn before any Board disciplinary action	Court held DOJ formal complaints withdrawn before Board action remain confidential under §1768(b); thus not discoverable

Key Cases Cited

Office of Chief Med. Exam'r v. Dover Behavioral Health Sys., 976 A.2d 160 (Del. 2009) (defines scope of peer review privilege and what constitutes materials "used exclusively" by peer review committee)
Dworkin v. St. Francis Hosp., Inc., 517 A.2d 302 (Del. Super. 1986) (explains legislative purpose of peer review confidentiality to avoid chilling disclosures)
Bata v. Bata, 170 A.2d 711 (Del. 1961) (discusses standards for reargument based on newly discovered evidence)
Hessler, Inc. v. Farrell, 260 A.2d 701 (Del. 1969) (Rule 59(e) cited authority permitting reconsideration of court findings)