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IN THE STATE COURT OF GWINNETT COUNTY
STATE OF GEORGIA
DEBRA E. GANN, on Behalf of R.S. )
a Minor Child and as Administrator of
)
the Estate of KATIE KETTLES )
SASSER, )
)
Plaintiff, ) Civil Action File No.:
) 20-C-03806-S5
v. )
)
UNIVERSAL HEALTH SERVICES, )
INC., UHS OF DELAWARE, INC., HHC, )
St. Simons, INC. d/b/a SAINT SIMONS )
BY THE SEA, and DR. MICHAEL )
SWANEY, M.D., )
)
Defendants. )
PLAINTIFF’S MOTION TO COMPEL
Plaintiff hereby files this Motion to Compel against Defendants UHS of
Delaware, Inc. (“UHSD”) and HHC St. Simons, Inc.’s (“St. Simons”) (collectively, the
“Defendants”), pursuant to O.C.G.A. § 9-11-37, and requests that the Court (1) Order
Defendants to produce complete, unredacted copies of the patient Access Log Report
and Audit Logs Report for Robert Sasser, and (2) Order UHSD to produce certain
withheld documents and/or perform an in-camera review to assess UHSD’s assertions
of privilege, showing this Court as follows:
INTRODUCTION AND FACTUAL BACKGROUND
This case involves the tragic shooting death of Katie Sasser by her estranged
husband after he was improperly discharged by Defendant St. Simons, the mental
health facility responsible for his care and safety, as well as Katie’s safety.
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Defendants discharged Sasser despite clear evidence that he was a homicidal risk to
Katie. Even more tragic is the fact that this is not the first case these Defendants
have faced involving a tragic loss of life due to the improper discharge of a mentally
ill patient with homicidal ideations from this same facility. Undeterred by these
tragic circumstances and the emerging pattern of improper discharges from this
facility, Defendants have simply refocused their improper tactics towards this case.
In addition to improperly redacting Robert Sasser’s patient Access Log
Report and Audit Logs Report on the basis of peer review, numerous documents
have been wrongly withheld based on untimely privilege objections. For instance, on
April 19, 2023, one day prior to the hearing before the Court on Plaintiff’s Renewed
Motion to Compel (granted in part), UHSD supplemented its responses to Plaintiff’s
First Request for Production of Documents. However, as noted in the privilege log
accompanying the responses, UHSD withheld the entirety of its supplemental
production, including numerous documents related to discharge policies, processes,
and assessments. Ms. Gann served this written discovery in January of 2021. Now,
nearly 3-years later, instead of finally proceeding to the merits of her claims for the
wrongful death of her daughter, Defendants continue to stonewall Ms. Gann’s
legitimate requests for information and documents out of fear of what might be
uncovered.
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STATEMENT OF FACTS
A. Case overview
This case arises out of the Defendants’ corporate policies and negligent
conduct at a UHS owned mental facility resulting in the premature and illegal
discharge of Robert Sasser, a patient who had an extensive history (and ongoing
manifestations) of mental illness, who brutally murdered his estranged wife, Katie
Sasser. First Am. Compl., ¶¶ 9-10, 35 (“Complaint”). On May 18, 2018, after
learning that Katie Sasser wanted a divorce, Sasser went into the woods and began
shooting a handgun into the air while threatening to kill both himself and Katie.
Id., ¶ 14. The local SWAT team was called in to de-escalate the situation, and after
resisting arrest and assaulting an officer in the process, Sasser was taken to
Southeast Georgia Health System. Id., ¶¶ 15-16. That same day, Sasser was
involuntarily committed and transferred to HHC, St. Simons, Inc., d/b/a Saint
Simons By-the-Sea (“HHC”). Id., ¶ 17.
Upon Sasser’s involuntary commitment, St. Simons evaluated him and
deemed him to be both a suicide and homicide risk. As a result, St. Simons put him
on 15-minute wellness checks. Id., ¶ 18. Sasser’s file included a “High-Risk
Notification Alert” due to his active homicidal ideations towards his estranged
spouse. Id. Despite these assessments and the fact that Sasser posed a risk of harm
to both himself and others, St. Simons discharged Sasser on May 24, 2018. Id., ¶ 27.
Defendants discharged Sasser pursuant to UHS corporate policy of discharging
patients when their insurance benefits ran out. Id., ¶ 32. In addition, Defendants
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discharged Sasser in violation of admission and discharge procedures required
under Georgia law. Id. ¶ 34. Approximately one month later, Sasser brutally
murdered Katie Sasser and one other before taking his own life. Id., ¶¶ 35-37.
Unfortunately, this is not the first case these Defendants have faced involving a
tragic loss of life due to the improper discharge of a mentally ill patient with
homicidal ideations from this same facility.
In two other cases, styled Kern v. Psychiatric Solutions et al. and Curles v.
Psychiatric Solutions et al., filed individually and on behalf of the children of
victims killed by a psychiatric patient prematurely released by a psychiatric facility,
the plaintiffs brought suit against the treatment providers, the psychiatric facility,
and the psychiatric facility’s parent companies for claims of wrongful death and
both ordinary and medical negligence. 343 Ga. App. 719 (2017). These two cases
involved the exact same mental health facility at issue here, HHC, St. Simons, Inc.,
d/b/a Saint Simons By-the-Sea, as well as its parent company, Universal Health
Services, Inc. Both of these cases were settled against all Defendants, including
UHS, just one week out from the scheduled trial date in July of 2019.
In this case, despite the emerging pattern of improper discharges from this
facility resulting in the foreseeable deaths of innocent individuals, Defendants have
spent the better part of the last three (3) years engaging in procedural
gamesmanship, baseless threats of sanctions, unsuccessful attempts at dismissing
Ms. Gann’s claim, failed attempts at excluding Ms. Gann from using the medical
records at issue, and obstructing Ms. Gann’s legitimate efforts.
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B. Relevant Procedural history
On January 23, 2023, Ms. Gann served her Second Requests for Production of
Documents to Defendant St. Simons (attached as Exhibit A). Specifically, Plaintiff
requested the complete utilization review file for Robert Sasser, including all
documents and meta data contained in HHC’s automated utilization management
system related to Robert Sasser. Id. St. Simons responded on February 23, 2023
identifying the Access Log Report and Audit Log Reports for Robert Sasser
(attached as Exhibit B). However, St. Simons required Plaintiff to provide an
updated HIPPA authorization prior to producing these documents. Id. While St.
Simons subsequently supplemented its responses on March 28, 2023 (attached as
Exhibit C) and produced the Access Log Report and Audit Log Report (attached as
Exhibits D-E) for Robert Sasser, Defendants improperly redacted certain entries
on the basis of peer review. On April 28, 2023, St. Simons produced a privilege log
(attached as Exhibit F) regarding these improper redactions.
Moreover, on April 19, 2023, the day before this Court’s (Judge South’s)
hearing on Plaintiff’s Renewed Motion to Compel (later granted), UHSD served its
Second Supplemental Responses to Plaintiff’s First Request for Production of
Documents (attached as Exhibit G). As noted in UHSD’s privilege log accompanying
these responses (attached as Exhibit H), UHSD improperly withheld the entirety of
its supplemental production, which it believes is privileged “Patient Safety Work
Product.” UHSD has since amended its privilege log on May 23, 2023 and June 2,
2023 (attached as Exhibits I–J) listing numerous additional withheld documents.
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Plaintiff has repeatedly attempted to resolve these issues without involving
the Court, as evidenced in Plaintiff’s Rule 6.4 correspondence sent to Defendants’
counsel on April 3, 2023, April 17, 2023, May 9, 2023, and July 10, 2023 (attached
as Exhibits K-N). Despite these efforts, Defendants steadfastly refuse to comply
with their discovery obligations, as evident in their response letters dated April 13,
2023, May 1, 2023, May 23, 2023, and July 21, 2023 (attached as Exhibits O-R).
While Defendants have significantly delayed and derailed Plaintiff’s efforts with
their failed HIPAA authorization crusade, this matter is now ripe for the Court’s
consideration.
ARGUMENT AND CITATION OF AUTHORITY
I. Discovery Standard – Scope and Purpose
Individuals in Georgia have a right of access to Georgia’s civil justice system,
including the discovery tools expressly afforded under the Civil Practice Act. These
tools place places both parties on the same footing in civil actions. While individual
claimants suffer from an inherent asymmetry of information when bringing claims
against large corporate entities, the broad scope of discovery provided under the
Civil Practice works to create an even playing field, with the interest of justice and
efficiency as its guiding principles. O.C.G.A. §§ 9-11-1; 9-11-26(b). The scope of
discovery is governed by O.C.G.A. § 9-11-26(b), which provides that, unless and
until limited by order of the court:
Parties may obtain 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 or to the claim or defense of any other party. It is not
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ground for objection that the information sought will be inadmissible at
the trial if the information sought appears reasonably calculated to lead
to the discovery of admissible evidence.
O.C.G.A. § 9-11-26(b)(1) (emphasis added). Accordingly, the broad scope of discovery
extends to any matter which is “relevant” to anything that is or may become an issue
in the case. 1 O.C.G.A. § 9-11-26(b)(1). The baseline assumption, then, is that anything
conceivably relevant is discoverable.
The discovery provisions of the Civil Practice act “ensure that a party is not
placed at a disadvantage simply because it does not have custody of certain
evidence or because it is diligent and examines evidence early in the litigation.” Int’l
Harvester Co. v. Cunningham, 245 Ga. App. 736, 739 (2000). Indeed, “[t]he goal of
discovery is the fair resolution of legal disputes, to remove the potential for secrecy
and hiding of material.” Resurgens, P.C. v. Elliott, 301 Ga. 589, 599 n.10 (2017)
(quoting Int’l Harvester, 245 Ga. at 738); see also Chandler v. Liberty Mut. Fire Ins.
Co., 333 Ga. App. 595, 598 (2015) (“The discovery procedure is to be construed
liberally in favor of supplying a party with the facts.”). Accordingly, the “trial court
has broad discretion to control discovery, including the imposition of sanctions,”
1What is “relevant” is to be construed broadly in the discovery context. “Parties
may obtain discovery regarding any matter, not privileged, which is relevant to the
subject matter involved in the pending action. In the discovery context, courts
should and ordinarily do interpret ‘relevant’ very broadly to mean matter that is
relevant to anything that is or may become an issue in the litigation.” Ewing
v. Ewing, 333 Ga. App. 766, 768 (2015) (emphasis added).
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which cannot be reversed on appeal “absent the showing of a clear abuse of
discretion.” Allison v. Wilson, 320 Ga. App. 629, 636 (2013).
II. Defendants Improperly Redacted Portions of Robert Sasser’s Audit
Trail
As a healthcare provider, St. Simons is required under Federal law to develop
and maintain Access Log Reports and Audit Logs Reports (collectively, the “audit
trail”). See 21 C.F.R. § 11.10(e); 45 C.F.R. § 164.312(b); 45 C.F.R. § 170.210(e).
Nevertheless, Defendants have redacted certain information from the patient
Access Log Report and Audit Logs Report for Robert Sasser on the basis of peer
review. See, e.g., below:
See Exhibit D.
8
Under Georgia and Federal law, the audit trail is part and parcel of a
patient’s medical records. See Ga. Comp. R. & Regs. 111-8-40-.18(3)(a)(14); see also
O.C.G.A. § 31-33-1 (defining a patient’s medical records as: “…a patient's health
record, including, but not limited to, evaluations, diagnoses, prognoses, laboratory
reports, X-rays, prescriptions, and other technical information used in assessing
the patient's condition, or the pertinent portion of the record relating to a specific
condition or a summary of the record.”) (emphasis added). In prescribing the
management of a patient’s medical records, Ga. Comp. R. & Regs. 111-8-40-.18(b)
requires a hospital to be “administratively responsible for the management of
[medical] records” and “utilize systems to verify the author(s) of entries in the
patients' medical records.” Ga. Comp. R. & Regs. 111-8-40-.18(i) mandates
“[m]edical records shall be secured in such a manner as to provide protection from
damage or unauthorized access.”
Under the provisions of HIPAA, authorized persons have “a right of access to
inspect and obtain a copy of protected health information about the individual
in a designated record set.” 45 C.F.R. § 164.524(a)(1) (emphasis added). Protected
health information means “individually identifiable health information” that is
transmitted by electronic media, maintained in electronic media, or transmitted or
maintained in any other form or media. See 45 C.F.R. § 160.103. “Individually
identifiable health information” is:
Information that is a subset of health information…that (1) Is created
or received by a health care provider, health plan, employer, or health
care clearinghouse; and (2) Relates to the past, present, or future
physical or mental health or condition of an individual; the provision of
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health care to an individual; or the past, present, or future payment for
the provision of health care to an individual…
45 C.F.R. § 160.103. A “designated record set” includes (1) a health care provider’s
medical and billing records, (2) a health plan’s enrollment, payment, claims
adjudication, and case or medical management record systems, and (3) any
information used, in whole or in part, by or for the covered entity to make decisions
about individuals. A “record” is any item, collection, or grouping of information that
includes PHI and is maintained, collected, used, or disseminated by or for the
covered entity. See 45 C.F.R. § 164.501 (definition of “designated record set”). For
purposes of this code section, the term “payment” includes “[u]tilization review
activities, including precertification and preauthorization of services, concurrent
and retrospective review of services.” Id. (definition of “Payment”) (emphasis
added). 2
Together, the HIPAA Security Rule and the Health Information Technology
for Economic and Clinical Health (“HITECH”) 3 Act provide a legal framework that
requires organizations using electronic medical records (“EMRs”) to track and
maintain a log of all access and changes to electronic records. The audit trail for a
patient’s EHR exists as part and parcel of the patient’s complete medical record.
Accordingly, both Georgia and Federal law provides a right of access to this
2
Under these expansive definitions, the subject Access Log Report and Audit Logs
Report are unquestionably part of Robert Sasser’s “designated record set.”
3 In 2009, the HITECH Act was passed to promote meaningful use of health care
technology.
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information. See, e.g., 45 C.F.R. § 164.524; O.C.G.A. § 31-33-2; Ga. Comp. R. & Regs.
111-8-40-.18(e).
The rationale behind the audit trail requirement is to assure that each
patient’s record, and by association, each patient’s health related information, is
subject to strict protection. Because the audit trail is a patient protection measure,
it is available upon request. See generally, 45 C.F.R. § 164.530. Federal regulations
not only require medical providers to maintain an audit trail; they also provide a
right of access to this information. See 45 C.F.R. § 164.528 (providing the right to
receive an accounting of disclosures of protected health information made by a
covered entity in the six years prior to the date on which the accounting is
requested). Even if a patient’s electronic records are accessed post-discharge, the
entire log file becomes part of the patient’s EMR, and Plaintiff is entitled to the
information pursuant to 45 C.F.R. § 164.528.
While St. Simons has adopted an expansive interpretation of peer review,
because application of the peer and medical review statutes is in derogation of
Georgia’s general policy of liberal discovery of admissible evidence, it must be
strictly and narrowly construed. Cobb County Kennestone Hospital Auth. v. Martin,
208 Ga. App. 326, 327 (1993). In Martin, the Georgia Court of Appeals explained:
OCGA §§ 31-7-133 and 31-7-143 are designed to ensure
effectiveness and competence of health organizations by providing an
atmosphere for candor and constructive criticism within the
organization, and can do so only by protecting professional peers'
opinions and findings as to the competence or performance of members
and employees. But the statute embraces the goal of encouraging
medical staff candor at the cost of impairing plaintiff’s access to evidence
to which the law would otherwise give him access toward discovery of
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the truth; it is in derogation of the general liberal policy in favor of
discovery and admissibility of probative evidence, and therefore should
not be construed loosely or extended beyond its spirit and precisely
stated limits. Hollowell v. Jove, 247 Ga. 678 (279 S.E.2d 430). To say
otherwise would render health care facilities virtually immune to suit,
by making privileged all factual information which the facility chooses
to present or discuss at a peer review even though that information
would otherwise be discoverable from its original source.
Id. O.C.G.A. § 31-7-133 protects the confidentiality of the “proceedings and
records of a review organization.” (emphasis added). The “absolute embargo”
placed on the activities of a peer review committee extends to “proceedings,
records, finding and recommendations of peer review groups and medical review
committees in civil litigation.” Emory Clinic v. Houston, 258 Ga. 434, 435 (1988)
(emphasis added). Its purpose is to protect “professional peers’ opinions and findings
as to the competence or performance of members and employees.” Martin., 208 Ga.
App. 326, 327.
Audit logs/audit trails are automatically generated logs showing certain
information related to electronic medical records, such as when the data was
created, accessed, revised, etc. Access logs/reports provide documentation of all
users who have accessed a specific patient’s medical record and/or patient
information. Because audit trails are mandated by federal law, St. Simons cannot
truthfully say that these audit trails were prepared at the request of any committee.
Documents that must be generated as a matter of law are nothing more than
ordinary business records (i.e., original source materials) that do not fall within the
scope of the peer review privilege. Recording is automated and the data is objective
information about accesses to the medical record, unrelated to any peer review
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proceedings. A member of a peer review committee or medical review committee
cannot magically convert a treatment record into a privileged review committee
record merely by taking it into consideration.
Significantly, the HITECH Act explicitly provides that audit log entries are
not privileged. To illustrate, the entirety of the standards set forth in ASTM E2147-
18 are incorporated into the HITECH Act. See ASTM E2147–18, incorporated by
reference pursuant to 45 C.F.R. § 170.210(h). Paragraph 4 of ASTM E2147-18 states
in part:
A patient has a right to know who has accessed their patient
information and what occurred during such access. Access by any
means (viewing or any other action) regarding the patient record and/or
audit log or the data contained therein by attorneys, risk
management, or similar individuals or entities are not privileged
actions and must also be fully transparent and disclosed.
(emphasis added). 4
Accordingly, under HITECH’s explicit provision, which is controlling under
the Supremacy Clause and preemption, 5 the thought processes of peer review
committee members, as reflected in what medical records they reviewed and for how
long, do not fall in the category of protected peer review committee activities. While
4 https://www.astm.org/e2147-18.html
5 To the extent that any provision of Georgia law is contrary to HIPPA/HITECH
and the related provisions established in the Code of Federal Regulations,
HIPAA/HITECH preempts state law. See Allen v. Wright, 282 Ga. 9, 12 (2007).
“Where a state statute conflicts with, or frustrates, federal law, the former must
give way.” Id. State law will only avoid pre-emption by HIPAA and its standards if
it is “more stringent than HIPAA requirements.” Id. In that regard, “[m]ore
stringent…means laws that afford patients more control over their medical records.”
Id.; see also Moreland v. Austin, 284 Ga. 730, 733 (2008).
13
this issue has not yet been addressed at the appellate level in Georgia, in June of
2021, a Special Master appointed by the Honorable Jane Morrison of the State
Court of Fulton County issued a report ordering Northside Hospital to produce an
unredacted audit trail after finding “that the thought processes of peer review
committee members, as reflected in what medical records they reviewed and for how
long, do not fall in the category of protected peer review committee activities.”
Special Master Report, pp. 17-19, June 21, 2021 (citing ASTM E2147–18,
incorporated by reference pursuant to 45 C.F.R. § 170.210(h)) (attached as Exhibit
S). This same conclusion is further bolstered by the decisions of other courts
nationwide, 6 the plain language of the peer review statute, and the narrow
interpretation given it under Georgia case law. Therefore, Plaintiff requests an
order requiring St. Simons to produce unredacted copies of the “Access Log Report”
and “Audit Logs Report” (Exhibits D-E).
III. UHSD Withheld Non-Privileged Materials
UHSD is withholding the entirety of its supplemental production, which it
blanketly labels as privileged “Patient Safety Work Product.” Despite claiming that
6 Courts across the country invariably hold that passing otherwise unprotected
audit trails through a peer review committee does not cloak them with privilege.
See, e.g., Hall v. Flannery, 3:13-CV-914-SMY-DGW, 2015 WL 2008345, at *3 (S.D.
Ill. May 1, 2015) (finding audit trails are not covered by peer review privilege);
Frazier v. Se. Georgia Health Sys., Inc., CV 221-021 [Doc. 122, pp. 4-5] (S.D. Ga.
June 14, 2022) (citing Hall, 2015 WL 2008345); Osborne v. Billings Clinic, CV 14-
126-BLG-SPW, 2015 WL 1412626, at *4 (D. Mont. Mar. 26, 2015) (rejecting claim
that audit trails were not discoverable because defendant argued they were
implemented for quality improvement purposes); Peck v. Riverside Hosp., Inc., 91
Va. Cir. 537 (2014) (denying motion to quash subpoena for the production of audit
trail on basis of privilege).
14
it “is not a licensed healthcare provider and does not provide healthcare services to
patients and does not ‘operate’ any healthcare facilities in the state of Georgia,”
UHSD asserts that a plethora of documents responsive to Plaintiff’s initial
discovery requests (served well over three years ago) constitute privileged “Patient
Safety Work Product” or “Peer Review” materials. This argument fails many of the
withheld items (policies, processes, checklists, procedures, advisories, assessments)
are not privileged materials.
The Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. § 299b-
21 et seq., establishes a system for health care providers to report information about
medical errors and other patient safety events to certified patient safety
organizations, which analyze the information and make recommendations for
improving patient safety. To encourage voluntary reporting, the Act creates a
privilege protecting “patient safety work product” against disclosure in limited
circumstances. 42 U.S.C. § 299b-22(a). The Act defines “patient safety work
product” to include certain information “assembled or developed by a provider for
reporting to a patient safety organization.” 42 U.S.C. § 299b-21(7)(A)(i)(I). But the
definition specifically excludes “original patient or provider record[s],” and the Act
specifies that it shall not be construed to limit “the discovery of or admissibility of
[such records] in a criminal, civil, or administrative proceeding” or “a provider's
recordkeeping obligation with respect to [such records] under Federal, State, or
local law.” 42 U.S.C. § 299b-21(7)(B)(i) and (iii).
15
Several of the material items listed in UHSD’s privilege logs are not only
clearly relevant, but also unquestionably non-privileged. For instance, the
highlighted items below cannot reasonably be construed as constituting patient
safety work product:
April 19, 2023 Privilege Log of UHSD (Exhibit H) (emphasis added). “[O]riginal
documents and information about healthcare operations may be relevant to a patient
safety evaluation system but are not themselves patient safety work product.” H.R.
Rep. No. 109-197, 2005 WL 1896333, *14 (2005) (attached as Exhibit T). These types
of documents include, but are not limited to, “guidance on procedures” and “hospital
policies.” Id. The above highlighted document, all relating to patient discharge
policies, processes, and/or assessments, are highly relevant to the issue of whether
Defendants prematurely discharged Sasser and are plainly discoverable. Accordingly,
Plaintiff requests an order requiring UHSD to produce this information, or, in the
alternative, an in-camera review to assess UHSD’s assertions of privilege.
16
IV. Ms. Gann is Entitled to Fees and Expenses
Under Georgia law, the successful proponent of a motion to compel is entitled
to recover the fees and expenses incurred in bringing the motion from the party
whose conduct necessitated bringing the motion. O.C.G.A. § 9-11-37(a)(4); see also
Allison v. Wilson, 361, 320 Ga. App. 629, 637 (2013) (“[W]ithout question, OCGA §
9–11–37(a)(4)(A) allows the successful proponent of a motion to compel to recover
fees and expenses incurred in bringing the motion, and this award may be made
against the party whose conduct necessitated bringing the motion, the party's
attorney or both.”). Thus far, the Court has already granted two motions to compel
and ordered Defendants to pay $8,000.00 in reasonable attorney’s fees and expenses
for “fail[ing] to supply discovery responses in a timely manner.” October 25, 2022
Order. The situation is no different. Accordingly, Defendants should be held
accountable for their discovery abuses, with relief including, at a minimum,
awarding Mr. Gann the fees and costs incurred in bringing this motion.
V. CONCLUSION
WHEREFORE, Plaintiff respectfully moves this Court for an Order
compelling Defendants to (1) produce complete, unredacted copies of the patient
Access Log Report and Audit Logs Report for Robert Sasser, and (2) produce certain
withheld documents and/or perform an in-camera review to assess UHSD’s
assertions of privilege, with relief including, at a minimum, awarding Ms. Gann the
fees and costs incurred in bringing this motion.
Respectfully submitted this 2nd day of January, 2024.
17
PENN LAW LLC
/s/ Darren W. Penn
DARREN W. PENN
Georgia Bar No. 571322
KEVIN M. KETNER
Georgia Bar No. 418233
4200 Northside Parkway, NW
Building One, Suite 100
Atlanta, Georgia 30327
Phone/Fax: (404) 961-7655
darren@pennlawgroup.com
kevin@pennlawgroup.com
CO-COUNSEL
NATHAN T. WILLIAMS
Georgia Bar No. 142417
nathan@williamslg.com
WRIX McILVAINE
Georgia Bar No. 436879
wrix@williamslg.com
WILLIAMS LITIGATION GROUP, P.C.
Post Office Box 279
Brunswick, Georgia 31521-0279
(912) 208-3721
(912) 264-6299 facsimile Attorneys for Plaintiff
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CERTIFICATE OF GOOD FAITH CONFERENCE
This is to certify, pursuant to Uniform Superior Court Rule, 6.4, that counsel
for Plaintiff has in good faith conferred with counsel for Defendants to resolve the
disputes raised in the foregoing Motion to Compel, and that such efforts to resolve
these disputes by agreement have been unsuccessful.
This 2nd day of January, 2024.
PENN LAW LLC
/s/ Darren W. Penn
____________________________
DARREN W. PENN
Georgia Bar No. 571322
darren@pennlawgroup.com
19
CERTIFICATE OF SERVICE
This is to certify that I have this day served a true and correct copy of the
foregoing PLAINTIFF’S MOTION TO COMPEL upon all counsel of record by
electronic filing via Odyssey Efile GA or by placing same in the United States Mail,
postage prepaid addressed to:
Charles A. Dorminy, Esq.
Michael “Chas” White, Esq.
HALL BOOTH SMITH, P.C.
3528 Darien Highway
Suite 300
Brunswick, Georgia 31525
cdorminy@hallboothsmith.com
mwhitehead@hallbothsmith.com
Attorneys for Defendants Universal Health Services, Inc., UHS of
Delaware, Inc., HHC St. Simons, Inc. d/b/a Saint Simons by the Sea
Lori G. Cohen, Esq.
Brandon D. Cox, Esq.
Michael J. King Esq.
Greenberg Traurig, LLP
Terminus 200
3333 Piedmont Road, Suite 2500
Atlanta, Georgia 30305
Cohenl@gtlaw.com
coxb@glaw.com
kingm@gtlaw.com
Attorney for Defendants Universal Health Services, Inc., UHS of
Delaware, Inc., and HHC St. Simons, Inc. d/b/a Saint Simons by the
Sea
Gregory T. Talley
Kayla H. Barnes
COLEMAN TALLEY LLP
109 S. Ashley Street
Valdosta, GA 31601
greg.talley@colemantalley.com
kayla.barnes@colemantalley.com
Attorneys for Defendant Michael Swaney, M.D.
20
This 2nd day of January, 2024.
PENN LAW LLC
/s/ Darren W. Penn
DARREN W. PENN
Georgia Bar No. 571322
4200 Northside Parkway, N.W.
Building One, Suite 100
Atlanta, Georgia 30327
darren@pennlawgroup.com
21
IN THE STATE COURT OF GLYNN COUNTY
STATE OF GEORGIA
DEBRA E. GANN, Individually and on Behalf )
of R.S. a Minor Child and as Administrator of )
the Estate of KATIE KETTLES SASSER )
)
Plaintiff, )
Civil Action File No.:
)
20-C-03806-S5
v. )
)
UNIVERSAL HEALTH SERVICES, INC., )
UHS OF DELAWARE, INC., and HHC, ST. )
SIMONS, INC. d/b/a SAINT SIMONS BY )
THE SEA, DR. MICHAEL SWANEY, M.D., )
)
Defendants. )
PLAINTIFF’S SECOND REQUEST FOR PRODUCTION OF DOCUMENTS
TO DEFENDANT HHC, ST. SIMONS, INC. d/b/a SAINT SIMONS BY THE SEA
Plaintiff hereby serve these Requests for the Production of Documents to Defendant
HHC, St. Simons, Inc. d/b/a Saint Simons By The Sea. (“HHC”), and request that they produce
at the law offices of Penn Law, 4200 Northside Parkway, Suite 100, Building 100, Atlanta, GA
30327 the documents and things described below that are in the possession, custody, and control
of each Defendant, its employees or subordinates, agents, and/or attorneys, pursuant to O.C.G.A.
§ 9-11-26 et seq., and O.C.G.A. § 24-10-26 et seq.
To Whom These Requests Are Directed
Each request is addressed to the personal knowledge of the Defendant, as well as to the
knowledge and information of Defendant’s attorneys, investigators, agents, employees, and other
representatives. When a question is directed to Defendant, the question is also directed to each
of the aforementioned persons.
Pl. EXHIBIT
A
1
Continuing Duty to Supplement
These requests shall be deemed continuing and you are required to supplement or amend
any prior response if the person or entity to whom these requests are addressed ascertains any
change, different or added fact, condition or circumstances, or that there be any other witness(es)
or evidence.
DEFINITIONS
“You” or “Your” means the Defendant HHC or its respective agents, servants or employees
acting on its behalf as well as any independent contractor, attorney, claims adjuster or investigator
acting on behalf of the Defendant’s insurer. This definition includes HHC and every department,
division, office, agency or affiliate thereof. These words or phrases include any successor or
predecessor firms or corporations, any parent corporations and holding companies with which the
Defendant is associated, any subsidiaries and/or other companies that are owned, in whole or in
part, by this Defendant, whether foreign or domestic. Finally, these words and phrases specifically
include present and former officers, directors, agents, employees and any and all other persons,
firms or corporations, acting or purporting to act on behalf of “you,” or “your company.”
1. The terms “identify” or “identity” as used herein mean, with reference to a natural
“person”, to state his or her full name, the last known home address (or where not known, the
last known business address), together with the name and last known address of his or her
employer and job capacity, position or classification. With respect to any entity which is not a
natural “person”, state the entity’s correct legal name, last known address and phone number,
state the nature of such entity (e.g. corporation, general partnership, etc.), and if you have any
business relationship with such entity – either direct or indirect – state the nature of such
relationship.
2
2. The term “Documents” means all writings and other printed matter of every kind,
including, but not limited to, books, records, manuals, statements, minutes, letters,
correspondence, memorandum reports, lists, studies, surveys, directives, agreements, contracts,
print-outs, telegrams, teletype, telexes, telefax, pamphlets, notes, messages, bulletins, e-mail,
diary and calendar entries, maps, charts, brochures, graphics, tabulations, press releases, address
books, ledgers, invoices, bills, work sheets, trip reports, receipts, returns, prospectuses, financial
statements, tax returns, schedules, affidavits, applications, resumes, cancelled checks, check
books, check stubs, check ledgers, transcripts, statistics, magazine or newspaper articles or
advertisements, releases, test reports and records of meetings, conferences, telephone
conversations or other conversations or communication (including any and all drafts, alterations,
modifications, changes and amendments of any of the foregoing) in the possession, custody or
control of the Defendant responding to this discovery. The term “document” or documents”
shall also including non-printed matter such as voice records and reproductions, film
impressions, photographs, negatives, slides, microfilms, microfiches, e-mail, and other things
that document or record ideas, words or impressions. The term “document” or “documents”
further includes all punch cards, tapes, disks, or records used in electronic data processing,
together with the programming instructions and other written materials necessary to understand
or use such punch cards, tapes, disks or other recordings, and further includes data or data
compilation in electronic or other form that can be printed through proper programming or
decoding of the electronic or mechanical data storage facility.
3. The phrase “identify all documents” or the phrase “describe all documents” as
used herein means to state:
3
(a) the nature of the documents (i.e., memoranda, letters, photographs, tape
recordings, or other);
(b) the full name, last known address and, where applicable, the job classification and
employer of whosoever prepared the document;
(c) where applicable (as for example in the case of a letter), the name and address of
the individual and/or firm to whom the document is addressed or was sent;
(d) the name and address of whosoever presently has possession, custody or control
of the documents.
REQUESTS FOR PRODUCTION
Defendant is requested to produce true, accurate, and complete copies of the
following:
UTILIZATION MANAGEMENT
1. All policies, procedures, and protocols related to HHC’s utilization management
plan, including, but not limited to:
a. Admission reviews;
b. Discharge planning reviews;
c. Continued stay reviews; and
d. Extended stay reviews.
2. The complete utilization review file for Robert Sasser.
3. All documents and correspondence related to the utilization management review
process for Robert Sasser, including, but not limited to, any:
a. Admission review;
b. Discharge planning review;
4
c. Continued stay review; and/or
d. Extended stay review.
4. All documents contained in HHC’s automated utilization management system
related to Robert Sasser.
Respectfully submitted this 23rd day of January, 2023.
PENN LAW LLC
/s/ Darren W. Penn
DARREN W. PENN
Georgia Bar No. 571322
darren@pennlawgroup.com
ALEXANDRA “SACHI” COLE
Georgia Bar No. 696892
sachi@pennlawgroup.com
KEVIN M. KETNER
Georgia Bar No. 418233
kevin@pennlawgroup.com
4200 Northside Parkway, NW
Building One, Suite 100
Atlanta, Georgia 30327
Phone/Fax: (404) 961-7655
CO-COUNSEL
NATHAN T. WILLIAMS
Georgia Bar No. 142417
WRIX McILVAINE
Georgia Bar No. 436879
WILLIAMS LITIGATION GROUP, P.C.
Post Office Box 279
Brunswick, Georgia 31521-0279
(912) 208-3721
(912) 264-6299 facsimile
Attorneys for Plaintiff
5
CERTIFICATE OF SERVICE
This is to certify that I have this 23rd day of January, 2023 served a true and correct copy
of the within and foregoing PLAINTIFF’S SECOND REQUEST FOR PRODUCTION OF
DOCUMENTS TO DEFENDANT HHC, ST. SIMONS, INC. d/b/a SAINT SIMONS BY THE
SEA upon all counsel of record by electronic filing via Odyssey Efile GA or by placing same in
the United States Mail, postage prepaid addressed to:
John E. Hall, Jr. Esq.
Jacquelyn Smith Clarke, Esq.
Samuel S. Sykes, III, Esq.
HALL BOOTH SMITH, P.C.
191 Peachtree Street, NE
Suite 2900
Atlanta, GA 30303
jhall@hallboothsmith.com
jclarke@hallboothsmith.com
ssykes@hallboothsmith.com
Charles A. Dorminy, Esq.
Michael “Chas” Whitehead, Esq.
HALL BOOTH SMITH, P.C.
3528 Darien Highway
Suite 300
Brunswick, Georgia 31525
cdorminy@hallboothsmith.com
mwhitehead@hallboothsmith.com
Attorneys for Defendants Universal Health Services, Inc., UHS of Delaware, Inc.,
HHC St. Simons, Inc. d/b/a Saint Simons by the Sea
Lori G. Cohen, Esq.
Brandon D. Cox, Esq.
Michael J. King, Esq,
Greenberg Traurig, LLP
Terminus 200
3333 Piedmont Road, Suite 2500
Atlanta, Georgia 30305
Cohenl@gtlaw.com
coxb@glaw.com
kingm@gtlaw.com
Attorney for Defendants Universal Health Services, Inc., UHS of Delaware, Inc.,
and HHC St. Simons, Inc. d/b/a Saint Simons by the Sea
6
7
Gregory T. Talley, Esq.
Kayla H. Barnes, Esq.
Michael J. King, Esq.
COLEMAN TALLEY LLP
109 S. Ashley Street
Valdosta, GA 31601
greg.talley@colemantalley.com
kayla.barnes@colemantalley.com
Attorneys for Defendant Michael Swaney, M.D.
This 23rd day of January, 2023.
/s/ Darren W. Penn
DARREN W. PENN
Georgia Bar No. 571322
ALEXANDRA “SACHI” COLE
Georgia Bar No. 696892
KEVIN M. KETNER
Georgia Bar No. 418233
PENN LAW LLC
4200 Northside Parkway, NW
Building One, Suite 100
Atlanta, Georgia 30327
Phone/Fax: (404) 961-7655
darren@pennlawgroup.com
sachi@pennlawgroup.com
kevin@pennlawgroup.com
NATHAN T. WILLIAMS
Georgia Bar No. 142417
WRIX MCILVAINE
Georgia Bar No. 436879
WILLIAMS LITIGATION GROUP, P.C. Attorneys for Plaintiff
Post Office Box 279
Brunswick, Georgia 31521-0279
(912) 208-3721
(912) 264-6299 facsimile
nathan@williamslg.com
wrix@williamslg.com
8
IN THE STATE COURT OF GWINNETT COUNTY
STATE OF GEORGIA
DEBRA E. GANN, Individually and on Behalf
of R. S. a Minor Child and as Administrator of
the Estate of KATIE KETTLES SASSER,
Plaintiff,
v.
CIVIL ACTION NUMBER:
UNIVERSAL HEALTH SERVICES, INC.,
20-C-03806-S5
UHS OF DELAWARE, INC., HHC ST.
SIMONS, INC. d/b/a SAINT SIMONS BY
THE SEA, and DR. MICHAEL SWANEY,
M.D.,
Defendants.
DEFENDANT HHC ST. SIMONS, INC. d/b/a ST. SIMONS BY THE SEA'S
RESPONSES TO PLAINTIFF'S SECOND REQUESTS FOR PRODUCTION OF
DOCUMENTS
HHC ST. SIMONS, INC. d/b/a ST. SIMONS BY THE SEA, a Defendant in the above-
styled action, responds to Plaintiff's second requests for production of documents under O.C.G.A.
§§ 9-11-26 and 9-11-34 as follows:
GENERAL OBJECTIONS
1. These responses, while based on diligent exploration by this Defendant, reflect only
the current state of this Defendant’s knowledge, understanding and belief with respect to the
matters addressed. These responses are neither intended, nor shall they in any way be deemed, as
admissions or representations that further information or documents do not exist. Without any way
obligating itself to do so, this Defendant reserves the right to modify or supplement its responses
with such pertinent information as may be subsequently discovered. Furthermore, these responses
are given without prejudice to this Defendant’s right to use or rely on at any time, including trial,
Pl. EXHIBIT
B
subsequently discovered information or documents, or information or documents omitted from
these responses as a result of, among other things, mistake, error, oversight or inadvertence.
2. This Defendant objects to each and every request to the extent the request seeks to
discover any attorney-client communication and information concerning analysis and evaluations
of this case and related matters involving legal counsel. To the extent any request may be construed
as calling for disclosure of information protected by any such privilege or doctrine, a continuing
objection to each and every request is hereby interposed.
3. The information supplied in these responses is not based solely on the knowledge
of this Defendant, but includes knowledge of this Defendant, its agents, representatives and
attorneys, unless privileged.
4. The word usage and sentence structure may be that of the attorneys assisting in the
preparation of the responses and does not purport to be the precise language of the executing party.
5. This Defendant objects to the instructions and definitions contained in the
Interrogatories to the extent that Plaintiff seeks to impose obligations not required by the Georgia
Civil Practice Act.
6. The continuing objections set forth above are hereby incorporated in the responses
as set forth in full.
REQUESTS FOR PRODUCTION OF DOCUMENTS
UTILIZATION MANAGEMENT
1. All policies, procedures, and protocols related to HHC’s utilization management
plan, including, but not limited to:
a. Admission reviews;
b. Discharge planning reviews;
c. Continued stay reviews; and
d. Extended stay reviews.
RESPONSE: Defendant objects to Request No. 1 on the grounds that is overly broad and
unlimited in time. Subject to and without waiving these objections, Defendant refers Plaintiff to
the attached Utilization Management Plan Policy (Bates Numbers SSBTS 000001-000006).
2. The complete utilization review file for Robert Sasser.
RESPONSE: Defendant objects to Request No. 2 on the grounds that it is vague and
ambiguous, seeks confidential information regarding the credentialing of this Defendant, and
impermissibly seeks information that is privileged from discovery under Georgia law based on
Peer Review and/or Quality Assurance privileges. This Defendant further objects to this Request
on the grounds that it requests information that is privileged from discovery under the Patient
Safety and Quality Improvement Act. Finally, Defendant objects to this request as it requests
information
Preview
IN THE STATE COURT OF GWINNETT COUNTY STATE OF GEORGIA DEBRA E. GANN, on Behalf of R.S. ) a Minor Child and as Administrator of ) the Estate of KATIE KETTLES ) SASSER, ) ) Plaintiff, ) Civil Action File No.: ) 20-C-03806-S5 v. ) ) UNIVERSAL HEALTH SERVICES, ) INC., UHS OF DELAWARE, INC., HHC, ) St. Simons, INC. d/b/a SAINT SIMONS ) BY THE SEA, and DR. MICHAEL ) SWANEY, M.D., ) ) Defendants. ) PLAINTIFF’S MOTION TO COMPEL Plaintiff hereby files this Motion to Compel against Defendants UHS of Delaware, Inc. (“UHSD”) and HHC St. Simons, Inc.’s (“St. Simons”) (collectively, the “Defendants”), pursuant to O.C.G.A. § 9-11-37, and requests that the Court (1) Order Defendants to produce complete, unredacted copies of the patient Access Log Report and Audit Logs Report for Robert Sasser, and (2) Order UHSD to produce certain withheld documents and/or perform an in-camera review to assess UHSD’s assertions of privilege, showing this Court as follows: INTRODUCTION AND FACTUAL BACKGROUND This case involves the tragic shooting death of Katie Sasser by her estranged husband after he was improperly discharged by Defendant St. Simons, the mental health facility responsible for his care and safety, as well as Katie’s safety. 1 Defendants discharged Sasser despite clear evidence that he was a homicidal risk to Katie. Even more tragic is the fact that this is not the first case these Defendants have faced involving a tragic loss of life due to the improper discharge of a mentally ill patient with homicidal ideations from this same facility. Undeterred by these tragic circumstances and the emerging pattern of improper discharges from this facility, Defendants have simply refocused their improper tactics towards this case. In addition to improperly redacting Robert Sasser’s patient Access Log Report and Audit Logs Report on the basis of peer review, numerous documents have been wrongly withheld based on untimely privilege objections. For instance, on April 19, 2023, one day prior to the hearing before the Court on Plaintiff’s Renewed Motion to Compel (granted in part), UHSD supplemented its responses to Plaintiff’s First Request for Production of Documents. However, as noted in the privilege log accompanying the responses, UHSD withheld the entirety of its supplemental production, including numerous documents related to discharge policies, processes, and assessments. Ms. Gann served this written discovery in January of 2021. Now, nearly 3-years later, instead of finally proceeding to the merits of her claims for the wrongful death of her daughter, Defendants continue to stonewall Ms. Gann’s legitimate requests for information and documents out of fear of what might be uncovered. 2 STATEMENT OF FACTS A. Case overview This case arises out of the Defendants’ corporate policies and negligent conduct at a UHS owned mental facility resulting in the premature and illegal discharge of Robert Sasser, a patient who had an extensive history (and ongoing manifestations) of mental illness, who brutally murdered his estranged wife, Katie Sasser. First Am. Compl., ¶¶ 9-10, 35 (“Complaint”). On May 18, 2018, after learning that Katie Sasser wanted a divorce, Sasser went into the woods and began shooting a handgun into the air while threatening to kill both himself and Katie. Id., ¶ 14. The local SWAT team was called in to de-escalate the situation, and after resisting arrest and assaulting an officer in the process, Sasser was taken to Southeast Georgia Health System. Id., ¶¶ 15-16. That same day, Sasser was involuntarily committed and transferred to HHC, St. Simons, Inc., d/b/a Saint Simons By-the-Sea (“HHC”). Id., ¶ 17. Upon Sasser’s involuntary commitment, St. Simons evaluated him and deemed him to be both a suicide and homicide risk. As a result, St. Simons put him on 15-minute wellness checks. Id., ¶ 18. Sasser’s file included a “High-Risk Notification Alert” due to his active homicidal ideations towards his estranged spouse. Id. Despite these assessments and the fact that Sasser posed a risk of harm to both himself and others, St. Simons discharged Sasser on May 24, 2018. Id., ¶ 27. Defendants discharged Sasser pursuant to UHS corporate policy of discharging patients when their insurance benefits ran out. Id., ¶ 32. In addition, Defendants 3 discharged Sasser in violation of admission and discharge procedures required under Georgia law. Id. ¶ 34. Approximately one month later, Sasser brutally murdered Katie Sasser and one other before taking his own life. Id., ¶¶ 35-37. Unfortunately, this is not the first case these Defendants have faced involving a tragic loss of life due to the improper discharge of a mentally ill patient with homicidal ideations from this same facility. In two other cases, styled Kern v. Psychiatric Solutions et al. and Curles v. Psychiatric Solutions et al., filed individually and on behalf of the children of victims killed by a psychiatric patient prematurely released by a psychiatric facility, the plaintiffs brought suit against the treatment providers, the psychiatric facility, and the psychiatric facility’s parent companies for claims of wrongful death and both ordinary and medical negligence. 343 Ga. App. 719 (2017). These two cases involved the exact same mental health facility at issue here, HHC, St. Simons, Inc., d/b/a Saint Simons By-the-Sea, as well as its parent company, Universal Health Services, Inc. Both of these cases were settled against all Defendants, including UHS, just one week out from the scheduled trial date in July of 2019. In this case, despite the emerging pattern of improper discharges from this facility resulting in the foreseeable deaths of innocent individuals, Defendants have spent the better part of the last three (3) years engaging in procedural gamesmanship, baseless threats of sanctions, unsuccessful attempts at dismissing Ms. Gann’s claim, failed attempts at excluding Ms. Gann from using the medical records at issue, and obstructing Ms. Gann’s legitimate efforts. 4 B. Relevant Procedural history On January 23, 2023, Ms. Gann served her Second Requests for Production of Documents to Defendant St. Simons (attached as Exhibit A). Specifically, Plaintiff requested the complete utilization review file for Robert Sasser, including all documents and meta data contained in HHC’s automated utilization management system related to Robert Sasser. Id. St. Simons responded on February 23, 2023 identifying the Access Log Report and Audit Log Reports for Robert Sasser (attached as Exhibit B). However, St. Simons required Plaintiff to provide an updated HIPPA authorization prior to producing these documents. Id. While St. Simons subsequently supplemented its responses on March 28, 2023 (attached as Exhibit C) and produced the Access Log Report and Audit Log Report (attached as Exhibits D-E) for Robert Sasser, Defendants improperly redacted certain entries on the basis of peer review. On April 28, 2023, St. Simons produced a privilege log (attached as Exhibit F) regarding these improper redactions. Moreover, on April 19, 2023, the day before this Court’s (Judge South’s) hearing on Plaintiff’s Renewed Motion to Compel (later granted), UHSD served its Second Supplemental Responses to Plaintiff’s First Request for Production of Documents (attached as Exhibit G). As noted in UHSD’s privilege log accompanying these responses (attached as Exhibit H), UHSD improperly withheld the entirety of its supplemental production, which it believes is privileged “Patient Safety Work Product.” UHSD has since amended its privilege log on May 23, 2023 and June 2, 2023 (attached as Exhibits I–J) listing numerous additional withheld documents. 5 Plaintiff has repeatedly attempted to resolve these issues without involving the Court, as evidenced in Plaintiff’s Rule 6.4 correspondence sent to Defendants’ counsel on April 3, 2023, April 17, 2023, May 9, 2023, and July 10, 2023 (attached as Exhibits K-N). Despite these efforts, Defendants steadfastly refuse to comply with their discovery obligations, as evident in their response letters dated April 13, 2023, May 1, 2023, May 23, 2023, and July 21, 2023 (attached as Exhibits O-R). While Defendants have significantly delayed and derailed Plaintiff’s efforts with their failed HIPAA authorization crusade, this matter is now ripe for the Court’s consideration. ARGUMENT AND CITATION OF AUTHORITY I. Discovery Standard – Scope and Purpose Individuals in Georgia have a right of access to Georgia’s civil justice system, including the discovery tools expressly afforded under the Civil Practice Act. These tools place places both parties on the same footing in civil actions. While individual claimants suffer from an inherent asymmetry of information when bringing claims against large corporate entities, the broad scope of discovery provided under the Civil Practice works to create an even playing field, with the interest of justice and efficiency as its guiding principles. O.C.G.A. §§ 9-11-1; 9-11-26(b). The scope of discovery is governed by O.C.G.A. § 9-11-26(b), which provides that, unless and until limited by order of the court: Parties may obtain 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 or to the claim or defense of any other party. It is not 6 ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. O.C.G.A. § 9-11-26(b)(1) (emphasis added). Accordingly, the broad scope of discovery extends to any matter which is “relevant” to anything that is or may become an issue in the case. 1 O.C.G.A. § 9-11-26(b)(1). The baseline assumption, then, is that anything conceivably relevant is discoverable. The discovery provisions of the Civil Practice act “ensure that a party is not placed at a disadvantage simply because it does not have custody of certain evidence or because it is diligent and examines evidence early in the litigation.” Int’l Harvester Co. v. Cunningham, 245 Ga. App. 736, 739 (2000). Indeed, “[t]he goal of discovery is the fair resolution of legal disputes, to remove the potential for secrecy and hiding of material.” Resurgens, P.C. v. Elliott, 301 Ga. 589, 599 n.10 (2017) (quoting Int’l Harvester, 245 Ga. at 738); see also Chandler v. Liberty Mut. Fire Ins. Co., 333 Ga. App. 595, 598 (2015) (“The discovery procedure is to be construed liberally in favor of supplying a party with the facts.”). Accordingly, the “trial court has broad discretion to control discovery, including the imposition of sanctions,” 1What is “relevant” is to be construed broadly in the discovery context. “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. In the discovery context, courts should and ordinarily do interpret ‘relevant’ very broadly to mean matter that is relevant to anything that is or may become an issue in the litigation.” Ewing v. Ewing, 333 Ga. App. 766, 768 (2015) (emphasis added). 7 which cannot be reversed on appeal “absent the showing of a clear abuse of discretion.” Allison v. Wilson, 320 Ga. App. 629, 636 (2013). II. Defendants Improperly Redacted Portions of Robert Sasser’s Audit Trail As a healthcare provider, St. Simons is required under Federal law to develop and maintain Access Log Reports and Audit Logs Reports (collectively, the “audit trail”). See 21 C.F.R. § 11.10(e); 45 C.F.R. § 164.312(b); 45 C.F.R. § 170.210(e). Nevertheless, Defendants have redacted certain information from the patient Access Log Report and Audit Logs Report for Robert Sasser on the basis of peer review. See, e.g., below: See Exhibit D. 8 Under Georgia and Federal law, the audit trail is part and parcel of a patient’s medical records. See Ga. Comp. R. & Regs. 111-8-40-.18(3)(a)(14); see also O.C.G.A. § 31-33-1 (defining a patient’s medical records as: “…a patient's health record, including, but not limited to, evaluations, diagnoses, prognoses, laboratory reports, X-rays, prescriptions, and other technical information used in assessing the patient's condition, or the pertinent portion of the record relating to a specific condition or a summary of the record.”) (emphasis added). In prescribing the management of a patient’s medical records, Ga. Comp. R. & Regs. 111-8-40-.18(b) requires a hospital to be “administratively responsible for the management of [medical] records” and “utilize systems to verify the author(s) of entries in the patients' medical records.” Ga. Comp. R. & Regs. 111-8-40-.18(i) mandates “[m]edical records shall be secured in such a manner as to provide protection from damage or unauthorized access.” Under the provisions of HIPAA, authorized persons have “a right of access to inspect and obtain a copy of protected health information about the individual in a designated record set.” 45 C.F.R. § 164.524(a)(1) (emphasis added). Protected health information means “individually identifiable health information” that is transmitted by electronic media, maintained in electronic media, or transmitted or maintained in any other form or media. See 45 C.F.R. § 160.103. “Individually identifiable health information” is: Information that is a subset of health information…that (1) Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of 9 health care to an individual; or the past, present, or future payment for the provision of health care to an individual… 45 C.F.R. § 160.103. A “designated record set” includes (1) a health care provider’s medical and billing records, (2) a health plan’s enrollment, payment, claims adjudication, and case or medical management record systems, and (3) any information used, in whole or in part, by or for the covered entity to make decisions about individuals. A “record” is any item, collection, or grouping of information that includes PHI and is maintained, collected, used, or disseminated by or for the covered entity. See 45 C.F.R. § 164.501 (definition of “designated record set”). For purposes of this code section, the term “payment” includes “[u]tilization review activities, including precertification and preauthorization of services, concurrent and retrospective review of services.” Id. (definition of “Payment”) (emphasis added). 2 Together, the HIPAA Security Rule and the Health Information Technology for Economic and Clinical Health (“HITECH”) 3 Act provide a legal framework that requires organizations using electronic medical records (“EMRs”) to track and maintain a log of all access and changes to electronic records. The audit trail for a patient’s EHR exists as part and parcel of the patient’s complete medical record. Accordingly, both Georgia and Federal law provides a right of access to this 2 Under these expansive definitions, the subject Access Log Report and Audit Logs Report are unquestionably part of Robert Sasser’s “designated record set.” 3 In 2009, the HITECH Act was passed to promote meaningful use of health care technology. 10 information. See, e.g., 45 C.F.R. § 164.524; O.C.G.A. § 31-33-2; Ga. Comp. R. & Regs. 111-8-40-.18(e). The rationale behind the audit trail requirement is to assure that each patient’s record, and by association, each patient’s health related information, is subject to strict protection. Because the audit trail is a patient protection measure, it is available upon request. See generally, 45 C.F.R. § 164.530. Federal regulations not only require medical providers to maintain an audit trail; they also provide a right of access to this information. See 45 C.F.R. § 164.528 (providing the right to receive an accounting of disclosures of protected health information made by a covered entity in the six years prior to the date on which the accounting is requested). Even if a patient’s electronic records are accessed post-discharge, the entire log file becomes part of the patient’s EMR, and Plaintiff is entitled to the information pursuant to 45 C.F.R. § 164.528. While St. Simons has adopted an expansive interpretation of peer review, because application of the peer and medical review statutes is in derogation of Georgia’s general policy of liberal discovery of admissible evidence, it must be strictly and narrowly construed. Cobb County Kennestone Hospital Auth. v. Martin, 208 Ga. App. 326, 327 (1993). In Martin, the Georgia Court of Appeals explained: OCGA §§ 31-7-133 and 31-7-143 are designed to ensure effectiveness and competence of health organizations by providing an atmosphere for candor and constructive criticism within the organization, and can do so only by protecting professional peers' opinions and findings as to the competence or performance of members and employees. But the statute embraces the goal of encouraging medical staff candor at the cost of impairing plaintiff’s access to evidence to which the law would otherwise give him access toward discovery of 11 the truth; it is in derogation of the general liberal policy in favor of discovery and admissibility of probative evidence, and therefore should not be construed loosely or extended beyond its spirit and precisely stated limits. Hollowell v. Jove, 247 Ga. 678 (279 S.E.2d 430). To say otherwise would render health care facilities virtually immune to suit, by making privileged all factual information which the facility chooses to present or discuss at a peer review even though that information would otherwise be discoverable from its original source. Id. O.C.G.A. § 31-7-133 protects the confidentiality of the “proceedings and records of a review organization.” (emphasis added). The “absolute embargo” placed on the activities of a peer review committee extends to “proceedings, records, finding and recommendations of peer review groups and medical review committees in civil litigation.” Emory Clinic v. Houston, 258 Ga. 434, 435 (1988) (emphasis added). Its purpose is to protect “professional peers’ opinions and findings as to the competence or performance of members and employees.” Martin., 208 Ga. App. 326, 327. Audit logs/audit trails are automatically generated logs showing certain information related to electronic medical records, such as when the data was created, accessed, revised, etc. Access logs/reports provide documentation of all users who have accessed a specific patient’s medical record and/or patient information. Because audit trails are mandated by federal law, St. Simons cannot truthfully say that these audit trails were prepared at the request of any committee. Documents that must be generated as a matter of law are nothing more than ordinary business records (i.e., original source materials) that do not fall within the scope of the peer review privilege. Recording is automated and the data is objective information about accesses to the medical record, unrelated to any peer review 12 proceedings. A member of a peer review committee or medical review committee cannot magically convert a treatment record into a privileged review committee record merely by taking it into consideration. Significantly, the HITECH Act explicitly provides that audit log entries are not privileged. To illustrate, the entirety of the standards set forth in ASTM E2147- 18 are incorporated into the HITECH Act. See ASTM E2147–18, incorporated by reference pursuant to 45 C.F.R. § 170.210(h). Paragraph 4 of ASTM E2147-18 states in part: A patient has a right to know who has accessed their patient information and what occurred during such access. Access by any means (viewing or any other action) regarding the patient record and/or audit log or the data contained therein by attorneys, risk management, or similar individuals or entities are not privileged actions and must also be fully transparent and disclosed. (emphasis added). 4 Accordingly, under HITECH’s explicit provision, which is controlling under the Supremacy Clause and preemption, 5 the thought processes of peer review committee members, as reflected in what medical records they reviewed and for how long, do not fall in the category of protected peer review committee activities. While 4 https://www.astm.org/e2147-18.html 5 To the extent that any provision of Georgia law is contrary to HIPPA/HITECH and the related provisions established in the Code of Federal Regulations, HIPAA/HITECH preempts state law. See Allen v. Wright, 282 Ga. 9, 12 (2007). “Where a state statute conflicts with, or frustrates, federal law, the former must give way.” Id. State law will only avoid pre-emption by HIPAA and its standards if it is “more stringent than HIPAA requirements.” Id. In that regard, “[m]ore stringent…means laws that afford patients more control over their medical records.” Id.; see also Moreland v. Austin, 284 Ga. 730, 733 (2008). 13 this issue has not yet been addressed at the appellate level in Georgia, in June of 2021, a Special Master appointed by the Honorable Jane Morrison of the State Court of Fulton County issued a report ordering Northside Hospital to produce an unredacted audit trail after finding “that the thought processes of peer review committee members, as reflected in what medical records they reviewed and for how long, do not fall in the category of protected peer review committee activities.” Special Master Report, pp. 17-19, June 21, 2021 (citing ASTM E2147–18, incorporated by reference pursuant to 45 C.F.R. § 170.210(h)) (attached as Exhibit S). This same conclusion is further bolstered by the decisions of other courts nationwide, 6 the plain language of the peer review statute, and the narrow interpretation given it under Georgia case law. Therefore, Plaintiff requests an order requiring St. Simons to produce unredacted copies of the “Access Log Report” and “Audit Logs Report” (Exhibits D-E). III. UHSD Withheld Non-Privileged Materials UHSD is withholding the entirety of its supplemental production, which it blanketly labels as privileged “Patient Safety Work Product.” Despite claiming that 6 Courts across the country invariably hold that passing otherwise unprotected audit trails through a peer review committee does not cloak them with privilege. See, e.g., Hall v. Flannery, 3:13-CV-914-SMY-DGW, 2015 WL 2008345, at *3 (S.D. Ill. May 1, 2015) (finding audit trails are not covered by peer review privilege); Frazier v. Se. Georgia Health Sys., Inc., CV 221-021 [Doc. 122, pp. 4-5] (S.D. Ga. June 14, 2022) (citing Hall, 2015 WL 2008345); Osborne v. Billings Clinic, CV 14- 126-BLG-SPW, 2015 WL 1412626, at *4 (D. Mont. Mar. 26, 2015) (rejecting claim that audit trails were not discoverable because defendant argued they were implemented for quality improvement purposes); Peck v. Riverside Hosp., Inc., 91 Va. Cir. 537 (2014) (denying motion to quash subpoena for the production of audit trail on basis of privilege). 14 it “is not a licensed healthcare provider and does not provide healthcare services to patients and does not ‘operate’ any healthcare facilities in the state of Georgia,” UHSD asserts that a plethora of documents responsive to Plaintiff’s initial discovery requests (served well over three years ago) constitute privileged “Patient Safety Work Product” or “Peer Review” materials. This argument fails many of the withheld items (policies, processes, checklists, procedures, advisories, assessments) are not privileged materials. The Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. § 299b- 21 et seq., establishes a system for health care providers to report information about medical errors and other patient safety events to certified patient safety organizations, which analyze the information and make recommendations for improving patient safety. To encourage voluntary reporting, the Act creates a privilege protecting “patient safety work product” against disclosure in limited circumstances. 42 U.S.C. § 299b-22(a). The Act defines “patient safety work product” to include certain information “assembled or developed by a provider for reporting to a patient safety organization.” 42 U.S.C. § 299b-21(7)(A)(i)(I). But the definition specifically excludes “original patient or provider record[s],” and the Act specifies that it shall not be construed to limit “the discovery of or admissibility of [such records] in a criminal, civil, or administrative proceeding” or “a provider's recordkeeping obligation with respect to [such records] under Federal, State, or local law.” 42 U.S.C. § 299b-21(7)(B)(i) and (iii). 15 Several of the material items listed in UHSD’s privilege logs are not only clearly relevant, but also unquestionably non-privileged. For instance, the highlighted items below cannot reasonably be construed as constituting patient safety work product: April 19, 2023 Privilege Log of UHSD (Exhibit H) (emphasis added). “[O]riginal documents and information about healthcare operations may be relevant to a patient safety evaluation system but are not themselves patient safety work product.” H.R. Rep. No. 109-197, 2005 WL 1896333, *14 (2005) (attached as Exhibit T). These types of documents include, but are not limited to, “guidance on procedures” and “hospital policies.” Id. The above highlighted document, all relating to patient discharge policies, processes, and/or assessments, are highly relevant to the issue of whether Defendants prematurely discharged Sasser and are plainly discoverable. Accordingly, Plaintiff requests an order requiring UHSD to produce this information, or, in the alternative, an in-camera review to assess UHSD’s assertions of privilege. 16 IV. Ms. Gann is Entitled to Fees and Expenses Under Georgia law, the successful proponent of a motion to compel is entitled to recover the fees and expenses incurred in bringing the motion from the party whose conduct necessitated bringing the motion. O.C.G.A. § 9-11-37(a)(4); see also Allison v. Wilson, 361, 320 Ga. App. 629, 637 (2013) (“[W]ithout question, OCGA § 9–11–37(a)(4)(A) allows the successful proponent of a motion to compel to recover fees and expenses incurred in bringing the motion, and this award may be made against the party whose conduct necessitated bringing the motion, the party's attorney or both.”). Thus far, the Court has already granted two motions to compel and ordered Defendants to pay $8,000.00 in reasonable attorney’s fees and expenses for “fail[ing] to supply discovery responses in a timely manner.” October 25, 2022 Order. The situation is no different. Accordingly, Defendants should be held accountable for their discovery abuses, with relief including, at a minimum, awarding Mr. Gann the fees and costs incurred in bringing this motion. V. CONCLUSION WHEREFORE, Plaintiff respectfully moves this Court for an Order compelling Defendants to (1) produce complete, unredacted copies of the patient Access Log Report and Audit Logs Report for Robert Sasser, and (2) produce certain withheld documents and/or perform an in-camera review to assess UHSD’s assertions of privilege, with relief including, at a minimum, awarding Ms. Gann the fees and costs incurred in bringing this motion. Respectfully submitted this 2nd day of January, 2024. 17 PENN LAW LLC /s/ Darren W. Penn DARREN W. PENN Georgia Bar No. 571322 KEVIN M. KETNER Georgia Bar No. 418233 4200 Northside Parkway, NW Building One, Suite 100 Atlanta, Georgia 30327 Phone/Fax: (404) 961-7655 darren@pennlawgroup.com kevin@pennlawgroup.com CO-COUNSEL NATHAN T. WILLIAMS Georgia Bar No. 142417 nathan@williamslg.com WRIX McILVAINE Georgia Bar No. 436879 wrix@williamslg.com WILLIAMS LITIGATION GROUP, P.C. Post Office Box 279 Brunswick, Georgia 31521-0279 (912) 208-3721 (912) 264-6299 facsimile Attorneys for Plaintiff 18 CERTIFICATE OF GOOD FAITH CONFERENCE This is to certify, pursuant to Uniform Superior Court Rule, 6.4, that counsel for Plaintiff has in good faith conferred with counsel for Defendants to resolve the disputes raised in the foregoing Motion to Compel, and that such efforts to resolve these disputes by agreement have been unsuccessful. This 2nd day of January, 2024. PENN LAW LLC /s/ Darren W. Penn ____________________________ DARREN W. PENN Georgia Bar No. 571322 darren@pennlawgroup.com 19 CERTIFICATE OF SERVICE This is to certify that I have this day served a true and correct copy of the foregoing PLAINTIFF’S MOTION TO COMPEL upon all counsel of record by electronic filing via Odyssey Efile GA or by placing same in the United States Mail, postage prepaid addressed to: Charles A. Dorminy, Esq. Michael “Chas” White, Esq. HALL BOOTH SMITH, P.C. 3528 Darien Highway Suite 300 Brunswick, Georgia 31525 cdorminy@hallboothsmith.com mwhitehead@hallbothsmith.com Attorneys for Defendants Universal Health Services, Inc., UHS of Delaware, Inc., HHC St. Simons, Inc. d/b/a Saint Simons by the Sea Lori G. Cohen, Esq. Brandon D. Cox, Esq. Michael J. King Esq. Greenberg Traurig, LLP Terminus 200 3333 Piedmont Road, Suite 2500 Atlanta, Georgia 30305 Cohenl@gtlaw.com coxb@glaw.com kingm@gtlaw.com Attorney for Defendants Universal Health Services, Inc., UHS of Delaware, Inc., and HHC St. Simons, Inc. d/b/a Saint Simons by the Sea Gregory T. Talley Kayla H. Barnes COLEMAN TALLEY LLP 109 S. Ashley Street Valdosta, GA 31601 greg.talley@colemantalley.com kayla.barnes@colemantalley.com Attorneys for Defendant Michael Swaney, M.D. 20 This 2nd day of January, 2024. PENN LAW LLC /s/ Darren W. Penn DARREN W. PENN Georgia Bar No. 571322 4200 Northside Parkway, N.W. Building One, Suite 100 Atlanta, Georgia 30327 darren@pennlawgroup.com 21 IN THE STATE COURT OF GLYNN COUNTY STATE OF GEORGIA DEBRA E. GANN, Individually and on Behalf ) of R.S. a Minor Child and as Administrator of ) the Estate of KATIE KETTLES SASSER ) ) Plaintiff, ) Civil Action File No.: ) 20-C-03806-S5 v. ) ) UNIVERSAL HEALTH SERVICES, INC., ) UHS OF DELAWARE, INC., and HHC, ST. ) SIMONS, INC. d/b/a SAINT SIMONS BY ) THE SEA, DR. MICHAEL SWANEY, M.D., ) ) Defendants. ) PLAINTIFF’S SECOND REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT HHC, ST. SIMONS, INC. d/b/a SAINT SIMONS BY THE SEA Plaintiff hereby serve these Requests for the Production of Documents to Defendant HHC, St. Simons, Inc. d/b/a Saint Simons By The Sea. (“HHC”), and request that they produce at the law offices of Penn Law, 4200 Northside Parkway, Suite 100, Building 100, Atlanta, GA 30327 the documents and things described below that are in the possession, custody, and control of each Defendant, its employees or subordinates, agents, and/or attorneys, pursuant to O.C.G.A. § 9-11-26 et seq., and O.C.G.A. § 24-10-26 et seq. To Whom These Requests Are Directed Each request is addressed to the personal knowledge of the Defendant, as well as to the knowledge and information of Defendant’s attorneys, investigators, agents, employees, and other representatives. When a question is directed to Defendant, the question is also directed to each of the aforementioned persons. Pl. EXHIBIT A 1 Continuing Duty to Supplement These requests shall be deemed continuing and you are required to supplement or amend any prior response if the person or entity to whom these requests are addressed ascertains any change, different or added fact, condition or circumstances, or that there be any other witness(es) or evidence. DEFINITIONS “You” or “Your” means the Defendant HHC or its respective agents, servants or employees acting on its behalf as well as any independent contractor, attorney, claims adjuster or investigator acting on behalf of the Defendant’s insurer. This definition includes HHC and every department, division, office, agency or affiliate thereof. These words or phrases include any successor or predecessor firms or corporations, any parent corporations and holding companies with which the Defendant is associated, any subsidiaries and/or other companies that are owned, in whole or in part, by this Defendant, whether foreign or domestic. Finally, these words and phrases specifically include present and former officers, directors, agents, employees and any and all other persons, firms or corporations, acting or purporting to act on behalf of “you,” or “your company.” 1. The terms “identify” or “identity” as used herein mean, with reference to a natural “person”, to state his or her full name, the last known home address (or where not known, the last known business address), together with the name and last known address of his or her employer and job capacity, position or classification. With respect to any entity which is not a natural “person”, state the entity’s correct legal name, last known address and phone number, state the nature of such entity (e.g. corporation, general partnership, etc.), and if you have any business relationship with such entity – either direct or indirect – state the nature of such relationship. 2 2. The term “Documents” means all writings and other printed matter of every kind, including, but not limited to, books, records, manuals, statements, minutes, letters, correspondence, memorandum reports, lists, studies, surveys, directives, agreements, contracts, print-outs, telegrams, teletype, telexes, telefax, pamphlets, notes, messages, bulletins, e-mail, diary and calendar entries, maps, charts, brochures, graphics, tabulations, press releases, address books, ledgers, invoices, bills, work sheets, trip reports, receipts, returns, prospectuses, financial statements, tax returns, schedules, affidavits, applications, resumes, cancelled checks, check books, check stubs, check ledgers, transcripts, statistics, magazine or newspaper articles or advertisements, releases, test reports and records of meetings, conferences, telephone conversations or other conversations or communication (including any and all drafts, alterations, modifications, changes and amendments of any of the foregoing) in the possession, custody or control of the Defendant responding to this discovery. The term “document” or documents” shall also including non-printed matter such as voice records and reproductions, film impressions, photographs, negatives, slides, microfilms, microfiches, e-mail, and other things that document or record ideas, words or impressions. The term “document” or “documents” further includes all punch cards, tapes, disks, or records used in electronic data processing, together with the programming instructions and other written materials necessary to understand or use such punch cards, tapes, disks or other recordings, and further includes data or data compilation in electronic or other form that can be printed through proper programming or decoding of the electronic or mechanical data storage facility. 3. The phrase “identify all documents” or the phrase “describe all documents” as used herein means to state: 3 (a) the nature of the documents (i.e., memoranda, letters, photographs, tape recordings, or other); (b) the full name, last known address and, where applicable, the job classification and employer of whosoever prepared the document; (c) where applicable (as for example in the case of a letter), the name and address of the individual and/or firm to whom the document is addressed or was sent; (d) the name and address of whosoever presently has possession, custody or control of the documents. REQUESTS FOR PRODUCTION Defendant is requested to produce true, accurate, and complete copies of the following: UTILIZATION MANAGEMENT 1. All policies, procedures, and protocols related to HHC’s utilization management plan, including, but not limited to: a. Admission reviews; b. Discharge planning reviews; c. Continued stay reviews; and d. Extended stay reviews. 2. The complete utilization review file for Robert Sasser. 3. All documents and correspondence related to the utilization management review process for Robert Sasser, including, but not limited to, any: a. Admission review; b. Discharge planning review; 4 c. Continued stay review; and/or d. Extended stay review. 4. All documents contained in HHC’s automated utilization management system related to Robert Sasser. Respectfully submitted this 23rd day of January, 2023. PENN LAW LLC /s/ Darren W. Penn DARREN W. PENN Georgia Bar No. 571322 darren@pennlawgroup.com ALEXANDRA “SACHI” COLE Georgia Bar No. 696892 sachi@pennlawgroup.com KEVIN M. KETNER Georgia Bar No. 418233 kevin@pennlawgroup.com 4200 Northside Parkway, NW Building One, Suite 100 Atlanta, Georgia 30327 Phone/Fax: (404) 961-7655 CO-COUNSEL NATHAN T. WILLIAMS Georgia Bar No. 142417 WRIX McILVAINE Georgia Bar No. 436879 WILLIAMS LITIGATION GROUP, P.C. Post Office Box 279 Brunswick, Georgia 31521-0279 (912) 208-3721 (912) 264-6299 facsimile Attorneys for Plaintiff 5 CERTIFICATE OF SERVICE This is to certify that I have this 23rd day of January, 2023 served a true and correct copy of the within and foregoing PLAINTIFF’S SECOND REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT HHC, ST. SIMONS, INC. d/b/a SAINT SIMONS BY THE SEA upon all counsel of record by electronic filing via Odyssey Efile GA or by placing same in the United States Mail, postage prepaid addressed to: John E. Hall, Jr. Esq. Jacquelyn Smith Clarke, Esq. Samuel S. Sykes, III, Esq. HALL BOOTH SMITH, P.C. 191 Peachtree Street, NE Suite 2900 Atlanta, GA 30303 jhall@hallboothsmith.com jclarke@hallboothsmith.com ssykes@hallboothsmith.com Charles A. Dorminy, Esq. Michael “Chas” Whitehead, Esq. HALL BOOTH SMITH, P.C. 3528 Darien Highway Suite 300 Brunswick, Georgia 31525 cdorminy@hallboothsmith.com mwhitehead@hallboothsmith.com Attorneys for Defendants Universal Health Services, Inc., UHS of Delaware, Inc., HHC St. Simons, Inc. d/b/a Saint Simons by the Sea Lori G. Cohen, Esq. Brandon D. Cox, Esq. Michael J. King, Esq, Greenberg Traurig, LLP Terminus 200 3333 Piedmont Road, Suite 2500 Atlanta, Georgia 30305 Cohenl@gtlaw.com coxb@glaw.com kingm@gtlaw.com Attorney for Defendants Universal Health Services, Inc., UHS of Delaware, Inc., and HHC St. Simons, Inc. d/b/a Saint Simons by the Sea 6 7 Gregory T. Talley, Esq. Kayla H. Barnes, Esq. Michael J. King, Esq. COLEMAN TALLEY LLP 109 S. Ashley Street Valdosta, GA 31601 greg.talley@colemantalley.com kayla.barnes@colemantalley.com Attorneys for Defendant Michael Swaney, M.D. This 23rd day of January, 2023. /s/ Darren W. Penn DARREN W. PENN Georgia Bar No. 571322 ALEXANDRA “SACHI” COLE Georgia Bar No. 696892 KEVIN M. KETNER Georgia Bar No. 418233 PENN LAW LLC 4200 Northside Parkway, NW Building One, Suite 100 Atlanta, Georgia 30327 Phone/Fax: (404) 961-7655 darren@pennlawgroup.com sachi@pennlawgroup.com kevin@pennlawgroup.com NATHAN T. WILLIAMS Georgia Bar No. 142417 WRIX MCILVAINE Georgia Bar No. 436879 WILLIAMS LITIGATION GROUP, P.C. Attorneys for Plaintiff Post Office Box 279 Brunswick, Georgia 31521-0279 (912) 208-3721 (912) 264-6299 facsimile nathan@williamslg.com wrix@williamslg.com 8 IN THE STATE COURT OF GWINNETT COUNTY STATE OF GEORGIA DEBRA E. GANN, Individually and on Behalf of R. S. a Minor Child and as Administrator of the Estate of KATIE KETTLES SASSER, Plaintiff, v. CIVIL ACTION NUMBER: UNIVERSAL HEALTH SERVICES, INC., 20-C-03806-S5 UHS OF DELAWARE, INC., HHC ST. SIMONS, INC. d/b/a SAINT SIMONS BY THE SEA, and DR. MICHAEL SWANEY, M.D., Defendants. DEFENDANT HHC ST. SIMONS, INC. d/b/a ST. SIMONS BY THE SEA'S RESPONSES TO PLAINTIFF'S SECOND REQUESTS FOR PRODUCTION OF DOCUMENTS HHC ST. SIMONS, INC. d/b/a ST. SIMONS BY THE SEA, a Defendant in the above- styled action, responds to Plaintiff's second requests for production of documents under O.C.G.A. §§ 9-11-26 and 9-11-34 as follows: GENERAL OBJECTIONS 1. These responses, while based on diligent exploration by this Defendant, reflect only the current state of this Defendant’s knowledge, understanding and belief with respect to the matters addressed. These responses are neither intended, nor shall they in any way be deemed, as admissions or representations that further information or documents do not exist. Without any way obligating itself to do so, this Defendant reserves the right to modify or supplement its responses with such pertinent information as may be subsequently discovered. Furthermore, these responses are given without prejudice to this Defendant’s right to use or rely on at any time, including trial, Pl. EXHIBIT B subsequently discovered information or documents, or information or documents omitted from these responses as a result of, among other things, mistake, error, oversight or inadvertence. 2. This Defendant objects to each and every request to the extent the request seeks to discover any attorney-client communication and information concerning analysis and evaluations of this case and related matters involving legal counsel. To the extent any request may be construed as calling for disclosure of information protected by any such privilege or doctrine, a continuing objection to each and every request is hereby interposed. 3. The information supplied in these responses is not based solely on the knowledge of this Defendant, but includes knowledge of this Defendant, its agents, representatives and attorneys, unless privileged. 4. The word usage and sentence structure may be that of the attorneys assisting in the preparation of the responses and does not purport to be the precise language of the executing party. 5. This Defendant objects to the instructions and definitions contained in the Interrogatories to the extent that Plaintiff seeks to impose obligations not required by the Georgia Civil Practice Act. 6. The continuing objections set forth above are hereby incorporated in the responses as set forth in full. REQUESTS FOR PRODUCTION OF DOCUMENTS UTILIZATION MANAGEMENT 1. All policies, procedures, and protocols related to HHC’s utilization management plan, including, but not limited to: a. Admission reviews; b. Discharge planning reviews; c. Continued stay reviews; and d. Extended stay reviews. RESPONSE: Defendant objects to Request No. 1 on the grounds that is overly broad and unlimited in time. Subject to and without waiving these objections, Defendant refers Plaintiff to the attached Utilization Management Plan Policy (Bates Numbers SSBTS 000001-000006). 2. The complete utilization review file for Robert Sasser. RESPONSE: Defendant objects to Request No. 2 on the grounds that it is vague and ambiguous, seeks confidential information regarding the credentialing of this Defendant, and impermissibly seeks information that is privileged from discovery under Georgia law based on Peer Review and/or Quality Assurance privileges. This Defendant further objects to this Request on the grounds that it requests information that is privileged from discovery under the Patient Safety and Quality Improvement Act. Finally, Defendant objects to this request as it requests information