Potential Advantage to Competitors Alone Will Not Satisfy "Good Cause" for a Protective Order

December 13, 2023 | Strategic Insights for Health System

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When a hospital did not have on-call cardiothoracic physician coverage for emergencies, it went on divert status. The divert procedure was implemented and communicated to the emergency department (ED) staff. An ambulance contacted the hospital on its way to deliver a patient that had a cardiac catheterization emergency. By mistake, a nurse told the ambulance to bring the patient to the hospital. Once the nurse realized their mistake, they attempted to contact the ambulance to divert it, but the ambulance arrived at the ED before the message was received. The nurse met the ambulance outside the ED and directed the ambulance to take the patient to another hospital; this happened without assessment or stabilization. The patient was transported elsewhere and survived a five-vessel coronary artery bypass. The plaintiff sued the hospital for negligence, negligence per se,and violations of the Emergency Medical Treatment and Labor Act (EMTALA).

During the course of the litigation, the defendant hospital entered into a private protective agreement with the plaintiff wherein the hospital produced documents it considered confidential with the understanding that the plaintiff would maintain their confidentiality unless and until he filed a notice of intent to challenge the categorization; ultimately, the plaintiff filed a notice to remove 25 documents from under the protective agreement. These documents included "policies and procedures, nurse training documents, job descriptions, physician schedules and employee lists." In response, the defendant filed a motion for a protective order. In deciding on the motion, the court conducted an in camera review of the documents at...

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