ORDERS:
ORDER ON MOTION TO QUASH SUBPOENA
I. Introduction
The South Carolina Department of Labor, Licensing and Regulation, State Board of Medical
Examiners (Board) issued a subpoena to Conway Hospital, Inc. (Conway). Conway filed a Motion
to Quash Subpoena on the grounds the subpoena was overbroad and ambiguous and that some of the
requested information was not disclosable due to the material being privileged and protected from
disclosure. A hearing to decide the matter was held on February 5, 1998.
II. Analysis
A. Overbroad
A subpoena that seeks records not relevant to the inquiry at hand is overbroad. See Heritage House
of Glamour, Inc. v. Atty. Gen. of State, 534 NE2d 648(1st Dist. 1989) (since the administrative
subpoena under Consumer Fraud and Deceptive Business Practices Act sought information relevant
to a determination of unfair or deceptive acts or practices, the subpoena was not overbroad).
Similarly, by statute the Board may obtain only those documents which the Board finds relevant to
the inquiry. See S.C. Code Ann. § 40-47-210 (Supp 1997) (documents subject to subpoena are those
documents deemed relevant to the inquiry by the board). Thus, once a party presents a substantiated
basis for a Board's subpoena as being overbroad, the Board must demonstrate the relevancy of the
documents demanded. In certain particulars, the subpoena served by the Board is overbroad.
1. Lack of Time Period
The overbroadness is evidenced by the lack of any time period to which the documents must relate.
In order to comply as written, Conway would have to provide records for all years for which it has
any document remotely related to the doctor. In the absence of any explanation justifying a search
of Conway's records for all time periods, no such search can be required. Rather, based upon the
presentation made by the Board, a limited period of time will meet the Board's objective for its
inquiry. Under the facts of this case, a production of records for the past six years is required.
2. Lack of Specifying What Documents Are Relevant
Given the conclusion that a subpoena seeking documents irrelevant to the inquiry at hand is an
overbroad subpoena, the party faced with an unlimited demand for "any and all records for
[anonymous physician] . . . generated or obtained by the facility" including production of "notes,
memos, letters and any and all documents . . ." is entitled to challenge the subpoena as overbroad.
Here, after presentations by Conway and the Board, the scope of the inquiry has now been made
clear to Conway. Given such insight, Conway should now be able to comply with the subpoena to
produce documents relevant to the inquiry from the Board.
Accordingly, the subpoena is quashed as to that part that seeks the broad based demand of "any and
all records for [anonymous physician] . . . generated or obtained by the facility." Further, the
subpoena is quashed to the extent it demands the undefined production of "notes, memos, letters and
any and all documents . . ." However, the subpoena is not quashed in any other particular. Further,
given the presentations by Conway and the Board, Conway shall produce (for the six years under
review) all correspondence to and from Conway and the physician, and all correspondence to and
from the Conway Quality Assurance Committee and the physician.
B. Privileged Information
Conway asserts it cannot disclose the credentialing files. It argues the information in those files are
acquired by a committee identified in S.C. Code Ann. § 40-71-10 and that such data is made free
from "discovery, subpoena, or introduction into evidence in any civil action except upon appeal from
the committee action." S.C. Code Ann. § 40-71-20 (Supp. 1997). The statute at a minimum provides
protection from disclosure from discovery in a civil action such as a medical malpractice suit.
McGee v. Bruce Hosp. Sys., 312 S.C. 58, 439 S.E.2d 257 (1993). However, when considered in
light of the authority and purpose of the Board, the credentialing files are subject to disclosure to the
Board for purposes of investigation.
First, S.C. Code Ann § 40-47-210 (Supp. 1997) allows the Board to obtain "any documents or
records which the Board deems relevant to the inquiry." Such broad language is an affirmative grant
of authority for the Board to obtain all records "relevant to the inquiry" which includes credentialing
files. Second, the Board is charged with the duty of discipling physicians who violate applicable
standards governing doctors. S. C. Code Ann. § 40-47-200 (Revised 1986). To deny records to the
Board under § 40-71-20 (Supp. 1997) is the antithesis of the function sought to be performed by the
Board since the Board seeks the information to carry out its duty to protect the public from improper
physician practices. Finally, the documents received by the Board retain their confidential status
since all material received by the Board in an investigation is protected from disclosure. S.C. Code
Ann. § 4047-212 (Revised 1986).
Accordingly, the Motion to Quash is granted in part and denied in part as expressed above.
AND IT IS SO ORDERED.
RAY N. STEVENS
Administrative Law Judge
Edgar A. Brown Building
1205 Pendleton Street
Columbia, South Carolina 29201
This 9th day of February, 1998
Columbia, South Carolina |
