Louise Frederick Wife of/and Steven Frederick Versus St. Charles Surgical Hospital, LLC

LOUISE FREDERICK, ET AL NO. 24-C-526 C/W
24-C-528
VERSUS
FIFTH CIRCUIT
ST. CHARLES SURGICAL HOSPITAL, LLC,
ET AL COURT OF APPEAL

C/W STATE OF LOUISIANA

LOUISE FREDERICK WIFE OF/AND STEVEN
FREDERICK

VERSUS

ST. CHARLES SURGICAL HOSPITAL, LLC,
ET AL

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 807-181, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

December 23, 2024

JOHN J. MOLAISON, JR.
JUDGE

Panel composed of Judges Jude G. Gravois,
John J. Molaison, Jr., and Timothy S. Marcel

WRIT GRANTED IN PART
JJM
JGG
TSM

COUNSEL FOR DEFENDANT/RELATOR,
THE AMERICAN BOARD OF ORTHOPAEDIC SURGERY
Melissa M. Lessell
Casey B. Wendling

COUNSEL FOR DEFENDANT/RELATOR,
ALEXIS WAGUESPACK, MD
Bryan J. Knight
Mark E. Kaufman

COUNSEL FOR PLAINTIFF/RESPONDENT,
STEVEN FREDERICK AND LOUISE FREDERICK
Thomas C. Wicker, IV
Vincent E. Odom
T. Carey Wicker, III
Michael S. Sepcich
Davida F. Packer

MOLAISON, J.

The American Board of Orthopaedic Surgery (“ABOS”) and Alexis

Waguespack, M.D., seek a review of the October 7, 2024 trial court judgment that

ordered ABOS to produce all documents listed in ABOS’ “privilege log” to the

plaintiffs. We grant this writ application in part for the following reasons.

PROCEDURAL HISTORY

This writ stems from a suit filed by the plaintiffs against Dr. Waguespack, a

board-certified orthopaedic surgeon, alleging that Dr. Waguespack committed

medical malpractice in her treatment of Mr. Frederick. The plaintiffs issued a

subpoena duces tecum to ABOS, which is not a party to the lawsuit, requesting its

file on Dr. Waguespack. ABOS and Dr. Waguespack filed motions for protective

orders in response to the subpoena. After an in-camera inspection, the trial judge

ordered the production of the ABOS file, except for the ABOS “Diplomate

Database notes.” These timely writ applications followed. 1

LAW AND DISCUSSION

According to the writ applications, ABOS is an organization established to

maintain standards for the competence and education of board-certified

orthopaedic surgeons. As part of the board certification process, ABOS reviews the

credentials and practices of voluntary candidates for board certification and issues

certificates to physicians who meet the criteria established by ABOS. ABOS

explains that to assess a physician’s competence, it utilizes a peer-review process.

As part of this process, an orthopaedic surgeon seeking certification or

recertification must produce a list of names and email addresses of practice

partners, hospital chiefs of various departments, and other orthopaedic surgeons

familiar with the applicant’s practice. ABOS emails a peer-review survey to each

1
Dr. Waguespack’s writ application seeking review of the October 7, 2024 judgment is consolidated with
the instant writ application.

24-C-526 C/W 24-C-528 1

of those listed, asking for feedback regarding the surgeon’s patient-care skills,

surgical skills, behavior, and communication. This process includes secondary

screenings and confidential interviews. The ABOS Credentials Committee

receives this information. ABOS requires the applicants to sign an agreement

stating that they will never request to see these surveys.

On June 27, 2024, the plaintiffs served a notice of records deposition on

ABOS, requesting:

1. Any and all documentation, electronically stored or otherwise, or
correspondence and attachments thereto between the American Board
of Orthopaedic Surgery and Alexis Waguespack, M.D., for the dates
of January 1, 2014 until the present.

2. Any and all documentation, electronically stored or otherwise, in
connection with Alexis Waguespack, M.D.’s board certification status
with the American Board of Orthopaedic Surgery.

3. Any and all documentation, electronically stored or otherwise,
pertaining to the certification and/or recertification of Alexis
Waguespack, M.D.

In this writ application, the relators argue that the documents requested by

the plaintiffs are protected by Louisiana R.S. 13:3715.3, which provides in section

(A)(2):

... all records, notes, data, studies, analyses, exhibits, and proceedings
of [ a ]ny hospital committee, the peer review committees of any
medical organization, ... group medical practice of twenty or more
physicians, ... or healthcare provider as defined in R.S. 40: 1299.41
(A), ... including but not limited to the credentials committee, the
medical staff executive committee, the risk management committee,
or the quality assurance committee, any committee determining a root
cause analysis of a sentinel event, established by the peer review
committees of a medical organization ... , shall be confidential
wherever located and shall be used by such committee and the
members thereof only in the exercise of the proper functions of the
committee and shall not be available for discovery or court subpoena
regardless of where located, except in any proceedings affecting the
hospital staff privileges of a physician, dentist, psychologist, or
podiatrist, the records forming the basis of any decision adverse to the
physician, dentist, psychologist, or podiatrist may be obtained by the
physician, dentist, psychologist, or podiatrist only.

24-C-526 C/W 24-C-528 2

The Louisiana Supreme Court has recognized that R.S. 13:3715.3 does not provide

a blanket privilege to all peer review committee documents, explaining we must

balance the protection under the statute with the broad scope of discovery under

La. C.C.P. art. 1422. In Smith v. Lincoln Gen. Hosp., 605 So.2d 1347, 1348 (La.

1992), the Louisiana Supreme Court addressed the scope of the privilege created

by La. R.S. 13:3715.3, stating the legislature intended to provide confidentiality to

the records and proceedings of hospital committees, not to insulate from discovery

specific facts merely because they have come under the review of any particular

committee. The Court held that privileges, which are in derogation of such broad

discovery rules, are to be strictly interpreted, noting that the statute’s intent is “not

to insulate from discovery certain facts merely because they have come under the

review of any particular committee.” Id. The Court has continued to instruct that

courts should not interpret R.S. 13:3715.3 too broadly and has remanded matters

for an in-camera inspection to determine whether or not the privilege created by

the statute protects each item of information sought from the medical defendant.

See, Sepulvado v. Bauman, 99-3326 (La. 12/17/99), 753 So. 2d 207, and

Gauthreaux v. Frank, 95-1033 (La. 6/16/95), 656 So. 2d 634, 634.

In Gauthreaux, the Court stated, “[i]n the present case, the trial court

interpreted R.S.13:3715.3 as protecting from discovery any information passing

before a hospital committee or otherwise discussed in a committee meeting. Such a

reading of the peer review committee privilege is clearly too expansive in light of

our decision in Smith ...” and instructed the trial court to re-examine, in-camera, if

necessary, the discovery requests made by the plaintiff to determine whether or not

the privilege created by the statute protects each item of information sought from

the medical center defendant. The Court repeated these instructions in Sepulvado,

where the Court, citing Smith, remanded the case to the trial court with instructions

to conduct an in-camera inspection of all materials requested by the plaintiffs,

24-C-526 C/W 24-C-528 3

which the defendants claimed are protected under the statutory privilege. We

construe immunity statutes strictly against the party claiming immunity, and we

construe any doubts against the application of immunity based on a specific set of

facts. Tebault v. E. Jefferson Gen. Hosp., 18-539 (La. App. 5 Cir. 3/25/19), writ

denied, 19-0641 (La. 6/17/19), 273 So.3d 1211.

In Fields v. Ochsner Med. Ctr., Kenner, LLC, 22-64 (La. App. 5 Cir.

5/11/22), this Court ordered an in-camera review to ensure the appropriate

application of the privilege claim for each claim.

In the case before us, the trial court performed an in-camera inspection and

found that none of the documents, except the “ABOS Diplomate Database Notes,

are protected by the peer-review privilege provided by La. R.S. 13:37 15.3.” A

trial court’s ruling regarding applying a statutory privilege after an in-camera

inspection involves a question of law and is subject to de novo review. Talley v.

Louisiana Dept. of Transportation and Development, 22-983 (La. App. 1 Cir.

2/24/23), 361 So.3d 1041, 1050, writ denied, 23-557 (La. 6/7/23), 361 So.3d 976.

We will review the trial court’s October 7, 2024 judgment de novo.

ABOS filed the documents at issue in this Court under seal along with their

writ application. Our review of these documents indicates that some of these

documents are protected by La. R.S. 13:3715.3 because they are internal

documents produced and maintained by ABOS in connection with its peer review

process regarding Dr. Waguespack’s board certification and recertification process.

These documents, page numbers 8-21, 29-35, 42, 50-58, are protected because they

consist of “... records, notes, data, studies, analyses, exhibits, and proceedings” of

the peer review process under the language of R.S. 13:3715.3. These records

regarding Dr. Waguespack relate to the ABOS peer review committee’s analysis

and conclusions regarding her certification. Because these requested documents are

24-C-526 C/W 24-C-528 4

privileged, they are protected from disclosure and are not discoverable by the

plaintiffs in this litigation.

However, certain documents in the sealed documents are not privileged

because they merely contain factual information that is discoverable. These include

Dr. Waguespack’s applications for board certification, numbered pages 1-7, 38-41,

and 46-49.2 In addition, the letters sent to Dr. Waguespack from ABOS, pages 22,

28, 36, 37, 43-45, and 59-62, are not privileged because ABOS waived any

privilege that protected these letters from discovery when mailing the letters to Dr.

Waguespack; under her agreement with ABOS and Louisiana R.S. 13:3715.3, Dr.

Waguespack is not entitled to any information or data obtained by ABOS. As such,

these letters merely contain factual information which is discoverable.

CONCLUSION

For the preceding reasons, we grant this writ application in part and amend

the trial court’s October 7, 2024 judgment to exclude pages 8-21, 29-35, 42, 50-58

of the documents filed under seal in this Court from discovery.

WRIT GRANTED IN PART

2
In response to questions from the panel during oral argument before this Court, counsel for ABOS
conceded that Dr. Waguespack’s applications for board certification are not protected under La. R.S.
13:3715.3.

24-C-526 C/W 24-C-528 5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 23, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-C-526
C/W 24-C-528
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
MELISSA M. LESSELL (RELATOR) MARK E. KAUFMAN (RESPONDENT) MICHAEL S. SEPCICH (RESPONDENT)
T. CAREY WICKER, III (RESPONDENT) THOMAS C. WICKER, IV (RESPONDENT) VINCENT E. ODOM (RESPONDENT)

MAILED
SEAN M. CASEY (RESPONDENT) DAVIDA F. PACKER (RESPONDENT) BRYAN J. KNIGHT (RESPONDENT)
ATTORNEY AT LAW ATTORNEY AT LAW ATTORNEY AT LAW
1 SANCTUARY BOUELVARD 1100 POYDRAS STREET 201 ST. CHARLES AVENUE
SUITE 202 SUITE 2950 SUITE 3700
MANDEVILLE, LA 70471 NEW ORLEANS, LA 70163 NEW ORLEANS, LA 70170

CASEY B. WENDLING (RELATOR)
ATTORNEY AT LAW
755 MAGAZINE STREET
NEW ORLEANS, LA 70130