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Azore, LLC v. Bassett

Court of Appeals of Arizona, First Division

December 18, 2014

AZORE, LLC, an Oregon limited liability company doing business as SUNWEST CHOICE HEALTHCARE AND REHAB; PINNACLE HEALTHCARE MANAGEMENT, INC., an Oregon corporation; PINNACLE HEALTHCARE INC., an Oregon corporation; PINNACLE HEALTHCARE II, INC., an Oregon corporation; TERRY GRANGER, ADMINISTRATOR; and DOES 1-250, Petitioners,
v.
THE HONORABLE EDWARD BASSETT, Judge of the Maricopa County Superior Court, Respondent Judge, MARTHA YOUNG, Personal Representative of the Estate of GEORGE YOUNG, deceased, on behalf of the ESTATE OF GEORGE YOUNG, and MARTHA YOUNG, personal representative for and on behalf of GEORGE YOUNG'S statutory beneficiaries pursuant to A.R.S. § 12-612(A), Real Parties in Interest

Petition for Special Action from the Superior Court in Maricopa County. No. PB2013-051356. The Honorable Edward Bassett, Judge.

Page 467

The Checkett Law Firm, PLLC, Scottsdale, By John J. Checkett, Paul J. Sheston, Broening Oberg Woods & Wilson, Phoenix, By Kevin R. Myer, Co-Counsel for Petitioners.

Wilkes & McHugh, PA, Phoenix, By Melanie L. Bossie, Frederick A. Rispoli, Counsel for Real Party in Interest.

Judge Randall M. Howe delivered the opinion of the Court, in which Presiding Judge Patricia A. Orozco and Judge Maurice Portley joined.

OPINION

Page 468

[236 Ariz. 426] HOWE., Judge:

[¶1] Azore, LLC, an Oregon company, doing business as Sunwest Choice Healthcare and Rehab; Pinnacle Healthcare Management, Inc., an Oregon corporation; Pinnacle Healthcare II, an Oregon corporation; Terry Granger, administrator; and John Does 1 through 250 (collectively " Sunwest" ) challenge the trial court's order compelling production of emails, a consultant report, and incident tracking logs associated with its quality assurance committee. Sunwest argues that the documents are privileged under the Federal Nursing Home Reform Amendments (the " Act" ), 42 U.S.C. § 1396r.

[¶2] After considering the petition for special action, we accepted jurisdiction because Sunwest had no equally plain, speedy, or adequate remedy by appeal, Ariz. R.P. Spec. Act. 1(a), and the issue raised was a purely legal question, one of first impression, and of statewide importance. See State v. Bernini, 230 Ariz. 223, 225 ¶ 5, 282 P.3d 424, 426 (App. 2012). Moreover, special action review was appropriate because Sunwest was ordered to disclose what it believed was privileged information. See Johnson v. O'Connor ex rel. Cnty. of Maricopa, 235 Ariz. 85, 89 ¶ 14, 327 P.3d 218, 222 (App. 2014). We have granted partial relief and ordered disclosure of the emails and the consultant report because they are not protected by the Act, but not disclosure of the incident tracking logs because they are protected by the Act. Our order indicated that an opinion would follow; this is that opinion.

FACTS AND PROCEDURAL HISTORY

[¶3] George Young was a 75-year-old gentleman residing at Sunwest's nursing facility. In September 2011, he fell while at the facility and died several weeks later. Martha Young, his widow and estate's personal representative, brought claims for wrongful death and violation of the Adult Protective Services Act, A.R.S. § 46-455.

[¶4] In September 2014, Young moved to compel production of emails, a consultant report, and incident tracking logs from Sunwest. Specifically, she sought: (1) an email between Sunwest employees Phil Friedlan and Terry Granger, copied to another employee Sharon Beal; (2) an email string between Sunwest employees Stan Magleby and Brian Hart, forwarded to other employees Phil Friedlan, Roger Friedlan, and Terry Granger; (3) a consultant report titled, " Crandall Corporate Dietitians' Quarterly Quality Assurance Report for Long-Term Care" ; and (4) incident tracking logs listing incidents at the facility during September 2011, as well as accompanying bar graphs illustrating incidents by day of the week, shift, type, location, severity, and nursing facility unit; and a pie chart illustrating the time and nursing facility unit of each fall at the facility.

[¶5] Sunwest responded that the requested documents were privileged under 42 U.S.C. § § 1396r and 1395i-3. The trial court rejected Sunwest's privilege claim and ordered immediate disclosure. Young later moved to compel production again because the documents had not been disclosed. The court ordered production, and in response, ...


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