United States District Court, E.D. North Carolina, Western Division
UNITED STATES OF AMERICA and THE STATE OF NORTH CAROLINA, Plaintiffs,
DR. IBRAHIM N. OUDEH; TERESA SLOAN-OUDEH; and IBRAHIM N. OUDEH, M.D., P.A., Defendants.
E. Gates United States Magistrate Judge
case, brought pursuant to the court's federal question
jurisdiction under 28 U.S.C. § 1331, comes before the
court on the motion (D.E. 91) by plaintiffs United States of
America and the State of North Carolina
("plaintiffs") to compel nonparty Blue Cross Blue
Shield of North Carolina ("BCBSNC") to respond to a
subpoena duces tecum (D.E. 92-1) issued by plaintiffs
pursuant to Rule 45 of the Federal Rules of Civil Procedure
on 17 September 2018. The subpoena seeks documents contained
in the credentialing file of defendant Dr. Ibrahim N. Oudeh
("Dr. Oudeh"). BCBSNC has not filed any opposition
to the motion,  but advised plaintiffs that it could not
voluntarily produce the information without consent from Dr.
Oudeh pursuant to provisions of North Carolina state law.
Pls.' Mem. (D.E. 92) 2; see N.C. Gen. Stat.
§ 90-21.22A(c), (d). For the reasons set forth, the
motion will be allowed.
Carolina Gen. Stat. § 90-21.22A(c) and (d) provide for
confidentiality of medical review committee proceedings:
(c) The proceedings of a medical review or quality assurance
committee, the records and materials it produces, and the
materials it considers shall be confidential and not
considered public records within the meaning of G.S. 132-1,
131E-309, or 58-2-100; and shall not be subject to discovery
or introduction into evidence in any civil action against a
provider of health care services who directly provides
services and is licensed under this Chapter, a PSO
[i.e., provider sponsored organization] licensed
under Article 17 of Chapter 131E of the General Statutes, an
ambulatory surgical facility licensed under Chapter 13 IE of
the General Statutes, or a hospital licensed under Chapter
122C or Chapter 131E of the General Statutes or that is owned
or operated by the State, which civil action results from
matters that are the subject of evaluation and review by the
committee. No. person who was in attendance at a meeting of
the committee shall be required to testify in any civil
action as to any evidence or other matters produced or
presented during the proceedings of the committee or as to
any findings, recommendations, evaluations, opinions, or
other actions of the committee or its members. However,
information, documents, or records otherwise available are
not immune from discovery or use in a civil action merely
because they were presented during proceedings of the
committee. Documents otherwise available as public records
within the meaning of G.S. 132-1 do not lose their status as
public records merely because they were presented or
considered during proceedings of the committee. A member of
the committee may testify in a civil action but cannot be
asked about the person's testimony before the committee
or any opinions formed as a result of the committee hearings.
(d) This section applies to a medical review committee,
including a medical review committee appointed by one of the
entities licensed under Articles 1 through 67 of Chapter 58
of the General Statutes.
state law provisions, however, are not binding on the court.
Rather, "[i]n federal question cases, the federal common
law of privileges is applicable." Price v. Howard
Cty. Gen. Hosp., 950 F.Supp. 141, 142 (D. Md. 1996).
Notably, there is no federal peer review privilege. See
Bost v. Wexford Health Sources, Inc., No. CV
ELH-15-3278, 2017 WL 3084953, at *4 (D. Md. 19 June 2017)
("In addition and as Plaintiff correctly points out, the
Supreme Court has yet to recognize a federal medical peer
review privilege and there are no circuit court cases
recognizing such a privilege. Every circuit court that has
addressed the issue of a federal medical peer review
privilege has flatly rejected the assertion."). The
court's task is therefore to balance the need for
discovery against the policies behind the state privilege.
See Price, 950 F.Supp. at 142.
plaintiffs have demonstrated that the information contained
in Dr. Oudeh's credentialing file is critical to their
investigation of health care fraud in this case. In addition,
neither Dr. Oudeh, who is represented by counsel, nor the
other defendants have filed any response to the motion and
the time to do so has expired. The court therefore presumes
that defendants do not oppose the relief requested. The court
accordingly finds the production sought to be permissible.
See Fed. R. Civ. P. 26(b)(1), 45(d)(2).
THEREFORE ORDERED as follows:
1. Plaintiffs' motion (D.E. 91) is ALLOWED.
2. BCBSNC shall produce to plaintiffs the following documents
in response to the subpoena served by plaintiffs:
a. documents related to statements and representations by Dr.
Oudeh and his counsel or representatives as part of the peer
b. documents, reports, and handouts relied upon by Dr. Oudeh
in support of credentialing with BCBSNC;
c. documents relied on by Dr. Oudeh to support any positions
he took as part of the ...