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Washington Regional Medical Center v. Northwest Physicians, LLC

Court of Appeals of Arkansas, Division I

October 17, 2018

WASHINGTON REGIONAL MEDICAL CENTER APPELLANT
v.
NORTHWEST PHYSICIANS, LLC, AND SHAUN SENTER, M.D. APPELLEES

          APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CV-16-1091] HONORABLE JOHN C. THREET, JUDGE.

          Thomas J. Olmstead, Washington Regional Medical Center, for appellant.

          Conner & Winters, LLP, by: Todd P. Lewis, for appellee Northwest Physicians, LLC.

          McCutchen & Sexton, by: Sam Sexton III, for appellee Shaun Senter, M.D.

          LARRYD. VAUGHT, Judge.

         This interlocutory appeal stems from the order of the Washington County Circuit Court granting the motion of appellee Northwest Physicians, LLC's (Northwest) to compel discovery. On appeal, appellant Washington Regional Medical Center (WRMC) argues that the circuit court's order compels the discovery of the medical records of nonparty patients maintained by WRMC, which is in violation of Arkansas Rule of Evidence 503, the physician-patient privilege. On appeal, appellee Dr. Shaun Senter purports to incorporate the arguments of WRMC and claims that he properly asserted, and did not waive, the Rule 503 privilege. We affirm.

         Senter was employed as a cardiologist by Northwest, located in Bentonville, Arkansas, pursuant to the terms of a March 28, 2011 employment agreement that contained nonsolicitation and noncompetition covenants.[1] Northwest terminated Senter's employment on January 19, 2016. Senter subsequently accepted employment with WRMC.

         On May 25, 2016, Northwest filed suit against Senter seeking damages for breach of the nonsolicitation and noncompete covenants set forth in the employment agreement. Northwest alleged that Senter breached the noncompete provision when he became an employee of WRMC, a competing hospital located within a twenty-mile radius of Northwest, within the one-year period following his termination. Northwest also alleged that Senter breached the nonsolicitation covenant when patients who had been treated by Senter at Northwest were solicited by Senter to receive services at WRMC, and these patients actually received medical services at WRMC.

         During discovery, Northwest learned that Senter had kept information on his home computer of over 1, 600 patients he had treated while employed at Northwest and that he had provided this information on a thumb drive to WRMC upon his employment there. Northwest also learned in discovery that a third-party pacemaker company, Boston Scientific, had provided WRMC with a list of hundreds of patients Senter had treated while at Northwest; these patients had been called on by WRMC at the behest of Senter after he became employed at WRMC; and approximately two hundred of Senter's patients whom he had treated at Northwest had been seen or treated by Senter since he joined WRMC.

         Northwest propounded interrogatories and requests for production to Senter seeking the names and contact information of patients he had seen since his termination of employment with Northwest and while employed with WRMC and asking whether WRMC had contacted any of these patients. Senter objected on several bases, none of which was that the information sought was protected by the physician-patient privilege.

         Thereafter, Northwest issued a subpoena duces tecum to WRMC requesting:

1. For each person treated, consulted or seen by Dr. Shaun Senter since the date he became employed by You until February 1, 2017, documents evidencing the following information:
• Their name;
• Date of each such medical ...

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