State ex rel. Okla. State Bd. of Med. Licensure & Supervision, v. Rivero

489 P.3d 36

STATE of Oklahoma, EX REL. OKLAHOMA STATE BOARD OF MEDICAL LICENSURE AND SUPERVISION, Plaintiff/Appellee,

v. Dennis RIVERO, M.D., License No. MD 25366, Defendant/Appellant,andBrad Stahlheber, D.O., Appellee.

No. 118,033

Supreme Court of Oklahoma.

FILED JUNE 2, 2021

Michael F. Smith, Melissa D. Revell, McAfee & Taft, Tulsa, Oklahoma, for Defendant/Appellant, Dennis Rivero, M.D.

Niki Batt, Vice Deputy Attorney General, Thomas R. Schneider, Assistant Attorney General, Oklahoma Office of the Attorney General, Oklahoma City, Oklahoma, for Plaintiff/Appellee, State of Oklahoma, ex rel., the Oklahoma State Bd. of Medical Licensure and Supervision.¹

EDMONDSON, J.:

¶1 This is an appeal from the Oklahoma State Board of Medical Licensure and Supervision (State Board or Board) and its order denying a motion filed by a physician, Dr. Rivero, to allow him to use three documents from his prior disciplinary proceeding in a different legal proceeding. The reason for the denial was the Board had entered a blanket protective discovery order in the disciplinary proceeding. We conclude the protective order making "all documents" in the administrative proceeding subject to the order and prohibiting their use in any other legal proceeding is contrary to the public policy expressed by the Oklahoma Open Records Act and the Oklahoma Discovery Code. The order of the Board denying Dr. Rivero's motion to modify the protective order is reversed and the controversy remanded for additional proceedings as directed herein. We also conclude Dr. Rivero's assignments of error relating to his failure to obtain a copy of the initial report of misconduct are not before the Court in this appeal.

I. The Controversy

¶2 The controversy before us involves two proceedings before the State Board. The first proceeding was brought to discipline a physician, Dr. Rivero, and the proceeding was dismissed with prejudice and without imposition of professional discipline. The second occurred two years later when Dr. Rivero sought to obtain records from the first proceeding by filing a motion to modify a previous protective discovery order in his disciplinary proceeding. He was unsuccessful in obtaining the records and brought the present appeal challenging the order which denied his motion to modify.

¶3 Dr. Rivero's appellate brief provides an explanation for the first proceeding before the State Board: (1) A surgery site was incorrectly prepped by the surgery team before Dr. Rivero was called to the operating room; (2) Shortly after Dr. Rivero made an incision, he determined that the wrong ankle had been prepped; (3) He reversed course and closed the incision, appropriately documented the error, disclosed it to the patient, and continued to care for the patient post-operatively; (4) He referred the patient to another physician to perform the surgery on the appropriate ankle; (5) The patient has had no problems on the ankle related to the wrong site incision; and (6) The initial report to the State Board "about this particular incident is based on nothing but rank hearsay."

¶4 An initial report of professional misconduct was made against Dr. Rivero to the State Board in January 2014. This report was used with additional information from other sources to support a Verified Complaint filed in February 2016 against Dr. Rivero before the State Board. The complaint raised allegations related to the wrong-site surgery.

¶5 The State Board provided to Dr. Rivero's counsel the Board's preliminary witness and exhibit list for the disciplinary hearing. Five witnesses were listed by their name and occupation. Two additional witnesses were listed by three initials with one designated as a patient. The Board's final witness list had three witnesses, (1) the Board's investigator, (2) the defendant, and (3) "any defense witness." The person who allegedly made the initial report to the State Board was not specifically listed as a witness. The initial report made to the State Board was not listed as an exhibit. However, Dr. Rivero's final witness and exhibit list had the name "Brad Stahlheber, D.O.," and his expected testimony described as: "All facts and circumstances regarding the allegations made against Dr. Rivero and the complaint he submitted."

¶6 An Assistant Attorney General representing the State before the Board filed a motion for a "Stipulated Protective Order" to be entered by the Board Secretary "so that parties may exchange confidential and legally protected information in the discovery process." A Stipulated Protective Order was filed in the proceeding. The order states in part: "It has been agreed by the parties to the Proceeding, through their respective counsel, that to expedite the flow of discovery material and to preserve the confidentiality of certain documents and information, a protective order should be entered by the Board." The scope of the protective order included: "all documents, the information contained therein, and all other information produced or disclosed during the Proceeding whether revealed in a document, deposition, other testimony, discovery response or otherwise, by any party, including any non-party, in this Proceeding (the ‘Supplying Party’) to any other party, including any non-party (the ‘Receiving Party’), when the same is designated with the procedures set forth herein [in this Order]." The order was signed by an Assistant Attorney General, the State Board's Secretary, and counsel for Dr. Rivero.

¶7 According to the abbreviated Minutes of the Board's meeting in September 2016 which are filed herein, the Board denied Dr. Rivero's motion for summary judgment, and then two witnesses provided sworn testimony, J. Lane, an investigator for the Board, and Dr. Rivero, the defendant.² The Minutes state one of the members of the Board moved to dismiss the case, and the members of the Board agreed by unanimous affirmative vote.

¶8 An order of dismissal with prejudice was filed by the Board on November 10, 2016. The Board concluded the State had failed to prove its allegations against Dr. Rivero, and the formal Complaint should be dismissed. No professional discipline was imposed and the proceedings for the purpose of discipline were concluded.

¶9 Dr. Rivero commenced an action in the District Court of Tulsa County in August 2018, and sought damages from the person who allegedly made the January 2014 report to the State Board concerning Dr. Rivero's conduct. Dr. Rivero alleged the report to the State Board was made by Dr. Stahlheber and that the report was not made in good faith.

¶10 The trial judge in the District Court action granted Dr. Rivero's motion to compel the State Board to provide to him the disciplinary investigation file on Dr. Rivero. The Board sought extraordinary relief in this Court to prevent enforcement of the trial court's order. A stay order was issued by this Court temporarily preventing enforcement of the District Court's discovery order, and the extraordinary relief proceeding is pending in this Court.³

¶11 In September 2018, counsel for Dr. Rivero sent letters to the Board and stated requests pursuant to the Oklahoma Open Records Act (ORA), 51 O.S.2011 §§ 24A.1 -- 24A.32 (as amended) related to Dr. Rivero's previous disciplinary proceedings. In February 2019, another counsel from the same law firm made another Open Records Act request. An Oklahoma Assistant Attorney General responded in February 2019, and stated the Board had previously "produced all requested materials which were filed/entered into the record before the Board during the individual proceeding" but the Board would not produce "the requested subpoenas for Dr. Stahlber and Jana Lane due to the standing protective order in place and Okla. Admin. Code §§ 435:1-1-3(F) ; 435:3-3-2 ; and 51 O.S. § 24A.12." The response states that Lane's deposition was marked "confidential," but not the deposition of Stahlheber. The response states additional material was attached in response to the February 2019 request for documents and some of the requested documents, e.g. , certain requested unspecified policies did not exist and could not be supplied.⁴ Dr. Rivero's counsel responded and made an additional Open Records Act request. The request also sought copies of requests made by three additional law firms during the time between September 2016 - June 2017, as well as the responses made by the Board. Dr. Rivero's attorney then made additional requests for documents in February 2019 and March 2019.

¶12 In February 2019, Dr. Rivero also filed a motion with the Oklahoma State Board of Medical Licensure and Supervision and sought relief from the stipulated protective order issued in his disciplinary proceeding. The title of this motion included the phrase "Open Records Rejection."⁵ Dr. Rivero sought an order of the Board "dissolving or modifying the protective order "so that evidence exhibits, depositions, and pleadings from Dr. Rivero's disciplinary hearing may be used in related litigation in Tulsa County District Court." He stated that he sought "information contained in the Board hearing pleadings, exhibits, and depositions."

¶13 Dr. Rivero's motion stated the initial report of misconduct to the Board was made by Dr. Stahlheber. Dr. Rivero argued the report was false and reckless. He argued the pre-hearing depositions with their exhibits were public and not confidential, "subject only to the confidentiality of protected patient health information." He focused on depositions given by the Board's investigator, Ms. J. Lane, and another by Dr. Stahlheber. These two depositions were taken by counsel for Dr. Rivero during the disciplinary proceedings to be used by Dr. Rivero for defending the allegation of professional misconduct. He sought to remove from the scope of the protective order a motion for summary judgment with attached exhibits he filed in his disciplinary proceeding. This motion did not specifically request a copy of the initial report of misconduct made against...