Meade v. Mercy Health-Regional Med. Ctr., L.L.C. ( 2019 )

[Cite as Meade v. Mercy Health-Regional Med. Ctr., L.L.C., 2019-Ohio-438.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
DUANE MEADE, Administrator of the C.A. No. 18CA011307
Estate of Mattie E. Meade
Appellee
APPEAL FROM JUDGMENT
v. ENTERED IN THE
COURT OF COMMON PLEAS
MERCY HEALTH-REGIONAL COUNTY OF LORAIN, OHIO
MEDICAL CENTER, LLC, et al. CASE No. 15CV187572
Appellants
DECISION AND JOURNAL ENTRY
Dated: February 11, 2019
CALLAHAN, Judge.
{¶1} Appellants, Mercy Health-Regional Medical Center, LLC, dba Mercy Regional
Medical Center, Mercy Health, and Mercy Health Lorain, LLC (collectively “Mercy”), appeal
the March 28, 2018 judgment of the Lorain County Common Pleas Court which granted the
motion to compel filed by Appellee, Duane Meade, administrator of the estate of Mattie Meade
(“Mr. Meade”), and ordered Mercy to respond to Mr. Meade’s first set of interrogatories and
second set of requests for production of documents. For the reasons set forth below, this Court
reverses.
I.
{¶2} In September 2015, Mr. Meade filed a complaint alleging medical malpractice,
wrongful death, and loss of consortium claims against Mercy and multiple other medical
facilities and doctors who are not parties to this appeal. A year later, Mr. Meade filed a second
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complaint against Mercy alleging claims of negligent credentialing, wrongful death, and loss of
consortium arising from the same facts in the first complaint. The second complaint specifically
identified Dr. Alexander Zolli, a defendant in the first complaint, as the medical provider at issue
in the negligent credentialing claim.
{¶3} Upon Mr. Meade’s motion, the two cases were consolidated. A few months later,
the trial court granted motions by Mercy and Dr. Zolli to bifurcate the negligent credentialing
claim from the other claims for purposes of trial, but denied their request to stay discovery as to
the negligent credentialing claim.
{¶4} After the issuance of this order, the parties proceeded with discovery as to all of
the claims. Multiple discovery disputes arose. Among them was a request for an in camera
inspection of Dr. Zolli’s credentialing file wherein the trial court ruled portions of the file were
protected by the peer review privilege. As to Mr. Meade’s most recent motion to compel, the
trial court found that the peer review privilege did not apply to the second round of discovery
requests and ordered Mercy to respond to the interrogatories and request for production of
documents. Mercy filed a motion for reconsideration of this discovery order, which was denied.
{¶5} Mercy timely appeals, asserting one assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING [MR. MEADE’S] MOTION TO
COMPEL DISCOVERY IN ITS MARCH 28, 2018 JUDGMENT ENTRY AS
THE INFORMATION SOUGHT BY [MR. MEADE] IS PROTECTED BY THE
PEER REVIEW PRIVILEGE AS SET FORTH IN O.R.C. 2305.252.
{¶6} Mercy argues that the trial court incorrectly ordered the disclosure of information
from and about Dr. Zolli’s credentialing file that had been previously deemed protected by the
peer review privilege. This Court agrees.
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{¶7} At oral argument, Mercy clarified that it is not challenging the trial court’s ruling
as to the second set of requests for production of documents. We will limit our review
accordingly.
{¶8} The parties disagree as to what the applicable standard of review is in this case.
Mercy argues this Court’s standard of review is de novo, while Mr. Meade argues it is an abuse
of discretion. Generally, the abuse-of-discretion standard is applicable when reviewing
discovery orders. Ward v. Summa Health Sys., 184 Ohio App.3d 254, 2009-Ohio-4859, ¶ 11
(9th Dist.), citing Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, ¶ 13.
However, this Court has recognized that “the Supreme Court of Ohio has concluded that the
issue of whether the information sought is confidential and privileged from disclosure is a
question of law that should be reviewed de novo.” Ward at ¶ 11, citing Schlotterer at ¶ 13. In
this matter, we will review the trial court’s decision de novo because the appeal questions the
trial court’s interpretation and application of R.C. 2305.252. See Giusti v. Akron Gen. Med. Ctr.,
178 Ohio App.3d 53, 2008-Ohio-4333, ¶ 12 (9th Dist.).
{¶9} The “peer review privilege” originates in R.C. 2305.252 and states in pertinent
part:
Proceedings and records within the scope of a peer review committee of a health
care entity shall be held in confidence and shall not be subject to discovery or
introduction in evidence in any civil action against a health care entity or health
care provider, including both individuals who provide health care and entities that
provide health care, arising out of matters that are the subject of evaluation and
review by the peer review committee.
R.C. 2305.252(A). The statute also sets forth the original source provision:
Information, documents, or records otherwise available from original sources are
not to be construed as being unavailable for discovery or for use in any civil
action merely because they were produced or presented during proceedings of a
peer review committee, but the information, documents, or records are available
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only from the original sources and cannot be obtained from the peer review
committee’s proceedings or records.
Id. The peer review statute also excludes certain testimony from those involved with the peer
review process:
No individual who attends a meeting of a peer review committee, serves as a
member of a peer review committee, works for or on behalf of a peer review
committee, or provides information to a peer review committee shall be permitted
or required to testify in any civil action as to any evidence or other matters
produced or presented during the proceedings of the peer review committee or as
to any finding, recommendation, evaluation, opinion, or other action of the
committee or a member thereof.
Id. While these individuals “cannot be asked about [their] testimony before the peer review
committee, information [they] provided to the peer review committee, or any opinion [they]
formed as a result of the peer review committee’s activities[,]” they are permitted to “testify[] as
to matters within [their] knowledge[.]” Id.{¶10} R.C. 2305.252(A) “set[s] forth the confidentiality of records and proceedings in
the peer review process” and “provides an umbrella of protection to information which is
collected and maintained by a peer review committee during a peer review process.” Lowrey v.
Fairfield Med. Ctr., 5th Dist. Fairfield No. 08 CA 85, 2009-Ohio-4470, ¶ 28. This Court has
recognized that while “[t]he purpose of the statute is to protect the integrity of the peer[]review
process in order to improve the quality of health care[,] * * * [t]he peer[]review privilege is not a
generalized cloak of secrecy over the entire peer[]review process.” Giusti at ¶ 14.
{¶11} The party asserting the peer review privilege carries the burden of establishing
that the privilege is applicable to the information being sought. Giusti at ¶ 17. This burden may
be satisfied by “(1) submitting the documents in question to the trial court for an in camera
inspection, or (2) presenting affidavit or deposition testimony containing the information
necessary for the trial court to adjudge whether the privilege attaches.” Bansal v. Mt. Carmel
5
Health Sys., Inc., 10th Dist. Franklin No. 09AP-351, 2009-Ohio-6845, ¶ 14. This Court has
stated that this privilege is proven by establishing that “‘a peer[]review committee existed and
that it actually investigated the incident.’” Ward, 184 Ohio App.3d 254, 2009-Ohio-4859, at ¶
17, quoting Giusti at ¶ 17. Additionally, the party seeking the privilege is required to show that
each of the documents over which it asserts the privilege is a “‘record[] within the scope of a
peer review committee.’” (Alterations sic.) Bansal at ¶ 15, quoting R.C. 2305.252(A). When a
party fails to present this evidence, it fails to carry its burden and the peer review privilege does
not apply. See Ward at ¶ 17; Giusti at ¶ 27-28.
{¶12} Mr. Meade argues that Mercy failed to establish its burden that the peer review
privilege applied to the first set of interrogatories. Additionally, Mr. Meade asserts that the trial
court’s prior in camera review and protective order ruling of Dr. Zolli’s credentialing file have
“nothing to do with the instant discovery dispute on appeal.” (Emphasis deleted.) Mercy
concedes that it did not submit an affidavit or deposition testimony in support of this burden.
Nor did Mercy present documents for an in camera inspection in response to this motion to
compel. Instead, Mercy argues that it had previously submitted the credentialing file for an in
camera review relative to the motion for protective order and the trial court deemed parts of the
credentialing file to be protected by the peer review privilege.1 Thus, Mercy contends it was
unnecessary to present such evidence to reestablish its burden a second time because the trial
court, six months earlier, had ordered that these same documents were not to be produced in
discovery because of the peer review privilege. This Court agrees.
1
This Court makes no determination as to whether the earlier motion for protective order filed
by Dr. Zolli, and joined by Mercy, contained evidence satisfying their burden of establishing that
the peer review privilege was applicable to the credentialing file.
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{¶13} Six months before Mr. Meade propounded the first set of interrogatories to
Mercy, Dr. Zolli filed a motion for protective order, a request for in camera inspection, and a
privilege log regarding his credentialing file at Mercy. Dr. Zolli asserted multiple bases for the
nondisclosure of his credentialing file, including the peer review privilege. Mercy joined Dr.
Zolli’s motion for protective order and request for in camera inspection. The trial court
conducted the in camera inspection of the credentialing file and ordered that portions of the
credentialing file were protected from disclosure pursuant to the peer review privilege, while
other portions were not protected by the privilege and were to be produced to Mr. Meade. There
was no appeal taken from that discovery ruling. Nor were there any modifications to that
discovery order.
{¶14} While Mr. Meade is accurate in his statement that “[o]nly the information sought
in this second round of discovery * * * is at issue in this appeal[,]” the prior protective order
governs the second round of discovery because those interrogatories sought information related
to Dr. Zolli’s credentialing file. Because Mercy was not asserting the peer review privilege as to
new documents, but instead as to documents that were already afforded that protection by the
trial court in the same case, it was unnecessary for Mercy to present evidence to establish its
burden when responding to Mr. Meade’s motion to compel. See Lowrey, 2009-Ohio-4470, at ¶
37, 39 (Addressing a waiver argument, the appellate court found there was no reason for a
hospital to file an objection regarding plaintiff’s attachment of peer review documents to a
motion filed under seal because the trial court had previously granted a protective order
prohibiting the plaintiff from seeking peer review information and the protective order remained
in place.).
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{¶15} Despite the existing order of protection for Dr. Zolli’s credentialing file, and
Mercy’s reliance upon the same in answering Mr. Meade’s first set of interrogatories, the trial
court ordered Mercy to answer the first twelve interrogatories because “the court agree[d] with
[Mr. Meade] that the discovery of certain ‘credentialing information’ relative to the outcome or
results of [Mercy’s] peer review process d[id] not violate the statute * * * regarding the
considerations made by the peer review members during the process.” (Emphasis sic.) The trial
court found the peer review privilege did not apply because the interrogatories sought
“‘credentialing information’ relative to the outcome or results of [Mercy’s] peer review process.”
(Emphasis deleted.) However, contrary to the trial court’s ruling, the statute protects not only the
information and considerations during the peer review process, but also the outcomes or results
of the committee. See R.C. 2305.252(A) (prohibiting testimony “as to any finding,
recommendation, evaluation, opinion, or other action of the committee or a member thereof.”).
{¶16} Mr. Meade’s interrogatories asked Mercy to: 1) identify and explain changes and
gaps in Dr. Zolli’s clinical privileges and changes in his application for surgical privileges; 2)
state whether Dr. Zolli was subject to discipline, suspensions, or terminations, and the reason,
nature, and date of the action; 3) state whether there were any hearings or appeals regarding Dr.
Zolli’s clinical privileges, compliance with state and federal laws, and his conduct and patient
care, and the basis and date of the hearings; 4) state whether Dr. Zolli was removed from any
committees and the reason; and 5) state whether Dr. Zolli violated the attendance requirements.
{¶17} Mercy asserts that these interrogatories “are an obvious attempt to obtain
information that was already excluded from production by the trial court.” (Emphasis deleted.)
Mr. Meade responds that “this second round of discovery seeks new information that was neither
requested nor produced in the first round of discovery.” In comparing the two sets of discovery,
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we find that while there are new questions, there are also questions that overlap both sets of
discovery.
{¶18} While the questions are different, Mr. Meade is nonetheless seeking to obtain
privileged information from Dr. Zolli’s credentialing file through a different discovery
mechanism in the second round of discovery. “It is axiomatic that a party cannot do indirectly
that which he could not do directly[.]” See Kalb v. Morehead, 100 Ohio App.3d 696, 701-702
(4th Dist.1995). Upon the filing of Dr. Zolli’s motion for protective order, the trial court
conducted an in camera inspection of his credentialing file from Mercy and ordered that Mr.
Meade only be permitted to obtain portions of the file because it found the peer review privilege
applied to the other portions. A comparison of Dr. Zolli’s credentialing file2 and the trial court’s
order of protection reveals that Mr. Meade is seeking information that was contained within the
portions of the credentialing file to which he was previously denied access.
{¶19} Further, Mr. Meade’s position that “these [i]nterrogatories are simply yes or no
questions” and that “[s]imply stating whether such action was taken does not amount to revealing
the proceedings or record of a peer review committee” is not well-taken. (Emphasis deleted.) Ten
of the twelve interrogatories are conditional questions where an affirmative answer requires
Mercy to go on to provide the reason for an occurrence and/or the date of the occurrence. While
there are two interrogatories that are not conditional questions, these two questions, along with
the other ten questions, all require the disclosure of information contained in the peer review
proceedings and records which could identify the records before the committee. See Huntsman
v. Aultman Hosp., 160 Ohio App.3d 196, 2005-Ohio-1482, ¶ 27 (5th Dist.).
2
Dr. Zolli’s credentialing file was filed under seal and included as part of the record in this
appeal.
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{¶20} Lastly, Mr. Meade argues that the trial court’s decision should be affirmed
because Mercy and its staff are “outside [sic] sources” of much of the information sought in the
interrogatories, and thus the peer review privilege does not apply. It appears that Mr. Meade is
arguing for the application of the original source provision found in the peer review statute. On
appeal, Mr. Meade suggests that Mercy’s department heads, scheduling personnel, website
manager, and various staff with whom Dr. Zolli works on a daily basis, in addition to the peer
review committee, would have knowledge of the information being requested in the
interrogatories, and thus Mercy must answer the interrogatories. See Large v. Heartland-
Lansing of Bridgeport Ohio, LLC, 7th Dist. Belmont No. 12 BE 7, 2013-Ohio-2877, ¶ 36, 39
(When documents and information are provided by the hospital to the peer review committee,
but the documents were not prepared exclusively for the committee and the information is known
to hospital staff outside of the peer review forum, such information is not protected by the
privilege and must be produced by the hospital in discovery.); Bansal, 2009-Ohio-6845, at ¶ 16,
fn. 3. While Mr. Meade argued in this motion to compel that Dr. Zolli was an original source
under the statute, Mr. Meade did not make any arguments that Mercy was an original source, and
he may not raise the issue for the first time on appeal. JPMorgan Chase Bank, Natl. Assn. v.
Burden, 9th Dist. Summit No. 27104, 2014-Ohio-2746, ¶ 12.
{¶21} In light of the foregoing, the trial court disregarded its prior order of protection as
to the peer review portions of Dr. Zolli’s credentialing file and incorrectly applied R.C.
2305.252(A) to Mr. Meade’s first set of interrogatories. Accordingly, the trial court erred in
granting Mr. Meade’s motion to compel Mercy to answer interrogatories 1-12. Mercy’s
assignment of error is sustained.
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III.
{¶22} The sole assignment of error by Mercy Health-Regional Medical Center, LLC,
dba Mercy Regional Medical Center, Mercy Health, and Mercy Health Lorain, LLC is sustained.
The judgment of the Lorain County Common Pleas Court is reversed, and the cause is remanded
for further proceedings.
Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
LYNNE S. CALLAHAN
FOR THE COURT
SCHAFER, P. J.
TEODOSIO, J.
CONCUR.
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APPEARANCES:
RYAN K. RUBIN and LEAH Z. DUGAN, Attorneys at Law, for Appellants.
CHRISTOPHER M. MELLINO, MEGHAN C. LEWALLEN, and CALDER MELLINO,
Attorneys at Law, for Appellee.
PAUL W. FLOWERS, Attorney at Law, for Appellee.
LOUIS E. GRUBE, Attorney at Law, for Appellee.