Cousino v. Mercy St. Vincent Med. Ctr. , 111 N.E.3d 529 ( 2018 )


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  • [Cite as Cousino v. Mercy St. Vincent Med. Ctr., 
    2018-Ohio-1550
    .]
    IN THE COURT OF APPEALS OF OHIO
    SIXTH APPELLATE DISTRICT
    LUCAS COUNTY
    Kelsie Cousino, etc., et al.                               Court of Appeals No. L-17-1218
    Appellees                                          Trial Court No. CI0201603866
    v.
    Mercy St. Vincent Medical Center                           DECISION AND JUDGMENT
    Appellant                                          Decided: April 20, 2018
    *****
    Chad M. Tuschman and Peter O. DeClark, for appellees.
    Jean Ann S. Sieler, Kayla L. Henderson and James E. Brazeau,
    for appellant.
    *****
    MAYLE, P.J.
    {¶ 1} This case comes before this court as an accelerated appeal. Defendant-
    appellant Mercy St. Vincent Medical Center appeals the August 17, 2017 judgment of the
    Lucas County Court of Common Pleas, which granted the plaintiffs’ motion to compel, in
    part, and ordered Mercy St. Vincent to produce “any documents responsive to plaintiffs’
    request for production Nos. 1, 4, 5, 7, 8, 10, 13, 14, 16, 19, 20, 21, 22, 23, 24, and 25.”
    For the following reasons, we reverse the trial court’s order, in part, and remand for
    further proceedings consistent with this decision.
    Background
    {¶ 2} On March 3, 2014, plaintiffs-appellees Kelsie Cousino, a minor, by and
    through her mother and next friend Jackie Cousino, and Kelsie’s parents, Andy and
    Jackie Cousino, filed an action against Mercy St. Vincent, Dr. Fouad Butto, M.D.,
    Catholic Health Partners, ProMedica Health System, Inc., ProMedica Physician Group,
    Inc., ProMedica Central Physicians LLC, and Toledo Children’s Heart Center, alleging
    that defendants were liable for injuries sustained by Kelsie Cousino when Dr. Butto, a
    pediatric cardiologist, performed a cardiac catheterization on her at Mercy St. Vincent on
    November 15, 2012. The Cousinos eventually settled their medical malpractice claim
    against Dr. Butto, and dismissed the case.
    {¶ 3} A few months later, on August 15, 2016, the Cousinos refiled their action
    against a single defendant, Mercy St. Vincent, alleging that it negligently credentialed Dr.
    Butto (first count), that its actions constituted gross negligence and/or willful or wanton
    misconduct (second count), and that Andy and Jackie Cousino suffered loss of
    consortium due to their daughter Kelsie’s injuries (third count).
    {¶ 4} The Cousinos served a first set of requests for production of documents with
    their complaint. In its written response, Mercy St. Vincent objected to many of the
    requests on several grounds, including that the requests seek information that is protected
    2.
    by Ohio’s peer review privilege (R.C. 2305.252 and 2305.253), the attorney-client
    privilege, and work product doctrine. On November 7, 2016, plaintiffs filed a motion to
    compel and for sanctions. Mercy St. Vincent opposed plaintiffs’ motion on December 7,
    2016, and filed two separate affidavits in support of its privilege claims.
    {¶ 5} Mercy St. Vincent submitted an affidavit from Charla Ulrich, Director of
    Quality and Infection Control at Mercy St. Vincent, in which she provided the following
    testimony relevant to this appeal:
    6. MSVMC1 has a peer review process which involves several
    committees that conduct, among other things, credentialing, quality
    assurance and performance improvement activities for MSVMC. Their
    activities are confidential.
    7. MSVMC has a medical staff peer review committee that consists
    of actively practicing physicians and their staff which conducts quality
    assurance and performance improvement activities.
    8. MSVMC has a separate credentialing committee and a Medical
    Executive Committee which conducts credentialing activities of providers.
    9. Documents generated by a peer review committee or the
    credentials committee are placed in each physician’s file, kept at the
    hospital.
    1
    Ulrich refers to Mercy St. Vincent as “MCVMC” in her affidavit.
    3.
    10. The credentialing file of Fouad Butto, M.D. consists entirely of
    documents generated by and created solely for use by the credentials
    committee, the Medical Executive Committee, and the Board of Directors
    in their review of his professional qualifications.
    11. Depending upon the severity of the injury or potential injury to a
    patient from care he or she received while at MSVMC, one or more of the
    committees in MSVMC’s peer review process will view any resulting
    incident report: (a) individually for quality assurance and performance
    improvement purposes; and/or (b) collectively with other reports prepared
    over a period of time for purposes of identifying quality and performance
    trends and issues.* * *
    {¶ 6} Mercy St. Vincent also submitted an affidavit from Denise Fowler, its Risk
    Manager, in which she testified that:
    1. Incident reports and ‘liability prevention activities’2 are part of
    the hospital’s peer review and quality process improvement and any related
    records are created for the purpose of quality improvement.
    2
    “Liability prevention activities” is a term used by plaintiffs in request No. 24. In a
    footnote, Fowler testified that Mercy St. Vincent “does not use this term. However, any
    activities to improve processes which would by their nature prevent liability would fall
    under the quality improvement processes and peer review.”
    4.
    2. Activities and documents related to claims reviews and risk
    management are undertaken or prepared in anticipation of litigation under
    the direction of risk management, legal counsel and/or general counsel.
    {¶ 7} On August 16, 2017, the trial court entered judgment on plaintiffs’ motion to
    compel.3 The trial court found that Mercy St. Vincent established the existence of a
    committee that meets the statutory definition of “peer review committee” under R.C.
    2305.25(E) and that “any responsive documents within these requests that are created
    exclusively by and/or for the use of the peer review committees are privileged * * *.”
    The trial court went on to conclude, however, that “defendant may also have responsive
    documents that originally were either created or used by the hospital for other purposes.”
    That is, while the trial court recognized that Mercy St. Vincent “provided evidence that
    Dr. Butto’s credentialing file consists exclusively of documents created by and solely for
    the use of the credentials committee, the Medical Executive Committee, and the board of
    directors, defendant has not presented any evidence that there is not a personnel file or
    other responsive documents outside of the credentialing file.”
    {¶ 8} Ultimately, the trial court denied the Cousinos’ motion to compel with
    respect to requests for production Nos. 2, 3, 6, 9, 15, 17, and 18, but granted the motion
    3
    In its judgment entry, the trial court also ruled on Mercy St. Vincent’s motion for
    judgment on the pleadings, and ordered the Cousinos to file an affidavit of merit that
    complies with Civ.R. 10(D)(2) within 60 days from the date of the order. That portion of
    the judgment entry is not on appeal.
    5.
    with respect to requests for production Nos. 1, 4, 5, 7, 8, 10, 13, 14, 16, 19, 20, 21, 22,
    23, 24, and 25, finding that Mercy St. Vincent “has not established that the list of
    documents responsive to these requests contain only documents created exclusively for
    the use of the peer review committees and not for other purposes within the hospital.”
    The trial court also found that with respect to requests for production Nos. 23 and 24,
    Mercy St. Vincent failed to meet its burden of showing that the requested information is
    protected by either the attorney-client privilege or work product doctrine.
    {¶ 9} The court then ordered Mercy St. Vincent to produce “any documents
    responsive to” the following requests within 14 days:
    1. The entire personnel file for Fouad Butto, M.D. from Defendant.
    4. Any and all documentation regarding any suspension, revocation,
    or halting of privileges of Fouad Butto, M.D.
    5. All documentation regarding the granting or continuing of staff
    privileges of Fouad Butto, M.D.
    7. Any and all information as to why Fouad Butto, M.D. no longer
    had privileges to perform cardiac catheterizations as of October 2015.
    8. Any and all written information as to the suspension of any
    privileges prior to October 2015 regarding Fouad Butto, M.D.
    10. Any and all information provided by ProMedica Toledo
    Hospital regarding any incidents of misconduct, suspension of privileges,
    granting of privileges, or the complication rate involving any and all
    6.
    patients of Fouad Butto, M.D. at any time during his employment at
    ProMedica Toledo Hospital.
    13. Any and all correspondence and/or communication between
    Mercy St. Vincent Medical Center and ProMedica Toledo Hospital in any
    way discussing Fouad Butto, M.D. and the granting of privileges and/or
    care and treatment involving patients at ProMedica Toledo Hospital and/or
    Mercy St. Vincent Medical Center from 2005 through to 2015.
    14. A listing of all privileges Fouad Butto, M.D. was able to
    perform at Mercy St. Vincent Medical Center from 2005 to 2015.
    16. A listing of all reprimands and/or loss of privileges of Fouad
    Butto, M.D. at Defendant, Mercy St. Vincent Medical Center, for any
    reason, including but not limited to any corrective action taken by
    Defendant, Mercy St. Vincent Medical Center, against Fouad Butto, M.D.
    at any time.
    19. A listing of all periodic reappraisals for reappointment, clinical
    privileges or specified services, or the loss thereof involving Fouad Butto,
    M.D., in any way, at Defendant, Mercy St. Vincent Medical Center, from
    2005 to 2015.
    20. A listing of all applications for appointment, clinical privileges
    or specialized services by Fouad Butto, M.D. at Defendant, Mercy St.
    Vincent Medical Center, from 2005 through to 2015.
    7.
    21. A listing of all corrective or disciplinary actions taken against
    Fouad Butto, M.D. by Defendant, Mercy St. Vincent Medical Center, from
    2005 through to 2015.
    22. A listing of all hearing and/or appellate reviews taken against
    Fouad Butto, M.D. by Defendant, Mercy St. Vincent Medical Center, from
    2005 through to 2015.
    23. A listing of all claims reviews of any cases, by and on behalf of
    Mercy St. Vincent Medical Center, in regard to questionable care and/or
    treatment by Fouad Butto, M.D. from 2005 through to 2015.
    24. A listing of all risk management and/or liability prevention
    activities taken by Defendant, Mercy St. Vincent Medical Center, against
    Fouad Butto, M.D. from 2005 through to 2015.
    25. A listing of all Defendant Mercy St. Vincent Medical Center,
    department, section or staff activities related to any monitoring of Fouad
    Butto, M.D. in regard to maintaining quality and efficient patient care and
    appropriate professional conduct from 2005 through to 2015.
    {¶ 10} Mercy St. Vincent appealed that portion of the trial court’s judgment entry
    that ordered it to produce “any documents” in response to these requests, arguing that the
    broad order compels production of documents protected by the peer review privilege and
    attorney-client privilege. It assigns a single assignment of error:
    8.
    THE TRIAL COURT ERRED IN GRANTING PLAINTIFFS’
    MOTION TO COMPEL AND ORDERING MERCY ST. VINCENT
    MEDICAL CENTER TO PRODUCE CONFIDENTIAL AND
    PRIVILEGED DOCUMENTS.
    Law and Analysis
    {¶ 11} Mercy St. Vincent argues that the trial court erred when it ordered Mercy
    St. Vincent to produce “any documents” responsive to requests for production Nos. 1, 4,
    5, 7, 8, 10, 13, 14, 16, 19, 20, 21, 22, 23, 24, and 25 because at least some responsive
    documents are confidential and privileged under (1) Ohio’s peer review privilege, R.C.
    2305.252 and 2305.253, and (2) the attorney-client privilege. And although not
    specifically assigned as error, Mercy St. Vincent also argues that the trial court erred by
    ordering the production of responsive documents beyond the date of injury,
    November 12, 2012.
    {¶ 12} As a preliminary matter, Article IV, Section 3(B)(2) of the Ohio
    Constitution limits this court’s jurisdiction to the review of “judgments or final orders of
    the [trial] courts.” A trial court’s discovery orders are generally interlocutory and,
    therefore, not immediately appealable. Mezatasta v. Enter. Hill Farm, 6th Dist. Erie No.
    E-15-037, 
    2016-Ohio-3371
    , ¶ 16. A judgment that compels the production of documents
    or information that is alleged to be protected by the peer review privilege is, however, a
    final order and therefore immediately appealable. R.C. 2305.252 (“An order by a court to
    produce for discovery or for use at trial the proceedings or records described in this
    9.
    section is a final order.”). Similarly, the Supreme Court of Ohio has recognized that a
    “[a]n order compelling the production of materials alleged to be protected by the
    attorney-client privilege is a final, appealable order under R.C. 2505.02(B)(4).” Burnham
    v. Cleveland Clinic, 
    151 Ohio St.3d 356
    , 
    2016-Ohio-8000
    , 
    89 N.E.3d 536
    , ¶ 30.
    Moreover, “whether the information sought is confidential and privileged from disclosure
    is a question of law that is reviewed de novo.” Med. Mut. of Ohio v. Schlotterer, 
    122 Ohio St.3d 181
    , 
    2009-Ohio-2496
    , 
    909 N.E.2d 1237
    , ¶ 13.
    {¶ 13} But to the extent that Mercy St. Vincent challenges the trial court’s order
    because the requests require the production of documents through 2015, which it argues
    would encompass “not relevant subsequent events, as the care at issue occurred in 2012,”
    that is an interlocutory ruling and, in any event, that issue has not been assigned as error.
    “Although [the appellate court] must consider arguments in support of * * * formal
    assignments of error, [the appellate court] need not address arguments that are not
    relevant to the assignments of error or that attempt to raise additional errors.” State v.
    Bloomfield, 4th Dist. Lawrence No. 14CA3, 
    2015-Ohio-1082
    , ¶ 18. Thus, we limit our
    review to Mercy St. Vincent’s assignment of error, which is focused on the protected
    nature of the requested discovery under Ohio’s peer review privilege and the attorney-
    client privilege.
    10.
    Ohio’s Peer Review Privilege
    {¶ 14} Ohio’s peer review privilege, R.C. 2305.252(A), provides:
    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. * * * 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 only from the original
    sources and cannot be obtained from the peer review committee’s
    proceedings or records. * * *
    {¶ 15} The purpose of this statute is to protect the integrity and confidentiality of
    the peer review process so that health care entities have the freedom to meaningfully
    review and critique—and thereby improve—the overall quality of the healthcare services
    they provide. Smith v. Cleveland Clinic, 
    197 Ohio App.3d, 2011
    -Ohio-6648, 
    968 N.E.2d 41
    , ¶ 11 (8th Dist.). The privilege provides absolute confidentiality to the peer review
    process, “the absence of which would make participants reluctant to engage in an honest
    11.
    criticism for fear of loss of referrals, loss of reputation, retaliation, and vulnerability to
    tort actions.” Stewart v. Vivian, 12th Dist. Clermont No. CA2011-06-050, 2012-Ohio-
    228, ¶ 25.
    {¶ 16} The party resisting discovery under a claim of peer review privilege has a
    two-part burden of establishing that the privilege applies to the requested information.
    Smith at ¶ 9; Bansal v. Mount Carmel Health Sys., 10th Dist. Franklin No. 09AP-351,
    
    2009-Ohio-6845
    , ¶ 14. First, the health care entity must establish the existence of a “peer
    review committee” as defined by R.C. 2305.25(E). Id. at ¶ 15; Smith at ¶ 15. Second, the
    health care entity must prove that each of the documents that it refuses to produce is a
    “record within the scope of [that] peer review committee” as required by R.C. 2305.252.
    Id. “In an attempt to meet this burden, the health care entity may (1) submit the disputed
    documents to the trial court for an in camera inspection, or (2) present affidavit or
    deposition testimony ‘containing the information necessary for the trial court to adjudge
    whether the privilege attaches.’” Stewart at ¶ 15, quoting Bansal at ¶ 15. If the health
    care entity satisfies its burden, the requested documents are unconditionally privileged
    and immune from discovery.
    1. The Existence of a Peer Review Committee
    {¶ 17} Under R.C. 2305.25(E), a “peer review committee” is defined as follows:
    (1) “Peer review committee” means a utilization review committee,
    quality assessment committee, performance improvement committee, tissue
    12.
    committee, credentialing committee, or other committee that does either of
    the following:
    (a) Conducts professional credentialing or quality review activities
    involving the competence of, professional conduct of, or quality of care
    provided by health care providers, including both individuals who provide
    health care and entities that provide health care;
    (b) Conducts any other attendant hearing process initiated as a result
    of a peer review committee’s recommendations or actions.
    (2) “Peer review committee” includes all of the following:
    (a) A peer review board of a hospital* * *;
    (c) A board or committee of a hospital, * * * when reviewing
    professional qualifications or activities of health care providers * * *.
    {¶ 18} The affidavit of Charla Ulrich establishes that Mercy St. Vincent has a peer
    review process involving several committees that “conduct, among other things,
    credentialing, quality assurance and performance improvement activities” for the
    hospital, including “a medical staff peer review committee * * * which conducts quality
    assurance and performance improvement activities” and “a separate credentialing
    committee and a Medical Executive Committee which conducts credentialing activities of
    providers.” The affidavit further establishes that the hospital’s Board of Directors uses
    documents within a physician’s credentialing file when reviewing the physician’s
    professional qualifications.
    13.
    {¶ 19} Through this affidavit testimony, Mercy St. Vincent sufficiently establishes
    that its medical staff peer review committee, credentialing committee, and Medical
    Executive Committee are “peer review committees” under R.C. 2305.25(E)(1), and that
    the Board of Directors functions as a “peer review committee” when reviewing a
    physician’s credentialing file under R.C. 2305.25(E)(2).
    {¶ 20} The Cousinos argue, however, that in addition to establishing the existence
    of a peer review committee, Mercy St. Vincent must also prove that the peer review
    committee actually investigated “the incident” at issue. Bailey v. ManorCare of Mayfield
    Hts., 8th Dist. Cuyahoga No. 99798, 
    2013-Ohio-4927
    , ¶ 28 (stating that the party
    asserting the privilege must establish that “a peer review committee was in existence and
    that the facility actually investigated the incident or incidents that the disputed documents
    or information reference.”); Giusti v. Akron Gen. Med. Ctr., 9th Dist. Summit No. 24023,
    
    2008-Ohio-4333
    , ¶ 17 (the party resisting discovery must show that “a peer review
    committee existed and that it actually investigated the incident.”) But the cases that
    discuss this additional requirement concern a discreet “incident” or “incidents” of alleged
    medical malpractice. See, e.g., Giusti (alleged failure to diagnose an aortic dissection);
    Bailey (wrongful death case alleging negligent failure to provide adequate medical,
    nursing, and health care). In contrast, this case concerns a hospital’s alleged negligent
    credentialing of a physician. For all intents and purposes, Mercy St. Vincent’s
    professional credentialing of Dr. Butto is “the incident” at issue, and Charla Ulrich’s
    affidavit establishes that the credentialing committee, Medical Executive Committee, and
    14.
    the Board of Directors actually reviewed Dr. Butto’s professional qualifications for
    credentialing purposes.
    {¶ 21} Accordingly, we find that Mercy St. Vincent has met its burden to prove
    the existence of a peer review committee as defined by R.C. 2305.25(E).
    2. Records Within the Scope of the Peer Review Committee
    {¶ 22} Next, we consider whether Mercy St. Vincent has established that the
    documents that it refuses to produce are “records within the scope of a peer review
    committee” under R.C. 2305.252(A). There are two general categories of documents that
    are considered “records within the scope of a peer review committee” and therefore
    privileged.
    {¶ 23} First, any documents that are generated by or exclusively for the peer
    review committee are absolutely protected from disclosure. “R.C. 2305.252 implicitly
    extends full and unconditional protection to records generated by the ‘non-original
    source,’ i.e., the peer review committee.” Bansal, 10th Dist. Franklin No. 09AP-351,
    
    2009-Ohio-6845
    , at ¶ 17; Stewart, 12th Dist. Clermont No. CA2011-06-050, 2012-Ohio-
    228, at ¶ 14. For example, an incident report or risk management report is one type of
    document that is immune from discovery because it is created by or for the use of a peer
    review committee. See R.C. 2305.25(D) (defining an “incident report or risk
    management report” as “a report of an incident involving injury or potential injury to a
    patient * * * that is prepared by or for the use of a peer review committee of a health care
    entity and is within the scope of the functions of that committee.”); R.C. 2305.253
    15.
    (providing that incident reports and risk management reports are “not subject to discovery
    in, and are not admissible in evidence in the trial of, a tort action.”) An incident report is
    just one example; all documents generated by or exclusively for a peer review committee
    are privileged and immune from discovery. See, e.g., Huntsman v. Aultman Hosp., 5th
    Dist. Stark No. 2006 CA 00331, 
    2008-Ohio-2554
    , ¶ 57 (finding the trial court erred by
    compelling physician to produce any applications for medical privileges because such
    documents were prepared exclusively for the peer review committee and therefore
    privileged under the peer review statute).
    {¶ 24} Second, R.C. 2305.252 also protects any documents that are maintained in
    the peer review committee’s records that were generated by an “original source”―i.e., a
    source other than the peer review committee itself―and then produced or presented to a
    peer review committee. Any “original source” documents must be obtained “from the
    original sources and cannot be obtained from the peer review committee’s proceedings or
    records.” R.C. 2305.252; see also Abels v. Ruf, 9th Dist. Summit No. 22265, 2005-Ohio-
    719, ¶ 13 (finding that the trial court erred by ordering appellant to produce credentialing
    documents that were generated by an original source, because while the appellees “may
    obtain such documents from their original source* * * they may not obtain them directly
    from Appellant.”).
    {¶ 25} Thus, all documents within a peer review committee’s own
    records―regardless of the source―are absolutely immune from discovery in any civil
    action. Cook v. Toledo Hosp., 6th Dist. Nos. L-05-1373, L-06-1097, 
    2006-Ohio-5278
    ,
    16.
    ¶ 31, quoting Tenan v. Huston, 
    165 Ohio App.3d 185
    , 
    2006-Ohio-131
    , 
    845 N.E.2d 549
    ,
    ¶ 23 (11th Dist.) (“R.C. 2305.252 manifests the legislature’s clear intent to provide a
    complete shield to the discovery of any information used in the course of a peer review
    committee’s proceedings.”); Bailey, 8th Dist. Cuyahoga No. 99798, 
    2013-Ohio-4927
    , at
    ¶ 21 (“the legislature’s clear intent [is] to provide a complete shield to the discovery of
    any information used in the course of a peer review committee’s proceedings.”).
    {¶ 26} Mercy St. Vincent, through the affidavit testimony of Charla Ulrich,
    establishes that “[t]he credentialing file of Fouad Butto, M.D. consists entirely of
    documents generated by and created solely for use by the credentials committee, the
    Medical Executive Committee, and the Board of Directors in their review of his
    professional qualifications.” Under the authorities discussed above, Dr. Butto’s entire
    credentialing file is, therefore, absolutely privileged and immune from discovery under
    R.C. 2305.252. Huntsman at ¶ 59 (“the statute is clear regarding the confidentiality of
    information in a peer review committee’s file”).
    {¶ 27} The Ulrich affidavit also states, however, that “[d]ocuments generated by a
    peer review committee or the credentials committee are placed in each physician’s file,
    kept at the hospital” (emphasis added). As the trial court recognized, this statement
    implies that there is a “physician’s file”―separate and apart from the privileged
    “credentialing file”― that contains some documents generated by the credentials
    committee or another unspecified peer review committee, and perhaps other non-
    privileged documents as well. It is not clear whether such a “physician’s file” actually
    17.
    exists, however, given that Mercy St. Vincent’s arguments relating to the peer review
    privilege are focused on the “credentialing file” only.
    {¶ 28} Be that as it may, if Mercy St. Vincent identifies any responsive documents
    that are located outside the privileged credentialing file―whether in a “physician’s file”
    or another location―and Mercy St. Vincent believes that those documents are
    nonetheless privileged under R.C. 2305.252 or 2305.253, it must separately establish that
    each of those documents are records within the scope of a peer review committee.
    Although the Ulrich affidavit is sufficient to establish the privileged nature of the
    credentialing file itself, it does not establish that any documents outside that file are
    protected by the peer review privilege. “[W]hile material contained in the file is
    privileged, and a facility cannot be compelled to reveal the contents of the file, material
    that a facility obtained and possesses separate and apart from the committee proceedings
    is not privileged.” Bailey, 8th Dist. Cuyahoga No. 99798, 
    2013-Ohio-4927
    , at ¶ 27.
    Moreover, although documents generated by an original source must be obtained from
    that source, it is possible for the health care entity itself to be the original source and “it
    cannot shield documents from disclosure just by circulating them during peer review
    proceedings.” Bansal, supra, 10th Dist. Franklin No. 09AP-351, 
    2009-Ohio-6845
    , at
    ¶ 16, fn. 3. For example, in Selby v. Fort Hamilton Hosp., 12th Dist. Butler No.
    CA2007-05-126, 
    2008-Ohio-2413
    , the court found that EKG discrepancy reports that
    were created as a matter of hospital policy and routinely used in patient care were
    discoverable even though they had been reviewed by a peer committee.
    18.
    {¶ 29} Accordingly, we find that to the extent that Mercy St. Vincent claims that
    any responsive documents outside the credentialing file are privileged under R.C.
    2305.252 or 2305.253, it must establish that each document was generated by or
    exclusively for the use of a peer review committee. Mercy St. Vincent must establish the
    privilege via affidavit testimony and submit the disputed documents to the trial court,
    under seal, within 14 days of this decision for an in-camera review. See Bailey at ¶ 40
    (due to the lack of evidence before it, the trial court erred by granting a motion to compel
    without requiring Manor Care to submit the disputed documents for in-camera
    inspection).
    {¶ 30} By way of example only, if there is a responsive document outside the
    credentialing file that Mercy St. Vincent claims to be an “incident report” and therefore
    privileged under R.C. 2305.252 and 2305.253, it must establish the privilege as to that
    specific document. Although Denise Fowler, the hospital’s Risk Manager, provides
    affidavit testimony stating that “incident reports * * * are part of the hospital’s peer
    review and quality process improvement and any related records are created for the
    purpose of quality improvement,” this merely recites the applicable legal standard for
    documents that are proven to be incident reports under R.C. 2305.253. It is not enough to
    provide generalities regarding the types of documents that should be protected by the
    statute, Bansal at ¶ 14, and “labeling a document an incident report does not mean that it
    meets the statutory definition of an incident report.” Flynn v. Univ. Hosp. Inc., 1st Dist.
    No. C-060815, 
    2007-Ohio-4468
    , ¶ 6. Rather, Mercy St. Vincent must establish that the
    19.
    specific document, although found outside the credentialing file, is an incident report that
    was generated by or exclusively for the use of a peer review committee.
    {¶ 31} To be clear, we do not order in-camera inspection for any documents that
    are found exclusively within the credentialing file because no documents can be obtained
    from a peer review committee’s records―period. Huntsman v. Aultman Hosp., 
    160 Ohio App.3d 196
    , 
    2005-Ohio-1482
    , 
    826 N.E.2d 384
    , ¶ 20 (5th Dist.) (finding that “there is no
    need for an in-camera inspection because no documents can be obtained from the peer
    review committee records, only from the records of the original source of the
    information.”). Although the Cousinos argue otherwise, they rely upon case law that was
    decided under a prior version of the peer review statute, then codified at R.C. 2305.251,
    that did not contain the current language, which was added by the Ohio Legislature on
    April 9, 2003, specifying that even documents generated by original sources “are
    available only from the original sources and cannot be obtained from the peer review
    committee’s proceedings or records.” R.C. 2305.252 (emphasis added); compare with
    Wilson v. Barnesville Hosp., 7th Dist. Belmont No. 01 BA 40, 
    2002-Ohio-5186
    , ¶ 9-12
    (relying upon prior version of R.C. 2305.251 that is no longer in effect).
    {¶ 32} Finally, we address the Cousinos’ overall argument that allowing Mercy St.
    Vincent to cloak its entire credentialing file in secrecy would prevent them from
    obtaining the very evidence they need to prove their negligent credentialing claim under
    R.C. 2305.251, including evidence that “the hospital * * * failed to comply with all
    material credentialing and review requirements of the accrediting organization” and that
    20.
    “the hospital * * * knew that [Dr. Butto] had developed a pattern of incompetence or
    otherwise inappropriate behavior, either of which indicated that [his] * * * professional
    privileges * * * should have been limited or terminated prior to [his treatment of Kelsie
    Cousino.]” R.C. 2305.251(B)(2)(b); 2305.251(B)(2)(c). But the Cousinos fail to
    acknowledge that this same statute explicitly states that “[n]othing in this section shall be
    construed as creating an exception to section 2305.252 of the Revised Code,” which is
    the peer review statute. R.C. 2305.251(C).
    {¶ 33} We recognize that the protection afforded by the peer review privilege of
    R.C. 2305.252 makes it difficult for a plaintiff to establish a negligent credentialing claim
    against a health care entity. But by enacting this law, the Ohio Legislature made a policy
    decision that it is more important to protect the absolute confidentiality of a credentialing
    committee’s proceedings and records to ensure that its participants are free to engage in a
    meaningful and honest review of its providers, which should lead to the overall
    improvement of health care services as a whole. Given that public policy is the province
    of the legislature, not the court, we are bound to enforce the law as written.
    {¶ 34} And although it is difficult to prove a negligent credentialing claim, it is not
    impossible. As noted above, documents are still available from their original source, and
    the statute explicitly allows individuals to testify regarding “matters within the
    individual’s knowledge.” R.C. 2305.252. In other words, “[i]nformation within the
    knowledge of a witness does not become privileged merely because it was disclosed to a
    committee member or discussed at a peer review committee meeting.” Smith, 
    197 Ohio 21
    .
    App.3d 524, 
    2011-Ohio-6648
    , 
    968 N.E.2d 41
    , at ¶ 12. It is for this reason that “a
    physician would be a fine ‘outside, original source’ for information or records concerning
    his or her education, medical training, licensing, as well as information regarding any
    past lawsuits or disciplinary actions, etc.” Tenan, 
    165 Ohio App.3d 185
    , 
    2006-Ohio-131
    ,
    
    845 N.E.2d 549
    , at ¶ 63, fn. 21 (Rice, J., dissenting).
    {¶ 35} In sum, we find that Mercy St. Vincent has met its burden to establish that
    Dr. Butto’s credentialing file is privileged under R.C. 2305.252. To the extent that
    Mercy St. Vincent claims that any responsive documents outside the credentialing file are
    also privileged under R.C. 2305.252 or 2305.253, we remand for further proceedings as
    stated above.
    Attorney-Client Privilege
    {¶ 36} Mercy St. Vincent also claims that the trial court’s order to produce “any
    documents” in response to two specific requests would require it to disclose documents
    protected by the attorney-client privilege. In Ohio, the attorney-client privilege is
    governed by statute, R.C. 2317.02(A), and in matters not addressed in R.C. 2317.02(A),
    the common law.
    {¶ 37} R.C. 2317.02(A) prevents an attorney from testifying “concerning a
    communication made to the attorney by a client in that relation or concerning the
    attorney’s advice to a client” without the client’s express consent. The Supreme Court of
    Ohio has stated that R.C. 2317.02(A) “governs communications directly between an
    attorney and a client,” Jackson v. Greger, 
    110 Ohio St.3d 488
    , 
    2006-Ohio-4968
    , 854
    22.
    N.E.2d 487, ¶ 7, and although it is patently a testimonial privilege, “applies not only to
    prohibit testimony at trial, but also to protect the soughtafter communications during the
    discovery process.” Id. at ¶ 7, fn.1.
    {¶ 38} The common law attorney-client privilege is broader than R.C. 2317.02(A)
    and applies “(1) [w]here legal advice of any kind is sought (2) from a professional legal
    adviser in his capacity as such, (3) the communications relating to that purpose, (4) made
    in confidence, (5) by the client, (6) are at his instance permanently protected (7) from
    disclosure by himself or by the legal adviser, (8) unless the protection is waived.” State
    ex rel. Leslie v. Ohio Hous. Fin. Agency, 
    105 Ohio St.3d 261
    , 
    2005-Ohio-1508
    , 
    824 N.E.2d 990
    , ¶ 21, quoting Reed v. Baxter, 
    134 F.3d 351
    , 355-356 (6th Cir.1998). The
    privilege “does not require the communication to contain purely legal analysis or advice
    to be privileged. Instead, if a communication between a lawyer and a client would
    facilitate the rendition of legal services or advice, the communication is privileged.”
    State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 
    121 Ohio St.3d 537
    ,
    
    2009-Ohio-1767
    , 
    905 N.E.2d 1221
    , ¶ 27, quoting Dunn v. State Farm Fire & Cas. Co.,
    
    927 F.2d 869
    , 875 (5th Cir.1991).
    {¶ 39} Mercy St. Vincent argues that the trial court’s order to produce “any
    documents” in response to request Nos. 23 and 24 would require it to disclose
    confidential attorney-client communications. Those two requests seek the following:
    23.
    23. A listing of all claims reviews of any cases, by and on behalf of
    Mercy St. Vincent Medical Center, in regard to questionable care and/or
    treatment by Fouad Butto, M.D. from 2005 through to 2015.
    24. A listing of all risk management and/or liability prevention
    activities taken by Defendant, Mercy St. Vincent Medical Center, against
    Fouad Butto, M.D. from 2005 through to 2015.
    {¶ 40} In support of its claim of attorney-client privilege, Mercy St. Vincent relies
    upon the affidavit of its Risk Manager, Denise Fowler, who testified that “[a]ctivities and
    documents related to claims and risk management are undertaken or prepared in
    anticipation of litigation under the direction of risk management, legal counsel and/or
    general counsel.” Mercy St. Vincent then argues that “Fowler’s affidavit demonstrates
    that any materials [the Cousinos] seek fall under the scope of their activities taken in
    anticipation of litigation and in conference with counsel.” Mercy St. Vincent does not,
    however, provide any information regarding the allegedly privileged documents or the
    actual attorney-client communications that underlie its privilege claims. And although
    the work product doctrine extends beyond confidential communications and protects any
    document “prepared in anticipation of litigation” by a party or a party’s representative
    under Civ.R. 26(B)(6)(a), Mercy St. Vincent does not argue on appeal that it is
    withholding any documents on the basis of work product.
    {¶ 41} Under Civ.R. 26(B)(6)(a), when a party withholds information or
    documents under a claim of privilege, “the claim shall be made expressly and shall be
    24.
    supported by a description of the nature of the documents, communications, or things not
    produced that is sufficient to enable the demanding party to contest the claim.”
    Generally speaking, “[w]ithout identification of the documents by the party seeking
    protection, the party seeking the information is unable to challenge the soundness of its
    claim.” Owens v. ACS Hotels, LLC, 9th Dist. Summit No. 27787, 
    2016-Ohio-5506
    , ¶ 9.
    In this regard, we find Cleveland Clinic Health Sys.-E Region v. Innovative Placements,
    Inc., N.D. Ohio No. 1:11-cv-2074, 
    2012 U.S. Dist. LEXIS 61897
     and Flynn v. Univ.
    Hosp., Inc., 
    172 Ohio App.3d 775
    , 
    2007-Ohio-4468
    , 
    876 N.E.2d 1300
     (1st Dist.2007)
    particularly instructive. In those cases, like here, a health care entity argued that
    documents relating to claim review activities were protected by the attorney-client
    privilege but, unlike here, those entities presented evidence relating to specifically-
    identified documents and attorney-client communications.
    {¶ 42} In Cleveland Clinic Health Sys.-E Region, the hospital claimed that five
    specific documents, including a “Claim Review Report” and a “Safety Event Reporting
    System” or “SERS” quality review incident report, were protected by the attorney-client
    privilege and work product doctrine. It prepared a privilege log and submitted the five
    documents to the trial court for in-camera inspection. It also submitted an affidavit and
    deposition testimony related to the creation and use of those specific documents.
    Ultimately, the trial court found that the attorney-client privilege and work product
    doctrine protected the documents in question. Id. at *17-20.
    25.
    {¶ 43} Similarly, in Flynn, the court found that affidavit testimony from the
    hospital employee who had prepared a specific report, as well as the attorney who
    received the report, established that it was “a communication prepared by [the health care
    entity’s] employee for the use of its attorneys in anticipation of litigation. Further, it
    demonstrated the existence of the attorney-client relationship and that the communication
    occurred in the context of that relationship.” Id. at ¶ 15.
    {¶ 44} In contrast, Mercy St. Vincent has asserted a very broad and generalized
    claim of attorney-client privilege for all documents that are potentially responsive to
    requests Nos. 23 and 24. It did not provide enough information to enable the Cousinos to
    contest the claim as required by Civ.R. 26(B)(6)(a).
    {¶ 45} But, as we have recognized, in some circumstances it may be an abuse of
    discretion for the court to order discovery without conducting an in-camera inspection or
    providing the objecting party the opportunity to provide more-specific information to
    support its privilege claims. See, e.g., Cargotec, Inc. v. Westchester Fire Ins. Co., 6th
    Dist. Lucas No. L-03-1116, 
    2003-Ohio-7257
    , ¶ 13-14 (trial court abused its discretion by
    denying appellant the opportunity to amend its privilege log and declining to conduct an
    in-camera review of the documents); Grace v. Mastruserio, 1st Dist. Hamilton No.
    C-060732, 
    2007-Ohio-3942
    , ¶ 34-40 (finding trial court abused its discretion in ordering
    production without in-camera inspection where “the record is insufficiently developed to
    determine whether compelling discovery of [the documents] violated the attorney-client
    privilege or the work-product doctrine.”).
    26.
    {¶ 46} Here, given that Mercy St. Vincent’s attorney-client privilege claim is
    closely intertwined with its peer review privilege claim—specifically, its claim that
    documents responsive to requests Nos. 23 and 24 are “incident reports” and therefore
    protected by R.C. 2305.252 and 2305.253—we find that the trial court abused its
    discretion by compelling Mercy St. Vincent to produce the disputed documents without
    additional information and an in-camera review. See Bailey at ¶ 40 (the trial court erred
    by granting a motion to compel without requiring health care entity to submit the
    disputed documents for in-camera inspection); Bansal at ¶ 18 (trial court should have
    required defendants to submit the disputed documents to it for an in-camera inspection to
    decide whether the peer review privilege applied).
    {¶ 47} Accordingly, we reverse the trial court’s order to the extent that it would
    have required the production of attorney-client privileged documents in response to
    request Nos. 23 and 24. On remand, Mercy St. Vincent must identify any allegedly
    privileged documents on a privilege log. As we have recognized, although not expressly
    required by Ohio law or the Ohio Civil Rules, a privilege log is a discovery tool that may
    be used to establish a claim of privilege or work-product under Civ.R. 26(B)(6)(a).
    Cargotec, at ¶ 10, 13. The privilege log should contain only enough information
    regarding the withheld documents and the underlying attorney-client communications “to
    enable the demanding party to contest the claim” and need not contain “[m]ore detailed
    descriptions [that] may risk revealing [the] privileged information.” Id. at ¶ 13. Mercy
    27.
    St. Vincent’s privilege log should also list any documents outside the credentialing file
    that are allegedly protected by the peer review privilege of R.C. 2305.252 or 2305.253.
    {¶ 48} Mercy St. Vincent must submit its privilege log and the disputed
    documents under seal to the trial court within 14 days of this decision. Csonka-Cherney
    v. Arcelormittal Cleveland, Inc., 8th Dist. Cuyahoga No. 100128, 
    2014-Ohio-836
    , ¶ 25
    (ordering party to “construct a privilege log pursuant to Civ.R. 26(B)(6)(a)” on remand,
    and submit the log along with the documents under seal to the trial court).
    Conclusion
    {¶ 49} We reverse the trial court’s judgment entry to the limited extent that its
    order compelling the production of “any documents” responsive to requests Nos. 1, 4, 5,
    7, 8, 10, 13, 14, 16, 19, 20, 21, 22, 23, 24, and 25 would have required the production of
    documents within Dr. Butto’s credentialing file. Mercy St. Vincent has met its burden of
    demonstrating that the entire credentialing file is unconditionally privileged and immune
    from discovery under R.C. 2305.252. Mercy St. Vincent must, however, produce any
    documents that are responsive to these requests and that are not contained in Dr. Butto’s
    credentialing file within 14 days of this decision. To the extent that Mercy St. Vincent
    believes that any responsive documents outside the credentialing file are privileged under
    R.C. 2305.252 or 2305.253, it must establish the privilege as to each specific document,
    via affidavit testimony, and submit the disputed documents under seal to the trial court
    within 14 days of this decision for an in-camera review.
    28.
    {¶ 50} We also reverse the trial court’s order to the extent that its order compelling
    the production of “any documents” responsive to requests Nos. 23 and 24 would have
    required the production of documents protected by the attorney-client privilege. We
    order Mercy St Vincent to construct a privilege log pursuant to Civ.R. 26(B)(6)(a) on
    remand and to submit the privilege log along with the identified documents under seal to
    the trial court, within 14 days of this decision, for an in-camera review. Mercy St.
    Vincent’s privilege log should also list any documents located outside the credentialing
    file that it claims are protected by the peer review privilege.
    {¶ 51} To be clear, Mercy St. Vincent need not identify or submit any documents
    that are found exclusively within Dr. Butto’s credentialing file, which is absolutely
    privileged and immune from discovery under R.C. 2305.252.
    {¶ 52} Mercy St. Vincent’s assignment of error is found well-taken. We therefore
    reverse the trial court’s judgment, in part, and remand for further proceedings consistent
    with this decision. Appellees are ordered to pay the costs of this appeal pursuant to
    App.R. 24.
    Judgment reversed, in part.
    29.
    Cousino v. Mercy St. Vincent Med. Ctr.
    C.A. No. L-17-1218
    A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
    See also 6th Dist.Loc.App.R. 4.
    Mark L. Pietrykowski, J.                       _______________________________
    JUDGE
    James D. Jensen, J.
    _______________________________
    Christine E. Mayle, P.J.                                   JUDGE
    CONCUR.
    _______________________________
    JUDGE
    This decision is subject to further editing by the Supreme Court of
    Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
    version are advised to visit the Ohio Supreme Court’s web site at:
    http://www.supremecourt.ohio.gov/ROD/docs/.
    30.
    

Document Info

Docket Number: L-17-1218

Citation Numbers: 2018 Ohio 1550, 111 N.E.3d 529

Judges: Mayle

Filed Date: 4/20/2018

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (16)

Cargotec, Inc. v. Westchester Fire Insurance , 155 Ohio App. 3d 653 ( 2003 )

Tenan v. Huston , 2006 Ohio 131 ( 2006 )

Bailey v. Manor Care of Mayfield Hts. , 2013 Ohio 4927 ( 2013 )

State Ex Rel. Toledo Blade Co. v. Toledo-Lucas County Port ... , 121 Ohio St. 3d 537 ( 2009 )

Selby v. Ft. Hamilton Hosp., Ca2007-05-126 (5-19-2008) , 2008 Ohio 2413 ( 2008 )

Csonka-Cherney v. ArcelorMittal Cleveland, Inc. , 2014 Ohio 836 ( 2014 )

Owens v. ACS Hotels, L.L.C. , 2016 Ohio 5506 ( 2016 )

Smith v. Cleveland Clinic , 197 Ohio App. 3d 524 ( 2011 )

Mezatasta v. Ent. Hill Farm , 2016 Ohio 3371 ( 2016 )

Flynn v. University Hospital, Inc. , 172 Ohio App. 3d 775 ( 2007 )

Cook v. Toledo Hospital , 2006 Ohio 5278 ( 2006 )

Huntsman v. Aultman Hospital , 160 Ohio App. 3d 196 ( 2005 )

Huntsman v. Aultman Hosp., 2006 Ca 00331 (5-27-2008) , 2008 Ohio 2554 ( 2008 )

Burnham v. Cleveland Clinic (Slip Opinion) , 2016 Ohio 8000 ( 2016 )

Grace v. Mastruserio , 2007 Ohio 3942 ( 2007 )

75-fair-emplpraccas-bna-1409-72-empl-prac-dec-p-45161-48-fed-r , 134 F.3d 351 ( 1998 )

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