Sexton v. Healthcare Facility Mgt., L.L.C.

[Cite as Sexton v. Healthcare Facility Mgt., L.L.C., 2022-Ohio-963.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
JAMES SEXTON, AS EXECUTOR OF :
THE ESTATE OF JOHN DAVID :
SEXTON : Appellate Case No. 29262
:
Plaintiff-Appellee : Trial Court Case No. 2019-CR-2598
:
v. : (Civil Appeal from
: Common Pleas Court)
HEALTHCARE FACILITY MGMT. LLC, :
dba COMMUNICARE FAMILY OF :
COMPANIES, et al.
Defendants-Appellants
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OPINION
Rendered on the 25th day of March, 2022.
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CRAIG T. MATTHEWS, Atty. Reg. No. 0029215, 320 Regency Ridge Drive, Centerville,
Ohio 45459 and DAVID M. DEUTSCH, Atty. Reg. No. 0014397, 130 West Second Street,
Suite 310, Dayton, Ohio 45402
Attorneys for Plaintiff-Appellee
JEFFREY W. VAN WAGNER, Atty. Reg. No. 0021913 and DIANE L. FEIGI, Atty. Reg.
No. 0070286, 1300 East Ninth Street, Suite 1950, Cleveland, Ohio 44114
Attorneys for Defendants-Appellants
.............
LEWIS, J.
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{¶ 1} Defendants-Appellants Health Care Facility Management LLC and Summit
(Ohio) Leasing Co., LLC d/b/a Wood Glen Alzheimer’s Community appeal from an order
of the trial court denying their motion for a protective order.
I. Facts and Course of Proceedings
{¶ 2} On June 5, 2019, Plaintiff-Appellee James Sexton, as Executor of the Estate
of John David Sexton, commenced an action in the Montgomery County Common Pleas
Court against Vanesha Rice, Health Care Facility Management LLC (“HCFM”), and
Summit Leasing Co., LLC d/b/a Wood Glen Alzheimer’s Community (“Wood Glen”).
Plaintiff alleged that John Sexton was assaulted by Rice in late January 2019 at Wood
Glen while Rice was an employee at Wood Glen and John Sexton was residing there.
John Sexton died less than two months later. Plaintiff alleged claims of negligence,
negligent hiring/retention, negligent supervision/control, intentional spoliation of evidence,
breach of contract, and wrongful death resulting from Wood Glen’s employee Vanesha
Rice’s assaulting John Sexton.1
{¶ 3} On September 27, 2019, Plaintiff served Defendants HCFM and Wood Glen
with interrogatories and requests for production of documents. Defendants filed
objections and responses to these discovery requests. On June 17, 2020, Plaintiff filed
a motion to compel HCFM and Wood Glen to fully provide responses to the discovery
requests. On October 26, 2020, HCFM and Wood Glen filed a notice with the trial court
1 Plaintiff’s claims are derived from its April 9, 2021 Amended Complaint and a
subsequent wrongful death action, which was consolidated with the original action. See
Stipulation to Consolidate (Apr. 27, 2021).
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stating that the parties had entered into an agreement of confidentiality relative to certain
documents produced in discovery.
{¶ 4} On December 21, 2020, HCFM and Wood Glen provided the trial court with
responsive documents for an in-camera inspection. Following its in-camera inspection
and further briefing of the issues by the parties, the trial court issued a June 22, 2021
decision finding that the documents at issue were not protected from production by the
peer review privilege asserted by HCFM and Wood Glen. However, the trial court
ordered the parties to submit additional briefing as to whether production of some of the
documents would violate patients’ rights under the Health Insurance Portability and
Accountability Act (“HIPAA”) or other laws.
{¶ 5} Following the trial court’s June 22, 2021 decision, Defendants HCFM and
Wood Glen produced some documents that it previously had argued were privileged from
discovery. HCFM and Wood Glen then filed a motion for a protective order regarding
the remaining documents, contending that the requested documents were irrelevant and
were privileged under HIPAA, R.C. 3798.04, and R.C. 2317.02. On August 25, 2021,
the trial court denied Defendants’ motion for a protective order. HCFM and Wood Glen
filed a motion for stay of execution of the trial court’s decision, but this motion was denied.
On September 21, 2021, HCFM and Wood Glen filed a notice of appeal from the August
25, 2021 decision.
{¶ 6} On November 3, 2021, Appellants filed a motion for leave of court to file an
amended notice of appeal. Appellee opposed this motion. On December 21, 2021, we
issued an Order stating that we would consider the motion and response upon our review
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of the merits of the appeal.
II. The Trial Court’s August 25, 2021 Order Is A Final, Appealable Order
{¶ 7} Appellee contends that this appeal should be dismissed because the trial
court’s August 25, 2021 Order was not a final, appealable order. According to Appellee,
“[m]erely claiming that documents are privileged under ORC § 2305.252 does not make
an otherwise interlocutory discovery order appealable.” Brief of Appellee, p. 6. Further,
Appellee contends that we do not have jurisdiction to consider anything ruled upon in the
trial court’s June 22, 2021 order, because Appellants did not file a notice of appeal within
30 days of that order and did not attach a copy of the June 22, 2021 order to its notice of
appeal. We do not agree.
{¶ 8} Article IV, Section 3(B)(2) of the Ohio Constitution limits this court’s
jurisdiction to the review of “judgments or final orders.” An interlocutory order is “[a]n
order that relates to some intermediate matter in the case; any order other than a final
order.” Black’s Law Dictionary (10th Ed. 2014). A trial court’s discovery orders are
generally interlocutory, and therefore not immediately appealable. Mezatasta v. Ent. Hill
Farm, 6th Dist. Erie No. E-15-037, 2016-Ohio-3371, ¶ 16. Notably, the trial court’s June
22, 2021 order allowed for additional briefing before a final ruling was made on the motion
to compel. The trial court requested additional briefing from the parties on 1) whether
there were other grounds to prevent the production of statements from or to or about
Vanesha Rice; 2) whether documents related to claims of abuse of residents other than
John Sexton “may violate other laws, such as HIPAA, and also, the counterbalance of
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relevancy in this action”; and 3) whether the production of medical records of residents
other than John Sexton violated “other laws that protect these other residents, current
and former, even though the documents do not fall within the privilege.” June 22, 2021
Decision, p. 8-10. The trial court’s June 22, 2021 order was interlocutory in nature, did
not finally decide the privilege issues, and therefore was not immediately appealable.
{¶ 9} The August 25, 2021 order, however, is a different matter. That decision
included the trial court’s final statement on the issues of privilege and resulted in
Appellants being forced to produce documents that they argued were protected by the
peer-review privilege, among other privileges. “To show that an order for a provisional
remedy such as the discovery of privileged * * * materials is final and appealable, R.C.
2905.02(B)(4)(a) requires a showing that the order determines the privilege issue and
prevents a judgment in favor of the appellant regarding that issue, while R.C.
2505.02(B)(4)(b) requires a showing that the harm caused by the privilege-related
discovery order cannot be meaningfully or effectively remedied by an appeal after final
judgment.” Burnham v. Cleveland Clinic, 151 Ohio St.3d 356, 2016-Ohio-8000, 89
N.E.3d 536, ¶ 20, citing State v. Muncie, 91 Ohio St.3d 440, 446, 746 N.E.2d 1092 (2001).
{¶ 10} “[A] judgment that compels the production of documents or information that
is alleged to be protected by the peer-review privilege is a final order and, therefore,
immediately appealable.” Hance v. Cleveland Clinic, 2021-Ohio-1493, 172 N.E.3d 478,
¶ 14 (8th Dist.). See also R.C. 2305.252(A) (“An order by a court to produce for
discovery or for use at trial the proceedings or records described in this section is a final
order.”). The trial court’s August 25, 2021 decision denied Appellants’ motion for a
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protective order, which meant Appellants were required to produce documents that they
alleged were privileged. Therefore, the August 25, 2021 decision of the trial court was a
final, appealable order. Contrary to Appellee’s argument, “a party is not required to
conclusively prove the existence of privileged matters as a precondition to appellate
review under R.C. 2505.02(B)(4).” Phillips v. Vesuvius USA Corp., 8th Dist. Cuyahoga
No. 108888, 2020-Ohio-3285, ¶ 12, citing Byrd v. U.S. Xpress, Inc., 2014-Ohio-5773, 26
N.E.3d 858, ¶ 12 (1st Dist.)
{¶ 11} Finally, an appeal from the final order includes all interlocutory orders.
USA Freight, L.L.C. v. CBS Outdoor Group, Inc., 2d Dist. Montgomery No. 26425, 2015-
Ohio-1474, ¶ 15 (noting that App.R. 3(D) does not require an appellant to separately
identify each interlocutory order). As such, Appellants’ appeal from the August 25, 2021
final order also allows us to consider the trial court’s June 22, 2021 interlocutory order.
Consequently, Appellants’ “Motion for Leave of Court to File Amended Notice of Appeal”
is overruled as moot.
III. The Trial Court Erred By Ordering the Production of Certain Medical Records
and Documents Protected by the Peer-Review and Medical Record Privileges
{¶ 12} Appellants raise two assignments of error regarding the trial court’s decision
to compel the production of documents that Appellants claim are privileged. Appellants’
assignments of error state:
The Trial Court Erred to the Prejudice of Defendants-Appellants
when it Denied, in its August 25, 2021 Decision, Defendants-Appellants’
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Motion for Protective Order, and Ordered the Production of Confidential
Documents (submitted for the Court’s in-camera review) which are
Protected under the Peer Review and Quality Assurance Privilege at R.C.
2305.24, 2305.25, 2305.252, and 2305.253, and when it made its previous
Decision on June 22, 2021 in which it made its preliminary determination
that these Confidential Documents are not protected by the Peer Review
and Quality Assurance Privilege.
The Trial Court Erred to the Prejudice of Defendants-Appellants
when it Denied, in its August 25, 2021 Decision, Defendants-Appellants’
Motion for Protective Order, and Ordered the Production of Confidential
Documents, submitted for the Court’s in-camera review, containing
Protected Health Information under HIPAA and R.C. 3798.04, and
Privileged Under 2317.02(B).
{¶ 13} Both of Appellants’ assignments of error relate to Appellee’s request for
production of documents number 17, which requests “All documents related to or referring
to complaints or allegations of abuse or assault of any patient at Wood Glen.” Appellants
contend that the trial court erred in finding that the documents relating to individuals who
resided at Wood Glen other than John Sexton are not protected from discovery by the
peer-review and medical records privileges and HIPAA.
{¶ 14} Before analyzing whether the trial court erred in granting Appellee’s motion
to compel and overruling Appellants’ motion for protective order, we will summarize the
documents themselves. The documents at issue in this appeal involve four principal
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types of documents, all of which are contained in Exhibits A-31 through A-34 and B-25
through B-37. The first group of documents, contained in Exhibits A-31 through A-34,
consists of skin assessments of residents of Wood Glen who resided in the same unit as
John Sexton. According to the affidavit of John Quattrone, who was Executive Director
of Wood Glen and who served on Wood Glen’s Quality Assurance Committee, these skin
assessments to discover any skin abnormalities or changes were conducted in response
to the incident involving John Sexton.
{¶ 15} The second group of documents, contained in Exhibits B-25 through B-37,
consists of incident reports involving residents other than John Sexton who alleged injury
caused by employees at Wood Glen. At the bottom of each page of the incident reports
is printed the following statement: “Confidential and Privileged: This document is for
internal use only within our quality assurance program. The contents are confidential
and private.” Dr. Meenakshi Patel, the Medical Director at Wood Glen who also served
on the Quality Assurance Committee, stated that the Quality Assurance Committee
reviewed the investigation of the incidents contained in Exhibits B-25 through B-37.
{¶ 16} The third group of documents also is contained in Exhibits B-25 through B-
37 and consists of progress notes and evaluations regarding the medical condition of
residents at Wood Glen other than John Sexton who claimed abuse by a member of
Wood Glen’s staff.
{¶ 17} The fourth group of documents also is contained in Exhibits B-25 through
B-37 and consists of witness statements regarding the allegations of abuse by residents
at Wood Glen other than John Sexton.
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{¶ 18} In its June 22, 2021 decision, the trial court found that the documents in
Exhibits A-31 through A-34 and B-25 through B-37 were outside the scope of the peer-
review privilege. 2 The trial court, however, allowed Appellants to submit additional
briefing regarding whether the production of these documents would violate other laws
like HIPAA.
{¶ 19} Following the June 22, 2021 ruling, Appellants moved for a protective order
precluding the production of the documents in Exhibits A-31 through A-34 and B-25
through B-37. According to Appellants, the documents relating to claims of abuse of
other residents are medical records and protected from discovery pursuant to HIPAA and
R.C. 2317.02. Appellants also contended that the documents relating to claims of abuse
of other residents and the residents’ attendant medical records should be precluded from
production as irrelevant.
{¶ 20} On August 25, 2021, the trial court denied Appellants’ motion for protective
order, stating, in part:
The Court finds that defendants are not entitled to protection precluding
2 In its June 22, 2021 decision, the trial court also found that 1) the documents contained
in Exhibits A-3 through A-24 and B-3 through B-24 were outside the scope of the peer-
review privilege; 2) documents containing statements to and from Rice, including
documents in Exhibits A-25 through A-28, would not be produced until the parties
submitted additional briefing; and 3) the documents in Exhibits A-35 through A-37 were
outside the scope of the peer-review privilege, but the trial court would allow Appellants
to submit further briefing on whether the production of these documents would violate
other laws like HIPAA. Following the trial court’s decision, Appellants produced a
number of these documents. Moreover, Appellants do not identify any of these particular
documents in their merit brief on appeal. Rather, Appellants limit their appeal to the
documents contained in Exhibits A-31 through A-34 and B-25 through B-37. Appellants’
Brief, p. 4, fn. 2. Therefore, we will not address the trial court’s ruling regarding the other
documents ruled upon in the trial court’s June 22, 2021 decision.
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disclosure of other claims of misconduct against Vanesha Rice that may lead to
demonstrating that defendants were negligent in hiring or supervising her.
Plaintiff’s request number 17 would cover that information, if it exists. The Court
further finds that defendants are not entitled to protection from disclosure of
information related to general lack of supervision, lack of adequate staffing, lack of
adequate training, such that may have prevented or made the misconduct of
Vanesha Rice less likely. Plaintiff agrees that defendants may redact the identity
of the person making the report and, presumably, the identity of the resident. * * *
Defendants should not disclose the documents relating to Vanesha Rice that were
excepted from the previous decision.
(Decision and Entry, p. 5)
{¶ 21} Appellants contend that the trial court erred in granting Appellee’s motion to
compel and overruling its motion for a protective order. “Generally, a discovery dispute
is reviewed for abuse of discretion. * * * However, whether the information sought is
confidential and privileged from disclosure ‘is a question of law that is reviewed de novo.’ ”
Hance, 2021-Ohio-1493, 172 N.E.3d 478, at ¶ 16, quoting Med. Mut. of Ohio v.
Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13.
{¶ 22} R.C.2305.252(A) provides that “[p]roceedings 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 * * * arising out of matters that are the subject of
evaluation and review by the peer review committee.” Further, “[i]nformation,
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documents, or records otherwise available from original sources are * * * available only
from the original sources and cannot be obtained from the peer review committee's
proceedings or records.” Id.{¶ 23} In order to invoke this peer-review privilege, it is incumbent on Appellants
to establish that the documents being sought were prepared by or for the use of a peer-
review committee. Rinaldi v. City View Nursing & Rehab. Ctr., Inc., 8th Dist. Cuyahoga
No. 85867, 2005-Ohio-6360, ¶ 20. Thus, Appellants must establish that a peer-review
committee existed at Wood Glen and that the committee investigated the case in
question.
{¶ 24} The affidavits of Dr. Patel and John Quattrone establish that a peer review
committee existed at Wood Glen and that the committee investigated the case in
question. The incident reports contained in Exhibits B-25 through B-37 contained
language at the bottom of each page that made it clear that the documents were prepared
for the quality assurance program. Further, Dr. Patel stated that these incident reports
were part of the investigations of alleged abuse at Wood Glen and the Quality Assurance
Committee was required to, and did in fact, meet and review these investigation
documents. These documents fit squarely within the peer-review privilege. Therefore,
the trial court erred in ordering the production of these incident reports.
{¶ 25} The skin assessments contained in Exhibits A-31 through A-34 do not have
any statements identifying the documents as being created for the quality assurance
program. Further, the affidavits of Dr. Patel and John Quattrone fail to state that the
documents were prepared for or even reviewed by the Quality Assurance Committee at
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Wood Glen. Therefore, the trial court correctly found that the documents contained in
Exhibits A-31 through A-34 were not covered by the peer-review privilege. But the
inquiry does not end there. Appellants contend that these skin assessments should be
precluded from discovery as containing protected health information pursuant to HIPAA,
R.C. 3798.04, and R.C. 2317.02.
{¶ 26} Medical records are generally privileged from disclosure under R.C.
2317.02(B)(1), known as the physician-patient privilege. Schlotterer, 122 Ohio St.3d
181, 2009-Ohio-2496, 909 N.E.2d 1237, at ¶ 14. Also, HIPAA prohibits knowingly
disclosing an individual’s identifiable health information to another person. 45 C.F.R.
164.512. Based on a review of the skin assessments, we conclude that these are
medical records that should have been protected from disclosure. Similarly, the
progress notes and evaluations in Exhibits B-25 through B-37 are medical records that
should have been protected from disclosure. A simple redaction of the names on these
medical records is not sufficient to provide the protection to which these medical records
are entitled.
{¶ 27} Finally, the witness statements contained in Exhibits B-25 through B-37 are
covered by the peer-review privilege. According to Dr. Patel, these documents were part
of the investigations of alleged abuse at Wood Glen and the Quality Assurance
Committee was required to, and did in fact, meet and review these investigation
documents. Therefore, the trial court erred in ordering these documents to be produced.
{¶ 28} We acknowledge and share the trial court’s concerns that some parties may
try to use the peer-review privilege “to hide from discovery any information regarding an
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incident by simply providing the information to the [quality assurance committee].” June
22, 2021 Decision, p. 3. Evidence that a party created a quality assurance committee or
presented documents to its committee solely to hide otherwise discoverable documents
would weigh strongly against applying the peer-review privilege to that party’s documents.
However, no evidence of that was presented in the case before us.
{¶ 29} The trial court should have granted Appellants’ motion for protective order
regarding the documents in Exhibits A-31 through A-34 and B-25 through B-37.
Consequently, Appellants’ two assignments of error are sustained.
IV. Conclusion
{¶ 30} Having sustained Appellants’ assignments of error, the trial court’s decision
will be reversed, and the cause will be remanded for further proceedings consistent with
this opinion.
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TUCKER, P.J. and EPLEY, J., concur.
Copies sent to:
Craig T. Matthews
David M. Deutsch
Jeffrey W. Van Wagner
Diane L. Feigi
Michelle L. Casper
Hon. Richard S. Skelton