Cousino v. Mercy St. Vincent Med. Ctr.

[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.