Legg v. Hallet
[Cite as Legg v. Hallet , 2007-Ohio-6595.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Plaintiffs-Appellees,
Mary A. Legg et al.,
v.
Robert L. Hallet, M.D. et al.,
Defendants-Appellees,
(Mount Carmel Health System,
Defendant-Appellant).
:
:
:
No. 07AP-170
(C.P.C. No. 05CVA-02-1977)
:
(REGULAR CALENDAR)
:
:
:
O P I N I O N
Rendered on December 11, 2007
Butler, Cincione & DiCuccio, and N. Gerald DiCuccio, for
plaintiffs.
Earl, Warburton, Adams & Davis, Grier D. Schaffer and
Christopher R. Walsh, for Mount Carmel Health System.
Vorys, Sater, Seymour & Pease, Alan Radnor and Michael R.
Thomas, for Amicus Curiae Mount Carmel Medical Staff.
APPEAL from the Franklin County Court of Common Pleas.
P. BRYANT, J.
{¶1} Defendant-appellant, Mount Carmel Health System (“Mount Carmel”),
appeals from the February 20, 2007 decision and entry of the Franklin County Court of
Common Pleas partially granting the motion of plaintiff-appellee, Mary A. Legg, to compel
No. 07AP-170
Mount Carmel to produce documents in discovery. Because the order Mount Carmel
2
appeals is not final and appealable, the appeal is dismissed.
{¶2} As a result of the medical care plaintiff received for ovarian cancer, plaintiff
in May 2002 filed a medical malpractice action against Mount Carmel and several staff
physicians at Mount Carmel East Hospital. As permitted under Civ.R. 41(A)(1), plaintiff
voluntarily dismissed her original complaint on February 24, 2004 and re-filed the action
on February 22, 2005. Underlying the discovery order at issue here is plaintiff’s claim that
Mount Carmel negligently credentialed Robert Hallet, M.D. who, plaintiff alleged,
negligently cared for, diagnosed, and treated her ovarian cancer.
{¶3} Seeking Mount Carmel’s personnel and credentialing file regarding Dr.
Hallet, plaintiff served Mount Carmel with discovery requests, including subpoenas duces
tecum issued in September 2006 upon the chairman of Mount Carmel’s obstetric and
gynecology department and its director of medical staff services. In response, Mount
Carmel moved for a protective order and to quash the subpoenas, arguing the subpoenas
were an improper means of discovery and the records plaintiff requested are privileged
and therefore not discoverable. At the trial court’s request, the parties stipulated in
November 2006 that Dr. Hallet’s credentialing file be submitted to the court for an in
camera inspection to determine if any or all of the credentialing file was discoverable.
{¶4}
In a December 4, 2006 decision and entry, the trial court found the
subpoenas violated Civ.R. 45(A)(1)(c)’s provision that prohibits using a subpoena to
obtain the production of documents from a party. Granting Mount Carmel’s motion to
quash the subpoenas, the court denied Mount Carmel’s motion for a protective order as
moot and noted “the issue of which records are discoverable may remain in this case.”
No. 07AP-170
{¶5} On January 4, 2007, plaintiff filed a motion under Civ.R. 37 to compel Mount
3
Carmel to produce the following documents for inspection and copying:
Complete copies of any and all documents of any kind, nature
and/or description pertaining in any manner whatsoever to the
application for and/or granting of medical and/or surgical staff
privileges with Mount Carmel Health and any of its affiliated
hospitals, including Mount Carmel East Hospital, by and for
Defendant Hallet, for staff privileges in effect in the year 2000,
including, but not limited to:
a. All applications for staff privileges by Defendant Hallet,
together with all supporting documentation accompanying
said applications;
b. Any and all documentation
regarding evaluations,
complaints, and/or performance reviews;
c. All documents received by Defendant Hallet pertaining in
any fashion to the granting, denial and/or modification of staff
privileges;
d. Copies of all licenses, certifications, and/or CME credits
(from 1996-2000) submitted by Defendant Hallet; and
e. Any and all standards and/or procedures to be applied by
Defendant Mount Carmel and/or
its medical staff
in
considering and acting upon applications for staff membership
and professional privileges.
{¶6} On January 17, 2007, Mount Carmel filed a memorandum contra plaintiff’s
motion to compel. Mount Carmel indicated its willingness to comply with plaintiff’s request
in paragraph “e,” but objected to any further discovery, asserting plaintiff’s other
document requests involved privileged peer-review and credentialing documents that are
protected from discovery under R.C. 2305.252 and 2305.253. In a February 20, 2007
decision and entry, the trial court granted in part and denied in part plaintiff’s motion to
compel.
No. 07AP-170
{¶7} Noting Mount Carmel did not oppose the production of documents
4
pertaining to its credentialing standards and procedures, the trial court ordered Mount
Carmel to produce the materials plaintiff requested in paragraph “e.” The court denied
plaintiff’s document requests in paragraphs “a,” “c,” and “d,” together with her request in
paragraph “b” for “evaluation” and “performance review” documents, concluding all such
documents are protected from discovery because they fall within the scope of the peer
review privilege contained in R.C. 2305.252. The trial court nonetheless found the peer
review privilege does not protect from discovery all documents pertaining to “complaints”
made against Dr. Hallet, the subject of some of plaintiff’s requests in paragraph “b.”
{¶8} Explaining, the trial court noted that R.C. 2305.252 extends a peer review
privilege to “proceedings and records within the scope of a peer review committee of a
health care entity.” The parties do not dispute that Mount Carmel is a “health care entity”
as defined in R.C. 2305.25(A)(1). The trial court determined Mount Carmel’s risk
management department has complaint files that are (1) segregated and kept in a
separate location from Mount Carmel’s credentialing records and (2) used for purposes
other than peer review.
{¶9}
In reaching that conclusion, the trial court relied on an affidavit of Mount
Carmel East Hospital’s risk manager, who attested that when Mount Carmel receives a
complaint about a healthcare provider, “a complaint file for that individual healthcare
provider is created.” (Affidavit of Christina Richards.) According to the affidavit, “[t]he
purpose of the file is to document the investigation and follow-up to resolve the patient’s
complaint, as well as to compile a summary of information, if any, for possible
consideration at the time of a physician’s re-credentialing and re-appointment process
No. 07AP-170
which is treated as a confidential peer-review process by the Hospital.” Id. (Emphasis
5
added.) The hospital keeps each such complaint file “in a locked cabinet in the Risk
Management Department and access to these files is strictly limited to the Risk Manager
and a limited number of select members of the medical staff who are on peer-review
committees.” Id.
{¶10} Based upon the affidavit, the court determined the statutory purpose of a
“peer review committee,” as defined in R.C. 2305.25(E)(1), is narrower in function and
scope than the broader “risk management” Mount Carmel conducts to avoid litigation and
liability against a hospital, to preserve hospital reputation, and to investigate and resolve
patient complaints. Concluding Mount Carmel’s risk management department’s complaint
files do not fall within the scope of the peer review privilege, the court ordered Mount
Carmel to produce “patient complaints, and complaints from others who are not acting as
hospital staff or medical personnel with privileges at the hospital, pertaining to Dr. Hallet.”
(Feb. 20, 2007 decision and entry, 1-2.) The court further required Mount Carmel to
produce “any other documents within the hospital’s Risk Management Department’s
complaint files pertaining to such complaints (except for documents prepared in
anticipation of litigation or documents created as communication with or from legal
counsel).” Id. (Emphasis added.) The court’s order lastly instructed that “[a]ny such
documents shall be produced from the hospital’s Risk Management files rather than from
the peer-review [credentialing] files [that were previously] submitted to this court for an in
camera inspection.” (Emphasis added.)
{¶11} In ordering Mount Carmel to produce documents from its risk management
department’s complaint files, the court expressly noted that “[i]ssuance of this order
No. 07AP-170
should not be construed as a finding by this court that there are any such complaints
6
pertaining to Dr. Hallet in the Hospital’s Risk Management files or in the confidential peer-
review file [that were] submitted for the in camera inspection. This Court merely orders
that the documents be produced from the Risk Management files if they exist.” Id.
(Emphasis added.)
{¶12} Mount Carmel appeals from the trial court’s February 20, 2007 order,
assigning the following errors:
I. The trial court erred to the prejudice of Mount Carmel when
it refused to find that Plaintiffs were collaterally estopped from
filing a motion to compel when Plaintiffs failed to appeal the
trial court’s final order quashing Plaintiffs’ subpoena.
II. The trial court erred to the prejudice of Mount Carmel when
it held that complaints presented to Mount Carmel’s peer
review committee were discoverable, which order violated the
plain language of R.C. 2305.252 and 2305.253.
III. The trial court erred to the prejudice of Mount Carmel
when it strictly construed an unambiguous statute, R.C.
2305.252.
{¶13} As a preliminary matter, because this court can only “review and affirm,
modify, or reverse judgments or final orders,” we first must determine whether the trial
court’s February 20, 2007 order is final and appealable. See Section 3(B)(2), Article IV,
Ohio Constitution. “* * * The entire concept of ‘final orders’ is based upon the rationale
that the court making an order which is not final is thereby retaining jurisdiction for further
proceedings. A final order, therefore, is one disposing of the whole case or some
separate and distinct branch thereof.” Briggs v. Mt. Carmel Health Sys., Franklin App. No.
07AP-251, 2007-Ohio-5558, at ¶7, quoting Noble v. Colwell (1989), 44 Ohio St.3d 92, 94,
quoting Lantsberry v. Tilley Lamp Co. (1971), 27 Ohio St.2d 303, 306. “A judgment that
No. 07AP-170
leaves issues unresolved and contemplates that further action must be taken is not a final
7
appealable order.” Briggs, at ¶7, quoting State ex rel. Keith v. McMonagle, 103 Ohio St.3d
430, 2004-Ohio-5580, at ¶4, citing Bell v. Horton (2001), 142 Ohio App.3d 694, 696. “A
‘final decision’ generally is one which ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment.” Briggs, at ¶7, quoting Catlin v. United
States (1945), 324 U.S. 229, 233.
{¶14} Mount Carmel contends the trial court’s February 20, 2007 order is a final
appealable order pursuant to R.C. 2505.02(B)(4). According to its provisions, an order
granting or denying a provisional remedy is final and subject to review if the order (1) “in
effect determines the action with respect to the provisional remedy and prevents a
judgment in the action in favor of the appealing party with respect to the provisional
remedy,” and (2) “[t]he appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues, claims, and
parties in the action.” To satisfy R.C. 2505.02(B)(4) and constitute a final appealable
order, an order must grant or deny a provisional remedy and both additional provisions
must apply. By statutory definition, a “provisional remedy” is “a proceeding ancillary to an
action, including, but not limited to, a proceeding for * * * discovery of privileged matter
* * *.” R.C. 2505.02(A)(3).
{¶15} Generally, discovery orders are
interlocutory and not
immediately
appealable. See Walters v. Enrichment Ctr. of Wishing Well, Inc. (1997), 78 Ohio St.3d
118, 120-121; State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 438; Briggs,
supra, at ¶11. The scope of pretrial discovery is broad and parties may obtain discovery
No. 07AP-170
regarding any matter that is not privileged and is relevant to the subject matter. Civ.R.
8
26(B)(1).
{¶16} To the extent an order pertains to matters other than those concerning
discovery of privileged matters, the order is deemed interlocutory and therefore not final
and appealable. See Covington v. The MetroHealth Sys., 150 Ohio App.3d 558, 2002-
Ohio-6629, ¶21, appeal not allowed, 98 Ohio St.3d 1538, 2003-Ohio-1946. See, also,
Chambers v. AKAAS Corp., Inc., Lorain App. No. 05CA008791, 2006-Ohio-4156,
discretionary appeal not allowed, 112 Ohio St.3d 1442, 2007-Ohio-152 (finding no final
appealable order where the appellant did not appeal from the protection denied to actual
privileged information). By contrast, orders requiring the disclosure of privileged
information are final and appealable. See, e.g., Nester v. Lima Mem. Hosp. (2000), 139
Ohio App.3d 883, appeal not allowed (2001), 91 Ohio St.3d 1474; Schottenstein, Zox &
Dunn v. McKibben, Franklin App. No. 01AP-1384, 2002-Ohio-5075, at ¶19; Callahan v.
Akron Gen. Med. Ctr., Summit App. No. Civ.A. 22387, 2005-Ohio-5103, at ¶28. “Privilege
must rest upon some specific constitutional or statutory provision.” State ex rel.
Grandview Hosp. & Medical Ctr. v. Gorman (1990), 51 Ohio St.3d 94, 95.
{¶17} Within those parameters, Mount Carmel asserts the trial court granted a
“provisional remedy.” It therefore contends the court’s February 20, 2007 order is final
and appealable pursuant to R.C. 2505.02(B)(4) because it ordered the discovery of
documents that are privileged and statutorily protected from discovery under R.C.
2305.252 and 2305.253.
{¶18} R.C. 2305.252, the “peer review privilege,” provides that documents or
records cannot be obtained from a peer review committee’s records or proceedings. Doe
No. 07AP-170
v. Mount Carmel Health Systems, Franklin App. No. 05AP-435, 2005-Ohio-6966, at ¶16,
9
appeal not allowed, 109 Ohio St.3d 1480, 2006-Ohio-2466. Pursuant to the statute, a
court’s order to produce for discovery or for use at trial a peer review committee’s records
or proceedings is a final, appealable order. R.C. 2305.252. A “peer review committee”
conducts credentialing activities for health care providers, such as Dr. Hallet, and
conducts other attendant hearing processes “initiated as a result of a peer review
committee’s recommendations or actions.” R.C. 2305.25(E)(1).
{¶19} Even so, the statutorily conferred peer review privilege is not absolute.
Grandview Hosp., supra, at 96; Doe, supra, at ¶15. The peer review privilege does not
extend to “information, documents, or records otherwise obtainable from original
sources,” even if the documents or records were produced or presented during peer
review proceedings. R.C. 2305.252; Grandview Hosp., supra; Doe, at ¶16; Wilson v.
Barnesville Hosp., 151 Ohio App.3d 55, 2002-Ohio-5186, at ¶14; Brzozowski v. Univ.
Hosp. Health Systems, Cuyahoga App. No. 85097, 2005-Ohio-2628, at ¶19, appeal not
allowed, 106 Ohio St.3d 1558, 2005-Ohio-5531. Thus, although documents or records
cannot be obtained from a peer review committee’s proceedings or records, “[s]uch
documents and records are available from the original source of the information
contained therein.” Doe, at ¶16; Cook v. Toledo Hosp., 169 Ohio App.3d 180, 2006-Ohio-
5278, at ¶31; Tenan v. Huston, 165 Ohio App.3d 185, 2006-Ohio-131, at ¶23.
{¶20} R.C. 2305.253 addresses
the confidentiality of
incident and
risk
management reports. The statute provides that such reports and their contents are not
subject to discovery and are not admissible in the trial of a tort action. R.C. 2305.25(D)
defines an “incident or risk management report” as “a report of an incident involving injury
No. 07AP-170
or potential injury to a patient as a result of patient care provided by health care providers
10
* * * 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.” (Emphasis added.) This court
addressed the privilege accorded incident and risk management reports, concluding “[t]he
privilege granted by R.C. 2305.253 specifically targets documents that report an incident
involving injury suffered by a patient while receiving medical care by a health care
provider.” Doe, supra, at ¶18. If “this type of document is prepared by-or for the use of-a
peer review committee, it is to be confidential and not subject to discovery.” Id.
Nonetheless, “similar to the peer review privilege as a whole, the unavailability of
documents does not render all information pertaining to an incident beyond the scope of
discovery. A person may testify, or produce evidence, regarding patient care that is within
his or her personal knowledge. R.C. 2305.253(B)(2).” Id.; see, also, R.C. 2305.252.
{¶21} The purpose of the statutes is not to hinder lawsuits, but to create limited
protection not only to individuals who provide information to peer review committees but
also to those who serve on such committees, thereby encouraging a free flow of
information without fear of reprisal in the form of civil liability. Browning v. Burt (1993), 66
Ohio St.3d 544, 562. See, also, Jacobs v. Frank (1991), 60 Ohio St.3d 111. The statutes
neither expressly nor implicitly give blanket immunity to a health care entity for negligence
in granting or continuing staff privileges to an incompetent physician. Browning, supra. “If
all materials viewed and utilized by peer
review committees were deemed
undiscoverable, a hospital could never be held accountable for its choice in staffing * * * .”
Wilson, supra, at ¶23. As the court in Wilson aptly observed, “[t]his is precisely why courts
continue to recognize the tort of negligent credentialing: so that hospitals may be held
No. 07AP-170
accountable by third parties for the breach of their duty to hire only competent
11
physicians.” Id. at ¶24. See Albain v. Flower Hosp. (1990), 50 Ohio St.3d 251, paragraph
two of the syllabus (discussing negligent credentialing and the duty of health care entities
to grant staff privileges only to competent physicians).
{¶22} Mount Carmel contends its risk management department meets the
definition of a peer review committee when it is accepting and processing complaints
relating to health care, including complaints concerning physicians. According to Mount
Carmel, the peer review committee, as part of the peer review process, reviews each
complaint relating to a physician, and the complaint becomes part of the peer view
committee’s records. Thus, Mount Carmel contends, any complaint made against its
physicians, including Dr. Hallet, is clearly a peer review document that falls within the
scope of the peer review committee’s functions, even though the physician complaint files
that the risk management department maintains may have other uses.
{¶23} According to the affidavit of Mount Carmel’s risk manager, the risk
management department, upon receiving a patient’s complaint regarding a physician,
creates a complaint file “to document the investigation and follow-up to resolve the
patient’s complaint,” and a summary of
information
is compiled
for “possible
consideration” at the time of the re-credentialing, peer review process for the physician.
The affidavit thus does not support Mount Carmel’s contention on appeal that every
complaint Mount Carmel’s risk management department receives is a peer review
document “prepared by or for the use of a peer review committee” or is even considered
in the peer review committee.
No. 07AP-170
{¶24} Here, the trial court’s order correctly prohibited the disclosure of any
12
complaint documents pertaining to Dr. Hallet from Mount Carmel’s peer review committee
proceedings or records. Such documents are privileged and protected from discovery.
Doe, supra, at ¶16. The trial court narrowly tailored its order to producing documents only
from the risk management department’s files. Any complaint documents contained in
such files that were not prepared by or for the use of Mount Carmel’s peer review
committee are subject to discovery and may be obtained “from the original source of the
information contained therein,” even if the documents were produced or presented during
peer review proceedings. Grandview Hosp., supra; Doe, at ¶15-16; Cook, supra, at ¶31;
Wilson, supra, at ¶14; Brzozowski, supra, at ¶19; Tenan, supra, at ¶23.
{¶25} In Ohio, the burden of showing that documents are confidential or privileged
rests upon the party seeking to exclude the documents from discovery. Covington, supra,
at ¶25, citing Lemley v. Kaiser (1983), 6 Ohio St.3d 258, 263-264; Smith v. Manor Care of
Canton, Inc., Stark App. No. 2005-CA-00100, 2006-Ohio-1182, at ¶61-62; Rinaldi v. City
View Nursing & Rehab. Center, Inc., Cuyahoga App. No. 85867, 2005-Ohio-6360, at ¶22,
appeal not allowed, 109 Ohio St.3d 1424, 2006-Ohio-1967. Mount Carmel cannot
complain for the first time on appeal that the trial court ordered it to disclose “privileged”
documents where Mount Carmel failed to offer any evidence that complaints pertaining to
Dr. Hallet (1) exist within the risk management department’s files and therefore are
subject to production in camera, and (2) are privileged and therefore protected from
discovery. See Manor Care, supra; Rinaldi, supra.
{¶26} Indeed, in ordering Mount Carmel to produce complaints pertaining to Dr.
Hallet that are contained within its risk management files, the trial court expressly noted it
No. 07AP-170
was not making a finding that any such documents exist; it merely ordered Mount Carmel
13
to produce the documents “if they exist.” The record before this court does not identify or
appear to contain any such documents. Nor does the record reflect that Mount Carmel
produced any risk management department documents pursuant to the trial court’s order.
Moreover, the record does not indicate that Mount Carmel submitted any risk
management department files to the trial court for an in camera review so the court could
determine whether privilege protects any complaint documents contained in the files from
discovery.
{¶27} The trial court’s in camera inspection of any risk management documents
pertaining to Dr. Hallet, for which Mount Carmel claims a privilege and protection from
discovery, is a necessary preliminary step and is the most appropriate way to weigh
claims of privilege regarding the documents. See Grandview Hosp., supra, at 96, citing
Henneman v. Toledo (1988), 35 Ohio St.3d 241; Akers v. Ohio State Univ. Med. Ctr.,
Franklin App. No. 04AP-575, 2005-Ohio-5160; Doe, at ¶13; Gates v. Brewer (1981), 2
Ohio App.3d 347. W ithout reviewing the actual documents, neither the trial court nor this
court can make an informed decision as to whether any of the information contained in
the documents is privileged and protected from discovery. Id. Moreover, any issues that
may be the subject of an appeal would be rendered moot if the trial court determines in an
in camera review that either (a) the risk management files contain no “complaints”
pertaining to Dr. Hallet or (b) all of the information contained in the risk management
complaint files is privileged. Conversely, if the trial court determines in an in camera
review that some information contained with the risk management department’s file is
No. 07AP-170
subject to disclosure, Mount Carmel may pursue an appeal at that time. Mount Carmel’s
14
appeal at this time is simply premature.
{¶28} Because the trial court did not order the production of complaint documents
from the peer review committee’s proceedings or records, the February 20, 2007
discovery order is not a final appealable order pursuant to R.C. 2305.252. Similarly,
because Mount Carmel did not demonstrate the trial court’s order grants discovery of
privileged material, it failed to show the order grants a “provisional remedy” under R.C.
2505.02(B)(4). The trial court’s discovery order therefore is interlocutory and is not final
and appealable pursuant to R.C. 2502.02. Accordingly, we dismiss this appeal for lack of
jurisdiction.
Appeal dismissed.
FRENCH, J., and T. BRYANT, J., concur.
T. BRYANT, J., retired of the Third Appellate District,
assigned to active duty under authority of Section 6(C), Article
IV, Ohio Constitution.
_________________