Smith v. Cleveland Clinic (Summary)

PEER REVIEW PRIVILEGE/ROOT CAUSE ANALYSIS

Smith v. Cleveland Clinic, No. 96751 (Ohio Ct. App. Dec. 22, 2011)

An Ohio Court of Appeals affirmed a trial court’s denial of a motion for a protective order regarding the deposition of a hospital’s Chief Medical Officer (“CMO”) because the hospital failed to prove that information allegedly obtained during a root cause analysis/peer review committee meeting was subject to Ohio’s peer review privilege statute.

In this case, a patient underwent elective knee surgery without complication and went into cardiac arrest three days later. The patient subsequently died, and the patient’s children sued the hospital, alleging that the cardiac arrest resulted from critically high potassium levels that the hospital did not discover because of a laboratory equipment malfunction.

Unbeknownst to the CMO, the children made a secret recording of the CMO apologizing to them and suggesting that the patient’s cardiac arrest was caused by the hospital. Upon discovery of the secret recording, the hospital sought a protective order to bar the deposition of the CMO on the grounds that the information that the CMO possessed about the present case was derived from a root cause analysis/peer review meeting that was protected under peer review privilege. The Court of Appeals denied the motion.

In its reasoning, the Court of Appeals noted that peer review privilege is not a “generalized cloak of secrecy,” and it recalled that a party seeking peer review privilege must prove with specificity that (1) a peer review committee existed, and (2) the committee investigated the incident. The court concluded that the hospital failed to provide evidence of a peer review committee meeting aimed at peer reviewing the case. Accordingly, the court affirmed the trial court’s denial of the hospital’s motion for a protective order.