McVay v. Aultman Hosp. , 2015 Ohio 4050 ( 2015 )

[Cite as McVay v. Aultman Hosp., 2015-Ohio-4050.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JAMES H. MCVAY, INDIVIDUALLY : JUDGES:
AND AS EXECUTOR FOR THE : Hon. W. Scott Gwin, P.J.
ESTATE OF PATRICIA G. MCVAY, : Hon. Sheila G. Farmer, J.
DECEASED : Hon. Craig R. Baldwin, J.
:
Plaintiff-Appellee :
:
-vs- : Case No. 2015CA00008
:
AULTMAN HOSPITAL :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2013CV01704
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: September 29, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
LEE E. PLAKAS RICHARD S. MILLIGAN
MEGAN J. FRANTZ OLDHAM PAUL J. PUSATERI
220 Market Avenue South JENNA M. MCKEAN
Eighth Floor 4684 Douglas Circle, NW
Canton, OH 44702 P.O. Box 35459
Canton, OH 44735-5459
Stark County, Case No. 2015CA00008 2
Farmer, J.
{¶1} On June 25, 2013, appellee, James H. McVay, Individually and as
Executor for the Estate of Patricia G. McVay, Deceased, filed a complaint against
appellant, Aultman Hospital, and others, claiming medical negligence, medical
malpractice, and wrongful death. Amended complaints were filed on December 5, 2013
and May 28, 2014. The complaint arose from the death of Patricia McVay at Aultman
Hospital due to cardiac arrest on June 25, 2012 at approximately 18:08. The complaint
alleged Mrs. McVay was not properly monitored and appellee refused to provide Mrs.
McVay's medical records relative to monitoring information from 16:51 to 17:37 for June
25, 2012.
{¶2} Through deposition testimony, it was established that the time on Mrs.
McVay's cardiac monitor was off by ten minutes.
{¶3} On November 5, 2014, appellee submitted a second request for
production of documents, seeking in part any and all documents regarding whether the
time on the cardiac monitor/station was accurate or not. Appellant objected to the
request, citing work product privilege.
{¶4} Counsel for the parties exchanged letters and in a letter dated December
12, 2014, appellant's counsel claimed work product privilege regarding a "note"
"prepared by a person in risk management in anticipation of litigation on this issue."
{¶5} On December 15, 2014, appellee filed a motion to compel production of
the note, citing good cause under Civ.R. 26(B)(3). In its opposition brief filed December
19, 2014, appellant disputed good cause, arguing the information in the note concerning
Stark County, Case No. 2015CA00008 3
the timing of the cardiac monitor/station had already been disclosed via deposition
testimony.
{¶6} On December 16, 2014, appellant had filed a motion for a protective order
from a Civ.R. 30(B)(5) deposition notice, arguing the subject matters of the requested
deposition i.e., the accuracy of the timing on the cardiac monitor/station and any
inspections on the equipment, had already been disclosed.
{¶7} By judgment entry filed January 7, 2015, the trial court granted appellee's
motion to compel and ordered the production of the note, finding insufficient facts to
establish the note constituted work product privilege and even if it was privileged,
appellee established good cause.
{¶8} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶9} "THE TRIAL COURT ERRED IN ORDERING AULTMAN HOSPITAL TO
PRODUCE A DOCUMENT CREATED IN ANTICIPATION OF LITIGATION BY AN
EMPLOYEE IN ITS RISK MANAGEMENT DEPARTMENT AS PART OF AN
INVESTIGATION OF A HOSPITAL INCIDENT THAT GAVE RISE TO PLAINTIFF'S
LAWSUIT."
{¶10} Oral arguments in this case were held on July 30, 2015. This court
requested a separate briefing on the question of whether the judgment entry appealed
from was a final appealable order given the recent decision by the Supreme Court of
Ohio in Smith v. Chen, 142 Ohio St. 3d 411 (2015).
Stark County, Case No. 2015CA00008 4
{¶11} In Chen, Justice O'Neill, writing for the majority, concluded that although
the matter appealed met the qualifications under R.C. 2905.02(A)(3) as discovery of
privileged matter and was a provisional remedy, the requirements of R.C. 2905.02(B)(4)
must be met. R.C. 2905.02(B)(4) states the following:
(B) An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of the
following:
(4) An order that grants or denies a provisional remedy and to
which both of the following apply:
(a) The order 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.
(b) The 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.
{¶12} The determination that the order sub judice is in fact a provisional remedy
is clear on its face: "This matter came on for consideration upon Plaintiff's Motion to
Compel Documents Regarding the Accuracy of the Time on the Central Monitor Used
on Mrs. McVay. On December 19, 2014, Defendants filed a Brief Opposing Motion to
Compel. Thereafter, on December 31, 2014, Plaintiff filed a Reply."
Stark County, Case No. 2015CA00008 5
{¶13} Under R.C. 2905.02(B)(4), the issues are whether the order determines
the action as to the provisional remedy and prevents a judgment in favor of appellant
and whether appellant would not be afforded a meaningful or effective remedy by an
appeal following a final judgment. Unlike the issue raised in Chen, the argument in this
case is that the work product claim asserts a specific privilege i.e., a "note" prepared by
an employee of appellant's in risk management regarding the investigation of the
incident after the claimed act of malpractice/negligence.
{¶14} The trial court ordered the note from risk management released, thereby
forever disclosing the matter to appellee. Although the admissibility of the note might
well remain an issue for trial, any facts gained from the disclosure would not be barred.
{¶15} Therefore, we find the only time for meaningful and appropriate appeal is
at the present time. The determination of the provisional remedy is final now as to the
rights asserted by appellant. We conclude the order in this case meets all the
requirements of R.C. 2505.02(B)(4).
I
{¶16} Appellant claims the trial court erred in ordering disclosure of the note as
the note constitutes privileged work product. Specifically, appellant claims: (1) the trial
court erred in not finding sufficient evidence to support the fact that the note was
prepared in anticipation of litigation, (2) there was no showing of good cause for
disclosure pursuant to Civ.R. 26(B)(3), and (3) the trial court erred in not holding an
evidentiary hearing or conducting an in camera inspection.
{¶17} Civ.R.26 governs discovery. Subsection (B)(3) states the following:
Stark County, Case No. 2015CA00008 6
(3) Trial preparation: materials. Subject to the provisions of
subdivision (B)(5) of this rule, a party may obtain discovery of documents,
electronically stored information and tangible things prepared in
anticipation of litigation or for trial by or for another party or by or for that
other party's representative (including his attorney, consultant, surety,
indemnitor, insurer, or agent) only upon a showing of good cause therefor.
A statement concerning the action or its subject matter previously given by
the party seeking the statement may be obtained without showing good
cause. A statement of a party is (a) a written statement signed or
otherwise adopted or approved by the party, or (b) a stenographic,
mechanical, electrical, or other recording, or a transcription thereof, which
is a substantially verbatim recital of an oral statement which was made by
the party and contemporaneously recorded.
{¶18} On November 5, 2014, appellee submitted a second request for
production of documents, seeking in part any and all documents regarding whether the
time on the cardiac monitor/station was accurate or not. Appellant objected to the
request, citing work product privilege:
REQUEST NO. 1:
Any and all documents regarding whether the time on the central
monitor station used on Mrs. McVay on June 25, 2012 was accurate or not
accurate.
Stark County, Case No. 2015CA00008 7
RESPONSE:
Objection, work product.
REQUEST NO. 2:
Any and all documents to support the claim that the time on the
central monitoring station used on Mrs. McVay on June 25, 2012 was not
accurate.
RESPONSE:
Objection, work product. Without waiving objection, see Bates
AHMcVay03564-03568.
{¶19} Counsel for the parties exchanged letters and in a letter dated December
12, 2014 (attached to appellee's December 15, 2014 motion to compel as Exhibit 5),
appellant's counsel claimed work product privilege regarding the note "prepared by a
person in risk management in anticipation of litigation on this issue":
Aultman Hospital's knowledge of any specific inspection, work
and/or house calls is reflected in Bates AHMcVay03564-03568 as stated.
Aultman Hospital is not aware of any additional documentation. Aultman
Hospital is unaware of any employee having a specific recollection of
"inspection, work and/or house calls" beyond that in the produced
documentation.
***
The basis for Aultman Hospital's objection to Request for
Production of Documents No. 1 as protected under the work product
Stark County, Case No. 2015CA00008 8
privilege is that Aultman Hospital is in possession of a note prepared by a
person in risk management in anticipation of litigation on this issue.
{¶20} On December 15, 2014, appellee filed a motion to compel production of
the note, citing good cause under Civ.R. 26(B)(3). In support of this motion, appellee
cited the deposition of Kristi Cain, RN, the Unit Director of Memorial 4 East, who
testified the cardiac monitor used on Mrs. McVay was off by ten minutes. Cain depo. at
103-104.
{¶21} In its December 19, 2014 response to appellee's motion to compel,
appellant, in opposing appellee's good cause argument, cited the deposition testimony
of Jennifer Casserman, RN, a nurse on Memorial 4 East, who admitted the subject
monitor's time was off by ten minutes; therefore, there was no dispute that the timing
was off. Casserman depo. at 48-49.
{¶22} On December 16, 2014, appellant had filed a motion for protective order
from a Civ.R. 30(B)(5) deposition notice. Appellant argued the subject matters of the
requested deposition had already been addressed and in support, cited the December
12, 2014 letter above, the Casserman deposition testimony, the responses to the
second request for production of documents above, and the deposition testimony
already obtained by appellee of Denny Drumm, the clinical engineer who performed the
inspections on the subject monitoring equipment. Appellant once again claimed work
product privilege.
{¶23} It is from these conflicting positions that the trial court, without holding an
evidentiary hearing or an in camera inspection, determined (1) the facts were
Stark County, Case No. 2015CA00008 9
insufficient to establish privilege, and/or (2) if there was privilege, appellee established
good cause under Civ.R. 26. See, Judgment Entry filed January 7, 2015.
{¶24} Given the contradictory facts argued and the lack of a dispute raised by
appellant in its December 19, 2014 response, we conclude at the very minimum, a
hearing or an in camera inspection is required in this case.
{¶25} The sole assignment of error is granted in part.
{¶26} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby reversed, and the matter is remanded to said court to conduct an evidentiary
hearing and/or an in camera inspection on the requested document(s).
By Farmer, J.
Gwin, P.J. and
Baldwin, J. concur.
SGF/sg 730