Spurgeon v. Mercy Health-Anderson Hosp., L.L.C. , 2020 Ohio 3099 ( 2020 )

[Cite as Spurgeon v. Mercy Health-Anderson Hosp., L.L.C., 2020-Ohio-3099.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
AUDRA SPURGEON, : APPEAL NO. C-190271
TRIAL NO. A-1607043
and :
O P I N I O N.
RICHARD SPURGEON, :
Plaintiffs-Appellees, :
vs. :
MERCY HEALTH—ANDERSON :
HOSPITAL, LLC,
:
Defendant-Appellant,
:
and
:
CINCINNATI CHILDREN’S
HOSPITAL MEDICAL CENTER, et al., :
Defendants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 27, 2020
The Lawrence Firm, P.S.C., Richard D. Lawrence, Jennifer L. Lawrence and
Lindsay A. Lawrence, and T. David Burgess Co., LPA, T. David Burrgess and
Kristopher Burgess, for Plaintiffs-Appellees,
Rendigs, Fry, Kiely & Dennis, LLP, C. Jessica Pratt and Thomas M. Evans, for
Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
W INKLER , Judge.
{¶1} Defendant-appellant Mercy Health—Anderson Hospital, LLC,
(“Mercy”) appeals the decision of the Hamilton County Court of Common Pleas
ordering it to turn over documents to plaintiffs-appellees Audra and Richard
Spurgeon that it claimed were confidential under the peer-review privilege. We find
no merit in Mercy’s sole assignment of error, and we affirm the trial court’s
judgment.
{¶2} The record shows that the Spurgeons individually, and as the parents
of Blake Spurgeon, filed a medical-malpractice action against Mercy and several
other defendants. They alleged that Mercy’s nurses, physicians, and other health
care providers failed to properly diagnose and treat their newborn son’s case of
severe meningitis, causing him to suffer permanent brain damage.
{¶3} During discovery, the Spurgeons attempted to obtain the complete
employee files of several nurses employed by Mercy. Mercy refused to provide them,
claiming that they were confidential under the peer-review privilege. Consequently,
the Spurgeons filed a motion to compel discovery. In response, Mercy filed a motion
for a protective order.
{¶4} Originally, the trial court granted the Spurgeons’ motion to compel
and ordered Mercy to provide all of the requested employee files. Mercy filed a
motion for reconsideration asking the court to conduct an in camera inspection of
the disputed documents. The trial court granted the motion for reconsideration.
{¶5} Following an in camera inspection of the documents, the trial court
found that “the information sought by [the Spurgeons] was not information or
records that were produced strictly for the use of or by a peer review committee.
Instead, the employee information sought is discoverable information from the
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original source that is Mercy Health—Anderson Hospital.” Because Mercy had failed
to meet its burden to show that the documents were privileged, the court ordered it
to turn the documents over to the Spurgeons. This appeal followed.
{¶6} In its sole assignment of error, Mercy contends that the trial court
erred by ordering the production of “nursing evaluations, competencies and
corrective forms.” It argues that those documents were created by nursing peers for
the sole purpose of quality control, and they are, therefore, privileged and
confidential under the peer-review statutes. The assignment of error is not well
taken.
{¶7} Generally, we apply an abuse-of-discretion standard to the review of
discovery orders. But because the trial court’s discovery order involved the
application or construction of statutory law regarding privilege, we review the order
de novo. Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943
N.E.2d 514, ¶ 13; Flynn v. Univ. Hosp., Inc., 172 Ohio App.3d 775, 2007-Ohio-4468,
876 N.E.2d 1300, ¶ 4 (1st Dist.). The party asserting the privilege bears the burden
to show that the privilege applies. Watkins v. Good Samaritan Hosp. of Cincinnati,
Ohio, 1st Dist. Hamilton No. C-160194, 2016-Ohio-7458, ¶ 13. Simply labeling a
document “peer review” or “privileged” does not invoke the statutory privilege.
Bansal v. Mt. Carmel Hosp. Systems, Inc., 10th Dist. Franklin No. 09AP-351, 2009-
Ohio-6845, ¶ 14; Selby v. Fort Hamilton Hosp., 12th Dist. Butler No. 2007-o5-126,
2007-Ohio-2413, ¶ 14.
{¶8} R.C. 2305.252(A) provides in pertinent part,
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
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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.
{¶9} The purpose of the 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 the overall quality of the health care services they
provide. Cousino v. Mercy St. Vincent Med. Ctr., 2018-Ohio-1550, 111 N.E.3d 529, ¶
15 (6th Dist.); Smith v. Cleveland Clinic, 197 Ohio App.3d 524, 2011-Ohio-6648, 968
N.E.2d 41, ¶ 11 (8th Dist.). The statute is designed to protect individuals who provide
information without fear of reprisal and to protect the free exchange of information.
Smith at ¶ 11.
{¶10} The statutes are not designed to hinder civil lawsuits. The peer-review
privilege is “not a generalized cloak of secrecy” over the entire peer-review process.
Smith at ¶ 11; Giusti v. Akron Gen. Med. Ctr., 178 Ohio App.3d 53, 2008-Ohio-4333,
896 N.E.2d 769, ¶ 14 (9th Dist.). “If all materials viewed and utilized by review
committees were deemed undiscoverable, a hospital could never be held accountable
for any negligent act with the purview of the committee.” Smith at ¶ 11, quoting
Huntsman v. Aultman Hosp., 5th Dist. Stark No. 2006 CA 00331, 2008-Ohio-2554,
¶ 47.
{¶11} Because the peer-review privilege is in derogation of common law, it is
strictly construed against those seeking to invoke it. Watkins, 1st Dist. Hamilton No.
C-160194, 2016-Ohio-7458, at ¶ 15; Smith at ¶ 9. The party resisting discovery has a
two-part burden. Cousino at ¶ 16; Smith at ¶ 9. First, the health care entity must
establish the existence of a peer-review committee as defined by R.C. 2305.25(E).
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Cousino at ¶ 16; Smith at ¶ 15; Bansal, 10th Dist. Franklin No. 09AP-351, 2009-
Ohio-6845, 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 the peer-review
committee. Cousino at ¶ 16; Bansal at ¶ 15. “At a bare minimum, the party claiming
the privilege must show that such a committee existed and that the committee
investigated the case in question.” Flynn, 172 Ohio App.3d 775, 2007-Ohio-4468,
876 N.E.2d 1300, at ¶ 11.
{¶12} 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 determine whether the privilege attaches. Cousino, 2018-Ohio-1550, 111
N.E.3d 529, at ¶ 16; Bansal at ¶ 14. If the health care entity satisfies its burden, the
requested documents are unconditionally privileged and immune from discovery.
Cousino at ¶ 16.
{¶13} R.C. 2305.25(E)(1)(a) defines “peer review committee” as
a utilization review committee, quality assessment committee,
performance improvement committee, tissue committee, credentialing
committee, or other committee that * * * [c]onducts 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.
A peer-review committee includes “[a] board or committee of a hospital * * * when
reviewing professional qualifications or activities of health care providers, including
both individuals who provide health care and entities that provide health care,” or
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“[a]ny other peer review committee of a health care entity.” R.C. 2305.25(E)(2)(c)
and (k).
{¶14} There are two general categories of documents that are considered
records within the scope of the peer-review committee. First, any documents that
are generated by or exclusively for the peer-review committee are protected from
disclosure. Cousino at ¶ 23. “R.C. 2305.232 implicitly extends full and
unconditional protections 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.
{¶15} Second, R.C. 2305.232 protects any documents that are maintained in
the peer-review committee’s records that were generated by an “original source,” a
source other than the peer-review committee itself, and then presented to a peer-
review committee. Cousino, 2018-Ohio-1550, 111 N.E.3d 529, at ¶ 24. R.C. 2305.232
states,
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.
{¶16} The records and proceedings of the peer-review committee are not
coextensive with all the records of the facility in which the committee operates.
Large v. Heartland-Lansing of Bridgeport Ohio, LLC, 2013-Ohio-2877, 995 N.E.2d
872, ¶ 35 (7th Dist.). It is possible for the health care entity itself to be an original
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source. Cousino at ¶ 28; Large at ¶ 35. Documents that are accessible to the staff of
the facility separate and apart from any role on a review committee are not protected
by the privilege. Large at ¶ 39. A health care entity “cannot shield documents from
disclosure just by circulating them during peer review proceedings.” Bansal at ¶ 16,
fn. 3.
{¶17} Mercy’s arguments fail for a number of reasons. First, although peer-
review committees can go by many names, Mercy failed to show that it even had a
peer-review committee for nurses.
{¶18} Mercy presented the affidavit of Shawna Straub. Straub stated that
Mercy had a “quality-assessment process applicable to the nursing staff,” which
involved “the regular review and evaluation of each nurse” performed by a
“committee that typically consists of a nurse manager, nurse supervisor and/or a
nursing peer.” That “quality improvement process” includes the “assessment of
nurses by way of evaluations, competencies and disciplinary/corrective actions” as
reflected in the documents Mercy claims are privileged.
{¶19} Straub further stated that “[t]he purpose of each evaluation,
competency and disciplinary/corrective action of the nurses at Mercy Anderson is to
assess and improve the quality of care provided by those nurses.” She added,
“Nursing evaluations, competencies and disciplinary/corrective actions are created
by and for nurses, and are used within the scope of and for the exclusive purpose of
fulfilling the peer review and quality improvement duties.” Nothing in Straub’s
affidavit actually establishes there was a peer-review committee for nurses or that it
reviewed this particular incident.
{¶20} Evidence that a health care facility has a quality assurance program
does not meet its burden to establish that it had a peer-review committee. See
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Fravel v. Columbus Rehab. & Subacute Inst., 2016-Ohio-5807, 70 N.E.3d 1161, ¶ 18-
19 (1oth Dist.); Giusti, 178 Ohio App.3d 53, 2008-Ohio-4333, 896 N.E.2d 769, at ¶
24-26. Merely labeling a committee “peer review” is insufficient to prove that the
privilege applies. Fravel at ¶ 17; Smith, 197 Ohio App.3d 524, 2011-Ohio-6648, 968
N.E.2d 41, at ¶ 23.
{¶21} Second, even if Mercy had a peer-review committee, nothing in the
record shows that a peer-review committee ever investigated the case in question.
There is no reference to the Spurgeon case at all in any of the disputed documents.
{¶22} Third, Mercy failed to meet its burden to show that the disputed
documents were generated exclusively for a peer-review committee. As the trial
court found, the documents were available from an original source.
{¶23} Attached to Straub’s affidavit was a document entitled “Standards of
Conduct and Performance (Corrective Action),” which is approved by the “Divisional
Senior Vice President, Human Resources” for Catholic Health Partners, Central
Division. In a heading, it identifies the “Responsible Party” and the “Department” as
“Human Resources” and “Contributing Departments” as “Human Resources” and
“General Practice.” Though Straub refers to it as a “quality improvement process,”
the document sets forth a progressive disciplinary process. Nothing in the document
indicates it is for the sole purpose of peer review.
{¶24} Further, the documents submitted to the trial court for the in camera
review were documents obviously used by a human resources department.
Interestingly, two of the documents Mercy claims were privileged have a signature
line saying “Received in Human Resources.”
{¶25} The trial court was correct in finding that the “original source” rule
applies. Mercy’s claim that documents had the potential of being used by a peer-
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review committee is not sufficient to show that the documents are privileged. Mercy
has failed t0 meet its burden to show that the documents were created exclusively for
use by a peer-review committee, and therefore, it has failed to meet its burden to
show that the documents were privileged. Because the documents came from an
original source, i.e., Mercy’s human resources department, the court correctly
ordered Mercy to turn over the documents to the Spurgeons.
{¶26} In sum, Mercy has failed to meet its burden in any respect. It has
failed to show that a peer-review committee existed, that a peer-review committee
reviewed the Spurgeon case, and that the allegedly privileged documents were
created exclusively for use by a peer-review committee. Therefore, we overrule its
assignment of error and affirm the trial court’s judgment.
Judgment affirmed.
B ERGERON , P.J., and C ROUSE , J., concur.
Please note:
The court has recorded its own entry this date.
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