Brahm v. DHSC, L.L.C. , 2016 Ohio 1206 ( 2016 )


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  • [Cite as Brahm v. DHSC, L.L.C., 
    2016-Ohio-1206
    .]
    COURT OF APPEALS
    STARK COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    JUDGES:
    JAMES E. BRAHM, INDIVIDUALLY                       :       Hon. Sheila G. Farmer, P.J.
    AND AS EXECUTOR OF THE                             :       Hon. W. Scott Gwin, J.
    ESTATE OF MARY KATHLEEN                            :       Hon. Patricia A. Delaney, J.
    BRAHM                                              :
    :
    Plaintiff-Appellee         :       Case No. 2015CA00172
    :
    -vs-                                               :
    :       OPINION
    DHSC, LLC, DBA AFFINITY
    MEDICAL CENTER, ET AL
    Defendant-Appellant
    CHARACTER OF PROCEEDING:                               Civil appeal from the Stark County Court of
    Common Pleas, Case No. 2014CV01545
    JUDGMENT:                                              Dismissed
    DATE OF JUDGMENT ENTRY:                                March 21, 2016
    APPEARANCES:
    For Plaintiff-Appellee                                 For Defendant-Appellant
    STEPHEN P. GRIFFIN                                     STEPHEN E. MATASICH
    MICHAEL J. KAHLENBERG                                  Day Ketterer Ltd.
    825 S. Main St.                                        Millennium Centre – Suite 300
    North Canton, OH 44720                                 200 Market Avenue
    Box 24213
    Canton, OH 44702
    Stark County, Case No. 2015CA00172                                                         2
    Gwin, J.
    {¶1}    Appellant Mercy Medical Center [“Mercy”] appeals the August 28, 2015
    Judgment Entry of the Stark County Court of Common Pleas ordering the production of
    documents for an in camera inspection by the trial court to determine whether the
    documents are privileged or discoverable in whole or in part by the appellee, James E.
    Brahm, Individually and as Executor of the Estate of Mary Kathleen Brahm, Deceased.
    [“Brahm”].
    Facts and Procedural History
    {¶2}    Mary Kathleen Brahm was a 72-year old woman when she was transported
    by EMS to Affinity Medical Center's emergency department on July 11, 2013. Mrs. Brahm
    was diagnosed with a STEMI—a ST segment elevation myocardial infarction. This is a
    cardiac emergency that requires immediate intervention.              Therefore, the Cardiac
    Catheterization Department was called in emergently to provide care and Mrs. Brahm was
    brought to the catheterization lab.
    {¶3}    Co-Defendant-Appellant Joseph Surmitis, M.D. was the interventional
    cardiologist on call and was paged to perform the heart catheterization. During the
    procedure, Dr. Surmitis identified a complete occlusion of Mrs. Brahm's right coronary
    artery. He passed a wire through the occlusion, used a balloon to dilate the right coronary
    artery to eliminate the blockage and then placed a stent at the location of the prior
    occlusion. A second balloon was used to improve the performance of the stent.
    {¶4}    Following the deflation and removal of that balloon, Dr. Surmitis noted a
    perforation in the right coronary artery. He acted to stop the bleeding from this perforation
    Stark County, Case No. 2015CA00172                                                         3
    and to address secondary complications caused by that blood leaking into the pericardium,
    which was compromising the function of the heart.
    {¶5}    Dr. Surmitis also paged the on-call cardiovascular surgeon Dr. Tawil to
    perform a procedure to repair the perforated vessel. Although Dr. Tawil was able to repair
    the vessel during his procedure, Mrs. Brahm passed away on July 12, 2013.
    {¶6}    Appellee Brahm commenced this medical negligence action on June 30,
    2014 against DHSC, LLC, DBA, Affinity Medical Center, Dr. Joseph Surmitis, and others,
    seeking damages for injuries to, and the death of, his decedent, Mary Kathleen Brahm,
    allegedly caused by negligent medical care.
    {¶7}    Mercy is not a party to the underlying litigation and the decedent was not
    a patient at Mercy for any reason pertinent to the underlying case. On December 17, 2014,
    Brahm filed an Amended Complaint, adding claims for negligent credentialing and agency
    by estoppel against co-appellant Affinity. Apparently in furtherance of the negligent
    credentialing claim, Brahm served the subpoena upon Mercy requesting, among other items,
    complication rates, including morbidity/mortality rates' for coronary procedures performed by
    Dr. Surmitis at Mercy.
    {¶8}    According to Affinity's nurse manager and coordinator of its catheterization
    lab, Affinity's protocols and procedures for the lab include and adopt the American College
    of Cardiology/Society for Cardiovascular Angiography and Interventions Expert
    Consensus Document of Cardiac Catheterization Laboratory Standards ["ACC
    Guidelines"]. The ACC Guidelines are a comprehensive statement of safe practices and
    minimum statistical requirements for facilities that maintain cardiac catheterization labs.
    Among others, it provides:
    Stark County, Case No. 2015CA00172                                                        4
    1.    The annual minimum operator interventional procedural
    volume of 75 cases per year has become an acceptable standard.
    2.    At present, with overall in-hospital mortality averaging 2% and
    rates of emergent CABG averaging <1%, a composite major complication
    rate of <3% is to be expected.
    {¶9}   Because Affinity had adopted and incorporated the ACC Guidelines within
    its own policies and protocols for the catheterization lab, Brahm sought discovery of the
    statistical benchmarks to which the ACC and Affinity subscribe for its practitioners within
    the lab. Specifically, Brahm directed written discovery to Affinity and Dr. Surmitis seeking
    to learn:
    1.    Major    In-Hospital     Complication     Rates,     including
    morbidity/mortality rates, for all contemporary percutaneous coronary
    interventions for diagnostic     procedures performed at Defendant's
    Catheterization Lab, by percentage relative to myocardial infarction.
    2.    Major     In-Hospital    Complication      Rates,    including
    morbidity/mortality rates, for all contemporary percutaneous coronary
    interventions for interventional/therapeutic procedures performed at
    Defendant’s Catheterization Lab, by percentage relative to myocardial
    infarction.
    3.    Major    In-Hospital     Complication     Rates,     including
    morbidity/mortality rates, for all contemporary percutaneous coronary
    interventions for diagnostic procedures performed by Joseph M. Surmitis,
    Stark County, Case No. 2015CA00172                                                     5
    M.D. at Defendant's Catheterization Lab, by percentage relative to
    myocardial infarction.
    4.    Major      In-Hospital      Complication   Rates,    including
    morbidity/mortality rates, for all contemporary percutaneous coronary
    interventions for interventional/therapeutic procedures performed by
    Joseph Surmitis, M.D. at Defendant's Catheterization Lab, by percentage
    relative to myocardial infarction.
    5.    The     number of        contemporary percutaneous   coronary
    interventions for diagnostic procedures performed by Joseph M. Surmitis,
    M.D. at Defendant's Catheterization Lab for each referenced calendar year.
    6.    The     number of        contemporary percutaneous   coronary
    interventions for interventional/therapeutic procedures performed by
    Joseph M. Surmitis, M.D. at Defendant's Catheterization Lab for each
    referenced calendar year.
    {¶10} Furthermore, because Dr. Surmitis practiced interventional cardiology at
    both Aultman Hospital and Mercy Medical Center, Plaintiff also issued subpoenas to those
    non-party institutions seeking to learn:
    1.    Major       In-Hospital      Complication   Rates,    including
    morbidity/mortality rates, for all contemporary percutaneous coronary
    interventions for diagnostic procedures performed by Joseph M. Surmitis,
    M.D. at Mercy/Aultman’s Main Campus Facility Catheterization Lab, by
    percentage relative to myocardial infarction.
    Stark County, Case No. 2015CA00172                                                       6
    2.     Major      In-Hospital      Complication    Rates,     including
    morbidity/mortality rates, for all contemporary percutaneous coronary
    interventions for interventional/therapeutic procedures performed by
    Joseph Surmitis, M.D. at Mercy/Aultman's Main Campus Facility
    Catheterization Lab, by percentage relative to myocardial infarction.
    3.     The     number   of      contemporary   percutaneous   coronary
    interventions for diagnostic procedures performed by Joseph M. Surmitis,
    M.D. at Mercy/Aultman's Main Campus Facility Catheterization Lab from
    January 1, 2010 to the present.
    4.     The     number   of      contemporary   percutaneous   coronary
    interventions for interventional/therapeutic procedures performed by
    Joseph M. Surmitis, M.D. at Mercy/Aultman's Main Campus Facility
    Catheterization Lab from January 1, 2010 to the present.
    {¶11} Evidence was discovered by Brahm that Affinity’s catheterization lab
    recorded and maintained statistics relative to procedural volume and outcome within the
    lab and that this information was provided to a number of entities, including the American
    College of Cardiology "Cath PCI data registry.” Because these statistics were provided to
    the ACC, Brahm issued a subpoena to ACC to confirm whatever information was provided to
    it by Affinity, Mercy, or Aultman.
    {¶12} Mercy did not claim privilege as to items 3 and 4 of the subpoena and has
    produced such information to Brahm. Mercy did claim privilege as to items 1 and 2 claiming
    those items request privileged peer review information barred from disclosure by R.C.
    Stark County, Case No. 2015CA00172                                                          7
    2305.252. On May 20, 2015, Mercy filed its Motion of Non-Party Mercy Medical Center for
    Protective Order and/or to Quash Subpoena.
    {¶13} After extensive briefing on the issues of Peer Review, Quality Assurance
    and privilege, on August 28, 2015, the Trial Court ordered that: (1) the number of
    diagnostic and therapeutic procedures performed by Dr. Surmitis at the various facilities
    be produced to Brahm; and (2) the documents reflecting all complication rates for the cath
    lab, including morbidity/mortality rates, be produced to the Trial Court for an in-camera
    review. Specifically the trial court ordered,
    The Health Care Entities to produce the disputed material for in
    camera review. At this juncture, it must be determined whether the records
    consist of material addressing the specific care or treatment rendered to
    particular patients or whether they are merely summaries of the patients
    that were discussed without addressing the care and treatment rendered to
    particular patients.
    Judgment Entry, filed Aug. 28, 2015 at 9. In arriving at this conclusion, the trial court
    noted,
    In the case at bar, it is not clear on the face of the disputed discovery
    requests that all of the documents requested by Plaintiffs are subject to the
    peer review privilege. Therefore, defendants have the burden of proving
    that the requested documents were privileged. An in camera inspection is
    the best way for the Court to decide whether the privilege applies and to
    protect the record for review.
    Id. at 7.
    Stark County, Case No. 2015CA00172                                                                   8
    {¶14} Mercy filed its appeal herein on September 18, 2015, from the portion of
    the August 28, 2015 Order as it pertains to the production of alleged privileged and
    protected documents for an in-camera inspection.1
    Assignment of Error
    {¶15} Mercy raises one assignment of error,
    {¶16} “I. The Trial Court Erred By Issuing A Discovery Order Directing Mercy
    Medical Center To Produce Privileged, Peer Review Information For An In Camera
    Inspection Contrary To O.R.C. §2305.252.”
    Analysis
    Jurisdiction of the Court of Appeals
    {¶17} In the case at bar, we must address the threshold issue of whether the
    judgment appealed is a final, appealable order. Appellee filed a motion to dismiss on
    October 8, 2015 raising an issue that the appeal herein is not from a final appealable order.
    Appellee again raises the issue in its merit brief filed December 9, 2015.
    {¶18} Even if a party does not raise the issue, this court must address, sua sponte,
    whether there is a final appealable order ripe for review. State ex rel. White vs. Cuyahoga
    Metro. Hous. Aut., 
    79 Ohio St.3d 543
    , 544, 
    1997-Ohio-366
    , 
    684 N.E.2d 72
    .
    {¶19} Appellate courts have jurisdiction to review the final orders or judgments of
    lower courts within their appellate districts. Section 3(B) (2), Article IV, Ohio Constitution.
    1 Each of the medical entities have appealed the August 28, 2015 Judgment Entry ordering the production
    of documents for an in camera inspection by the trial court to determine whether the documents are
    privileged or discoverable in whole or in part by Brahm. See, Brahm v. DHSC, LLC, dba Affinity Medical
    Center, et al. 5th Dist. No. 2015CA00165 [Aultman Hospital]; Brahm v. DHSC, LLC, dba Affinity Medical
    Center, et al. 5th Dist. No. 2015CA00171 [Affinity Medical Center]; Brahm v. DHSC, LLC, dba Affinity
    Medical Center, et al. 5th Dist. No. 2015CA00179 [American College of Cardiology].
    Stark County, Case No. 2015CA00172                                                         9
    If a lower court's order is not final, then an appellate court does not have jurisdiction to
    review the matter and the matter must be dismissed. General Acc. Ins. Co. vs. Insurance
    of North America, 
    44 Ohio St.3d 17
    , 20, 
    540 N.E.2d 266
    (1989); Harris v. Conrad, 12th
    Dist. No. CA-2001-12 108, 
    2002-Ohio-3885
    . For a judgment to be final and appealable, it
    must satisfy the requirements of R.C. 2505.02 and if applicable, Civ. R. 54(B). Denham
    v. New Carlisle, 
    86 Ohio St.3d 594
    , 596, 
    716 N.E.2d 184
     (1999); Ferraro v. B.F. Goodrich
    Co., 
    149 Ohio App.3d 301
    , 
    2002-Ohio-4398
    , 
    777 N.E.2d 282
    . If an order is not final and
    appealable, an appellate court has no jurisdiction to review the matter and it must be
    dismissed.
    {¶20} A proceeding for “discovery of privileged matter” is a “provisional remedy”
    within the meaning of R.C. 2505.02(A)(3). Smith v. Chen, 
    142 Ohio St.3d 411
    , 2015-
    Ohio-1480, 
    31 N.E.3d 633
    . An order granting or denying a provisional remedy is
    final and appealable only if it has the effect of “determining the action with respect to the
    provisional remedy and preventing a judgment in the action in favor of the appealing party
    with respect to the provisional remedy” and “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.” Chen, ¶5; R.C. 2505.02(B)(4).
    The burden “falls on the party who knocks on the courthouse doors asking for interlocutory
    relief.” Chen, ¶8. As specifically noted by the Ohio Supreme Court, “an order must meet
    the requirements in both subsections of the provisional-remedy section of the definition
    of final, appealable order in order to maintain an appeal.” Chen, ¶5.
    {¶21} If the party seeking to appeal fails to establish why an immediate appeal
    is necessary, the court must presume an appeal in the ordinary course would be
    Stark County, Case No. 2015CA00172                                                              10
    meaningful and effective. Chen, ¶8.                However, “an order compelling disclosure of
    privileged material that would truly render a post judgment appeal meaningless or
    ineffective may still be considered on an immediate appeal.” 
    Id.
    {¶22} In this case, appellant argues there is a final appealable order under R.C.
    2505.02(A)(3) and (B)(4)(b) because it requires the discovery of privileged matter, and
    thereby grants a provisional remedy for which there would be no meaningful effective
    remedy on subsequent appeal. Appellant maintains the trial court abused its discretion in
    denying their request for a protective order and motion to quash, and in ordering the
    production of what appellant believes qualify as peer review and quality assurance records
    for an in-camera inspection. Appellant alleges that because the order encompasses what
    it alleges are peer review records, it is a final, appealable order pursuant to R.C. 2305.252.
    R.C. 2305.252 states that “* * *An order by a court to produce for discovery or for use at
    trial the proceedings or records described in this section [i.e. peer review records] is a final
    order.” Appellee argues that a trial court's order for an in camera inspection of certain
    documents, rather than an order to provide documents to the adverse party, is a non-final
    order. We agree with the appellee.
    {¶23} Appellant cites Huntsman v. Aultman Hospital, 
    160 Ohio App.3d 196
    , 2005-
    Ohio-1482, 
    826 N.E.2d 384
    [“Huntsman I”] for the proposition that an in camera review is
    not permitted,2
    Further, in this particular situation, the change to the statute is clearly
    procedural. The change in the statute that is relevant in this case pertains
    to the Ohio legislature’s apparent decision to foreclose a party from
    2   Brief of Appellant Mercy Medical Center, filed Oct. 30, 2015 at 11-13.
    Stark County, Case No. 2015CA00172                                                       11
    obtaining any information, documents, or records from the peer review
    committee’s records. Previously, courts had interpreted the prior version of
    the statute (R.C. 2305.251) to allow a trial court to conduct an in camera
    review of the peer review committee’s records to determine whether the
    privilege applied to individual documents. If the record was available from
    its origin source, it was not privileged and could be obtained from the peer
    review committee’s records.      See, e.g., Doe v. Mount Carmel Health
    Systems, Franklin App. No. 03AP–413, 
    2004-Ohio-1407
    , 
    2004 WL 557333
    .
    The current version of the statute makes it clear 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. We view this relevant revision to be a clarification of the
    statute’s intent. Since this change affects only how information is to be
    obtained, we find the change to be procedural.
    Huntsman I, 160 Ohio App.3d at 200-201, 
    2005-Ohio-1482
    , 
    826 N.E.2d 384
    , ¶20.
    [Emphasis added]. [Appellant’s Brief at 11-13]. However, Huntsman I stands for the
    proposition that the statute prevents a court from requiring a facility to provide a list of
    documents that could be found from other, original sources, utilizing a peer review
    committee document to do so. In other words, a facility cannot be forced to divulge the
    information contained in a peer review committee file. Large v. Heartland-Lansing of
    Bridgeport Ohio, LLC, 7th Dist. Belmont No. 12 BE 7, 
    2013-Ohio-2877
    , 
    995 N.E.2d 872
    ,
    ¶43.
    Stark County, Case No. 2015CA00172                                                         12
    {¶24} Huntsman I is factually distinguishable from the instant case. In Huntsman
    I, the plaintiff sought documents that were contained in the hospital’s credentialing and
    peer-review files, whereas here, the trial court found that it could not determine from the
    face of the disputed discovery requests that all of the documents requested by Brahm are
    subject to the peer review privilege. See, also, Manley v. Heather Hill, Inc., 
    175 Ohio App.3d 155
    , 
    2007-Ohio-6944
    , 
    885 N.E.2d 971
    (11th Dist.), ¶34. We find that whether or
    not the requested records fall within the purview of the peer review privilege is a decision
    best determined by an in camera review of the documents the appellee is requesting and
    over which appellant is asserting privilege. Bailey v. Manor Care of Mayfield Hts., 8th Dist.
    No. 99798, 
    2013-Ohio-4927
    , 
    4 N.E.3d 1071
    , ¶37.
    {¶25} As this Court has noted,
    Nothing in R.C. 2305.252 sets forth a right to privacy. Furthermore, the
    protection of the free flow of information into a peer review process will not be
    compromised by an in camera review. A private review, prior to any order for
    the production of documents to an adverse party, by a competent judge who
    is sworn to maintain confidentiality does not compromise the free flow of
    information that the privilege is meant to protect.
    Huntsman v. Aultman Hospital, 5th Dist. No. 2006 CA 00331, 
    2008-Ohio-2554
    , ¶88.
    [“Huntsman II”] In Huntsman II, this Court further noted,
    The documents subject to the court's order in the case sub judice are
    not as homogeneous in nature. In other words, the trial court in the case sub
    judice could issue different rulings regarding the peer review privilege as to
    each document presented.
    Stark County, Case No. 2015CA00172                                                              13
    5th Dist. No. 2006 CA 00331, 
    2008-Ohio-2554
    , ¶89. This Court concluded, that the trial
    court’s order requiring various insurance companies, the Bureau of Workers' Compensation,
    Medicare, Medicaid, Aultcare HMO, and others to produce documents to the trial court for an
    in camera inspection, is not a final, appealable order. Id. at ¶90.
    {¶26} Despite appellant’s contention, the trial court’s judgment entry does not order
    the release of any documents; rather the trial court itself will review the documents. The issue
    of whether or not any document is discoverable has not yet been determined by the trial court.
    The trial court’s order does not appear to exclude the possibility that the trial court will review
    the documents to determine whether each is protected by the peer review privilege in R.C.
    2305.252. The trial court has retained jurisdiction to make further determinations regarding
    the discoverability of the requested materials. Huntsman II at ¶81.
    {¶27} In the case at bar, we find that the trial court’s entry ordering an in-camera
    inspection of the documents is not a final appealable order.
    {¶28} Because there is no final appealable order, this court does not have
    jurisdiction to entertain appellant's appeal.
    Stark County, Case No. 2015CA00172                                                 14
    {¶29} For the foregoing reasons, appellant Mercy Medical Center’s appeal of the
    August 28, 2015 Judgment Entry of the Stark County Court of Common Pleas, Stark
    County, Ohio, is hereby dismissed.
    {¶30} IT IS SO ORDERED.
    By Gwin, J., and
    Delaney, J. concur;
    Farmer, P.J., dissents
    Stark County, Case No. 2015CA00172                                                       15
    Farmer, P.J., dissents
    {¶31} I respectfully dissent from the majority opinion that the discovery order sub
    judice is not a final appealable order.
    {¶32} I acknowledge in Smith v. Chen, 
    142 Ohio St.3d 411
    , 
    2015-Ohio-148
    ,
    Justice O'Neill refined our scope of final appealable orders. Under R.C. 2305.252 and its
    specific language, "[p]roceedings 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***."
    {¶33} As we addressed in Huntsman I, a parallel situation, even an in camera
    review is violative of the statute. Huntsman I, 
    160 Ohio App.3d 196
    , 
    2005-Ohio-1482
    , at
    ¶ 20. I find the majority's reliance on Huntsman II, 5th Dist. Stark No. 2006 CA 00331,
    
    2008-Ohio-2554
    , to be misplaced.          Huntsman II involved information and sources
    independent of the records and proceedings of the peer review committee. The statute
    specifically permits discovery of information, documents, or records obtainable from
    original sources. The matters sought to be discovered in Huntsman II were records from
    insurance companies and other original sources.
    {¶34} Because the trial court's order for in camera review is per se violative of the
    plain meaning of the statute, I would find the matter is a final appealable order as it
    resolves the issue and breaches the statutory confidentiality of records.