Brahm v. DHSC, L.L.C.
61 N.E.3d 726
Ohio Ct. App.2016Background
- Mary Kathleen Brahm suffered a STEMI, underwent emergent cardiac catheterization, experienced a coronary artery perforation during stent placement, and died the next day; her executor James E. Brahm sued for medical negligence.
- The hospital’s catheterization lab had adopted the American College of Cardiology (ACC) CathPCI statistical/benchmarking standards; the lab reported procedural volumes and outcomes to the ACC registry.
- Brahm sought discovery of procedural volumes and complication/morbidity/mortality rates for Dr. Surmitis and the involved hospitals; subpoenas were issued to ACC and non-party hospitals that submitted data to the registry.
- Defendants and ACC moved for protective orders and to quash subpoenas, asserting Ohio’s peer review/quality assurance privilege (R.C. 2305.252) barred disclosure; ACC also raised service/personal-jurisdiction concerns.
- The trial court ordered production of procedure counts and ordered hospitals/ACC to produce complication-rate documents for in-camera review to determine whether materials were privileged or discoverable.
- ACC appealed the trial court’s in-camera-production order; the Fifth District dismissed the appeal for lack of jurisdiction, holding an order compelling in-camera review is not a final, appealable order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an order requiring production of documents to the court for in-camera review is a final, appealable order | Brahm argued the court should review documents to determine privilege; in-camera review is an appropriate means to resolve privilege disputes | ACC argued the order effectively compelled production of peer-review material and breached statutory confidentiality, making it immediately appealable | The court held the in-camera-production order is not a final, appealable order and dismissed ACC’s appeal for lack of jurisdiction |
| Whether documents provided to ACC via the NCDR/CathPCI registry are protected by R.C. 2305.252 | Brahm contended some requested data may be obtainable from original sources and not categorically privileged | Defendants/ACC contended registry submissions are peer-review/quality-assurance records and privileged | The court found it unclear from the face of requests whether all materials were privileged and directed in-camera review to resolve that question |
| Whether an in-camera review undermines the peer-review privilege’s purpose | Brahm/trial court: a judge’s confidential in-camera review does not impede the free flow of peer-review information and protects the privilege while enabling proper rulings | ACC: Huntsman I and statute suggest even in-camera review improperly breaches confidentiality and should be procedurally foreclosed | The majority concluded an in-camera inspection is appropriate to determine privilege; a dissent argued the statute bars such review and makes the order appealable |
| Whether ACC’s procedural/personal-jurisdiction objections should be decided now | Brahm: jurisdictional defenses can be renewed before the trial court after in-camera review | ACC: appealed without awaiting trial-court ruling on jurisdiction/service | The appellate court noted the trial court had not ruled on jurisdiction and ACC may renew those arguments below; lack of final order mooted immediate review |
Key Cases Cited
- Smith v. Chen, 31 N.E.3d 633 (Ohio 2015) (defines when orders on provisional remedies that compel disclosure of privileged material are final and appealable)
- Huntsman v. Aultman Hospital, 826 N.E.2d 384 (Ohio Ct. App. 2005) (interpreting peer-review statute and addressing limits on using peer-review records to obtain original-source information)
- Denham v. New Carlisle, 716 N.E.2d 184 (Ohio 1999) (final-judgment/finality principles for appealability)
- General Acc. Ins. Co. v. Insurance of North America, 540 N.E.2d 266 (Ohio 1989) (appellate jurisdiction limited to final, appealable orders)
- Bailey v. Manor Care of Mayfield Hts., 4 N.E.3d 1071 (Ohio Ct. App. 2013) (approving in-camera review to determine applicability of peer-review privilege)