Cousino v. Mercy St. Vincent Med. Ctr.
111 N.E.3d 529
Ohio Ct. App.2018Background
- Kelsie Cousino (by her parents) sued Mercy St. Vincent alleging negligent credentialing of Dr. Fouad Butto after a 2012 cardiac catheterization; the individual physician claims were settled and dismissed.
- Plaintiffs served broad document requests seeking Dr. Butto’s personnel/credentialing materials, incident/claims reviews, risk-management activities, and inter-hospital communications (2005–2015).
- Mercy St. Vincent objected claiming Ohio peer-review privilege (R.C. 2305.252/2305.253), attorney-client privilege, and work product; submitted affidavits from the Director of Quality (Ulrich) and Risk Manager (Fowler).
- Trial court found Mercy had peer-review committees but ordered production of “any documents” responsive to many requests, concluding Mercy had not shown all responsive records were created exclusively for peer-review use and rejected some privilege assertions.
- Mercy appealed, arguing the trial court erred by compelling documents protected by the peer-review and attorney-client privileges; the appellate court reviewed privilege issues de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability/existence of peer-review committee | Mercy’s peer-review/credentialing activities should be discoverable to prove negligent credentialing | Mercy: hospital has peer-review, credentialing, Medical Executive Committees and Board acting as peer-review — statute protects their records | Court: Mercy met burden to show committees exist under R.C. 2305.25(E) (peer-review committees present) |
| Whether Dr. Butto’s credentialing file is discoverable | Cousino: need credentialing materials to prove negligent credentialing; some documents may be non-privileged personnel files | Mercy: credentialing file consists entirely of documents generated for/use by credentialing and peer-review committees and is absolutely privileged | Court: credentialing file is absolutely privileged under R.C. 2305.252 and immune from discovery; trial court’s order to produce it reversed in part |
| Privilege for documents located outside credentialing file (incident reports, personnel files, original-source documents) | Cousino: documents outside credentialing file may be non-privileged and relevant | Mercy: broadly claims privilege for any documents circulated to committees; risk/incident reports are part of peer-review | Held: Mercy must show, for each document outside the credentialing file, that it was generated by or exclusively for a peer-review committee (via affidavit) or submit documents for in-camera review; documents from original sources must be obtained from those sources, not the committee records |
| Attorney-client privilege for claims/review/risk-management documents (requests 23 & 24) | Cousino: these lists/reports are discoverable | Mercy: some claims-review and risk-management materials were prepared under counsel and in anticipation of litigation and are privileged/work-product | Held: trial court abused its discretion ordering production without in-camera review or privilege log; Mercy must produce a privilege log and submit disputed documents under seal for in-camera review to support attorney-client/work-product claims |
Key Cases Cited
- Med. Mut. of Ohio v. Schlotterer, 909 N.E.2d 1237 (Ohio 2009) (questions whether information is confidential/privileged are reviewed de novo)
- Tenan v. Huston, 845 N.E.2d 549 (Ohio App. 2006) (R.C. 2305.252 shields information used in peer-review proceedings)
- Smith v. Cleveland Clinic, 968 N.E.2d 41 (Ohio App. 2011) (purpose and scope of peer-review privilege to promote candid quality review)
- Huntsman v. Aultman Hosp., 826 N.E.2d 384 (Ohio App. 2005) (credentialing/peer-review files are privileged and not producible)