2005 Ohio 5160 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} On February 5, 2001, appellant was admitted to OSUMC for a kidney transplant operation, which he underwent successfully the next day. Appellant was discharged from OSUMC on the evening of February 13, 2001. That night, appellant began feeling ill and was readmitted to OSUMC the next morning. Appellant was diagnosed with Legionnaires' disease and spent another 13 days in the hospital. Legionnaires' disease is a lower respiratory tract infection caused by the bacteria legionella pneumophila. The usual manner of contracting Legionnaires' disease is through exposure to contaminated air or water. The presence of legionella bacteria is common in water supplies everywhere, including OSUMC's water supply. For a healthy person, the risk of contracting the disease is very low. Transplant patients, however, have a higher risk of contracting infectious diseases such as Legionnaires because their immune systems are suppressed. Accordingly, OSUMC has implemented policies and procedures in its transplant units to prevent the spread of infectious diseases such as Legionnaires' disease. These polices include allowing patients to drink only bottled water and requiring nurses to run the water in a shower for ten minutes to flush out the showerhead before allowing a patient to shower. The hospital also tests the water in the transplant units every quarter for the presence of legionella bacteria.
{¶ 3} On January 29, 2002, appellant filed a complaint against OSUMC sounding in medical malpractice. Appellant alleged that the showerhead in his room was infected with the legionella bacteria and that a nurse negligently violated OSUMC protocol when she allowed him to take a shower without first flushing the showerhead. Subsequently, appellant served requests for production of documents and interrogatories upon OSUMC, to which OSUMC responded by asserting certain information and documentation generated in connection with OSUMC's Infection Control Committee ("ICC") and the Department of Epidemiology was privileged pursuant to R.C.
{¶ 4} On August 16, 2002, appellant filed motions to compel and for an in camera inspection of all documents OSUMC claimed were privileged. OSUMC responded to these motions with the affidavit of Dr. Julie Mangino, who is the Medical Director of OSUMC's Department of Epidemiology, Division of Infectious Diseases. She averred that the Department of Epidemiology is a member of the hospital's ICC, which is a quality assurance committee. Dr. Mangino explained that the Department of Epidemiology regularly tests for the legionella bacteria, pursuant to a preventative maintenance plan approved by the ICC, and the results of those tests are reviewed by the department's employees and made available solely to the ICC with the goal of improving the hospital's procedures concerning the quality of patient care. Accordingly, OSUMC maintained that, because certain documentation and information requested by appellant was produced for and submitted to a quality assurance committee, it was privileged pursuant to R.C.
{¶ 5} On August 21, 2002, appellant filed a notice of deposition, pursuant to Civ. R. 30(B)(5), requesting that OSUMC designate a person who could testify concerning 13 specific issues. On September 3, 2002, OSUMC sought a protective order from the trial court, pursuant to Civ. R. 26(C), again claiming that much of the information appellant sought in the deposition was privileged. On September 6, 2002, the trial court denied appellant's motions to compel and for an in camera inspection, and granted OSUMC's motion for a protective order.
{¶ 6} A liability only trial was held on September 8-10, 2003. On April 29, 2004, the trial court entered judgment in favor of OSUMC, finding that appellant failed to prove by a preponderance of the evidence that OSUMC acted negligently. Appellant appeals the judgment of the trial court, asserting the following assignments of error:
{¶ 7} Appellant argues in his first assignment of error that the trial court erred by granting an overly broad protective order and by failing to conduct an in camera review of the documents that OSUMC contended were privileged. A trial court enjoys considerable discretion in the regulation of discovery matters. Manofsky v. Goodyear Tire Rubber Co. (1990),
{¶ 8} OSUMC contends that the trial court did not abuse its discretion when it granted a protective order without an in camera review based upon the quality assurance privilege. R.C.
Proceedings and records of all review committees described in section
One of the committees described in R.C.
{¶ 9} R.C.
Any information, data, reports, or records made available to a quality assurance committee or utilization committee of a hospital * * * shall be confidential and shall be used by the committee and the committee members only in the exercise of the proper functions of the committee. * * *
{¶ 10} In construing former R.C.
It should be noted that the language of R.C.
(Emphasis added; emphasis sic.) Gates, at 351. Thus, in Gates we found it "incumbent" upon the trial court to hold an in camera inspection of the information, documents, and records at issue.
{¶ 11} Likewise, in Doe v. Mt. Carmel Health Sys., Franklin App. No. 03AP-413,
In camera inspection of the documents by the trial judge is the most appropriate method of dealing with claims of executive privilege. * * * By conducting such an inspection in chambers away from the jury and without the presence or participation of counsel for either party, the trial judge may make the necessary determination without compromising the confidentiality of any information he finds to be privileged.
Accordingly, it is apparent from Gates and Doe that this court views the quality assurance privilege as limited and favors an in camera inspection to determine its applicability to the particular documents and information at issue.
{¶ 12} Courts in other appellate districts have agreed that, because the privilege provided in R.C.
{¶ 13} The Seventh District Court of Appeals has also recognized the necessity of an in camera inspection, citing our decision in Gates. InWilson v. Barnesville Hosp.,
In a more recent decision, the Eighth District found that "[a]pplying the privileges set forth in R.C.
* * *
The Eighth District's remand [in Johnson] for an in camera inspection is yet another indication of the statute's intended scope. If the peer review statute was truly unlimited in scope, as the hospital avers, there would be absolutely no basis for the requisite in camera inspection, as the entire file would be privileged irrespective of its contents.
Id., at ¶ 17, 19. (Emphasis added.) Its use of the word "requisite" reveals that the Seventh District Court of Appeals believes an in camera inspection is mandatory.
{¶ 14} In Yancey v. Woodson (Dec. 15, 1989), Lucas App. No. L-88-231, the Sixth District Court of Appeals cited Gates in finding that the trial court's failure to conduct an in camera inspection of certain documents claimed to be privileged under R.C.
Although the Supreme Court of Ohio has not adopted the test set forth in Gates, supra, it appears that the high court favors an inspection of the purported privileged evidence prior to any decision wholly denying public disclosure. State ex rel. Fostoria Daily Review Co. v. FostoriaHosp. Assn. (1988),
This court has also impliedly held that a lower court cannot totally bar discovery on a flat claim of privilege. Atkins v. Walker (1979),
{¶ 15} In Kalb v. Morehead (May 19, 1998), Scioto App. No. 97CA2499, the Fourth District Court of Appeals addressed whether the trial court wrongfully issued a protective order prohibiting the plaintiffs from obtaining documents and information regarding the defendant doctor's credibility and the defendant hospital's negligent credentialing based upon the privilege set forth in R.C.
{¶ 16} Therefore, based upon Gates, Doe, and the cases from other appellate districts that are in accord, we find the trial court in the present case abused its discretion by granting the broad protective order without conducting an in camera inspection of the information claimed to be subject to the privilege. The most reasonable method of assuring that only evidence and information that is specifically covered by the privilege contained in R.C.
{¶ 17} We also note that the key information in question in this case concerns not that which was discovered pursuant to routine testing as part of an overall quality assurance program, which is the type about which Dr. Mangino averred, but that which was discovered based upon an individual inspection of appellant's showerhead in specific response to OSUMC's learning of appellant's illness. The purpose of R.C.
{¶ 18} In his second assignment of error, appellant contends the trial court abused its discretion when it denied his motion for a mistrial. Appellant moved for a mistrial when OSUMC's witness, Dr. Mangino, testified that the showerhead in appellant's room had been tested and the laboratory results were negative for the presence of legionella. Appellant argues that, because OSUMC asserted privilege as to this information throughout the pendency of the case, and the trial court had deemed this evidence undiscoverable and subject to a protective order, he was unfairly surprised at trial by the testimony. Appellant claims surprise because his case was premised upon the fact that the showerhead was the source of the legionella, which he based upon the information he had that suggested the showerhead had not been tested.
{¶ 19} As we sustained appellant's first assignment of error and must remand the matter for an in camera inspection, appellant's argument with regard to a new trial is moot. However, we find an in camera inspection with regard to the report entitled "The Ohio State University Hospital Medical Center Epidemiology Department Legionella Culture Results" ("legionella laboratory report"), which contained the laboratory results for the showerhead culture, is not necessary. Applying the general rules of waiver of an asserted privilege, we find OSUMC waived any privilege that may have existed with respect to this particular document. Specifically, this court has held with regard to the attorney-client privilege, "`if the holder of the privilege fails to claim his privilege by objecting to disclosure by himself or another witness when he has an opportunity to do so, he waives his privilege as to the communications so disclosed.'" Sanderson Farms, Inc. v. Gasbarro, Franklin App. No. 01AP-461,
{¶ 20} In the present case, OSUMC failed to object to Dr. Mangino's testimony that the showerhead in appellant's room had been cultured for legionella. OSUMC also later failed to object to Dr. Mangino's testimony that the showerhead culture was found to be negative and that there existed a report from the laboratory indicating that the results for the showerhead were negative. Further, OSUMC's counsel claimed at trial:
MR. TULLIS: Our position has been all along that the report is privileged. * * * [W]e've made that argument from the beginning. We had no intention of using that document in this case.
* * *
MR. TULLIS: She answered the question in response to you. We didn't do it.
However, OSUMC cannot continue to assert privilege during discovery as to certain documents and testimony but then permit such to be divulged at trial without objection. OSUMC's argument at trial that, in essence, it was appellant's fault that the information was revealed because appellant's counsel asked Dr. Mangino the question is also untenable. Thus, we find the failure of OSUMC to object and to assert privilege at trial constituted a waiver of any privilege with regard to the legionella laboratory report, at a minimum.
{¶ 21} Upon remand, the trial court must hold an in camera inspection with regard to the documents claimed to be privileged, except for the legionella laboratory report, and determine whether they should have, in fact, been subject to the privilege in R.C.
{¶ 22} Accordingly, appellant's first assignment of error is sustained, and appellant's second assignment of error is moot. The judgment of the Ohio Court of Claims is reversed, and this matter is remanded to that court for an in camera inspection of the evidence OSUMC claimed to be privileged, except for the legionella laboratory report, to which we have found any existing privilege was waived, and other proceedings consistent with this opinion.
Judgment reversed and cause remanded.
BRYANT J., concurs.
KLATT, J., dissents.
Dissenting Opinion
{¶ 23} Because I believe the trial court did not abuse its discretion in granting the protective order without an in camera inspection, I respectfully dissent.
{¶ 24} Although the Supreme Court of Ohio appears to favor an in camera inspection under these circumstances, and that may be the best practice, the court has never required such an inspection when a party has raised a claim of confidentiality pursuant to R.C.
{¶ 25} In the case at bar, the trial court did not abuse its discretion because it had sufficient information before it to assess the applicability of the quality assurance privilege without an in camera inspection. The trial court had appellant's discovery requests and the responses from OSUMC. The trial court also had substantive briefs from both parties as well as an affidavit from Dr. Mangino, who explained the role of the hospital's Department of Epidemiology and Infection Control Committee in testing for the presence of the legionella bacteria. Significantly, Dr. Mangino stated that the test results and related reports were not made available to any individuals or committees outside the Infection Control Committee and are not part of any individual patient's medical record. That committee is a quality assurance committee which addresses issues concerning appropriate changes in the care and treatment rendered to patients and the hospital procedures concerning the quality of care provided to patients at OSUMC. Appellant offered nothing that called Dr. Mangino's testimony into question. Although the trial court might have been able to verify Dr. Mangino's assertions had it conducted an in camera inspection of the documents, I do not believe it was an abuse of discretion to grant the protective order without such an inspection. Given the nature of the discovery requests and the substance of Dr. Mangino's affidavit, the trial court's decision to grant the protective order without an in camera inspection was not unreasonable, arbitrary or unconscionable.
{¶ 26} I recognize that this court reached a different conclusion inGates v. Brewer (1981),
{¶ 27} Because the trial court had information before it that the documents sought were generated at the request of a quality assurance committee and disseminated only to the members of the quality assurance committee, the trial court did not abuse its discretion by granting OSUMC a protective order without conducting an in camera inspection. Therefore, I would overrule appellant's first assignment of error.
