Bansal v. Mt. Carmel Health Sys., Inc.Bansal v. Mt. Carmel Health Sys., Inc.
Rendered on December 24, 2009
James H. Banks, for appellant.
Vorys, Sater, Seymour & Pease LLP, William J. Pohlman and Michael J. Hendershot, for appellees.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶1} Plaintiff-appellant, Girraj K. Bansal, appeals from a judgment of the Franklin County Court of Commons Pleas granting summary judgment in favor of defendants-appellees, Mount Carmel Health Systems (“Mount Carmel“), Joe Calvaruso, Thomas Kramer, Randall Miller, James Smith, Larry D. Swanner, and Ronald E. Whiteside (collectively “defendants“). For the following reasons, we reverse and remand.
{¶3} In the course of discovery, Bansal requested that defendants prоduce the following documents:1
6. Produce all documents which reflect any of the information set forth in your answers to interrogatory numbers 4[, which reads, “[s]tate each and every date which you had contact with plaintiff * * *“] and/or 5[, which reads, “[f]or each date set forth in [interrogatory number 4], state * * * [t]he type of contact (i.e. in person, by telephonе, etc.), * * * [w]ho initiated the contact, [and] * * * [t]he reason for the contact“].
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9. Produce all documents which reflect any of the information set forth in your answers to interrogatory numbers 7[, which reads, “[s]tate each and every date which you had contact with anyone regarding plaintiff * * *“] and/or 8[, which reads, “[f]or each date set forth in [interrogatory number 7], state * * * [t]he type of contact (i.e. in person, by telephone, etc.), * * * [w]ho initiated the contact, [and] * * * [t]he reason for
the contact“] and/or which relate to your contact with and/or statements to the individuals/entities identified. * * *
11. Produce all documents which reflect any of the information set forth in your answer to interrogatory numbers 10[, which reads, “[s]tаte in detail the basis for your demand that Dr. Bansal seek psychological help * * * “] * * *.
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13. Produce all documents which reflect any of the information set forth in your answer to interrogatory numbers 12 [, which reads, “[i]dentify each employee or physician affiliated with Mt. Carmel whom you have referred for psychological help at any time from January, 2001 to thе present and state the race and national origin of each.“].
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16. Produce all documents which reflect any of the information set forth in your answers to interrogatory numbers 14[, which reads, “[s]tate each and every date which Dr. Bansal discussed problems with you which he was having with nurses/nursing staff * * *“] and/or 15[, which reads, “[f]or each date set forth in [interrogatory number 14], statе * * * [t]he type of discussion (i.e. in person, by telephone, etc.), * * * [w]ho initiated the discussion, [and] * * * [t]he reason for the discussion“] * * *.
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18. Produce all documents which reflect any of the information set forth in your answer to interrogatory number 17[, which reads, “[s]tate whether you have suggested or encouraged any patient of Dr. Bansal to see another physician * * * [аnd,] [i]f so, identify the patient and state the date and reason for the suggestion.“].
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20. Produce all documents which reflect any of the information set forth in your answer to interrogatory number 19[, which reads, “[s]tate the number of times you have required and/or suggested to Dr. Bansal that he see another
doctor or health care provider and state for each time: * * * [t]he date, * * * [t]he name of the doctor or health care provider, * * * [t]he reason for the suggestion or requirement, [and] * * * [t]he result“]. * * *
24. Produce all documents which reflect any of the information set forth in your answer to interrogatory number 23[, which reads, “[f]or each occasion when Dr. Bansal was discussed at a committee or group meeting involving Mt. Cаrmel, its managers and/or directors, state * * * [t]he date, * * * [t]he identity of persons at the meeting, [and] * * * [t]he reason for the meeting“].
25. Produce all documents which relate to plaintiff Girraj K. Bansal, including but not limited to any personnel file, memo and/or any document in which Dr. Bansal was the subject.
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27. Produce all documents which reflect any of the information set forth in your answer to interrogatory number 26[, which reads, “[s]tate in detail the reason(s) which support the decision to require that Dr. Bansal see a psychiatrist in 2007 or have his privileges terminated.“].
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29. Produce all documents which reflect any of the information set forth in your answer to interrogatory number 28[, which reads, “[s]tate in detail the circumstances which resulted in the suggestion that Dr. Bansal was a terrorist.“].
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31. Produce all documents which reflect the procedure described in your answer to interrogatory number 30[, which reads, “[s]tate the procedure used for nurses to contact doctors at any time from January, 2000 to the present.“].
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34. Produce all documents which reflect any of the information set forth in your answer to interrogаtory number 33[, which reads, “[i]dentify each doctor who has been
suspended from Emergency Room call duties at any time from January, 2000 to the present and state for each: * * * [t]he date, * * * [t]he reason for the suspension, [and] * * * [t]he term of the suspension.“].
{¶4} Defendants objected to each of these document requests on multiple grounds, including the ground that the peer review privilege set forth in
{¶5} In subsequent correspondence with Bansal‘s counsel, defendants’ counsel explained that defendants never possessed doсuments responsive to document request numbers 18, 20, or 27. Thus, defendants’ objections to these document requests became moot.
{¶6} Defendants, however, affirmatively stood by their refusal to produce any documents responsive to document request numbers 13, 22, 24, and 34. Additionally, with the exception of correspondence with Bansal‘s former attorney, defеndants also refused to produce documents responsive to document request number 9.
{¶7} Although defendants never explicitly addressed their objections to document request numbers 11 and 29, defendants apparently never produced any documents responsive to those document requests. With respect to document request numbers 25 and 31, defendants рroduced certain non-privileged documents, but
{¶8} Thus, after the completion of discovery, defendants admittedly possessed, but refused to produce, documents responsive to document request numbers 6, 9, 13, 22, 24, and 34. Defendants аsserted the
{¶9} On November 17, 2008, Bansal filed a motion to compel discovery. Bansal claimed that defendants had failed tо respond to the majority of his document requests based upon the peer review privilege, and he disputed defendants’ contention that the withheld documents were privileged. In response, defendants pointed out that they had produced over 130 pages of non-privileged documents during the course of discovery. Defendants then argued that the privilege set forth in
{¶11} On March 6, 2009, the trial court granted defendants summary judgment on all of Bansal‘s claims. Bansal now appeals and assigns the following errors:
- [1.] THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELLANT‘S MOTION TO COMPEL DISCOVERY.
- [2.] THE TRIAL COURT‘S CONCLUSIONS OF LAW ON THE FACTUAL ISSUES BELOW ARE CONTRARY TO LAW AND THE RULES OF EVIDENCE AND CIVIL PROCEDURE, SUCH THAT THE JUDGMENT BELOW MUST BE REVERSED.
- [3.] THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON PLAINTIFF-APPELLANT‘S CLAIM FOR INTERFERENCE WITH BUSINESS RELATIONSHIPS.
- [4.] THE TRIAL COURT ERRED IN ITS ANALYSIS OF PLAINTIFF-APPELLANT‘S DEFAMATION CLAIM.
- [5.] THE TRIAL COURT ERRED IN FINDING NO FIRST AMENDMENT VIOLATION.
{¶12} By Bansal‘s first assignment of error, he argues that the trial court erred in denying his motion to compel production of documents that defendants claim are privileged pursuant to
{¶13} Aрpellate courts generally apply the abuse of discretion standard when reviewing discovery rulings. State ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children and Family Servs., 110 Ohio St.3d 343, 2006-Ohio-4574, ¶9. However, “whether the
{¶14} According to
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 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 evаluation and review by the peer review committee. * * * 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. * * *
A health care entity asserting the
{¶15} To prove the privilege, the health care entity must first establish the existence of a committee that meets the statutory definition of “peer review committee” contained in
{¶16}
{¶18} Absent evidence that the requested documents were created by and/or exclusively for a peer review committee, or generated by an original source and produced or presented to a peer review committee, the party asserting the
{¶19} Having sustained Bansal‘s first assignment of error, we must find the remainder of Bansal‘s assignments of error moot. Bansal‘s second through fifth assignments of error challenge the trial court‘s ruling on defendants’ motion for summary judgment. If, upon remand, the trial court determines that defendants must produce the allegedly privileged documents, Bansal may obtain the evidence necessary to prevent summary judgment on some or all of his claims. Therefore, at best, judgment on Bansal‘s second through fifth assignments of error would be premature and, at worst, it would constitute an advisory opinion.
{¶20} For the following reasons, we sustain Bansal‘s first assignment of error, and we find Bansal‘s second, third, fourth, and fifth assignments of error moot. We reverse the judgment of the Franklin County Court of Common Pleas, and we remand this matter to that court for further proceedings consistent with law and this opinion.
Judgment reversed and cause remanded.
BRYANT and McGRATH, JJ., concur.