Richard Fravel, Plaintiff-Appellee, v. Columbus Rehabilitation and Subacute Institute et al., Defendants-Appellants.
No. 16AP-270
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
September 13, 2016
[Cite as Fravel v. Columbus Rehab. & Subacute Inst., 2016-Ohio-5807.]
SADLER, J.
(REGULAR CALENDAR)
Rendered on September 13, 2016
On brief: The Dickson Firm, L.L.C., Blake A. Dickson, and Daniel Z. Inscore, for appellee. Argued: Blake A. Dickson.
On brief: Bonezzi Switzer Polito & Hupp Co., L.P.A., G. Brenda Coey, and Jennifer R. Becker, for appellants. Argued: G. Brenda Coey.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendants-appellants, Columbus Rehabilitation and Subacute Institute et al., appeal from a judgment of the Franklin County Court of Common Pleas, which entered a judgment granting in part and denying in part four motions to compel discovery filed by plaintiff-appellee, Richard Fravel, as the personal representative of the estate of his father, Jack Fravel (“decedent“). For the following reasons, we affirm the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In May 2013, following a two-month hospitalization for a ruptured brain aneurism, decedent became a resident of Columbus Rehabilitation and Subacute Institute nursing home in Columbus. On July 10, 2014, appellee filed a complaint against
{¶ 3} On December 12, 2014, appellee propounded his first request for production of documents, including a request for all quality indicator reports and facility key indicator reports. Appellants provided a privilege log that, in pertinent part, objected to the production of the quality indicator reports and facility key indicator reports due to
{¶ 4} On March 22, 2016, the trial court rendered a decision and entry granting in part and denying in part appellee‘s four motions to compel discovery.1 Regarding the quality indicator reports and key facility indicator reports, the trial court found that:
[T]he various reports requested by [appellee] are not subject to privilege, but [appellee‘s] request is overly broad. As such, it is hereby ORDERED that [appellants] shall provide [appellee] with any * * * quality indicator reports, and facility key indicator reports in their possession for the year before [decedent‘s] admission within fourteen (14) days of the date of the filing of this decision.
(Mar. 22, 2016 Decision & Entry at 3-4.)
{¶ 5} On April 4, 2016, appellants filed a motion for reconsideration with the trial court concerning the quality indicator reports and key facility indicator reports, which included a new affidavit of Howard dated April 1, 2016. Four days later, on April 8, 2016, appellants filed a timely appeal from the trial court‘s March 22, 2016 judgment.
{¶ 6} Appellants raise one assignment of error:
THE TRIAL COURT ERRED IN GRANTING PLAINTIFF‘S-APPELLEE‘S MOTION TO COMPEL THE QUALITY INDICATOR REPORTS AND FACILITY KEY INDICATOR REPORTS BECAUSE THE REPORTS ARE STATUTORILY PROTECTED UNDER
R.C. 2305.252(A)
III. STANDARD OF REVIEW
{¶ 7} An appellate court typically reviews discovery disputes under an abuse-of-discretion standard. Summit Park Apts., LLC v. Great Lakes Reinsurance (UK), PLC, 10th Dist. No. 15AP-820, 2016-Ohio-1514, ¶ 12, quoting Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, ¶ 13, citing Tracy v. Merrell Dow Pharmaceuticals, Inc., 58 Ohio St.3d 147, 151-52 (1991). However, discovery issues that involve an alleged privilege are a question of law reviewed de novo on appeal. Id., quoting Ward at ¶ 13, citing Med. Mut. Of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, ¶ 13. When reviewing such questions of law, deference should still be afforded to “factual issues * * * determined by the trial court as a predicate to resolving the legal question of privilege.” Summit Park Apts. at ¶ 12, citing MA Equip. Leasing I, LLC v. Tilton, 10th Dist. No. 12AP-564, 2012-Ohio-4668, ¶ 18.
IV. DISCUSSION
{¶ 8} Under their assignment of error, appellants argue that the trial court erred in determining that the quality indicator reports and facility key indicator reports are not privileged under
{¶ 9} In pertinent part,
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 evaluation 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.
* * *
An order by a court to produce for discovery or for use at trial the proceedings or records described in this section is a final order.
{¶ 10} “A health care entity asserting the
{¶ 11} Appellants point to Howard‘s affidavit and deposition to establish both the existence of a quality assurance committee fitting the definition of a peer review committee and establish that the documents at issue are records within the scope of that committee. As a preliminary issue, we must decide whether we may consider the information contained in the affidavit of Howard, which was attached to appellants’ motion for reconsideration to the trial court. Appellants contend that we should consider this affidavit in resolving the assignment of error because the affidavit was filed before the notice of appeal and is, therefore, part of the record.
{¶ 12} We first note that appellants do not point us to authority to support this position, infringing
{¶ 14} However, it is well-settled that an appellate court cannot decide an appeal based on information that was not a part of the trial court‘s proceedings. Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, ¶ 13. “Rather, appellate review is limited to the record as it existed at the time the trial court rendered its judgment.” Waterford Tower Condominium Assn. v. TransAmerica Real Estate Group, 10th Dist. No. 05AP-593, 2006-Ohio-508, ¶ 13, citing Chickey v. Watts, 10th Dist. No. 04AP-818, 2005-Ohio-4974, ¶ 14.
{¶ 15} Furthermore, pursuant to
{¶ 16} As previously stated, appellants must first establish the existence of a peer review committee.
[A] utilization review committee, quality assessment committee, performance improvement committee, tissue committee, credentialing committee, or other committee that does either of the following:
(a) Conducts professional credentialing or quality review activities involving the competence of, professional conduct of, or quality of care provided by health care providers, including both individuals who provide health care and entities that provide health care;
(b) Conducts any other attendant hearing process initiated as a result of a peer review committee‘s recommendations or actions.
{¶ 17} “Ohio courts have been adamant that merely labeling a committee * * * ‘peer review’ is insufficient to meet the burden of proving that the privilege applies.” Smith v. Cleveland Clinic, 197 Ohio App.3d 524, 2011-Ohio-6648, ¶ 23 (8th Dist.) (finding blanket statement in doctor‘s affidavit insufficient to meet burden that a peer review committee exists). Likewise, a health care facility that merely provides testimony that it has a quality assurance process does not meet its burden of establishing that it had a peer review committee under
A. Yes [the facility had Resident Concern Forms].
* * *
Q. And where would they go?
A. It would go through the QA process.
Q. And who else would look at it?
A. The department heads.
Q. The department heads would look at it?
A. Uh-huh, to seek resolutions and actions as necessary.
Q. Okay. Did the facility maintain quality indicator reports?
A. Well, we had access to them.
Q. From the Department of Health?
A. Yes.
* * *
Q. Okay. What about facility key indicator reports?
A. Facility key indicator reports? I‘m not sure what that is.
Q. So some facilities maintain a facility key indicator report for, like, falls, wounds, infections, fevers, hospitalizations and they just track data about the resident. Did they maintain anything like that at that facility?
A. That was done weekly. That was part of my -- well, not them. But as a DON, it‘s part of the DON position.
Q. Okay. And what was it called?
A. It was just a reporting tool.
Q. And who was it submitted to?
A. It was through the -- it would go through the QA process again.
Q. Okay. Did it go to anybody at corporate?
A. The weekly? No.
Q. Okay. Did any report about patient care or the condition of a resident go to corporate?
A. To the regional? If there was a -- yeah. Like a sentinel event, something like that, yes.
* * *
Q. And you said you had access to the QI reports. Did the facility access them? Did they pull them?
A. I can‘t say if they did then.
Q. Okay.
A. I wasn‘t in that position then, so --
(June 18, 2015 Howard Dep. at 44-46.)
{¶ 19} The deposition testimony here establishes that the facility had a “QA process.” (Howard Dep. at 44.) What this process entails and, more pointedly, whether it includes a quality assurance committee meeting the definition of a “peer review committee,” as defined by
{¶ 20} Appellants argue, in the alternative, that should we find the quality indicator reports are not privileged, appellee must obtain those documents from ODH as
{¶ 21} Discussing “original sources,”
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.
{¶ 22} This court in Doe explained:
As amended,
R.C. 2305.252 clearly states that documents or records cannot be obtained from a peer review committee‘s proceedings or records. The documents or records are not completely outside the scope of discovery. Such documents and records are available from the original source of the information contained therein. However, the documents and records presented to a peer review committee fall within the privilege created byR.C. 2305.252 .
{¶ 23} The plain language of the statute shows
{¶ 24} Accordingly, appellants’ assignment of error is overruled.
V. CONCLUSION
{¶ 25} Having overruled appellants’ sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J., and BRUNNER, J., concur.