DAVID HOWELL, JR., ETC. v. PARK EAST CARE & REHABILITATION, ET AL.
No. 106041
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 24, 2018
2018-Ohio-2054
BEFORE: Blackmon, J., E.T. Gallagher, P.J., and Stewart, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-17-876418
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: May 24, 2018
Martin T. Galvin
Brian D. Sullivan
Erin Siebenhar Hess
Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEE
Blake A. Dickson
Danielle Chaffin
The Dickson Firm, L.L.C.
Enterprise Place, Suite 420
3401 Enterprise Parkway
Beachwood, Ohio 44122
PATRICIA ANN BLACKMON, J.:
{¶1} Defendants-appellants, Harborside of Cleveland Limited Partnership d.b.a. Park East Care & Rehabilitation, and its owners and operators (collectively “Park East“), appeal from the trial court‘s decision that denied their motion for a protective order and compelled them to provide discovery of records pertaining to a nursing home resident who allegedly assaulted decedent, Pauline Wilbourn (“Wilbourn“), mother of plaintiff-appellee, David Howell (“Howell“). Park East assigns the following errors for our review:
- The trial court erred by ordering production of privileged medical records pertaining to a nonparty to the litigation, which party refused to consent to such disclosure.
The trial court erred by ordering production of statutorily privileged incident reports, reports to the Ohio Department of Health, and a nonparty patient‘s billing records as these items are each statutorily immune from discovery.
{¶2} Having reviewed the record and pertinent law, we reverse and remand in order for the trial court to conduct an in camera review of the disputed documents in order to ensure that they are not protected by a privilege or are otherwise undiscoverable. The apposite facts follow.
{¶3} On February 23, 2017, Howell filed suit against Park East, alleging that while Wilbourn was a resident of Park East, she was assaulted by a fellow resident, L.W., and died from her injuries.1 Howell alleged that the actions or omissions of Park East were negligent, reckless, wanton and wilful, and substantially certain to cause harm to Wilbourn.
{¶4} L.W. is deceased, and his estate is not a party to this action. It is undisputed that his estate has refused to consent to production of his records at Park East.
{¶5} Howell propounded extensive discovery requests to Park East. As is relevant to this appeal, Howell seeks various incident reports, medical records, and other information records pertaining to L.W., including the following:
Request for Production of Documents 2: Documents relative to [L.W.], including nursing home chart, medical records, physician notes, nurse statements and notes, progress notes, documentation of activities of daily living, assessment reports, incident/accident reports, physical therapy, administration of narcotics, dietary records, communications about [L.W.], etc.
Request for Production of Documents 5: Documents relative to [L.W.] including medical records, documentation of any incidents, police reports, and witness statements.
Request for Production of Documents 6: [L.W.‘s] original nursing home chart during his entire residency.
Request for Production of Documents 7: Documentation of any incidents in which [L.W.] verbally and/or physically threatened, abused, assaulted, and/or otherwise attacked anyone at the nursing home.
Request for Production of Documents 9: Documentation in any incident, investigation, or abuse file which contains reference to [L.W.] or any incident involving or otherwise pertaining to [L.W.]
Request for Production of Documents 11: documentation reported to the Ohio Department of Health relative to [L.W.], including any reports of injuries of unknown origin or suspected abuse to that individual.
Request for Production of Documents 14: Billing that was sent out relative to [L.W.].
Request for Production of Documents 15: Documentation of amounts paid relative to [L.W.].
Request for Production of Documents 20: Incident reports and/or witness statements relative, in any way, to [L.W.].
Interrogatory 5: Identify and describe any and all instances in which [L.W.], at any time, verbally and/or physically threatened, abused, assaulted, battered, and/or otherwise attacked anyone in the building or on the premises of the nursing home, or exhibited any type of aggressive behavior. (Collectively referred to as “the disputed records“).
{¶6} Park East filed a motion for a protective order, arguing that the disputed records are privileged under:
{¶7} The trial court conducted a legal analysis of the issues. Without conducting an in camera review of the disputed documents, the court ruled that the documentation of conduct is not barred by the physician-patient privilege, and that Howell‘s interests in obtaining the documents outweigh L.W.‘s confidentiality interests. The court also ruled that
{¶8} Park East‘s first assigned error raises various privilege claims. We shall address each argument in turn.
Standard of Review
{¶9} Although discovery orders are generally reviewed under an abuse of discretion standard, the issue of whether information sought is confidential and privileged from disclosure is a question of law that should be reviewed de novo. Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13. Accord Schlotterer at ¶ 13 (considering claim based upon
R.C. 2317.02
{¶10} Park East argues that the records are privileged under
{¶11} Pursuant to
{¶12} In Biddle v. Warren Gen. Hosp., 86 Ohio St.3d 395, 402, 1999-Ohio-115, 715 N.E.2d 518, the Ohio Supreme Court reviewed privilege claims after a hospital released patient medical information to a law firm in order to determine Supplemental Security Income eligibility, and possible payment to the hospital. The Biddle court held that “an independent tort exists for the unauthorized, unprivileged disclosure to a third party of nonpublic medical information that a physician or hospital has learned within a physician-patient relationship.” Id. at paragraph one of the syllabus. The court also held:
In the absence of prior authorization, a physician or hospital is privileged to disclose otherwise confidential medical information in those special situations where disclosure is made in accordance with a statutory mandate or common-law
duty, or where disclosure is necessary to protect or further a countervailing interest that outweighs the patient‘s interest in confidentiality.
Id. at paragraph two of the syllabus. The court reasoned that “‘[a]lthough public policy favors the confidentiality [of medical information], there is a countervailing public interest to which it must yield in appropriate circumstances.‘” Id. at 402, quoting MacDonald v. Clinger, 84 A.D.2d 482, 487, 446 N.Y.S.2d 801 (1982).
{¶13} However, in Roe v. Planned Parenthood Southwest Ohio Region, 122 Ohio St.3d 399, 2009-Ohio-2973, 912 N.E.2d 61, the Ohio Supreme Court held that its decision in Biddle did not create a right of discovery of confidential medical records of nonparties and did not permit the parents suing an abortion provider to obtain medical records of other patients. The court stated, “[t]he balancing test in Biddle * * * applies only as a defense to the tort of unauthorized disclosure of confidential medical information and does not create a right to discover confidential medical records of nonparties in a private lawsuit.” Roe at paragraph one of the syllabus. Further “[a]ny such exception to the physician-patient privilege is a matter for the General Assembly to address.” Id. at ¶ 47. Accord Bednarik (reversing a decision releasing nonparty‘s laboratory results).
{¶14} The Roe court also recognized that a number of cases improperly applied Biddle to discovery situations. Id. Accord Cepeda v. Lutheran Hosp., 123 Ohio St.3d 161, 2009-Ohio-4901, 914 N.E.2d 1051.
{¶15} In 2010, the Ohio Supreme Court recognized that the physician patient privilege does not provide an “absolute protection against disclosure of medical information.” Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, ¶ 30. In Ward, the plaintiffs sought discovery of a nonparty‘s (physician‘s) records to determine whether he was the source of the plaintiff‘s infection. The court held that, ”
The medical records of the nonparties in Roe were not subject to discovery, because (1)
R.C. 2317.02(B) prohibited the health-care provider from releasing them, (2) no statutory exception to the privilege applied, and (3) the nonparty patients had not expressly given their consent to the release of their records.
{¶16} In accordance with the foregoing case law,
neither Biddle nor Roe advances Skorvanek‘s contention that, as a matter of law, for purposes of discovery he is entitled to the confidential medical records of [the] nonparty to this action. * * * [Additionally,] Ward held * * * “that under the
circumstances of this case,
R.C. 2317.02(B) , the physician-patient privilege, does not preclude discovery of medical information from a patient.”
R.C. 3721.02
{¶17} Park East also asserts that the records are privileged under
{¶18}
(A) The rights of residents of a home shall include * * *:
* * *
(10) The right to confidential treatment of personal and medical records, and the right to approve or refuse the release of these records to any individual outside the home, except in cases of transfer to another home, hospital, or health care system, as required by law or rule, records.
{¶19} In Rothstein v. Montefiore Home, 116 Ohio App.3d 775, 689 N.E.2d 108 (8th Dist.1996), this court held that the right granted under this provision is “enforceable through a civil action by ‘any resident,‘” and could not be asserted by the estate of a former resident. Additionally, we note that in Large, 2013-Ohio-2877, 995 N.E.2d 872, the court analyzed the reports provision of
HIPAA
{¶20} Park East next argues that discovery of the requested records is barred by HIPAA, and that it faces civil liability under HIPAA if it produces L.W.‘s medical records. Howell maintains that disclosure is permitted under HIPAA when ordered during the course of a judicial proceeding.
(a) [To knowingly:]
(1) [use or cause] to be used a unique health identifier;
(2) [obtain] individually identifiable health information relating to an individual; or
(3) [disclose] individually identifiable health information to another person[.]
{¶22} However, the HIPAA privacy regulation,
R.C. 2305.252
{¶23} Park East asserts that under
{¶24} In this matter, although the peer review and incident report privileges were not briefed, these issues were raised in Park East‘s general objections to discovery.
{¶25} Under
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[.] * * * No individual * * * shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the proceedings of the peer review committee.
{¶26} However, “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.
R.C. 2305.253
{¶27} Park East next asserts that under
{¶28}
{¶29} Under
{¶30} Only a document prepared by, or for the use of a peer review committee is deemed an “incident report” and is considered privileged and nondiscoverable. Manley v. Heather Hill,
Department of Health Licensing Reports under R.C. 3721.17
{¶31} Park East next argues that the requested records include reports issued for the Department of Health and are not discoverable under
{¶32}
[T]he results of an inspection or investigation of a home that is conducted under this section, including any statement of deficiencies and all findings and deficiencies cited in the statement on the basis of the inspection or investigation, shall be used solely to determine the home‘s compliance with this chapter, [and such statement and findings] shall not be used in * * *
Any court or in any action or proceeding that is pending in any court and are not admissible in evidence in any action or proceeding unless that action or proceeding is an appeal of an action by the department of health under this chapter[.]
{¶33} In Large, 2013-Ohio-2877, 995 N.E.2d 872, the court extensively analyzed this provision and held that it does not create a statutory privilege protecting the reports from discovery, but is instead an evidence exclusion provision.
In Camera Review
{¶35} In Trangle v. Rojas, 150 Ohio App.3d 549, 556, 2002-Ohio-6510, 782 N.E.2d 617 (8th Dist.), this court held that the trial court erred in ordering “complete” responses to the second set of interrogatories and request for production of documents without first conducting an in camera inspection to determine the privileged matters. Similarly, in Johnson ex rel. Estate of Johnson v. Univ. Hosps. of Cleveland, 8th Dist. Cuyahoga No. 80117, 2002-Ohio-1396, this court held that the trial court erred by compelling the disclosure of the incident reports in toto without conducting an in camera inspection of the records. Additionally, in Bailey, 2013-Ohio-4927, this court held that the issue of whether or not the requested records fall within the purview of the peer review privilege is a decision best determined by an in camera review of the documents. Id. at ¶ 37. The Bailey court also outlined the in camera procedure. Id. at ¶
{¶36} In accordance with all of the foregoing, we conclude that the trial court‘s blanket order to provide discovery of all of the disputed records, without an in camera review, was erroneous. We conclude that the disputed documents must be analyzed in the first instance by the trial court for each of the privilege claims, as well as for relevancy. Additionally, we caution that even if the trial court again concludes, following an in camera review, that the documents must be produced, information concerning other patients as well as social security numbers and other sensitive information must still be redacted from the records. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
{¶37} The court‘s judgment is reversed and the matter is remanded for further proceedings consistent with this opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
PATRICIA ANN BLACKMON, JUDGE
MELODY J. STEWART, J., CONCURS;
EILEEN T. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION ATTACHED
{¶38} I concur with the majority‘s decision to remand this matter for the trial court to conduct an in camera review of the disputed documents. However, I write separately to address my belief that the trial court‘s judgment improperly relied on the Ohio Supreme Court‘s decision in Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, for the proposition that the medical records sought from the nursing home were not absolutely privileged under
{¶39}
{¶40} In an effort to address the trial court‘s reliance on Ward, a summary of relevant Ohio Supreme Court cases is necessary. As referenced by the majority, in Biddle v. Warren Gen. Hosp., 86 Ohio St.3d 395, 715 N.E.2d 518 (1999), paragraph two of the syllabus, the Ohio Supreme Court held:
In the absence of prior authorization, a physician or hospital is privileged to disclose otherwise confidential medical information in those special situations where disclosure is made in accordance with a statutory mandate or common-law duty, or where disclosure is necessary to protect or further a countervailing interest that outweighs the patient‘s interest in confidentiality.
{¶41} Approximately ten years after Biddle was released, the Ohio Supreme Court issued Roe v. Planned Parenthood Southwest Ohio Region, 122 Ohio St.3d 399, 2009-Ohio-2973, 912 N.E.2d 61, to clarify its decision in Biddle. Roe at paragraph one of the syllabus. In Roe, the plaintiffs sought medical records of nonparties from a health-care provider. Relying on Biddle, the plaintiffs claimed that disclosure of the medical records was necessary to protect or further a countervailing interest that outweighed a patient‘s interest in confidentiality. Id. at ¶ 46. No one disputed
{¶42} After careful consideration, the Ohio Supreme Court rejected plaintiffs’ reliance on Biddle, stating,
paragraph two of the syllabus in Biddle addressed the defenses to the tort of unauthorized disclosure of confidential medical information — i.e., the circumstances under which a physician or hospital may release confidential medical records in the absence of a waiver without incurring tort liability. Biddle did not create a litigant‘s right to discover the confidential medical records of nonparties in a private lawsuit. Any such exception to the physician-patient privilege is a matter for the General Assembly to address.
(Emphasis added.) Id. at ¶ 48.
{¶43} Thus, the Ohio Supreme Court held that
{¶45} In a further effort to avoid the ramifications of Roe and
The medical records of the nonparties in Roe were not subject to discovery, because (1)
R.C. 2317.02(B) prohibited the health-care provider from releasing them, (2) no statutory exception to the privilege applied, and (3) the nonparty patients had not expressly given their consent to the release of their records.
{¶46} In its July 2017 order, the trial court acknowledged that the plaintiff in Ward “sought a potential tortfeasor‘s own testimony about his health records,” while in this case, appellee “is asking the nursing home to produce a third party‘s medical records.” Nevertheless, the trial court found Ward persuasive, stating:
Despite these differences, Ward ultimately stands for the proposition that a third party‘s medical records are not subject to an absolute privilege.
{¶47} After careful consideration, I would find the trial court‘s interpretation of Ward ignores the longstanding precedent of Roe. Contrary to the trial court‘s position, Ward only applies to factual situations where the medical information is requested from the patient — not the medical facility or physician. Ward is clearly distinguishable from the facts of this case. Unlike Ward, this case involves an order requiring the nursing home to produce the records of one of its patients who is not a party to this case. As such, this case presents a factual scenario analogous to Roe and falls directly under the protections afforded under
{¶48} Based on the foregoing, I would apply the Ohio Supreme Court‘s express determination that
{¶49} Accordingly, I would find the trial court erred in determining that the nursing home was required to produce information concerning or involving L.W.‘s medical records. With that said, however, I agree that an in camera review is necessary to determine which documents qualify as medical records.