EDWARD W. LARGE, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF MARY RUTH LARGE v. HEARTLAND-LANSING OF BRIDGEPORT OHIO, LLC, et al.
CASE NO. 12 BE 7
STATE OF OHIO, BELMONT COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
June 24, 2013
[Cite as Large v. Heartland-Lansing of Bridgeport Ohio, L.L.C., 2013-Ohio-2877.]
Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Joseph J. Vukovich
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 10 CV 307; JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty.
For Defendant-Appellant: Atty. G. Brenda Coey, Buckingham Doolittle & Burroughs, LLP, 4518 Fulton Road, NW, Canton, OH 44718
WAITE, J.
{1} Appellee, Edward W. Large, filed a wrongful death suit over the death of his wife, Mary Ruth Large. The alleged cause of death was an infection resulting from pressure ulcers the deceased developed
Factual and Procedural History
{2} In July of 2009, Mary Ruth Large, the deceased, entered Heartland-Lansing as a patient. She died on October 10, 2009. She was survived by her husband, Appellee Edward W. Large, who was later appointed executor of her estate. The underlying suit was filed by Appellee, both in his individual capacity and as executor. Appellee named Appellant and various employees in his suit, and alleged negligence or deliberate failure to exercise reasonable care with regard to the decedent, including: “failing to provide care * * * failing to follow [the] instructions of the plan of care * * * failing to take appropriate action to prevent infection; in failing to take appropriate action to prevent the development of pressure sores; * * * failing to provide adequate staffing; [and] in failing to properly train and supervise the persons responsible for failing to provide medical care to Mrs. Large.” (6/30/10 Complaint, ¶11.)
{3} Answers were filed by various parties and an amended complaint was also filed. Discovery was undertaken by Appellee. Appellant complied with some of the discovery requests and the parties were able to resolve others. Disagreements over remaining questions were set for a hearing. The trial court‘s ruling can be broken into two parts. Part one involved discovery material that were to be set for an in-camera inspection before final determination was made as to their discoverability. This ruling was not appealed. Part two involves the court‘s decision as to the material relative to discovery requests numbered 20 and 36. Request number 20 sought “all complaint reports or surveys of resident opinion at the Heartland facility during the three years prior to October 10, 2009.” Request number 36 sought “copies of any reviews that were conducted by HCFA (Health Care Financing Administration) or other governmental agencies at your facility from 2008 to 2009.” (Appellant‘s Brf., pp. 3-4.) Appellant did identify as responsive to this request an Ohio Department of Health licensing report and survey documents, but claimed that these documents were privileged.
{4} The trial court held a telephonic hearing on October 20, 2011 concerning the discovery requests. On January 11, 2012, the trial court issued a decision ordering Appellant to comply with requests 20 and 36 and to produce the licensing report and survey materials. Appellant filed a timely appeal from this order.
Argument and Law
{5} Appellant identifies four assignments of error on the first page of its brief
{6} The remaining assignment of error and issue three challenge the trial court‘s decision to allow the discovery of family and patient complaint reports. The analysis of these arguments focuses on the trial court‘s decision pertaining to complaint reports and will be addressed under the heading of Appellant‘s second assignment of error.
{7} Resolution of the first, second and third assignments of error also resolve the various sub-issues raised by Appellant.
ASSIGNMENT OF ERROR NO. 1
The trial court erred in ordering Heartland-Lansing to produce inspection reports prepared by the Ohio Department of Health.
ASSIGNMENT OF ERROR NO. 3
The trial court erred when it ordered Heartland-Lansing to produce inspection reports prepared by the Ohio Department of Health and the family/patient complaint reports without first conducting an in-camera inspection of the documents.
ASSIGNMENT OF ERROR NO. 4
The trial court erred in finding that the inspection reports prepared by the Ohio Department of Health and the family/patient complaint reports were relevant.
Issues Presented for Review
I. UNDER
II. DID THE TRIAL COURT ERR IN CONCLUDING THAT HEARTLAND-LANSING WAIVED THE STATUTORY PRIVILEGES GOVERNING THE OHIO DEPARTMENT OF HEALTH INSPECTION REPORTS BY MAKING THE REPORTS AVAILABLE FOR INSPECTION BY PROSPECTIVE RESIDENTS OF THE NURSING HOME AS REQUIRED BY
IV. IS THE TRIAL COURT REQUIRED TO CONDUCT AN IN CAMERA INSPECTION OF PRIVILEGED DOCUMENTS BEFORE ORDERING THEIR DISCOVERY?
V. UNDER
{8} Although Appellant identifies four assignments of error, its brief is instead structured in five sections headed by its issues presented for review. Again, due to the unusual organization of Appellant‘s brief, in this section we will address arguments raised under Appellant‘s first, third, and fourth assignments of error and Appellant‘s I, II, IV & V issues presented for review.
{9} Appellant argues that inspection reports prepared by the Ohio Department of Health are privileged pursuant to
{10} Civil discovery of all relevant, unprivileged information is encouraged by “Ohio policy [which] favors the fullest opportunity to complete discovery.” Stegawski v. Cleveland Anesthesia Group, Inc., 37 Ohio App.3d 78, 85, 523 N.E.2d 902 (1987).
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * * It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
The test for relevancy under
{11} The trial court has inherent power to control discovery.
{12} “When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court.” In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991). “The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an ‘abuse’ in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but
{13} While a discovery ruling is ordinarily examined for an abuse of discretion, the real issue in question here is the trial court‘s interpretation and application of
(A) R.C. 3721.02(E)(1)
{14} Appellant argues that
{15} Appellant‘s argument is a matter of first impression. No court in Ohio has found that a privilege exists based on this statute, and the language of the statute itself does not include the words “privilege” or “discovery.”
{16}
Except as otherwise provided in this section, the 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 or another chapter of the Revised Code in any action or proceeding other than an action commenced under division (I) of section 3721.17 of the Revised Code. Those results of an inspection or investigation that statement of deficiencies, and the findings and deficiencies cited in that statement 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 or is an action by any department or agency of the state to enforce this chapter or another chapter of the Revised Code.
{17} Appellant contends that the language of the statute establishes a privilege protecting licensing reports from discovery. Both parties agree that the statute
{18} Appellant contends that this statute should be interpreted in the broadest possible sense and that a privilege is imputed in the phrase “shall not be used in any court or in any action or proceeding that is pending in any court.”
{19} No court has found that
{20} Similarly, in the context of health care institutions, where the legislature has seen fit to make proceedings confidential and exempt information from discovery, it has done so unambiguously.
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.
{21} Not only does
Every person who operates a home * * * shall have available in the home for review by prospective patients and residents, their guardians, or other persons assisting in their placement, each inspection report completed pursuant to section 3721.02 * * * and each statement of deficiencies and plan of correction completed and made available to the public under Titles XVIII and XIX of the ‘Social Security Act’ * * * including such reports that result from life safety code and health inspections during the preceding three years, and shall post prominently within the home a notice of this requirement.
While statutory privileges frequently include exceptions, a survey of privilege statutes does not reveal any other instance in which material meets the requirements of a statutory privilege but is simultaneously required by statute to be made available to the public at all times. Appellant has not provided any example of a privilege that operates in this manner, nor has Appellant identified any legal support for its arguments beyond its bald assertions that this Court should adopt Appellant‘s self-serving interpretation of the statute.
{22} Appellant‘s reliance on a 1930 decision from the Third District, State ex rel. Justice v. Thomas, 35 Ohio App. 250, 172 N.E. 397 (1930), which addresses principles of interpretation where portions of a statute conflict, is unfounded. There is no statutory conflict in this instance. State ex rel. Jones v. Conrad, 92 Ohio St.3d 389, 750 N.E.2d 583 (July 25, 2001). “In such a case, we do not resort to rules of interpretation in an attempt to discern what the General Assembly could have conclusively meant or intended in * * * a particular statute—we rely only on what the General Assembly has actually said.” (Citation omitted). Id. at 342. No conflict between statutes exists here and no additional analysis is necessary to give the plain language of the statute its plain meaning: that the material sought cannot be entered into evidence or used in court, but is nevertheless discoverable, because the General Assembly did not choose to explicitly restrict discovery or create a privilege.
{23} Materials that may be accessed in discovery are not limited to only admissible evidence.
{24}
{25} Appellant also complains of the trial court‘s reference to
(B) Relevance
{26} In addition to arguments concerning privilege, Appellant also contends that the licensing report is not relevant to the subject matter of the action. Appellee has alleged negligence in the treatment of Mary Ruth Large, who is now deceased. Mrs. Large apparently died as a result of complications from pressure ulcers that are alleged to have developed while she was in Appellant‘s care. In Appellant‘s fourth assignment of error, which appears in the body of its brief as the fifth issue for review, it contends that the trial court‘s decision to require production of the reports was erroneous because licensing reports are not sufficiently probative of negligence to establish liability.
{27} Appellant cites a variety of cases from several state courts outside of Ohio for the proposition that federal standards for licensing facilities or certifying them for participation in federal programs do not sufficiently establish the standard of care to determine that violations of those standards amounts to negligence per se. Appellant emphasizes in particular the lack of testimony from a medical expert in a Texas case in which the plaintiff‘s theory of recovery was negligence per se due to a state report that was specifically critical of the treatment the decedent received at the defendant facility. Using the Ohio negligence standard, which is the reasonable person standard, Appellant contends Appellee has pleaded the elements of negligence per se, and asserts that Ohio law does not mandate negligence per se for violations of
{28} Appellant‘s basic argument is that Appellee is not entitled to discovery material if that material, standing alone, cannot conclusively prove negligence. This argument can be seen as both tardy and premature, however. If, as Appellant contends, Appellee has filed a claim that has no hope of recovery on its face, Appellant‘s remedy was to file a
{29} None of the arguments raised by Appellant identify either an error of law or an abuse of discretion in the trial court‘s decision to allow discovery of the inspection reports. Appellant is mistaking the issue of admissibility at trial for relevance in discovery. Relevance, in discovery terms, means only that the material sought “relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.”
{30} Appellee has pleaded in his complaint the elements of multiple claims, including negligence. The trial court found that the condition of the facility prior to, during, and after the decedent‘s death is relevant to that claim. Appellant has not identified a defect in the trial court‘s reasoning as to the relevance of the conditions in the facility in this case. The trial court has further decided that licensing reports may provide information concerning conditions in the facility that may lead to the discovery of relevant evidence concerning those conditions. Accordingly, the court ordered Appellant to produce the reports. Appellant has failed to raise any argument that actually addresses
ASSIGNMENT OF ERROR NO. 2
The trial court erred in ordering Heartland-Lansing to produce family/patient complaint reports.
Issue Presented for Review
III. UNDER
{31} Appellant‘s second assignment of error purports to address only “family
Any information, data, reports, or records made available to a quality assurance committee or utilization committee of a hospital or long-term care facility or of any not-for-profit health care corporation that is a member of the hospital or long-term care facility or of which the hospital or long-term care facility is a member are confidential and shall be used by the committee and the committee members only in the exercise of the proper functions of the committee. Any information, data, reports, or records made available to a utilization committee of a state or local medical society composed of doctors of medicine or doctors of osteopathic medicine are confidential and shall be used by the committee and the committee members only in the exercise of the proper functions of the committee. A right of action similar to that a patient may have against an attending physician for misuse of information, data, reports, or records arising out of the physician-patient relationship shall accrue against a member of a quality assurance committee or utilization committee for misuse of any information, data, reports, or records furnished to the committee by an attending physician. No physician, institution, hospital, or long-term care facility furnishing information, data, reports, or records to a committee with respect to any patient examined or treated by the physician or confined in the institution, hospital, or long-term care facility shall, by reason of the furnishing, be deemed liable in damages to any person, or be held to answer for betrayal of a professional confidence within the meaning and intent of section 4731.22 of the Revised Code.
{32} The confidentiality requirement of
seeking information directly from committee members. Because Appellant does not explain what application it believes the statute may have to this matter, and because the statute appears facially inapplicable, we will limit our analysis to Appellant‘s actual arguments, which address
{¶33} A peer review committee, as defined by statute, is a committee within a
{¶34} Various Ohio appellate courts have described the purpose of the statute as protecting the “the integrity of the peer-review process” to allow for “immediate” improvements in “the quality of health care” due to the particular need in the health care profession for “immediate remedial measures.” Gates v. Brewer, 2 Ohio App.3d 347, 349, 442 N.E.2d 72 (10th Dist.1981) “we find that a legislator could rationally believe that by conferring a privilege from discovery upon the proceedings of a medical disciplinary committee the quality of public health care would increase * * * placing a blanket of confidentiality * * * has provided for a manner in which a hospital or medical association may take remedial measures for the improvement of the care and treatment of patients.” Notwithstanding this stated purpose, “[t]he peer-review privilege is not a generalized cloak of secrecy over the entire peer-review process.” Giusti, supra, at ¶14. “If all materials viewed and utilized by review committees were deemed undiscoverable, a hospital could never be held accountable for any negligent act within the purview of the committee.” Huntsman v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, ¶47.
{¶35} The records and proceedings of the peer review committee are not coextensive with all of the records of the facility in which the committee operates. The fact that copies of certain material may have been provided to a committee does not extend the protection afforded committee proceedings, and committee generated records, to material generated outside of the committee. Bansal v. Mt. Carmel Health Sys., Inc., 10th Dist. No. 09AP-351, 2009-Ohio-6845, ¶17, “* * * we conclude that documents sought from a health care entity are peer review records if the health care entity proves that those documents were created by and/or exclusively for a peer review committee. See, e.g. Selby at ¶¶15-25 (holding that EKG discrepancy reports were not privileged peer review documents because the health care entity used the reports for patient care, and not necessarily for peer review purposes).” “If a health care entity itself is the original source, it
{¶36} Where “information, documents, or records” are otherwise available from original sources, which may include the records of the facility itself, they “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.”
{¶37} The responsibilities of a party asserting a privilege are long established in the principles of Ohio law: privileges, “being in derogation of the common law, must be strictly construed.” Weis v. Weis, 147 Ohio St. 416, 428, 72 N.E.2d 245 (1947). The party claiming privilege has the burden of proving that the privilege applies to the requested information. Waldmann v. Waldmann, 48 Ohio St.2d 176, 178, 358 N.E.2d 521 (1976). The plain language of
{¶38} Appellant must, as the party asserting a privilege, satisfy its burden to demonstrate the existence of a privilege relevant to the documents it seeks to protect. In so doing Appellant “must provide evidence as to the specific documents requested, not generalities regarding the types of documents usually contained in a peer-review committee‘s records.” Smith v. Cleveland Clinic, 197 Ohio App.3d 524, 2011-Ohio-6648, 968 N.E.2d 41, ¶15 (8th Dist.). The steps Appellant must take were briefly outlined by the Ninth District Court of Appeals in Ward v. Summa Health Care, 184 Ohio App.3d 254, 2009-Ohio-4839, 920 N.E.2d 421 (9th Dist.) and begin with establishing that a peer review committee was in existence and that the facility actually investigated the incident or incidents that the disputed documents or information reference. A broad assertion that the committee may rely on a particular type of document or information, if the document was not generated by or under the direction of the committee, is insufficient. For the privilege to attach, the committee must have used or relied on the specific document or information the facility seeks to exclude, and the particular document or information must not be something that is simultaneously available to employees of the facility in the course of their duties separate and apart from any peer review responsibilities. Bansal, supra.
{¶39} Appellant‘s apparent belief that the peer review privilege for documents maintained by a peer review committee extends to all documents maintained by a health care facility is incorrect. Documents that may be provided to a peer review committee, but were not originally prepared exclusively for the committee
{¶40} Although Appellant has provided an affidavit from its licensed nursing home administrator attesting to the existence of a quality assurance committee, Appellant has failed to identify what it terms “family/resident complaints” with anything approaching particularity. Appellant has similarly failed to identify any actual investigation of the incident or incidents that may be described in the material. Appellant suggests in its brief that “complaints” are used “during the normal and ordinary course of the committee‘s proceedings.” (Appellant‘s Brf., p. 17.) However, the affidavit Appellant cites as the basis of its privilege claim contains no reference to “family/patient complaints.” The affidavit instead states generally: “In the performance of its duties, the Quality Assurance Committee analyzed the following documents: Ohio Department of Health survey results, OSCAR reports, quality indicator reports, and all other materials associated with the survey process.” (DeAngelo Aff., ¶5.) More importantly, the affidavit offered by Appellant also clearly indicates that the material was not generated by or at the request of the committee. Appellee did not seek documents directly from any peer review committee. Appellant has failed to assert any peer review privilege with regard to the documents described as patient/family complaints. The affidavit intended to support privilege instead conclusively establishes that the documents were not generated by or under the direction of a committee whose activities are protected by the statutory privilege.
{¶41} Appellee contends, and Appellant does not dispute, that the complaints Appellant seeks to protect are survey documents generated by the Ohio Department of Health, apparently pursuant to
The department shall conduct surveys in accordance with the regulations, guidelines, and procedures issued by the United States secretary of health and human services under Titles XVIII and XIX of the “Social Security Act,” 49 Stat. 620 (1935), 42 U.S.C.A. 301, as amended, sections 5111.40 to 5111.42 of the Revised Code, and rules adopted under section 3721.022 of the Revised Code.
The disclosing agency must make available to the public, upon the public‘s request, information concerning all surveys and certifications * * * including statements of deficiencies, separate listings of any isolated deficiencies that constitute no actual harm, with the potential for minimal harm, and plans of correction (which contain any provider response to the deficiency statement) within
14 calendar days after each item is made available to the facility.
(C) Availability of survey, certification, and complaint investigation reports -- A nursing facility must -
(i) have reports with respect to any surveys, certifications, and complaint investigations made respecting the facility during the 3 preceding years available for any individual to review upon request;
{¶42} Appellant‘s reliance on Huntsman, supra, is misplaced. While Appellant does accurately quote the principles espoused by the Huntsman court, Appellant‘s attempt to apply the logic of that decision to the material at issue here is misleading. In Huntsman, the trial court, applying a prior version of the peer review privilege statute, ordered the health care facility to produce a list of the documents contained in a physician‘s credentialing file that were available from original sources. The Fifth District found that the statute prohibited any disclosure of the contents of the credentialing file compiled by the peer review committee, and that the trial court could not compel the facility to compile a list of the documents included in the credentialing file.
{¶43} Huntsman stands for the proposition that the statute prevents a court from requiring a facility to provide a list of documents that could be found from other, original sources, utilizing a peer review committee document to do so. In other words, a facility cannot be forced to divulge the information contained in a peer review committee file. In the matter before us the trial court did not compel any disclosure of Appellant‘s peer review files. Instead it was Appellant who voluntarily disclosed the fact that its quality assurance committee may have analyzed material Appellee sought; material sought not from the committee, but directly from the facility, itself. Survey materials may not be obtained directly from the records of the committee, but it is clear these same documents are available in the facility from other sources. As Appellee suggested during oral argument, documents that are otherwise discoverable do not become privileged merely because they have been dipped in the waters of a peer review committee file. So long as Appellee does not seek these documents directly from the committee, or seek any committee work product involving the documents, Appellee is entitled to discovery of the documents.
{¶45} Appellant‘s arguments concerning the quality of information provided to a quality assurance committee, or to state employees, have no logical application to these documents which are already required to be made public. Appellant‘s citations to decisions from various states interpreting their own statutes offers no insight into the motivations of the Ohio legislature or the language of Ohio statutes. Appellant‘s contention that facilities should be able to conceal the results of state surveys and complaints is refuted by the clear policy of openness espoused by federal and state disclosure laws.
{¶46} Appellant has failed to properly invoke the peer review privilege with regard to any complaint reports included in survey materials collected by the Ohio Department of Health. The results of surveys conducted by the Ohio Department of Health pursuant to state and federal obligations are not subject to the peer review privilege and are discoverable from other files of a covered facility. Appellant‘s third issue for review is without merit and Appellant‘s second assignment of error is overruled.
Conclusion
{¶47} Ohio Department of Health inspection reports are not privileged. Ohio Health Department survey documents produced pursuant to federal and state law do not directly reflect the operations of a quality assurance committee. The documents are not subject to the peer review privilege. Even if copies of the surveys have been analyzed by a quality assurance committee, a facility may be compelled to produce them. Documents in a health care facility‘s files that are provided to and accessible by employees or used by the facility and its employees in the course of operations do not become privileged simply when copies are provided to a quality assurance committee. Documents provided to and used by employees of a facility separate and apart from any duties for a peer review or quality assurance committee member are discoverable from the facility to the extent that they are not subject to any other properly invoked privilege. The judgment of the trial court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.