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.
For Plaintiff-Appellee: Atty. Christopher J. Regan, Atty. Jeremy M. McGraw, Bordas & Bordas, PLLC, 1358 National Road, Wheeling, WV 26003
For Defendant-Appellant: Atty. G. Brenda Coey, Buckingham Doolittle & Burroughs, LLP, 4518 Fulton Road, NW, Canton, OH 44718
{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 while in Appellant‘s care. Appellant, Heartland-Lansing, a nursing home, appeals the trial court‘s decision to allow discovery of a licensing report and survey materials generated by the Ohio Department of Health around the time the decedent was residing in the facility. This material collected by the Ohio Department of Health was to be provided to the facility itself, not the quality assurance committee specifically, in accordance with applicable state and federal law. Appellant contends that these materials are protected by the peer review privilege because Appellant‘s quality assurance committee may have analyzed them. Appellant also contends that licensing report documents are subject to an additional privilege under
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
{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.
Argument and Law
{5} Appellant identifies four assignments of error on the first page of its brief and presents five issues for review on the second. Appellant does not include or discuss the assignments of error in the body of the argument. Instead, Appellant‘s brief is organized around the five issues proposed for review. The first and second issues, as well as the first, third and fourth assignments of error, collectively argue that inspection reports prepared by the state department of health are privileged, that the trial court erred in ordering discovery of privileged material, and erred in finding that a statutory disclosure requirement waived the statutory privilege. These arguments will be considered together in an analysis as to the application
{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.
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
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.
{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
{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 perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.” Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126-127, 482 N.E.2d 1248, 1252.
{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.”
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 prevents the reports from being admitted at trial. Although the statute clearly states that these reports are inadmissible, the statute nevertheless allows the information to be used “in any action or proceeding” so long as it is used “solely to determine the home‘s compliance with this chapter or another chapter of the Revised Code.”
{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
{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
{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
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 and/or patient complaint reports,” however the body of Appellant‘s argument under its heading “III” contends that both Ohio Department of Health inspection reports and family/patient complaint reports should be protected from discovery by
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
{¶33} A peer review committee, as defined by statute, is a committee within a hospital or other qualifying provider of health care that “[c]onducts professional credentialing or quality review activities involving the competence of, professional conduct of, or quality of care provided by health care providers.”
{¶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
{¶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
{¶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 and are also accessible to staff of the facility in their capacities as employees or managers of the facility, separate and apart from any role on a review committee, are not in any way protected by the privilege. The privilege attaches only to the files maintained by and for the committee, not to all files in a facility. Bansal, supra; Selby v. Fort Hamilton Hosp., 12th Dist. No. 2007-05-126, 2007-Ohio-2413.
{¶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
{¶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
{¶44} Appellant is similarly mistaken in identifying Tenan v. Huston, 165 Ohio App.3d 185, 2006-Ohio-131, 845 N.E.2d 549 (11th Dist.) and Hammond v. Ruf, 9th Dist. No. 22109, 2004-Ohio-6273 in support of the proposition that documents produced by a state agency are privileged because copies of the documents have been provided to a quality assurance committee. In both Ruf and Tenan a party sought discovery of information from a physician‘s credentialing file and the trial court erroneously applied the prior version of the statute to allow disclosure from the file itself. In both cases the reviewing court found that the applicable version of the statute precluded the production of material directly from the privileged file. While it is true that material contained in the file is privileged, and that a facility cannot be compelled to reveal the contents of the file, material that a facility obtained and possesses separate and apart from committee proceedings is not privileged. If Appellant is asserting it has transferred all copies of these documents to committee files and no longer possesses them in the facility separately from committee files, it
{¶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
Donofrio, J., concurs.
Vukovich, J., concurs.