{¶ 2} As a result of the medical care plaintiff received for ovarian cancer, plaintiff in May 2002 filed a medical malpractice action against Mount Carmel and several staff physicians at Mount Carmel East Hospital. As permitted under Civ.R. 41(A)(1), plaintiff voluntarily dismissed her original complaint on February 24, 2004 and re-filed the action on February 22, 2005. Underlying the discovery order at issue here is plaintiff's claim that Mount Carmel negligently credentialed Robert Hallet, M.D. who, plaintiff alleged, negligently cared for, diagnosed, and treated her ovarian cancer.
{¶ 3} Seeking Mount Carmel's personnel and credentialing file regarding Dr. Hallet, plaintiff served Mount Carmel with discovery requests, including subpoenas duces tecum issued in September 2006 upon the chairman of Mount Carmel's obstetric and gynecology department and its director of medical staff services. In response, Mount Carmel moved for a protective order and to quash the subpoenas, arguing the subpoenas were an improper means of discovery and the records plaintiff requested are privileged and therefore not discoverable. At the trial court's request, the parties stipulated in November 2006 that Dr. Hallet's credentialing file be submitted to the court for an in camera inspection to determine if any or all of the credentialing file was discoverable.
{¶ 4} In a December 4, 2006 decision and entry, the trial court found the subpoenas violated Civ.R. 45(A)(1)(c)'s provision that prohibits using a subpoena to obtain the production of documents from a party. Granting Mount Carmel's motion to quash the subpoenas, the court denied Mount Carmel's motion for a protective order as moot and noted "the issue of which records are discoverable may remain in this case." *3
{¶ 5} On January 4, 2007, plaintiff filed a motion under Civ.R. 37 to compel Mount Carmel to produce the following documents for inspection and copying:
Complete copies of any and all documents of any kind, nature and/or description pertaining in any manner whatsoever to the application for and/or granting of medical and/or surgical staff privileges with Mount Carmel Health and any of its affiliated hospitals, including Mount Carmel East Hospital, by and for Defendant Hallet, for staff privileges in effect in the year 2000, including, but not limited to:
a. All applications for staff privileges by Defendant Hallet, together with all supporting documentation accompanying said applications;
b. Any and all documentation regarding evaluations, complaints, and/or performance reviews;
c. All documents received by Defendant Hallet pertaining in any fashion to the granting, denial and/or modification of staff privileges;
d. Copies of all licenses, certifications, and/or CME credits (from 1996-2000) submitted by Defendant Hallet; and
e. Any and all standards and/or procedures to be applied by Defendant Mount Carmel and/or its medical staff in considering and acting upon applications for staff membership and professional privileges.
{¶ 6} On January 17, 2007, Mount Carmel filed a memorandum contra plaintiff's motion to compel. Mount Carmel indicated its willingness to comply with plaintiff's request in paragraph "e," but objected to any further discovery, asserting plaintiff's other document requests involved privileged peer-review and credentialing documents that are protected from discovery under R.C.
{¶ 7} Noting Mount Carmel did not oppose the production of documents pertaining to its credentialing standards and procedures, the trial court ordered Mount Carmel to produce the materials plaintiff requested in paragraph "e." The court denied plaintiff's document requests in paragraphs "a," "c," and "d," together with her request in paragraph "b" for "evaluation" and "performance review" documents, concluding all such documents are protected from discovery because they fall within the scope of the peer review privilege contained in R.C.
{¶ 8} Explaining, the trial court noted that R.C.
{¶ 9} In reaching that conclusion, the trial court relied on an affidavit of Mount Carmel East Hospital's risk manager, who attested that when Mount Carmel receives a complaint about a healthcare provider, "a complaint file for that individual healthcare provider is created." (Affidavit of Christina Richards.) According to the affidavit,"[t]he purpose of the file is to document the investigation andfollow-up to resolve the patient's complaint, as well as to compile a summary of information, if any, for possible consideration at the timeof a physician's re-credentialing and re-appointment process *5 which is treated as a confidential peer-review process by the Hospital." Id. (Emphasis added.) The hospital keeps each such complaint file "in a locked cabinet in the Risk Management Department and access to these files is strictly limited to the Risk Manager and a limited number of select members of the medical staff who are on peer-review committees." Id.
{¶ 10} Based upon the affidavit, the court determined the statutory purpose of a "peer review committee," as defined in R.C.
{¶ 11} In ordering Mount Carmel to produce documents from its risk management department's complaint files, the court expressly noted that "[i]ssuance of this order *6 should not be construed as a finding by this court that there are any such complaints pertaining to Dr. Hallet in the Hospital's Risk Management files or in the confidential peer-review file [that were] submitted for the in camera inspection. This Court merely orders that the documents be produced from the Risk Management files if theyexist." Id. (Emphasis added.)
{¶ 12} Mount Carmel appeals from the trial court's February 20, 2007 order, assigning the following errors:
I. The trial court erred to the prejudice of Mount Carmel when it refused to find that Plaintiffs were collaterally estopped from filing a motion to compel when Plaintiffs failed to appeal the trial court's final order quashing Plaintiffs' subpoena.
II. The trial court erred to the prejudice of Mount Carmel when it held that complaints presented to Mount Carmel's peer review committee were discoverable, which order violated the plain language of R.C.
2305.252 and2305.253 .III. The trial court erred to the prejudice of Mount Carmel when it strictly construed an unambiguous statute, R.C.
2305.252 .
{¶ 13} As a preliminary matter, because this court can only "review and affirm, modify, or reverse judgments or final orders," we first must determine whether the trial court's February 20, 2007 order is final and appealable. See Section
{¶ 14} Mount Carmel contends the trial court's February 20, 2007 order is a final appealable order pursuant to R.C.
{¶ 15} Generally, discovery orders are interlocutory and not immediately appealable. See Walters v. Enrichment Ctr of Wishing Well,Inc. (1997),
{¶ 16} To the extent an order pertains to matters other than those concerning discovery of privileged matters, the order is deemed interlocutory and therefore not final and appealable. See Covington v.The MetroHealth Sys.,
{¶ 17} Within those parameters, Mount Carmel asserts the trial court granted a "provisional remedy." It therefore contends the court's February 20, 2007 order is final and appealable pursuant to R.C.
{¶ 18} R.C.
{¶ 19} Even so, the statutorily conferred peer review privilege is not absolute. Grandview Hosp., supra, at 96; Doe, supra, at ¶ 15. The peer review privilege does not extend to "information, documents, or records otherwise obtainable from original sources," even if the documents or records were produced or presented during peer review proceedings. R.C.
{¶ 20} R.C.
{¶ 21} The purpose of the statutes is not to hinder lawsuits, but to create limited protection not only to individuals who provide information to peer review committees but also to those who serve on such committees, thereby encouraging a free flow of information without fear of reprisal in the form of civil liability. Browning v. Burt
(1993),
{¶ 22} Mount Carmel contends its risk management department meets the definition of a peer review committee when it is accepting and processing complaints relating to health care, including complaints concerning physicians. According to Mount Carmel, the peer review committee, as part of the peer review process, reviews each complaint relating to a physician, and the complaint becomes part of the peer view committee's records. Thus, Mount Carmel contends, any complaint made against its physicians, including Dr. Hallet, is clearly a peer review document that falls within the scope of the peer review committee's functions, even though the physician complaint files that the risk management department maintains may have other uses.
{¶ 23} According to the affidavit of Mount Carmel's risk manager, the risk management department, upon receiving a patient's complaint regarding a physician, creates a complaint file "to document the investigation and follow-up to resolve the patient's complaint," and a summary of information is compiled for "possible consideration" at the time of the re-credentialing, peer review process for the physician. The affidavit thus does not support Mount Carmel's contention on appeal that every complaint Mount Carmel's risk management department receives is a peer review document "prepared by or for the use of a peer review committee" or is even considered in the peer review committee. *12
{¶ 24} Here, the trial court's order correctly prohibited the disclosure of any complaint documents pertaining to Dr. Hallet from Mount Carmel's peer review committee proceedings or records. Such documents are privileged and protected from discovery. Doe, supra, at ¶ 16. The trial court narrowly tailored its order to producing documents only from the risk management department's files. Any complaint documents contained in such files that were not prepared by or for the use of Mount Carmel's peer review committee are subject to discovery and may be obtained "from the original source of the information contained therein," even if the documents were produced or presented during peer review proceedings. Grandview Hosp., supra; Doe, at ¶ 15-16;Cook, supra, at ¶ 31; Wilson, supra, at ¶ 14; Brzozowski, supra, at ¶ 19; Tenan, supra, at ¶ 23.
{¶ 25} In Ohio, the burden of showing that documents are confidential or privileged rests upon the party seeking to exclude the documents from discovery. Covington, supra, at ¶ 25, citing Lemley v. Kaiser (1983),
{¶ 26} Indeed, in ordering Mount Carmel to produce complaints pertaining to Dr. Hallet that are contained within its risk management files, the trial court expressly noted it *13 was not making a finding that any such documents exist; it merely ordered Mount Carmel to produce the documents "if they exist." The record before this court does not identify or appear to contain any such documents. Nor does the record reflect that Mount Carmel produced any risk management department documents pursuant to the trial court's order. Moreover, the record does not indicate that Mount Carmel submitted any risk management department files to the trial court for an in camera review so the court could determine whether privilege protects any complaint documents contained in the files from discovery.
{¶ 27} The trial court's in camera inspection of any risk management documents pertaining to Dr. Hallet, for which Mount Carmel claims a privilege and protection from discovery, is a necessary preliminary step and is the most appropriate way to weigh claims of privilege regarding the documents. See Grandview Hosp., supra, at 96, citing Henneman v.Toledo (1988),
{¶ 28} Because the trial court did not order the production of complaint documents from the peer review committee's proceedings or records, the February 20, 2007 discovery order is not a final appealable order pursuant to R.C.
Appeal dismissed.