Lead Opinion
{¶ 1} Plaintiffs-appellants, Donald and Susan Ward, appeal various rulings of the Summit County Court of Common Pleas. For reasons set forth below, we vacate and remand.
I
{¶ 2} In May 2006, Donald Ward underwent heart-valve replacement surgery at Akron City Hospital, a Summa Health System hospital. Approximately a month later, Summa became aware that one of its nonemployee health-care workers at Akron City Hospital was exhibiting jaundice. The nonemployee health-care worker subsequently tested positive for the Hepatitis B virus, prompting Summa to engage in a look-back program in order to identify all patients who might have been exposed to the virus. Donald Ward was one of the patients identified by the look-back program; Ward tested positive for Hepatitis B. Ward’s wife, Susan, had been previously vaccinated against the virus.
{¶ 4} The Wards filed a motion to compel and a motion for a protective order concerning Summa’s refusal to provide requested discovery, and Dr. Debski filed a motion for a protective order to limit his deposition testimony to the surgery itself. The trial court denied the Wards’ motions and granted Dr. Debski’s motion for a protective order. The Wards appealed to this court, and we dismissed for lack of a final, appealable order.
{¶ 5} The trial court then ordered the Wards to file an affidavit of merit pursuant to Civ.R. 10(D)(2). The Wards did not file an affidavit of merit, and Summa moved to dismiss. The trial court granted Summa’s motion and dismissed the case without prejudice pursuant to Civ.R. 10(D)(2)(d) and 41(B)(1).
{¶ 6} The Wards have appealed, asserting three assignments of error.
II
{¶ 7} As an initial matter, this court must determine whether the order from which the Wards appeal is a final, appealable order. The Ohio Constitution limits this court’s appellate jurisdiction to the review of final judgments or orders of lower courts. Section 3(B)(2), Article IV, Ohio Constitution. “An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is * * * [a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment.” R.C. 2505.02(B)(1). Generally “[a] dismissal without prejudice is not a final, appealable order.” State ex rel. Automation Tool & Die, Inc. v. Kimbler (Apr. 4, 2001), 9th Dist. No. 3124-M,
{¶ 8} The Wards have persuaded this court that the facts of this case warrant the conclusion that the trial court’s dismissal without prejudice affects a substantial right and in effect determines the action and prevents a judgment. R.C. 2505.02(B)(1). Civ.R. 10(D)(2)(a) requires that complaints containing medical claims include at least one affidavit of merit “relative to each defendant named in the complaint for whom expert testimony is necessary to establish liability.” The affidavit of merit must be provided by an expert and, inter alia, must include a statement by the expert that one of the defendants breached the standard of care, causing injury to the plaintiff. Id. In this case, the trial court dismissed the Wards’ case for failure to submit an affidavit of merit as required by the rule. The Wards claim that they have failed to file the affidavit because the trial court’s previous denial of their motion to compel their requested discovery leaves their experts unable to complete the necessary affidavit. In support of the Wards’ claim, they attached an affidavit of their counsel to their brief in opposition to Summa’s motion to dismiss. The affidavit states that experts reviewed the matter but could not determine whether the standard of care was breached due to the experts’ inability to review the documents subject to the motion to compel. The Wards argue that while they technically could refile their case, ultimately, it will end in the same manner, as they will be unable to provide an affidavit of merit. We conclude that because the Wards arguably cannot produce an affidavit of merit without our review of their denied discovery requests, the trial court’s dismissal effectively prevented a judgment in favor of the Wards, and the order from which the Wards appeal is therefore final and appealable.
{¶ 9} The Wards have presented this court with three assignments of error, which will be analyzed out of order to aid our review.
Ill
{¶ 10} The Wards’ third assignment of error alleges, “The Trial Court abused its discretion in denying Appellants’ Motion to Compel and Motion for Protective Order.”
{¶ 11} Although, generally, discovery orders are reviewed under an abuse-of-discretion standard, the Supreme Court of Ohio has concluded that the issue of whether the information sought is confidential and privileged from
{¶ 12} Initially, we note that privileges are to be strictly construed and that “[t]he party claiming the privilege has the burden of proving that the privilege applies to the requested information.” Giusti v. Akron Gen. Med. Ctr.,
Any information, data, reports, or records made available to a quality assurance committee or utilization committee of a hospital * * * are confidential and shall be used by the committee and the committee members only in the exercise of the proper functions of the committee.
(Emphasis added.)
{¶ 13} In support of Summa’s assertion of privilege concerning the unusual-occurrence reports, Summa attached the affidavit of its Director of Infection Control and Clinical Safety. The director stated that the unusual-occurrence reports were “prepared through a process and format specifically designed to follow the hospital incident report confidentiality provisions in Ohio law, namely Sections 2305.24, 2305.251, 2305.253, 2305.28, and 2317.02(A) of the Revised Code * * The affidavit contains the further contention that the unusual-occurrence reports were prepared with an expectation that they would be confidential and also asserts that the reports contain attorney-client communications.
{¶ 14} Based on the evidence before the trial court and the fact that the trial court declined to conduct an in camera review of the documents, we are unable to conclude that Summa sufficiently established that the unusual-occurrence reports were actually privileged by R.C. 2305.24. While the trial court indicated in its order that the Wards did not challenge the affidavit, it was Summa’s burden to demonstrate that the privilege applied, not the Wards’. See Giusti, 178 Ohio
{¶ 15} The Supreme Court of Ohio has stated that “a reviewing court is not authorized to reverse a correct judgment merely because erroneous reasons were assigned as a basis thereof.” State ex rel. Carter v. Schotten (1994),
{¶ 16} Initially we note that R.C. 2305.28 and 2305.251 grant immunity from liability and are not statutes conferring a privilege, and so we cannot see how such a statute would apply to these documents. Both R.C. 2305.252 and 2305.253 directly or indirectly relate to peer review. R.C. 2305.252 provides for the confidentiality of peer-review proceedings, and 2305.253 provides for the confidentiality of incident or risk-management reports. An incident or risk-management report is “a report of an incident involving injury or potential injury to a patient as a result of patient care provided by health care providers, including both individuals who provide health care and entities that provide health care, that is prepared by or for the use of a peer review committee of a health care entity and is within the scope of the functions of that committee.” (Emphasis added.) R.C. 2305.25(D).
{¶ 17} We have stated when examining R.C. 2305.252 that “[a] party claiming the peer-review privilege, at ‘a bare minimum,’ must show that a peer-review committee existed and that it actually investigated the incident.” Giusti,
{¶ 18} Likewise, we are not convinced that Summa has produced evidence demonstrating that the documents are privileged under the attorney-client privilege. R.C. 2317.02(A)(1) provides that the testimony of an attorney is privileged “concerning a communication made to the attorney by a client in that relation or the attorney’s advice to a client, except that the attorney may testify by express consent of the client.” The Supreme Court of Ohio has held that “ ‘the burden of showing that testimony [or documents] sought to be excluded under the doctrine of privileged attorney-client communications rests upon the party seeking to exclude [them] * * *.’ ” Peyko v. Frederick (1986),
{¶ 19} Thus, the Wards’ argument has merit, and the trial court erred in concluding that the unusual-occurrence reports were privileged based upon the evidence provided by Summa and the subsequent lack of an in camera review of the documents.
{¶ 20} The Wards also argue that the trial court erred in failing to consider applicable “Privacy Rules” in conjunction with the trial court’s determination that the documents were privileged under R.C. 2305.24.
{¶ 21} With respect to the remaining items of discovery that the Wards sought to compel, i.e., the answers to interrogatories as well as the other items in the privilege log, we note that it does not appear that the trial court specifically determined whether these items were in fact privileged, and therefore, not
IV
{¶ 22} The Wards argue in their second assignment of error that the trial court erred in granting Dr. Debski, a nonparty, a protective order. More specifically, the basic argument that the Wards make in their brief is that the trial court erred in finding that the physician-patient privilege applied to bar Dr. Debski’s testimony as it relates to his personal medical-health history. The Wards subpoenaed Dr. Debski, Donald Ward’s surgeon, to testify at a deposition. Dr. Debski indicated prior to the deposition that he would not testify about any matters pertaining to his personal medical history and would seek a protective order if the Wards insisted on asking such questions. Subsequently, Dr. Debski moved for a protective order. In the Wards’ brief in opposition to Dr. Debski’s
{¶ 23} Initially we note that the physician-patient privilege did not exist at common law. State Med. Bd. of Ohio v. Miller (1989),
{¶ 24} R.C. 2317.02(B)(1) provides:
Thefollomng persons shall not testify in certain respects:
***
A physician or a dentist concerning a communication made to the physician or dentist by a patient in that relation or the physician’s or dentist’s advice to a patient, except as otherwise provided in this division, division (B)(2), and division (B)(3) of this section, and except that, if the patient is deemed by section 2151.421 of the Revised Code to have waived any testimonial privilege under this division, the physician may be compelled to testify on the same subject.
(Emphasis added.) Under the statute, a communication is defined as “acquiring, recording, or transmitting any information, in any manner, concerning any facts, opinions, or statements necessary to enable a physician or dentist to diagnose, treat, prescribe, or act for a patient. A ‘communication’ may include, but is not limited to, any medical or dental, office, or hospital communication such as a record, chart, letter, memorandum, laboratory test and results, x-ray, photograph, financial statement, diagnosis, or prognosis.” R.C. 2317.02(B)(5)(a).
{¶ 25} While Dr. Debski is a physician, the testimony being sought concerns his role as a patient: the Wards do not wish to ask Dr. Debski about his patients or their record; the Wards want to ask Dr. Debski about himself. Nothing in the plain language of the statute prohibits this inquiry. The statute does not prevent patients from testifying. Also, while the Wards seek what clearly could be classified as a “communication” under the statute, they do not seek it from the protected person, the physician; they seek it from an unprotected source, the patient.
{¶ 26} Nonetheless, we are not oblivious to the conflict presented by the above conclusion: on the one hand, the statute prevents the physician from testifying about physician-patient communications absent a waiver, but yet at the same time, it does not by its very terms specifically prevent the patient from being compelled to disclose the same information. At first glance, it might seem that
{¶ 27} Further, while the patient holds the privilege, see Grove,
{¶ 28} Nor do we find persuasive the reasoning in Ingram v. Adena Health Sys.,
{¶ 29} In light of the above, and our duty to strictly construe the statute against Dr. Debski, id., we conclude that the testimony sought by the Wards is not privileged under R.C. 2317.02(B)(1), as the statute does not prevent a patient from being compelled to testify about doctor-patient communications.
V
{¶ 31} Finally, we examine the Wards’ first assignment of error, which alleges that the trial court erred in dismissing their complaint pursuant to Civ.R. 10(D)(2)(d) and 41(B)(1). We agree.
{¶ 32} Essentially, the trial court dismissed the Wards’ case because the Wards failed to file an affidavit of merit as required under Civ.R. 10(D)(2)(d). However, the Wards have argued that they were prevented from filing the affidavit because Summa and Dr. Debski improperly withheld necessary discovery from them. Thus, the resolution of the discovery issues is intertwined with the trial court’s ultimate dismissal of the Wards’ case. As we have sustained the Wards’ assignments of error concerning the discovery issues, we thus determine that the trial court erred in dismissing the Wards’ case.
{¶ 33} Additionally, we note that the Supreme Court of Ohio has held that “the proper response to the failure to file the affidavit required by Civ.R. 10(D)(2) is a motion to dismiss filed under Civ.R. 12(B)(6).” Fletcher v. Univ. Hosps. of Cleveland,
VI
{¶ 34} In light of the foregoing, we sustain the Wards’ assignments of error and remand this matter to the Summit County Court of Common Pleas for proceedings consistent with this opinion.
Judgment vacated and cause remanded.
Notes
. We note that in Grove v. Northeast Ohio Nephrology Assoc., Inc.,
. For example, interrogatory No. 13 asked: "Does Defendant, Summa Health System, have a protocol for individuals who work as an agent and/or employee of the hospital or an individual who works within the hospital but is not otherwise an employee of the hospital (e.g., doctor) and who is knowingly exposed to Hepatitis B, if so, describe in detail the protocol and if a written protocol attach as part of your response a copy of the protocol procedure in effect in May 2006.” Likewise, interrogatoiy No. 14 states: “Please describe screening procedures, for employees of and doctors practicing at Summa Health Systems facilities, for viral infections such as Hepatitis B, including the timing and frequency of any periodic testing in effect for May 2006.”
Concurrence Opinion
concurring.
{¶ 35} I agree with the majority because the physician-patient privilege is in derogation of the common law and “must be strictly construed against the party seeking to assert it.” State Med. Bd. of Ohio v. Miller (1989),
{¶ 36} I understand that the outcome in this case may be shocking to the legal and medical communities and will likely lead to unanticipated and, possibly, unfortunate consequences. When a statute is clear on its face, however, it is not the role of this court to look beyond that face. “ ‘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.’ ” State ex rel. Jones v. Conrad (2001),