peer review privilege in Ohio

2020Stark No. 2006 CA 00331, 2008-Ohio-2554, ¶ 47 . {¶11} Because the peer-review privilege is in derogation of common law, it is strictly construed against those seeking to invoke it.

2016No. 2006 CA 00331, 2008-Ohio-2554, ¶89 .

2024OF THE ESTATE, ZIMMERMAN, ET AL., APPELLEES, v. SUMMA HEALTH SYSTEM ET AL., APPELLANTS. [Cite as Stull v. Summa Health Sys., 2024-Ohio-5718 .] Civil law—Discovery—Peer-review privilege—Trial court erroneously limited its own power to control discovery process when it held that factual ambiguities in affidavit testimony prevented hospital from claiming that residency file was protected by peer-review privilege—Judgment reversed and cause remanded to trial court to conduct in camera review of residency file.

2024SLIP OPINION NO. 2024-OHIO-5718 KALVYN STULL, AN INCOMPETENT PERSON, BY AND THROUGH HIS GUARDIAN OF THE ESTATE, BRIAN ZIMMERMAN, ET AL., APPELLEES, v. SUMMA HEALTH SYSTEM, ET AL., APPELLANTS. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Stull v. Summa Health Sys, Slip Opinion No. 2024-Ohio-5718.] Civil law—Discovery—Peer-review privilege—Trial court erroneously limited its own power to control discovery process when it held that factual ambiguities in affidavit testimony prevented hospital from claiming that residency file was protected by peer-re

2026Therefore, we apply a de novo review to determine whether the trial court erred in concluding that the January 28, 2015 and February 3, 2015 emails were not covered by the peer-review privilege. {¶ 11} Our review of the applicability of the work-product doctrine is different. “‘In Ohio, protection for an attorney’s work product is codified in Civ.R. 26, which notably recognizes work product as separate from privileged matters.’” Haile v. Detmer Sons Inc., 2022-Ohio-2891, ¶ 12 (2d Dist.), quoting Burnham v. Cleveland Clinic, 2016-Ohio-8000, ¶ 18 .

2022“To show that an order for a provisional remedy such as the discovery of privileged * * * materials is final and appealable, R.C. 2905.02(B)(4)(a) requires a showing that the order determines the privilege issue and prevents a judgment in favor of the appellant regarding that issue, while R.C. 2505.02(B)(4)(b) requires a showing that the harm caused by the privilege-related discovery order cannot be meaningfully or effectively remedied by an appeal after final judgment.” Burnham v. Cleveland Clinic, 151 Ohio St.3d 356 , 2016-Ohio-8000 , 89 N.E.3d 536 , ¶ 20, citing State v. Muncie, 91 Ohio St.

2018Although the Ulrich affidavit is sufficient to establish the privileged nature of the credentialing file itself, it does not establish that any documents outside that file are protected by the peer review privilege. "[W]hile material contained in the file is privileged, and a facility cannot be compelled to reveal the contents of the file, material that a facility obtained and possesses separate and apart from the committee proceedings is not privileged." Bailey , 2013-Ohio-4927 , 4 N.E.3d 1071 , at ¶ 27.

2018Additionally, 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.

2009An 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-rev

2009An 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-rev

2008The trial court has retained jurisdiction to make further determinations regarding the discoverability of the requested materials. {¶ 57} Appellant urges us to find that an in camera inspection would essentially open the documents to some review which would compromise the confidential nature of the documents and violate the privilege set forth in R.C. 2305.252 , citing in support Everage v. Elk and Elk , 159 Ohio App. 3d 220 , 2004-Ohio-6186 , 823 N.E. 2d 516 .

2008The trial court has retained jurisdiction to make further determinations regarding the discoverability of the requested materials. {¶ 57} Appellant urges us to find that an in camera inspection would essentially open the documents to some review which would compromise the confidential nature of the documents and violate the privilege set forth in R.C. 2305.252 , citing in support Everage v. Elk and Elk , 159 Ohio App. 3d 220 , 2004-Ohio-6186 , 823 N.E. 2d 516 .

2025The fact that the trial court’s December 18 order, according to the statute and caselaw, was final (and appealable) means that a motion for reconsideration was not appropriate; “[t]he Ohio Rules of Civil Procedure do not prescribe motions for reconsideration after a final judgment in the trial court.” Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378 (1981), paragraph one of the syllabus. {¶ 22} In its assignment of error, Kettering argues that the trial court erred when it ordered the production of the “privileged credentialing files of Dr. Kimble and Dr. Weprin in violation of the peer revie

2024Telecom Acquisition Corp. I v. Lucic Ents., 2016-Ohio-1466 , 62 N.E.3d 1034 , ¶ 47 (8th Dist.), citing Renfro v. Black, 52 Ohio St.3d 27, 33 , 556 N.E.2d 150 (1990). 1.

2024Telecom Acquisition Corp. I v. Lucic Ents., 2016-Ohio-1466 , 62 N.E.3d 1034 , ¶ 47 (8th Dist.), citing Renfro v. Black, 52 Ohio St.3d 27, 33 , 556 N.E.2d 150 (1990). 1.

2024Telecom Acquisition Corp. I v. Lucic Ents., 2016-Ohio-1466 , 62 N.E.3d 1034 , ¶ 47 (8th Dist.), citing Renfro v. Black, 52 Ohio St.3d 27, 33 , 556 N.E.2d 150 (1990). 1.

2022“To show that an order for a provisional remedy such as the discovery of privileged * * * materials is final and appealable, R.C. 2905.02(B)(4)(a) requires a showing that the order determines the privilege issue and prevents a judgment in favor of the appellant regarding that issue, while R.C. 2505.02(B)(4)(b) requires a showing that the harm caused by the privilege-related discovery order cannot be meaningfully or effectively remedied by an appeal after final judgment.” Burnham v. Cleveland Clinic, 151 Ohio St.3d 356 , 2016-Ohio-8000 , 89 N.E.3d 536 , ¶ 20, citing State v. Muncie, 91 Ohio St.

2022“To show that an order for a provisional remedy such as the discovery of privileged * * * materials is final and appealable, R.C. 2905.02(B)(4)(a) requires a showing that the order determines the privilege issue and prevents a judgment in favor of the appellant regarding that issue, while R.C. 2505.02(B)(4)(b) requires a showing that the harm caused by the privilege-related discovery order cannot be meaningfully or effectively remedied by an appeal after final judgment.” Burnham v. Cleveland Clinic, 151 Ohio St.3d 356 , 2016-Ohio-8000 , 89 N.E.3d 536 , ¶ 20, citing State v. Muncie, 91 Ohio St.

2022Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181 , 2009-Ohio-2496 , 909 N.E.2d 1237, ¶ 13 . {¶ 22} R.C.2305.252(A) provides that “[p]roceedings 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 * * * arising out of matters that are the subject of evaluation and review by the peer review committee.” Further, “[i]nformation, -11- documents, or records otherwise available from original sources are * * *

2022Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181 , 2009-Ohio-2496 , 909 N.E.2d 1237, ¶ 13 . {¶ 22} R.C.2305.252(A) provides that “[p]roceedings 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 * * * arising out of matters that are the subject of evaluation and review by the peer review committee.” Further, “[i]nformation, -11- documents, or records otherwise available from original sources are * * *

2017Hamilton No. C-160850, 2017-Ohio-8142 , 2017 WL 4538886 , ¶ 20, quoting Barrow v. New Miami , 2016-Ohio-340 , 58 N.E.3d 532 , ¶ 12 (12th Dist.). {¶ 27} The only issue in the remaining four appeals is whether the trial court erred in holding that the peer-review immunity statutes were unconstitutional.

2017Hamilton No. C-160850, 2017-Ohio-8142 , 2017 WL 4538886 , ¶ 20, quoting Barrow v. New Miami , 2016-Ohio-340 , 58 N.E.3d 532 , ¶ 12 (12th Dist.). {¶ 27} The only issue in the remaining four appeals is whether the trial court erred in holding that the peer-review immunity statutes were unconstitutional.

2017The peer review process is privileged , but not if one took place or not." (Emphasis added.) {¶ 6} After the appellants filed their notices of appeal, the appellees gave notice to both the trial court and this court that they were waiving any challenges to the peer-review immunity statutes, and moved the trial court to modify the December 15, 2015 general order to reflect their waiver. {¶ 7} On August 26, 2016, we decided Young , 2016-Ohio-5526 , 61 N.E.3d 34 .

2017The peer review process is privileged , but not if one took place or not." (Emphasis added.) {¶ 6} After the appellants filed their notices of appeal, the appellees gave notice to both the trial court and this court that they were waiving any challenges to the peer-review immunity statutes, and moved the trial court to modify the December 15, 2015 general order to reflect their waiver. {¶ 7} On August 26, 2016, we decided Young , 2016-Ohio-5526 , 61 N.E.3d 34 .

2016Smith v. Cleveland Clinic, 197 Ohio App.3d 524 , 2011-Ohio-6648 , 968 N.E.2d 41, ¶ 9 (8th Dist.), citing Nilavar v. Mercy Health Sys., 210 F.R.D. 597 (S.D.Ohio 2002).

2013We find the decision in Innovative Placements, Inc., 283 F.R.D. 362 , to be instructive on this matter.

2013Id. at 364 . {¶39} Manor Care argues that no obligation exists to produce a privilege log and that any such order would violate the intention of the peer review privilege statutes.

2013(In re Subpoena Duces Tecum to Jane Doe), 99 N.Y.2d 434 , 787 N.E.2d 618 , 757 N.Y.S.2d 507 (2003), paragraph two of the syllabus (federal statute restricts quality assurance records and encompasses any reports generated by or at the behest of a quality assurance committee for quality assurance purposes).1 Compare Jewish Home v. Ctrs. for Medicare & Medicaid Servs., 693 F.3d 359 (3d Cir. 2011) 1 (holding that under 42 U.S.C. 1396r, routinely-generated incident reports were part of residents’ Therefore, it can be argued that while federal law guarantees a resident the right to access his or her

2013(In re Subpoena Duces Tecum to Jane Doe), 99 N.Y.2d 434 , 787 N.E.2d 618 , 757 N.Y.S.2d 507 (2003), paragraph two of the syllabus (federal statute restricts quality assurance records and encompasses any reports generated by or at the behest of a quality assurance committee for quality assurance purposes).1 Compare Jewish Home v. Ctrs. for Medicare & Medicaid Servs., 693 F.3d 359 (3d Cir. 2011) 1 (holding that under 42 U.S.C. 1396r, routinely-generated incident reports were part of residents’ Therefore, it can be argued that while federal law guarantees a resident the right to access his or her