Brahm v. DHSC, L.L.C.

2016 Ohio 1205

Opinion

[Cite as Brahm v. DHSC, L.L.C., 2016-Ohio-1205.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: JAMES E. BRAHM, INDIVIDUALLY : Hon. Sheila G. Farmer, P.J. AND AS EXECUTOR OF THE : Hon. W. Scott Gwin, J. ESTATE OF MARY KATHLEEN : Hon. Patricia A. Delaney, J. BRAHM : : Plaintiff-Appellee : Case No. 2015CA00171 : -vs- : : OPINION DHSC, LLC, DBA AFFINITY MEDICAL CENTER, ET AL

Defendant-Appellant

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Case No. 2014CV01545

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: March 21, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

STEPHEN P. GRIFFIN MICHAEL OCKERMAN MICHAEL J. KAHLENBERG W. BRADFORD LONGBRAKE 825 S. Main St. Hanna, Campbell & Powell North Canton, OH 44720 3737 Embassy Parkway, Suite 100 Akron, OH 44333 Stark County, Case No. 2015CA00171 2

Gwin, J.

{¶1} Appellant DHSC, LLC, dba Affinity Medical Center [“Affinity”] appeals the

August 28, 2015 Judgment Entry of the Stark County Court of Common Pleas ordering

the production of documents for an in camera inspection by the trial court to determine

whether the documents are privileged or discoverable in whole or in part by the appellee,

James E. Brahm, Individually and as Executor of the Estate of Mary Kathleen Brahm,

Deceased. [“Brahm”].

Facts and Procedural History

{¶2} Mary Kathleen Brahm was a 72-year old woman when she was transported

by EMS to Affinity Medical Center's emergency department on July 11, 2013. Mrs. Brahm

was diagnosed with a STEMI—a ST segment elevation myocardial infarction. This is a

cardiac emergency that requires immediate intervention. Therefore, the Cardiac

Catheterization Department was called in emergently to provide care and Mrs. Brahm

was brought to the catheterization lab.

{¶3} Co-Defendant-Appellant Joseph Surmitis, M.D. was the interventional

cardiologist on call and was paged to perform the heart catheterization. During the

procedure, Dr. Surmitis identified a complete occlusion of Mrs. Brahm's right coronary

artery. He passed a wire through the occlusion, used a balloon to dilate the right coronary

artery to eliminate the blockage and then placed a stent at the location of the prior

occlusion. A second balloon was used to improve the performance of the stent.

{¶4} Following the deflation and removal of that balloon, Dr. Surmitis noted a

perforation in the right coronary artery. He acted to stop the bleeding from this perforation Stark County, Case No. 2015CA00171 3

and to address secondary complications caused by that blood leaking into the

pericardium, which was compromising the function of the heart.

{¶5} Dr. Surmitis also paged the on-call cardiovascular surgeon Dr. Tawil to

perform a procedure to repair the perforated vessel. Although Dr. Tawil was able to repair

the vessel during his procedure, Mrs. Brahm passed away on July 12, 2013.

{¶6} Appellee Brahm commenced this medical negligence action on June 30,

2014 against DHSC, LLC, DBA, Affinity Medical Center, Dr. Joseph Surmitis, and others,

seeking damages for injuries to, and the death of, his decedent, Mary Kathleen Brahm,

allegedly caused by negligent medical care.

{¶7} According to Affinity's nurse manager and coordinator of its catheterization

lab, Affinity's protocols and procedures for the lab include and adopt the American College

of Cardiology/Society for Cardiovascular Angiography and Interventions Expert

Consensus Document of Cardiac Catheterization Laboratory Standards ["ACC

Guidelines"]. The ACC Guidelines are a comprehensive statement of safe practices and

minimum statistical requirements for facilities that maintain cardiac catheterization labs.

Among others, it provides:

The annual minimum operator interventional procedural volume of

75 cases per year has become an acceptable standard.

2. At present, with overall in-hospital mortality averaging 2% and

rates of emergent CABG averaging <1%, a composite major complication

rate of <3% is to be expected.

{¶8} Because Affinity had adopted and incorporated the ACC Guidelines within

its own policies and protocols for the catheterization lab, Brahm sought discovery of the Stark County, Case No. 2015CA00171 4

statistical benchmarks to which the ACC and Affinity subscribe for its practitioners within

the lab. Specifically, Brahm directed written discovery to Affinity and Dr. Surmitis seeking

to learn:

1. Major In-Hospital Complication Rates, including

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for diagnostic procedures performed at Defendant's

Catheterization Lab, by percentage relative to myocardial infarction.

2. Major In-Hospital Complication Rates, including

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for interventional/therapeutic procedures performed at

Defendant’s Catheterization Lab, by percentage relative to myocardial

infarction.

3. Major In-Hospital Complication Rates, including

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for diagnostic procedures performed by Joseph M. Surmitis,

M.D. at Defendant's Catheterization Lab, by percentage relative to

myocardial infarction.

4. Major In-Hospital Complication Rates, including

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for interventional/therapeutic procedures performed by

Joseph Surmitis, M.D. at Defendant's Catheterization Lab, by percentage

relative to myocardial infarction. Stark County, Case No. 2015CA00171 5

5. The number of contemporary percutaneous coronary interventions

for diagnostic procedures performed by Joseph M. Surmitis, M.D. at

Defendant's Catheterization Lab for each referenced calendar year.

6. The number of contemporary percutaneous coronary interventions

for interventional/therapeutic procedures performed by Joseph M. Surmitis,

M.D. at Defendant's Catheterization Lab for each referenced calendar year.

{¶9} Furthermore, because Dr. Surmitis practiced interventional cardiology at

both Aultman Hospital and Mercy Medical Center, Brahm also issued subpoenas to those

non-party institutions seeking to learn:

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for diagnostic procedures performed by Joseph M. Surmitis,

M.D. at Mercy/Aultman’s Main Campus Facility Catheterization Lab, by

percentage relative to myocardial infarction.

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for interventional/therapeutic procedures performed by

Joseph Surmitis, M.D. at Mercy/Aultman's Main Campus Facility

Catheterization Lab, by percentage relative to myocardial infarction.

3. The number of contemporary percutaneous coronary interventions

for diagnostic procedures performed by Joseph M. Surmitis, M.D. at

Mercy/Aultman's Main Campus Facility Catheterization Lab from January 1,

2010 to the present. Stark County, Case No. 2015CA00171 6

4. The number of contemporary percutaneous coronary interventions

for interventional/therapeutic procedures performed by Joseph M. Surmitis,

M.D. at Mercy/Aultman's Main Campus Facility Catheterization Lab from

January 1, 2010 to the present.

{¶10} Evidence was discovered by Brahm that Affinity’s catheterization lab

recorded and maintained statistics relative to procedural volume and outcome within the

lab and that this information was provided to a number of entities, including the American

College of Cardiology "Cath PCI data registry.” Because these statistics were provided to

the ACC, Brahm issued a subpoena to ACC to confirm whatever information was provided to

it by Affinity, Mercy, or Aultman.

{¶11} Affinity filed motions to prohibit discovery on the basis that the requested

documents were privileged as Peer Review and Quality Assurance Documents under

R.C. 2305.252.

{¶12} After extensive briefing on the issues of Peer Review, Quality Assurance

and privilege, on August 28, 2015, the Trial Court ordered that: (1) the number of

diagnostic and therapeutic procedures performed by Dr. Surmitis at the various facilities

be produced to Brahm; and (2) the documents reflecting all complication rates for the cath

lab, including morbidity/mortality rates, be produced to the Trial Court for an in-camera

review. Specifically the trial court ordered,

The Health Care Entities to produce the disputed material for in

camera review. At this juncture, it must be determined whether the records

consist of material addressing the specific care or treatment rendered to

particular patients or whether they are merely summaries of the patients Stark County, Case No. 2015CA00171 7

that were discussed without addressing the care and treatment rendered to

particular patients.

Judgment Entry, filed Aug. 28, 2015 at 9. In arriving at this conclusion, the trial court

noted,

In the case at bar, it is not clear on the face of the disputed discovery

requests that all of the documents requested by Plaintiffs are subject to the

peer review privilege. Therefore, defendants have the burden of proving

that the requested documents were privileged. An in camera inspection is

the best way for the Court to decide whether the privilege applies and to

protect the record for review.

Id. at 7.

{¶13} Affinity produced data regarding the number of procedures performed by

Dr. Surmitis in accordance with part one of the Trial Court's order. However, Affinity filed

a Notice of Appeal on September 16, 2015 from the second portion of the August 28,

2015 Order as it pertains to the production of privileged and protected documents for an

in-camera inspection.1

Assignment of Error

{¶14} Affinity raises one assignment of error,

1 Each of the medical entities have appealed the August 28, 2015 Judgment Entry ordering the production of documents for an in camera inspection by the trial court to determine whether the documents are privileged or discoverable in whole or in part by Brahm. See, Brahm v. DHSC, LLC, dba Affinity Medical Center, et al. 5th Dist. No. 2015CA00165 [Aultman]; Brahm v. DHSC, LLC, dba Affinity Medical Center, et al. 5th Dist. No. 2015CA00172 [Mercy Medical Center]; Brahm v. DHSC, LLC, dba Affinity Medical Center, et al. 5th Dist. No. 2015CA0079 [American College of Cardiology]. Stark County, Case No. 2015CA00171 8

“I. THE TRIAL COURT ERRED WHEN IT ORDERED DEFENDANT-APPELLANT

DHSC, LLC d/b/a AFFINITY MEDICAL CENTER TO SUBMIT TO THE TRIAL COURT

FOR AN IN-CAMERA REVIEW PRIVILEGED AND PROTECTED DOCUMENTS FROM

PEER REVIEW AND QUALITY ASSURANCE PERTAINING TO THE COMPLICATION

RATES, INCLUDING MORBIDITY/MORTALITY RATES, FOR THE CATH LAB FOR ALL

OF AFFINITY'S PATIENTS AND, SPECIFICALLY, FOR DR. SIMITIS’S PATIENTS.”

Analysis

Jurisdiction of the Court of Appeals

{¶15} In the case at bar, we must address the threshold issue of whether the

judgment appealed is a final, appealable order. Appellee filed a motion to dismiss on

October 8, 2015 raising an issue that the appeal herein is not from a final appealable

order. Appellee again raises the issue in its merit brief filed December 9, 2015.

{¶16} Even if a party does not raise the issue, this court must address, sua sponte,

whether there is a final appealable order ripe for review. State ex rel. White vs. Cuyahoga

Metro. Hous. Aut., 79 Ohio St.3d 543, 544, 1997-Ohio-366, 684 N.E.2d 72.

{¶17} Appellate courts have jurisdiction to review the final orders or judgments of

lower courts within their appellate districts. Section 3(B) (2), Article IV, Ohio Constitution.

If a lower court's order is not final, then an appellate court does not have jurisdiction to

review the matter and the matter must be dismissed. General Acc. Ins. Co. vs. Insurance

of North America, 44 Ohio St.3d 17, 20, 540 N.E.2d 266(1989); Harris v. Conrad, 12th

Dist. No. CA-2001-12 108, 2002-Ohio-3885. For a judgment to be final and appealable,

it must satisfy the requirements of R.C. 2505.02 and if applicable, Civ. R. 54(B). Denham

v. New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d 184 (1999); Ferraro v. B.F. Goodrich Stark County, Case No. 2015CA00171 9

Co., 149 Ohio App.3d 301, 2002-Ohio-4398, 777 N.E.2d 282. If an order is not final and

appealable, an appellate court has no jurisdiction to review the matter and it must be

dismissed.

{¶18} A proceeding for “discovery of privileged matter” is a “provisional remedy”

within the meaning of R.C. 2505.02(A)(3). Smith v. Chen, 142 Ohio St.3d 411, 2015-

Ohio-1480, 31 N.E.3d 633. An order granting or denying a provisional remedy is

final and appealable only if it has the effect of “determining the action with respect to the

provisional remedy and preventing a judgment in the action in favor of the appealing party

with respect to the provisional remedy” and “the appealing party would not be afforded a

meaningful or effective remedy by an appeal following final judgment as to all

proceedings, issues, claims, and parties in the action.” Chen, ¶5; R.C. 2505.02(B)(4).

The burden “falls on the party who knocks on the courthouse doors asking for interlocutory

relief.” Chen, ¶7. As specifically noted by the Ohio Supreme Court, “an order must meet

the requirements in both subsections of the provisional-remedy section of the

definition of final, appealable order in order to maintain an appeal.” Chen, ¶5.

{¶19} If the party seeking to appeal fails to establish why an immediate appeal

is necessary, the court must presume an appeal in the ordinary course would be

meaningful and effective. Id. However, “an order compelling disclosure of privileged

material that would truly render a post judgment appeal meaningless or ineffective may

still be considered on an immediate appeal.” Id.

{¶20} In this case, appellant argues there is a final appealable order under R.C.

2505.02(A)(3) and (B)(4)(b) because it requires the discovery of privileged matter, and

thereby grants a provisional remedy for which there would be no meaningful effective Stark County, Case No. 2015CA00171 10

remedy on subsequent appeal. Appellant maintains the trial court abused its discretion

in denying their request for a protective order and motion to quash, and in ordering the

production of what appellant believes qualify as peer review and quality assurance

records for an in-camera inspection. Appellant alleges that because the order

encompasses what it alleges are peer review records, it is a final, appealable order

pursuant to R.C. 2305.252. R.C. 2305.252 states that “* * *An order by a court to produce

for discovery or for use at trial the proceedings or records described in this section [i.e.

peer review records] is a final order.” Appellee argues that a trial court's order for an in

camera inspection of certain documents, rather than an order to provide documents to

the adverse party, is a non-final order. We agree with the appellee.

{¶21} Appellant cites Huntsman v. Aultman Hospital, 160 Ohio App.3d 196, 2005-

Ohio-1482, 826 N.E.2d 384[“Huntsman I”] for the proposition that an in camera review is

not permitted2,

Further, in this particular situation, the change to the statute is

clearly procedural. The change in the statute that is relevant in this

case pertains to the Ohio legislature’s apparent decision to foreclose

a party from obtaining any information, documents, or records from

the peer review committee’s records. Previously, courts had

interpreted the prior version of the statute (R.C. 2305.251) to allow a

trial court to conduct an in camera review of the peer review

committee’s records to determine whether the privilege applied to

individual documents. If the record was available from its origin

2 Brief of Defendant-appellant DHSC, LLC, dba Affinity Medical Center, Filed Nov. 6, 2015 at 9; 13. Stark County, Case No. 2015CA00171 11

source, it was not privileged and could be obtained from the peer

review committee’s records. See, e.g., Doe v. Mount Carmel Health

Systems, Franklin App. No. 03AP–413, 2004-Ohio-1407, 2004 WL

557333. The current version of the statute makes it clear that there

is no need for an in camera inspection because no documents can

be obtained from the peer review committee records, only from the

records of the original source of the information. We view this

relevant revision to be a clarification of the statute’s intent. Since this

change affects only how information is to be obtained, we find the

change to be procedural.

Huntsman I, 160 Ohio App.3d at 200-201, 2005-Ohio-1482, 826 N.E.2d 384, ¶20.

[Emphasis added]. However, Huntsman I 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. Large v. Heartland-Lansing of Bridgeport Ohio, LLC, 7th Dist.

Belmont No. 12 BE 7, 2013-Ohio-2877, 995 N.E.2d 872, ¶43.

{¶22} Huntsman I is factually distinguishable from the instant case. In Huntsman

I, the plaintiff sought documents that were contained in the hospital’s credentialing and

peer-review files, whereas here, the trial court found that it could not determine from the

face of the disputed discovery requests that all of the documents requested by Brahm are

subject to the peer review privilege. See, also, Manley v. Heather Hill, Inc., 175 Ohio

App.3d 155, 2007-Ohio-6944, 885 N.E.2d 971(11th Dist.), ¶34. We find that whether or Stark County, Case No. 2015CA00171 12

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 the appellee is requesting and

over which appellant is asserting privilege. Bailey v. Manor Care of Mayfield Hts., 8th

Dist. No. 99798, 2013-Ohio-4927, 4 N.E.3d 1071, ¶37.

{¶23} As this Court has noted,

Nothing in R.C. 2305.252 sets forth a right to privacy. Furthermore, the

protection of the free flow of information into a peer review process will not be

compromised by an in camera review. A private review, prior to any order for

the production of documents to an adverse party, by a competent judge who

is sworn to maintain confidentiality does not compromise the free flow of

information that the privilege is meant to protect.

Huntsman v. Aultman Hospital, 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, ¶88.

[“Huntsman II”] In Huntsman II, this Court further noted,

The documents subject to the court's order in the case sub judice are

not as homogeneous in nature. In other words, the trial court in the case sub

judice could issue different rulings regarding the peer review privilege as to

each document presented.

5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, ¶89. This Court concluded, that the trial

court’s order requiring various insurance companies, the Bureau of Workers' Compensation,

Medicare, Medicaid, Aultcare HMO, and others to produce documents to the trial court for an

in camera inspection, is not a final, appealable order. Id. at ¶90.

{¶24} Despite appellant’s contention, the trial court’s judgment entry does not order

the release of any documents; rather the trial court itself will review the documents. The Stark County, Case No. 2015CA00171 13

issue of whether or not any document is discoverable has not yet been determined by the

trial court. The trial court’s order does not appear to exclude the possibility that the trial court

will review the documents to determine whether each is protected by the peer review privilege

in R.C. 2305.252. The trial court has retained jurisdiction to make further determinations

regarding the discoverability of the requested materials. Huntsman II at ¶81.

{¶25} In the case at bar, we find that the trial court’s entry ordering an in-camera

inspection of the documents is not a final appealable order.

{¶26} Because there is no final appealable order, this court does not have

jurisdiction to entertain appellant's appeal.

{¶27} For the foregoing reasons, the DHSC, LLC, dba Affinity Medical Center’s

appeal of the August 28, 2015 Judgment Entry of the Stark County Court of Common

Pleas, Stark County, Ohio, is hereby dismissed.

IT IS SO ORDERED.

By Gwin, J., and

Delaney, J. concur;

Farmer, P.J., dissents

WSG:clw 0226 Stark County, Case No. 2015CA00171 14

{¶28} I respectfully dissent from the majority opinion that the discovery order sub

judice is not a final appealable order.

{¶29} I acknowledge in Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-148,

Justice O'Neill refined our scope of final appealable orders. Under R.C. 2305.252 and its

specific language, "[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***."

{¶30} As we addressed in Huntsman I, a parallel situation, even an in camera

review is violative of the statute. Huntsman I, 160 Ohio App.3d 196, 2005-Ohio-1482, at

¶ 20. I find the majority's reliance on Huntsman II, 5th Dist. Stark No. 2006 CA 00331,

2008-Ohio-2554, to be misplaced. Huntsman II involved information and sources

independent of the records and proceedings of the peer review committee. The statute

specifically permits discovery of information, documents, or records obtainable from

original sources. The matters sought to be discovered in Huntsman II were records from

insurance companies and other original sources.

{¶31} Because the trial court's order for in camera review is per se violative of the

plain meaning of the statute, I would find the matter is a final appealable order as it

resolves the issue and breaches the statutory confidentiality of records.