[Cite as Griffith v. Aultman Hosp., 2017-Ohio-8293.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
GENE'A GRIFFITH, JUDGES: EXECUTRIX FOR THE ESTATE OF Hon. W. Scott Gwin, P.J. HOWARD E. GRIFFITH, DECEASED Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J. Plaintiff-Appellant Case No. 2017CA0004 -vs-
AULTMAN HOSPITAL OPINION
Defendant-Appellee
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2013CV00487
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: October 23, 2017
APPEARANCES:
For Appellant For Appellee
LEE E. PLAKAS RICHARD S. MILLIGAN DAVID L. DINGWELL Milligan Pusateri Co., LPA MEGAN J. FRANTZ OLDHAM 4684 Douglas Circle NW - P.O. Box 35459 COLLIN S. WISE Canton, Ohio 44735-5459 Tzangas/Plakas/Mannos/LTD 220 Market Avenue South Eighth Floor Canton, Ohio 44702 Stark County, Case No. 2017CA0004 2
Hoffman, J.
{¶1} Plaintiff-appellant Gene’a Griffith, Executrix for the Estate of Howard E.
Griffith, Deceased, appeals the December 20, 2016 Judgment Entry entered by the Stark
County Court of Common Pleas, which granted summary judgment in favor of defendant-
appellee Aultman Hospital, and denied her motion to compel.
STATEMENT OF THE FACTS AND CASE
{¶2} Howard E. Griffith (“Decedent”) underwent surgery at Aultman Hospital on
May 2, 2012. Two days later, after being transferred from intensive care to a step-down
unit, Decedent developed intermittent atrial fibrillation and was placed on continuous
cardiac monitoring.
{¶3} Around 4 a.m. on May 6, 2012, a nurse in the step-down unit assessed
Decedent and found he was doing well. Approximately 45 minutes later, an x-ray
technician found Decedent in his bed with his gown ripped off, the cardiac monitor no
longer attached to his body, his central line lying on the floor, and his chest tube
disconnected. Decedent was unresponsive and did not have a heartbeat. Medical
personnel resuscitated him and moved him to the intensive care unit. However, Decedent
had suffered severe brain damage and, after he made no neurological improvement, his
family decided to remove him from life support on May 7, 2012. Howard died
approximately nine hours later on May 8, 2012.
{¶4} Griffith requested a copy of Decedent's complete medical record on July 24,
2012. Aultman provided some documents in response to this request. After Griffith sent
a second written request on October 17, 2012, Aultman produced the medical record for Stark County, Case No. 2017CA0004 3
the period May 2, through 8, 2012, which was stored in the medical records department.
On December 12, 2012, Griffith's representative made an in-person request and was
permitted to review what was represented to her as Decedent’s complete medical record.
Griffith made an additional written request for Decedent’s medical record. Aultman again
produced Decedent’s medical record which was maintained in the medical records
department.
{¶5} Griffith filed the instant action on February 12, 2013, pursuant to R.C.
3701.74 and 2317.48, to compel Aultman to produce Decedent's complete medical
record. In her complaint, Griffith alleged, in part, Aultman had failed to produce any
monitoring strips or nursing records from Decedent’s hospital stay. On March 8, 2013,
Aultman filed an Answer, asserting it had provided Griffith with Decedent's complete
medical record on February 28, 2013.
{¶6} Griffith served Aultman with requests for admissions and interrogatories. In
response, Aultman admitted, prior to filing the action, it had failed to produce Decedent's
“entire and complete medical record in response” to each of Griffith's medical record
requests. In the answer to interrogatories, Jennifer Reagan–Nichols, the director of
medical records and transcription at Aultman, verified Aultman had produced Decedent’s
entire medical record after Griffith filed the action. Contemporaneously with the answer
to interrogatories, Aultman produced hard copies of cardiac-monitoring data from May 6,
2012, “as responsive documents from the visit that are not part of the medical record.”
{¶7} Griffith deposed Reagan–Nichols on March 11, 2013. During the deposition,
Reagan–Nichols testified Aultman had produced Decedent's cardiac-rhythm strips from
May 6, 2012, covering 4:00 a.m. to 4:51 a.m., in response to the request for documents. Stark County, Case No. 2017CA0004 4
Reagan–Nichols further testified, while monitoring strips for a patient which are received
by her department would be made part of the medical record, she explained Decedent's
printouts were not part of his medical record because the nursing staff had not provided
them to the medical records department. She did not know who directed the nurses not
to print Decedent's data.
{¶8} On March 14, 2013, Aultman filed a motion for summary judgment
supported by the sworn interrogatory answers of Reagan–Nichols, in which she indicated
a complete copy of Decedent's medical chart had been provided to Griffith. Griffith filed
a memorandum in opposition, and a Civ.R. 56(F) motion to conduct additional discovery.
{¶9} After Reagan–Nichols submitted an errata sheet to correct some of her
deposition testimony, the trial court permitted Griffith to take a second deposition of
Reagan–Nichols. During her second deposition, Reagan–Nichols indicated Bates
Numbers 655 to 707 were not considered part of Decedent's medical record because
they were never provided to the medical records department. Reagan–Nichols testified
Bates Numbers 655 to 707 had been printed at the direction of Aultman's risk
management department and stored by that department. She explained, if a record or
document is not given to the medical records department, that record or document is not
made part of the patient's medical record even if another part of the hospital may have a
copy. Reagan–Nichols further testified she did not know if the risk management
department had any other records for Decedent which had not been provided to Griffith.
{¶10} The parties filed supplemental briefs. A week before filing its supplemental
brief, Aultman provided Griffith with Bates Number 708, which evidenced a cardiologist Stark County, Case No. 2017CA0004 5
had confirmed Decedent’s ECG was abnormal and Decedent needed to be on electronic
monitoring equipment.
{¶11} On June 28, 2013, the trial court conducted a hearing on Aultman’s motion
for summary judgment. Via Judgment Entry filed on the same day, the trial court granted
summary judgment in favor of Aultman, finding Aultman had produced Decedent's
medical record as defined by R.C. 3701.74(A)(8).
{¶12} On appeal, this Court affirmed the trial court's judgment, holding “the
medical record consists of what was maintained by the medical records department and
information that the provider decides not to maintain is not part of the medical record.”
Griffith v. Aultman Hosp., 5th Dist. Stark No.2013CA00142, 2014–Ohio–1218, ¶ 22. We
further noted, “Documents kept by any other department, including risk management, ‘do
not meet the definition of a medical record because they were not “maintained” by the
medical records department’. Id. at ¶ 30.
{¶13} The Ohio Supreme Court accepted jurisdiction on appeal by Griffith to
consider the definition of “medical record” as the term is used in R.C. 3701.74.1 Griffith
v. Aultman Hosp., 146 Ohio St.3d 196, 2016-Ohio-1138, 54 N.E.3d 1196. The Griffith
Court disagreed with this Court’s reasoning, and held “the physical location of patient data
is not relevant to the determination whether that data qualifies as a medical record under
R.C. 3701.74(A)(8). Rather, the definition focuses on whether a healthcare provider made
a decision to keep data that was generated in the process of the patient's healthcare
treatment and pertains to the patient's medical history, diagnosis, prognosis, or medical
1 The underlying medical negligence/wrongful death claim against Aultman was settled prior to the Ohio Supreme Court’s rendering its decision in Griffith, supra. Stark County, Case No. 2017CA0004 6
condition.” Id. at ¶ 5. The Supreme Court reversed and remanded the matter to the trial
court.
{¶14} Upon remand, the trial court permitted the parties to engage in “limited
discovery”, and scheduled supplemental briefing and oral arguments on Aultman’s motion
for summary judgment. Griffith propounded her third set of written discovery upon
Aultman, which included an interrogatory inquiring whether “[w]ithin the definition of
“medical record” as clarified by The Supreme Court of Ohio in Griffith v. Aultman Hosp.,
Slip Opinion No. 2016-Ohio-1138 * * *any page or part of any medical record, office
record, or hospital chart pertaining to your care and treatment of Howard Griffith from and
including May 2, 2012 to May 8, 2012 has been destroyed, modified, replaced, damaged,
or altered in any respect subsequent to the initial preparation, and whether a copy of the
complete medical record has been provided to Plaintiff or their counsel”. Aultman
objected, noting the interrogatory was unclear, and added the “interrogatory seeks
information not relevant to any issue in the case and not reasonably calculated to lead to
the discovery of admissible evidence. Without waiving objection, see the medical record
which is complete and has been provided. See Aultman’s answer to interrogatory no. 2
from plaintiff’s first set of interrogatories in this case.”
{¶15} Interrogatory No. 2 from Griffith’s first set of interrogatories read:
State whether, to Defendant’s knowledge, any page or part of any medical
record, office record, or hospital chart pertaining to your care and treatment of Stark County, Case No. 2017CA0004 7
Howard Griffith from and including May 2, 2012 to May 8, 2012 has been
destroyed, modified, replaced, damaged or altered in any respect subsequent to
the initial preparation, and whether a copy of the complete medical record has
been provided to Plaintiff or their counsel.
{¶16} Aultman answered:
Objection. Interrogatory consists of two parts. Without waiving the
foregoing objection:
1. With the exception of routine processing, no part of the medical
record maintained by Aultman Hospital has been altered or destroyed.
2. A complete copy of the chart is provided in response to the request
for production of documents.
{¶17} Griffith also deposed Cathy Rainieri from Aultman’s risk management
department. During the course of Rainieri’s deposition, counsel for Aultman instructed
the witness not to answer the following questions:
1. What medical records is Aultman’s risk management department
in possession of which have not been provided to Gene’a Griffith or her
counsel? Stark County, Case No. 2017CA0004 8
2. Is any department within Aultman Hospital in possession of any
medical records which have not been provided to Ms. Griffith or her
counsel?
3. Without telling me what was said, was there any communication
with counsel regarding Mr. Griffith’s medical records in May, 2012?
Deposition of Cathy Rainieri at 18, 19, and 21.
{¶18} Following Rainieri’s deposition, Griffith filed a motion to compel, seeking an
order requiring Rainieri to answer the questions posed during her deposition, and to
substantively respond to her written discovery requests.
{¶19} In its supplemental brief in support of its motion for summary judgment,
Aultman’s counsel asserted Aultman had produced the complete record and had “no
other medical records of Howard Griffith that have not been produced, whether those
records are maintained in the medical records department or elsewhere.” June 27, 2016
Supplemental Brief at 4.
{¶20} The trial court conducted a hearing on Aultman’s motion for summary
judgment and Griffith’s motion to compel on August 12, 2016. Following the hearing,
Aultman filed the Affidavit of Cathy Rainieri, in which she averred any knowledge or
information she had regarding Decedent was privileged, either as attorney-client privilege,
or as work product.
{¶21} Via Judgment Entry filed December 20, 2016, the trial court denied Griffith’s
motion to compel, finding: Stark County, Case No. 2017CA0004 9
Upon review of the issues presented by the plaintiff’s motion to
compel, the Court finds that the information has been provided to the
plaintiff and/or is covered by recognized privilege. Further, the Court finds,
under the particular facts of this case, that no exception to such privilege
applies. Id. at 2.
{¶22} In the same judgment entry, the trial court granted summary judgment in
favor of Aultman, finding:
Upon review of such evidence and consideration of the arguments
presented, the Court finds that the defendant has produced the entire
“medical record” of Howard E. Griffith as defined by R.C. 3701.74(A)(8) and
by the Supreme Court in Griffith v. Aultman Hosp., 146 Ohio St.3d 196,
2016-Ohio-1138. Id. at 3.
{¶23} It is from this judgment entry Griffith appeals, raising the following
assignments of error:
1. THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT WHEN THERE WAS A GENUINE ISSUE OF MATERIAL
FACT AS TO WHETHER AULTMAN HAS PRODUCED MR. GRIFFITH’S
ENTIRE MEDICAL RECORD FROM HIS MAY 2, 2012 ADMISSION
BECAUSE 1) NO CREDIBLE SOURCE ATTESTED OR VERIFIED THAT Stark County, Case No. 2017CA0004 10
APPELLANT WAS PROVIDED ALL OF MR. GRIFFITH’S MEDICAL
RECORDS, 2) THE EVIDENCE IS THAT ADDITIONAL MEDICAL
RECORDS EXIST WHICH HAVE NOT BEEN PRODUCED, AND 3)
MEDICAL RECORDS HAVE APPEARED ON TWO OCCASIONS AFTER
APPELLEE FILED FOR SUMMARY JUDGMENT WITHOUT ANY
EXPLANATION AS TO WHERE THEY CAME FROM WHY THEY WERE
JUST BEING PRODUCED, AND WHAT OTHER RECORDS WERE WITH
THEM.
2. THE TRIAL COURT ERRED AS A MATTER OF LAW DENYING
PLAINTIFF’S MOTION TO COMPEL BECAUSE THE SOUGHT
INFORMATION WAS NEITHER “PROVIDED TO THE PLAINTIFF” NOR
“COVERED BY A RECOGNIZED PRIVILEGE.” ASSUMING ARGUENDO
THAT WORK PRODUCT PRIVILEGE APPLIED, GRIFFITH HAS GOOD
CAUSE FOR SUCH INFORMATION.
I
{¶24} Summary judgment proceedings present the appellate court with the unique
opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.
The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As such, this
Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co.
(1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.
{¶25} Civ.R. 56 provides summary judgment may be granted only after the trial
court determines: 1) no genuine issues as to any material fact remain to be litigated; 2) Stark County, Case No. 2017CA0004 11
the moving party is entitled to judgment as a matter of law; and 3) it appears from the
evidence that reasonable minds can come to but one conclusion and viewing such
evidence most strongly in favor of the party against whom the motion for summary
judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.
(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.
{¶26} It is well established the party seeking summary judgment bears the burden
of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett
(1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for granting
summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293, 662
N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that the nonmoving
party cannot prove its case, bears the initial burden of informing the trial court of the basis
for the motion, and identifying those portions of the record that demonstrate the absence
of a genuine issue of material fact on the essential element(s) of the nonmoving party's
claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by
making a conclusory assertion the nonmoving party has no evidence to prove its case.
Rather, the moving party must be able to specifically point to some evidence of the type
listed in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has no
evidence to support the nonmoving party's claims. If the moving party fails to satisfy its
initial burden, the motion for summary judgment must be denied. However, if the moving
party has satisfied its initial burden, the nonmoving party then has a reciprocal burden
outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial
and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be
entered against the nonmoving party.” The record on summary judgment must be viewed Stark County, Case No. 2017CA0004 12
in the light most favorable to the opposing party. Williams v. First United Church of Christ
(1974), 37 Ohio St.2d 150, 309 N.E.2d 924.
{¶27} Griffith contends summary judgment was inappropriate because genuine
issues of material fact exist as to whether Aultman has produced Decedent’s entire
medical record. We agree.
{¶28} Upon remand from the Ohio Supreme Court, the trial court permitted the
parties to engage in “limited discovery”. Griffith propounded her third set of written
discovery upon Aultman, which included the following interrogatory:
INTERROGATORY NO. 2:
Within the definition of “medical record” as clarified by The Supreme
Court of Ohio in Griffith v. Aultman Hosp., Slip Opinion No. 2016-Ohio-1138,
state whether, to Defendant’s knowledge any page or part of any medical
record, office record, or hospital chart pertaining to your care and treatment
of Howard Griffith from and including May 2, 2012 to May 8, 2012 has been
destroyed, modified, replaced, damaged, or altered in any respect
subsequent to the initial preparation, and whether a copy of the complete
medical record has been provided to Plaintiff or their counsel.
{¶29} Aultman objected, responding: Stark County, Case No. 2017CA0004 13
* * * Interrogatory is unclear. In addition, this interrogatory seeks
information not relevant to any issue in the case and not reasonably
calculated to lead to the discovery of admissible evidence. Without waiving
objection, see the medical record which is complete and has been provided.
See Aultman’s answer to interrogatory no. 2 from plaintiff’s first set of
interrogatories in this case.
{¶30} Interrogatory No. 2 from Griffith’s first set of interrogatories and
Interrogatory No. 2 from Griffith’s third set of interrogatories are identical except for the
“Within the definition of ‘medical record’ as clarified by The Supreme Court of Ohio in
Griffith v. Aultman Hosp., Slip Opinion No. 2016-Ohio-1138” language. See, Statement
of the Facts and Case, supra. Aultman’s answer to Interrogatory No. 2 from the first set
of interrogatories reads, as follows:
Objection. Interrogatory consists of two parts. Without waiving the
1. With the exception of routine processing, no part of the medical
record maintained by Aultman Hospital has been altered or destroyed.
2. A complete copy of the chart is provided in response to the request
for production of documents. Stark County, Case No. 2017CA0004 14
{¶31} In considering “whether [Aultman] met its burden on a motion for summary
judgment to show that there was no genuine issue of material fact that it produced
[Decedent's] entire medical record”, the Ohio Supreme Court found the record before it
was “insufficient” to make such determination “because the proceedings below focused
only on medical records kept in the hospital's medical-records department.” Griffith, supra
at para. 26 and 27. By relying upon its response to Interrogatory No. 2 from Griffith’s first
set of interrogatories in addressing Interrogatory No. 2 from Griffith’s third set of
interrogatories, we find Aultman has again failed to meet its burden to show there was no
genuine issue of material facts it produced Decedent’s entire medical record.
{¶32} Aultman objected to Interrogatory No. 2 both times, but each time
proceeded to respond without directly answering the interrogatory.2 In its first objection,
Aultman claimed “with the exception of routine processing, no part of the medical record
had been altered or destroyed.3, 4 Aultman further claimed a copy of the complete “chart”
was provided.
{¶33} We note Aultman’s production of the complete “chart”, does not necessarily
equate to the production of the entire medical record. Significantly, Aultman’s response
was based on its contention only records it kept in its medical records department
2 It seems procedurally awkward to object to the interrogatory, yet offer a response upon which Aultman then relies to support its motion for summary judgment. 3 Aultman’s insertion of the qualifying condition “with the exception of routine processing”,
presumes whatever it processes routinely cannot be considered a medical record – a presumption which is self-serving and better left for the trial court to decide, in camera. 4 Aultman did not further state the medical record had not been “modified” or “replaced” as requested in the interrogatory. While we are not sure there is a theoretical difference, other than mere semantics, in those terms, arguably the response was incomplete. Stark County, Case No. 2017CA0004 15
qualified as discoverable medical records – a contention the Ohio Supreme Court
rejected.
{¶34} Aultman’s objection to Interrogatory No. 2 in the third set following remand
from the Ohio Supreme Court, asserted the interrogatory was “unclear”. Again, Aultman
responded to the purportedly “unclear” interrogatory, claiming the complete medical
record had been provided, incorporating by reference its response to Interrogatory No. 2
in the first set of interrogatories. By doing so, we find its purported response suffers from
the same flaw the Ohio Supreme Court found wanting.
{¶35} Despite representing it had provided Decedent’s entire medical record,
Aultman subsequently produced additional pages of Decedent’s medical record, to wit:
Bates 708 and the nursing notes of Nurse Ginelle Breyer.
{¶36} Despite Aultman’s counsel repeated assertions all discoverable medical
records has been produced and provided, there is no Civ.R. 56 evidentiary material from
an Aultman representative directly and definitely so stating, following the Ohio Supreme
Court’s clarification of what medical records include.
{¶37} Accordingly, we find the trial court erred in granting summary judgment in
favor of Aultman.
{¶38} Griffith’s first assignment of error is sustained.
II
{¶39} In her second assignment of error, Griffith asserts the trial court erred as a
matter of law in denying her motion to compel. We agree.
{¶40} Because a trial court has broad discretion over discovery matters, a
reviewing court reviews these rulings only for an abuse of discretion. State ex rel. Duncan Stark County, Case No. 2017CA0004 16
v. Middlefield, 120 Ohio St.3d 313, 2008–Ohio–6200, 898 N.E.2d 952, ¶ 27. Accordingly,
this Court will not reverse a trial court's decision on a motion to compel absent an abuse
of discretion. State ex rel. The V Cos. v. Marshall (1998), 81 Ohio St.3d 467, 469, 692
N.E.2d 198. However, where a trial court's order is based on a misconstruction of law, it
is not appropriate for a reviewing court to use an abuse-of-discretion standard.
Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership (1992), 78 Ohio App.3d 340, 346,
604 N.E.2d 808, 811–812. In determining pure questions of law, an appellate court may
properly substitute its judgment for that of the trial court, since an important function of
appellate courts is to resolve disputed propositions of law. Id.
{¶41} In her motion to compel, Griffith asked the trial court to require Cathie
Rainieri to answer the questions posed to her at her deposition as well as natural follow-
up questions. Griffith also asked the trial court to order Aultman to substantively respond
to her third set of interrogatories and requests for production of documents.
{¶42} At the commencement of Rainieri’s deposition, Aultman objected to her
being questioned “about any specific information about the Griffith matter” as “her only
knowledge was gained in the context that would be privileged, either as attorney-client
privilege or as work product.” Deposition of Cathie Rainieri at 4. The trial court conducted
a hearing on the motion to compel on August 12, 2016. Later, that afternoon, Aultman
supplemented the record with Rainieri’s affidavit. Therein, Ranieri averred she worked
“exclusively under the authority, direction, control and supervision of” Aultman’s legal
department; the risk management department “operates under the direction of Attorney
Mark N. Rose”, the senior vice president of legal affairs and system risk management at
the hospital”; the risk management department “is responsible for investigating incidents Stark County, Case No. 2017CA0004 17
where there is a prospect of litigation”; and “under the direction of counsel, [she]
undertook an investigation into the Griffith matter” and any “investigation or actions [she]
took * * * were done in connection with my work as a risk manager, at the direction of
counsel and in anticipation of and defense of litigation.” Affidavit of Cathy Rainieri at
paras. 1, 2, 3, and 5.
{¶43} The trial court denied Griffith’s motion to compel, finding “the information
has been provided to the plaintiff and/or is covered by recognized privilege. Further, the
Court finds, under the particular facts of this case, that no exception to such privilege
applies.” December 20, 2016 Judgment Entry at 2.
{¶44} The main purpose behind the attorney-client privilege is to promote “ ‘full
and frank communication between attorneys and their clients and thereby promote
broader public interests in the observance of law and the administration of justice.’ ”
Boone v. Vanliner Ins. Co. (2201), 91 Ohio St.3d 209, 210, 744 N.E.2d 154, fn. 2, quoting
Upjohn Co. v. United States (1981), 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584.
On the other hand “[t]he purpose of the work-product doctrine is ‘to prevent an attorney
from taking undue advantage of his adversary's industry or efforts.’ ” Id. quoting Civ.R.
26(A)(2). Although both the attorney-client privilege and the work-product doctrine might
often apply to the same material, the protections do not overlap completely. See, In re
Election of Nov. 6, 1990 for the Office of Atty. Gen. of Ohio (1991), 57 Ohio St.3d 614,
615, 567 N.E.2d 243.
{¶45} Ohio Courts have long recognized the protection against discovery of
matters identified as “privileged” in Civ.R. 26(B)(1) is limited to those derived from a
specific constitutional or statutory provision. State ex rel. Grandview Hosp. & Med. Ctr. v. Stark County, Case No. 2017CA0004 18
Gorman, 51 Ohio St.3d 94, 95, 554 N.E.2d 1297 (1990), citing In re Story, 159 Ohio St.
144, 147, 111 N.E.2d 385 (1953). Although not technically a privilege in the strict sense,
the attorney work-product doctrine is frequently called a privilege in the popular sense.
See, e.g., United States v. Nobles, 422 U.S. 225, 239, 95 S.Ct. 2160, 45 L.Ed.2d 141
(1975); Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d
161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 55.
{¶46} Privileges are to be strictly construed and “[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., 178 Ohio App.3d 53, 2008-Ohio-4333, 896 N.E.2d 769, at ¶ 17.
“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] * * *.” Waldmann v. Waldmann (1976), 48 Ohio St.2d 176, 178, 358 N.E.2d
521, citing In re Martin (1943), 141 Ohio St. 87, 103, 47 N.E.2d 388.
{¶47} We find Aultman failed to meet its burden of establishing the attorney-client
privilege applied to all the documents and information sought by Griffith. Decedent’s
medical record existed prior to the filing of the instant action. The attorney-client privilege
cannot shield these documents and information from production merely because such
was gathered and turned over to the risk management department. The underlying nature
of this information was not transmuted once it was provided to the risk management
department. We reject Aultman’s summary claim any record gathered at the request of
its legal litigation department is always protected by the attorney-client privilege.
{¶48} We further find the work product privilege does not extend to the information
sought during Rainieri’s deposition. Stark County, Case No. 2017CA0004 19
{¶49} Civ. R. 26(B) provides, in pertinent part:
(3) Trial Preparation: Materials. Subject to the provisions of
subdivision (B)(5) of this rule, a party may obtain discovery of documents,
electronically stored information and tangible things prepared in anticipation
of litigation or for trial by or for another party or by or for that other party's
representative * * * only upon a showing of good cause therefor. A
statement concerning the action or its subject matter previously given by
the party seeking the statement may be obtained without showing good
cause. A statement of a party is (a) a written statement signed or otherwise
adopted or approved by the party, or (b) a stenographic, mechanical,
electrical, or other recording, or a transcription thereof, which is a
substantially verbatim recital of an oral statement which was made by the
party and contemporaneously recorded. (Emphasis added).
{¶50} “[A] showing of good cause under Civ.R. 26(B)(3) requires demonstration
of need for the materials—i.e., a showing that the materials, or the information they
contain, are relevant and otherwise unavailable. The purpose of the work-product rule is
‘(1) to preserve the right of attorneys to prepare cases for trial with that degree of privacy
necessary to encourage them to prepare their cases thoroughly and to investigate not
only the favorable but the unfavorable aspects of such cases and (2) to prevent an
attorney from taking undue advantage of his adversary's industry or efforts.’ Civ.R. 26(A).
To that end, Civ.R. 26(B)(3) places a burden on the party seeking discovery to Stark County, Case No. 2017CA0004 20
demonstrate good cause for the sought-after materials.” Jackson v. Greger, 110 Ohio
St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, at ¶ 16.
{¶51} The deposition questions posed by Griffith to Rainieri sought factual
information. This information is otherwise unavailable to Griffith because it is within the
exclusive possession and knowledge of Aultman’s risk management department.
{¶52} The trial court stated no exception to “such privilege” applies. While it is
unclear whether the trial court was addressing communications between Aultman and its
attorney (“attorney-client privilege”) or the work-product privilege [or perhaps both], we
find the public policy exception to the work-product doctrine would apply. That public
policy is embodied in Civ.R. 26(B)(3) and R.C. 3701.74. The fact existent medical records
were compiled into different data formats does not cause them to lose their underlying
status as medical records.
{¶53} Based upon the foregoing, we find the trial court erred in denying Griffith’s
motion to compel.
{¶54} Griffith’s second assignment of error is sustained. Stark County, Case No. 2017CA0004 21
{¶55} The judgment of the Stark County Court of Common Pleas is reversed and
the matter remanded for further proceedings consistent with this Opinion and the law.
By: Hoffman, J.
Gwin, P.J. and
Wise, Earle, J. concur