Stull v. Summa Health Sys.

2022 Ohio 457

• Court: Ohio Court of Appeals
• Decided: February 16, 2022
• Docket: 29669
• Status: Published

Opinion

[Cite as Stull v. Summa Health Sys., 2022-Ohio-457.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

KALVYN STULL, AN INCOMPETENT C.A. No. 29969 PERSON, BY AND THROUGH HIS GUARDIAN OF THE ESTATE, BRIAN ZIMMERMAN, et al. APPEAL FROM JUDGMENT Appellees ENTERED IN THE COURT OF COMMON PLEAS v. COUNTY OF SUMMIT, OHIO CASE No. CV 2019 06 2259 SUMMA HEALTH SYSTEM, et al.

Appellants

DECISION AND JOURNAL ENTRY

Dated: February 16, 2022

HENSAL, Presiding Judge.

{¶1} Summa Health System, Summa Health System Corp., Summa Health System

Community, Summa Health, Summa Physicians, Inc., dba Summa Health Medical Group,

Jeffrey R. Welko, M.D., Nathan R. Blecker, M.D., Mazen E. Elashi, M.D., and Lynda J.

Shambaugh, RN (collectively “Summa”) appeal an order of the Summit County Court of

Common Pleas that granted Kalvyn Stull’s motion to compel in part. For the following reasons,

this Court affirms.

I.

{¶2} Mr. Stull received treatment from Summa after being injured in an automobile

crash. According to Mr. Stull, the treatment made the injuries he suffered to his brain more

severe. He, therefore, sued Summa for medical negligence. As part of Mr. Stull’s discovery

requests, he sought the resident file of Dr. Elashi, who was a resident physician at Summa. 2

Summa refused to provide the file because it alleged the file was protected by the peer review

privilege under Revised Code Section 2305.252. After Mr. Stull moved to compel the

production of the resident file and other materials, the trial court granted the motion as to the

resident file because it concluded that Summa did not meet its burden of establishing that the file

is protected by the privilege. Summa has appealed, assigning as error that the court incorrectly

compelled the production of Dr. Elashi’s entire residency file.

II.

{¶3} As a preliminary matter, Mr. Stull has moved to dismiss the appeal, arguing that

the trial court’s order is not a final, appealable order. Section 2305.252(A), however, provides

that “[a]n order by a court to produce for discovery * * * the proceedings or records described in

this section is a final order.” Although the trial court determined that the resident file was not a

record protected by Section 2305.252, the question is whether the information at issue is alleged

to be protected by the statute. Cousino v. Mercy St. Vincent Med. Ctr., 6th Dist. Lucas No. L-17-

1218, 2018-Ohio-1550, ¶ 12. In Giusti v. Akron General Medical Center, 178 Ohio App.3d 53,

2008-Ohio-4333 (9th Dist.), this Court explained that an order is final and appealable under

Section 2305.252 if a party has made a claim of privilege under the section. Id. at ¶ 7. Under

Mr. Stull’s interpretation, appeals would be limited to situations in which a trial court determined

that an item is a proceeding or record of a peer review committee of a health care entity under

Section 2305.252 but ordered the information to be produced, nevertheless. Mr. Stull’s motion

to dismiss is denied.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY COMPELLING THE PRODUCTION OF THE ENTIRE RESIDENCY FILE FOR MAZEN ELASHI, M.D. BECAUSE IT IS A PEER REVIEW RECORD THAT IS PRIVILEGED AND EXEMPT FROM DISCOVERY UNDER OHIO REVISED CODE SECTION 2305.252. 3

{¶4} Summa argues that the trial court incorrectly compelled it to produce Dr. Elashi’s

resident file because the file is privileged under Section 2305.252 and, therefore, exempt from

discovery. Section 2305.252(A) provides in relevant part that “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 * * * in any civil action against a health care entity * * * arising out of matters that are

the subject of evaluation and review by the peer review committee.” This Court reviews the trial

court’s interpretation and application of Section 2305.252 de novo. Giusti at ¶ 12.

{¶5} “Privileges, being in derogation of common law, are to be strictly construed.” Id.

at ¶ 17, quoting Svoboda v. Clear Channel Communications, Inc., 156 Ohio App.3d 307, 2004-

Ohio-894, ¶ 19 (6th Dist.). “The party claiming the privilege has the burden of proving that the

privilege applies to the requested information.” Id. To establish that a privilege exists under

Section 2305.252(A), “[f]irst, the health care entity must establish the existence of a ‘peer review

committee’ as defined by R.C. 2305.25(E).” Cousino, 2018-Ohio-1550 at ¶ 16, quoting Bansal

v. Mt. Carmel Health Sys., Inc., 10th Dist. Franklin No. 09AP-351, 2009-Ohio-6845, ¶ 15. A

“‘[p]eer review committee’ means a utilization review committee, quality assessment committee,

performance improvement committee, tissue committee, credentialing committee, or other

committee that * * * either” “[c]onducts professional credentialing or quality review activities

involving the competence of, professional conduct of, or quality of care provided by health care

providers, including both individuals who provide health care and entities that provide health

care” or “[c]onducts any other attendant hearing process initiated as a result of a peer review

committee’s recommendations or actions.” R.C. 2305.25(E)(1).

{¶6} “Second, the health care entity must prove that each of the documents that it

refuses to produce is a ‘record within the scope of [that] peer review committee’ as required by 4

R.C. 2305.252.” Cousino at ¶ 16, quoting Bansal at ¶ 15. “This burden may be satisfied by ‘(1)

submitting the documents in question to the trial court for an in camera inspection, or (2)

presenting affidavit or deposition testimony containing the information necessary for the trial

court to adjudge whether the privilege attaches.’” Meade v. Mercy Health-Regional Med. Ctr.,

LLC, 9th Dist. Lorain No. 18CA011307, 2019-Ohio-438, ¶ 11, quoting Bansal at ¶ 14. “The

health care entity must provide evidence as to the specific documents requested, not generalities

regarding the types of documents usually contained in a peer review committee’s records.”

Bansal at ¶ 15.

{¶7} Summa argues that it presented undisputed affidavits that show that Dr. Elashi’s

residency file is a record kept and maintained by a peer review committee exclusively for the

purpose of evaluating the competence, professional conduct, and quality of care provided by Dr.

Elashi. Regarding whether a peer review committee existed, Summa points to the affidavit of

Dr. Erica Laippley, who averred that Summa has established a Graduate Medical Education

Committee (“GMEC”) that is responsible for overseeing the quality assessment of resident

physicians and reviewing all medical care provided by resident physicians at Summa facilities.

She averred that Summa has also established a Clinical Competency Committee (“CCC”) for

each residency program that is under the umbrella of the GMEC. The responsibility of each

CCC is to periodically gather and analyze all data about the performance of individual residents

and to make recommendations to the GMEC about the competency and quality of care of the

resident.

{¶8} Regarding whether Dr. Elashi’s resident file was a record within the scope of the

peer review committee, Summa argues that the residency files maintained by the GMEC

constitute such a record. It argues that any record created by or exclusively for a peer review 5

committee is privileged. It also argues that any records generated by another source but kept by

the peer review committee may only be obtained from the other source and not through the

committee. Summa points to the affidavit of Dr. Laippley as establishing that Dr. Elashi’s

residency file is a record of a peer review committee that was created and used by the GMEC

and the CCCs.

{¶9} The trial court determined that Summa failed to meet its burden of establishing

that Dr. Elashi’s resident file is privileged. It noted that Dr. Laippley’s affidavit contained

mostly generalities about the type of information contained in residency files. It noted that she

did not identify any specific individuals who authored any of the documents in the file or identify

any specific individuals as being part of a peer review committee. The court also determined

that the only specific information about what was in the residency file was information that

would not be protected by the peer review privilege because it was produced by physicians who

were not identified as having any involvement with a peer review committee.

{¶10} Summa argues that the trial court’s conclusions incorrectly interpret and apply

Section 2305.252. It argues that it did not have to identify every document in the file to prove

that the entire file is a record of a peer review committee. According to Summa, because

resident files are created and used exclusively for peer review and quality assurance purposes, all

the documents within a resident file are records of a peer review committee, regardless of who

authored them or their contents. It also argues that, because Mr. Stull was seeking Dr. Elashi’s

entire file and not specific documents within it, it only had to establish the more general premise

that resident files are records of a peer review committee and did not have to establish the

privileged nature of any of the specific documents within them. Summa argues that the

affidavits it submitted establish that Dr. Elashi’s entire resident file is a record of a peer review 6

committee and contains records that were compiled and used by a peer review committee to

conduct quality assurance activities. It, therefore, argues that the trial court’s decision was

incorrect.

{¶11} In opposition to Mr. Stull’s motion to compel the production of Dr. Elashi’s

resident file, Summa submitted an affidavit by Dr. Laippley. According to the affidavit, Dr.

Laippley is the Interim Program Director of the General Surgery Residency Program. Dr.

Laippley averred that her duties include overseeing the residency program, reviewing the

residents’ performance, and overseeing the quality of care and performance improvement of

residents. She also averred that Summa conducts professional credentialing activities, resident

evaluations, resident performance reviews, and related activities.

{¶12} Regarding residents, Dr. Laippley explained that they are physicians who have

obtained limited licenses to practice medicine in accredited residency programs. Because their

training is incomplete, they do not qualify for the same credentialing and privilege process as

other physicians. Instead, the quality of their care is overseen by the GMEC through its medical

education department. Each separate residency program has a resident director and faculty

members who participate in a peer review process of the medical care rendered by the residents.

Dr. Laippley also explained that CCCs are another group of committees responsible for the

quality review of residents and that they report to the GMEC. Their responsibility is to

periodically gather and analyze all data about the performance of residents and any quality

reviews of their performance as well as make recommendations to the GMEC about the

competence, professional conduct, and quality of care provided by residents.

{¶13} Dr. Laippley further averred that a residency file is maintained in both a paper

form and in an electronic database. It contains records of qualitative assessments by faculty 7

members of medical care rendered by a resident, their competence, professional conduct, and

their quality of care. Some of the data refers more generally to their overall skill and quality of

care while some relates to specific patients. The residency files are maintained by administrative

staff called residency coordinators and access to the files is limited to individuals who participate

in the residency review and peer review processes.

{¶14} The affidavit of Dr. Laippley establishes the existence of a resident peer review

committee. Upon close review, however, the affidavit does not establish that Dr. Elashi’s

residency file is a “record[ ] within the scope of” such a committee. R.C. 2305.252(A). Instead,

the affidavit provides that residency files are maintained by residency coordinators. Residency

coordinators are described only as “administrative staff[,]” and it is not explained whether they

are part of the administrative staff of the GMEC, a CCC, or some other aspect of the hospital.

There are no statements that the residency files are produced, managed, kept, maintained, or

created by the GMEC or a CCC or any other similar language. It is also not indicated whether

any reviews or associated documents produced by the GMEC or a CCC are kept within a

resident’s file.

{¶15} Dr. Laippley’s affidavit also explains that residency files may be accessed by

anyone who participates “in the residency review and peer review processes.” It is unclear

whether “residency review” refers to something different than the “peer review” being provided

by the GMEC and CCCs, but it is implied by the language of the affidavit. Notably, the word

review appears after both residency and peer, suggesting they are different review processes.

The word “process[ ]” is also pluralized, indicating that “residency review” is a separate process

from “peer review[.]” 8

{¶16} As previously noted, privileges must be strictly construed. Giusti, 178 Ohio

App.3d 53, 2008-Ohio-4333, at ¶ 17. Upon review of the record, we conclude that the trial court

correctly concluded that Summa failed meet its burden of establishing that the peer review

privilege applies to Dr. Elashi’s resident file because it did not establish that the file is a record

“within the scope of a peer review committee” under Section 2305.252(A). Summa’s

assignment of error is overruled.

III.

{¶17} Summa’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 9

Costs taxed to Appellants.

JENNIFER HENSAL FOR THE COURT

CARR, J. CALLAHAN, J. CONCUR.

APPEARANCES:

STEPHEN W. FUNK and MEGAN M. MILLICH, Attorneys at Law, for Appellants.

LAMAR F. JOST and BRIAN S. OSTERMAN, Attorneys at Law, for Appellants.

LEE E. PLAKAS, MEGAN J. FRANTZ OLDHAM, COLLIN S. WISE, and LAUREN A. GRIBBLE, Attorneys at Law, for Appellees.

BRIAN ZIMMERMAN, Attorney at Law, for Appellees.