Allen v. Cuyahoga Cnty.

PATRICIA ALLEN, Plaintiff, v. CUYAHOGA COUNTY, et al., Defendants

Case No. 1:12CV1659

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Dated: February 4, 2014

JUDGE CHRISTOPHER BOYKO

(Magistrate Judge Kenneth S. McHargh)

MEMORANDUM

AND ORDER

McHARGH, Mag. J.

The plaintiff Patricia Allen ("Allen"), as administrator of the estate of Albert Fabian ("Fabian"), filed a complaint against Cuyahoga County, several named entities, and twenty-five named individuals. The complaint arose from Fabian's death by suicide on June 28, 2010, while in pre-trial custody at the Cuyahoga County Jail. The complaint alleged five causes of action: 1) Deliberate indifference to Fabian's serious medical needs, 42 U.S.C. § 1983; 2) Failure to train, 42 U.S.C. § 1983; 3) Willful, wanton and reckless conduct; 4) Wrongful death, Ohio Rev. Code § 2125.01, et seq.; and, 5) Negligence by jail medical staff, causing wrongful death, Ohio Rev. Code § 2125.01, et seq. See doc. 1.

Numerous defendants have since been dismissed from the suit, see, e.g., doc. 109, 115, leaving as defendants Cuyahoga County, Dyann Corrao, Trini Whitehead, and Christine Dubber ("Dubber").

MOTION TO COMPEL

Allen filed a Motion to Compel Discovery. (Doc. 116.) The County filed a response (doc. 118), and the court held telephone conferences with the parties, on Dec. 17, 2013, and Dec. 23, 2013, which resolved most of the disputes underlying the filing of the motion to compel.

Remaining at issue is the County's assertion of a "peer review privilege" to shield un-redacted disclosure of a single contested document. The parties have briefed this issue, and the court will now address their arguments. See doc. 125, 126.

In her motion to compel, Allen sought documents pertaining to a clinical mortality review of Fabian's death. In response to a request for production, the County had maintained that no such documentation existed. However, Allen contends that "the recent deposition testimony of Christine Dubber, then-health services manager of the jail, reflects that such documentation should exist." (Doc. 116, at 4.)

The County's response, as relevant to this issue, was as follows:

Plaintiff's counsel claims . . . that he is entitled to some notes made by Chris Dubber because he asked for "any clinical mortality review regarding Albert Fabian's death." If the notes did constitute a "clinical mortality review," which is disputed, they would be privileged as peer review. It should be noted that Plaintiff's counsel had the opportunity to ask Dubber about her review(s) and observations when he deposed her.

* * * * *

Plaintiff also asked for "any administrative review" and "any clinical mortality review" of Albert Fabian's death. There are no review documents.

(Doc. 118, at 3-4.)

A. Factual Background

The record shows that the County revised its policy and procedure entitled "Procedure in the Event of an Inmate's Death," in May 2010. (Doc. 126, Plaintiff's Exhibit ("PX") 1.) Fabian's death occurred in June 2010. The procedures include the following:

3. An administrative review will be conducted within 30 days of an inmate death. Reports are gathered from all staff involved in the incident and a short summary of the facts is required. An assessment will be made regarding correctional and emergency response actions surrounding the inmate's death. Areas where facility operations, policies and procedures can be improved will be identified. Corrective actions will be monitored through the correction center's quality improvement program.

4. A clinical mortality review for each death will be completed within 30 days by a physician to determine the appropriateness of clinical care provided. The findings will be documented and the results of the review will be shared with treating staff. Other critical incidents will be taken into consideration and discussed for similarities and quality improvement initiatives.

5. If the inmate death is due to suicide, a psychological autopsy will be conducted by the lead psychiatrist or designee within 30 days of the death.

(Doc. 126, PX 1.)

Dubber was deposed on Oct. 4, 2013. Allen has supplied excerpts from the Dubber deposition. (Doc. 126, PX 2.) Dubber was questioned about post-mortem reviews:

A. Whenever there's a death in custody, and Mr. Fabian's death was in custody, we go through a process where we review the circumstancessurrounding the incident and discuss it.

Q. Was that done with regard to Mr. Fabian?

A. Yes.

Q. Who was involved in that review and discussion?

A. I don't remember all of the participants but it would have been, to my knowledge it would typically involve me, the medical director, director of nursing, assistant director of nursing, either the director of corrections or wardens, the staff that was working at the time of the incident, nurses that were involved in the incident.

Q. Do you have a specific recollection of that occurring?

A. I know I discussed his case at various times, I believe I was at a critical incident review but I couldn't say for a hundred percent sure.

Q. What is a critical incident review?

A. Just basically what I described, where everybody comes together and discusses what happened and, you know, the circumstances surrounding it.

Q. Are there, is there documentation created from that incident review?

A. Just a sign-in sheet for who participates in the review.

Q. And you don't know whether or not you participated in this critical incident review?

A. I can't say with certainty.

* * * * *

Q. So you've talked about a psychological autopsy and critical incident review, anything else that was done in the wake of Albert Fabian's death?

A. Not that I recall.

Q. I've seen some reference to a mortality review, was there a mortality review regarding Albert Fabian's death?

A. That would have been, let me think a minute, it's possible there was a mortality review done, but that's a peer review document also.

(Doc. 126, PX 2, Dubber dep., at 76-77, 80.)

Q. On those reviews we talked about earlier, administrative review, mortality review, are you required to sign off on those type of reviews to ensure they have been properly done?

A. I do sign off on the mortality reviews. The psychological autopsies, the person doing the review signs off on that.

Q. What about a critical incident review, anything you sign off on?

A. Just on the attendance sheet.

Q. What about an administrative review?

A. Just on the attendance sheet.

Q. Is there anything different between an administrative review and critical incident review?

A. Administrative review is basically looking from a broader perspective at the jail's policies and procedures, whereas a critical incident review kind of drills down to what specifically happened with that particular situation.

Q. Is there documentation other than those sign-in sheets from either of those?

A. No.

Q. But there is for a mortality review?

A. There's a mortality review worksheet.

(Doc. 126, PX 2, Dubber dep., at 116-117.)

On Dec. 19, 2013, as a result of discussions between the parties concerning outstanding and disputed discovery, the County responded as follows concerning the disputed matter at hand:

Clinical mortality review worksheet, notes re clinical mortality review:

Aside from and without waiving the privilege issues that would pertain to records of this nature: There is no clinical mortality review worksheet per se regarding Albert Fabian's death. The Jail found some notes in Defendant Dubber's hand (redacted copy attached) that Chris says she does not recall making, including whose comments are reflected in her notes.

(Doc. 126, PX 3, at 2.)

The redacted document provided was entitled: "Cuyahoga County Corrections Center Mortality Review Worksheet." (Doc. 126, PX 4.) The attachment consisted of a single-sheet form, which was not filled in (i.e., blank) for the most part. Four sections had been filled in. Under the section "Inmate Name" was written "Fabian, Albert." Three other sections were redacted, as follows:

Were there any opportunities for improvement in the events immediately surrounding the death? [Matter redacted]

Are there opportunities for improvement in the care provided that might have changed the outcome or prevented the death? [Matter redacted]

Are there any opportunities for improvement in the care that was provided to the deceased individual? [Matter redacted]

(Doc. 126, PX 4.) All of the other sections of the form were blank, including the "Comments" section, as well as the "Reviewed by" and "Date" sections. Id.

B. Peer Review Privilege

Privileged matters are protected from discovery. Fed. R. Civ. P. 26(b)(1) and (5). The burden of establishing privilege rests with the party asserting it. See, e.g., In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 294(6th Cir. 2002), cert. dismissed, 539 U.S. 977 (2003); United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999).

The County asserts that "Federal Courts recognize a peer review privilege to protect records of self-critical analysis of medical services in civil rights cases challenging the constitutionality of medical care provided by the government." (Doc. 125, at 6.) Allen, on the other hand, contends that no peer review privilege exists in this federal civil rights case. (Doc. 126, at 4-5.) The burden rests with the County. Columbia/HCA Healthcare, 293 F.3d at 294.

The County urges the court to find support for the peer review privilege in the federal common law, and the fact that the State of Ohio recognizes a statutory peer review privilege. (Doc. 125, at 6.)

Rule 501 of the Federal Rules of Evidence provides, in relevant part:

"Except as otherwise required by the Constitution . . . or provided by Act of Congress or in rules prescribed by the Supreme Court . . . , the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."

Fed. R. Evid. 501; see also University of Pennsylvania v. EEOC, 493 U.S. 182, 188 (1...