Cousino v. Mercy St. Vincent Med. Ctr.

111 N.E.3d 529

2018 Ohio 1550

Kelsie COUSINO, etc., et al., Appellees

v.MERCY ST. VINCENT MEDICAL CENTER, Appellant

No. L–17–1218

Court of Appeals of Ohio, Sixth District, Lucas County.

Decided: April 20, 2018

Chad M. Tuschman and Peter O. DeClark, Toledo, for appellees.

Jean Ann S. Sieler, Kayla L. Henderson and James E. Brazeau, Toledo, for appellant.

DECISION AND JUDGMENT

MAYLE, P.J.

{¶ 1} This case comes before this court as an accelerated appeal. Defendant-appellant Mercy St. Vincent Medical Center appeals the August 17, 2017 judgment of the Lucas County Court of Common Pleas, which granted the plaintiffs' motion to compel, in part, and ordered Mercy St. Vincent to produce "any documents responsive to plaintiffs' request for production Nos. 1, 4, 5, 7, 8, 10, 13, 14, 16, 19, 20, 21, 22, 23, 24, and 25." For the following reasons, we reverse the trial court's order, in part, and remand for further proceedings consistent with this decision.

Background

{¶ 2} On March 3, 2014, plaintiffs-appellees Kelsie Cousino, a minor, by and through her mother and next friend Jackie Cousino, and Kelsie's parents, Andy and Jackie Cousino, filed an action against Mercy St. Vincent, Dr. Fouad Butto, M.D., Catholic Health Partners, ProMedica Health System, Inc., ProMedica Physician Group, Inc., ProMedica Central Physicians LLC, and Toledo Children's Heart Center, alleging that defendants were liable for injuries sustained by Kelsie Cousino when Dr. Butto, a pediatric cardiologist, performed a cardiac catheterization on her at Mercy St. Vincent on November 15, 2012.

The Cousinos eventually settled their medical malpractice claim against Dr. Butto, and dismissed the case.

{¶ 3} A few months later, on August 15, 2016, the Cousinos refiled their action against a single defendant, Mercy St. Vincent, alleging that it negligently credentialed Dr. Butto (first count), that its actions constituted gross negligence and/or willful or wanton misconduct (second count), and that Andy and Jackie Cousino suffered loss of consortium due to their daughter Kelsie's injuries (third count).

{¶ 4} The Cousinos served a first set of requests for production of documents with their complaint. In its written response, Mercy St. Vincent objected to many of the requests on several grounds, including that the requests seek information that is protected by Ohio's peer review privilege ( R.C. 2305.252 and 2305.253 ), the attorney-client privilege, and work product doctrine. On November 7, 2016, plaintiffs filed a motion to compel and for sanctions. Mercy St. Vincent opposed plaintiffs' motion on December 7, 2016, and filed two separate affidavits in support of its privilege claims.

{¶ 5} Mercy St. Vincent submitted an affidavit from Charla Ulrich, Director of Quality and Infection Control at Mercy St. Vincent, in which she provided the following testimony relevant to this appeal:

6. MSVMC¹ has a peer review process which involves several committees that conduct, among other things, credentialing, quality assurance and performance improvement activities for MSVMC. Their activities are confidential.

7. MSVMC has a medical staff peer review committee that consists of actively practicing physicians and their staff which conducts quality assurance and performance improvement activities.

8. MSVMC has a separate credentialing committee and a Medical Executive Committee which conducts credentialing activities of providers.

9. Documents generated by a peer review committee or the credentials committee are placed in each physician's file, kept at the hospital.

10. The credentialing file of Fouad Butto, M.D. consists entirely of documents generated by and created solely for use by the credentials committee, the Medical Executive Committee, and the Board of Directors in their review of his professional qualifications.

11. Depending upon the severity of the injury or potential injury to a patient from care he or she received while at MSVMC, one or more of the committees in MSVMC's peer review process will view any resulting incident report: (a) individually for quality assurance and performance improvement purposes; and/or (b) collectively with other reports prepared over a period of time for purposes of identifying quality and performance trends and issues.* * *

{¶ 6} Mercy St. Vincent also submitted an affidavit from Denise Fowler, its Risk Manager, in which she testified that:

1. Incident reports and ‘liability prevention activities’² are part of the hospital's peer review and quality process improvement and any related records are created for the purpose of quality improvement.

2. Activities and documents related to claims reviews and risk management are undertaken or prepared in anticipation of litigation under the direction of risk management, legal counsel and/or general counsel.

{¶ 7} On August 16, 2017, the trial court entered judgment on plaintiffs' motion to compel.³ The trial court found that Mercy St. Vincent established the existence of a committee that meets the statutory definition of "peer review committee" under R.C. 2305.25(E) and that "any responsive documents within these requests that are created exclusively by and/or for the use of the peer review committees are privileged * * *." The trial court went on to conclude, however, that "defendant may also have responsive documents that originally were either created or used by the hospital for other purposes." That is, while the trial court recognized that Mercy St. Vincent "provided evidence that Dr. Butto's credentialing file consists exclusively of documents created by and solely for the use of the credentials committee, the Medical Executive Committee, and the board of directors, defendant has not presented any evidence that there is not a personnel file or other responsive documents outside of the credentialing file."

{¶ 8} Ultimately, the trial court denied the Cousinos' motion to compel with respect to requests for production Nos. 2, 3, 6, 9, 15, 17, and 18, but granted the motion with respect to requests for production Nos. 1, 4, 5, 7, 8, 10, 13, 14, 16, 19, 20, 21, 22, 23, 24, and 25, finding that Mercy St. Vincent "has not established that the list of documents responsive to these requests contain only documents created exclusively for the use of the peer review committees and not for other purposes within the hospital." The trial court also found that with respect to requests for production Nos. 23 and 24, Mercy St. Vincent failed to meet its burden of showing that the requested information is protected by either the attorney-client privilege or work product doctrine.

{¶ 9} The court then ordered Mercy St. Vincent to produce "any documents responsive to" the following requests within 14 days:

1. The entire personnel file for Fouad Butto, M.D. from Defendant.

4. Any and all documentation regarding any suspension, revocation, or halting of privileges of Fouad Butto, M.D.

5. All documentation regarding the granting or continuing of staff privileges of Fouad Butto, M.D.

7. Any and all information as to why Fouad Butto, M.D. no longer had privileges to perform cardiac catheterizations as of October 2015.

8. Any and all written information as to the suspension of any privileges prior to October 2015 regarding Fouad Butto, M.D.

10. Any and all information provided by ProMedica Toledo Hospital regarding any incidents of misconduct, suspension of privileges, granting of privileges, or the complication rate involving any and all patients of Fouad Butto, M.D. at any time during his employment at ProMedica Toledo Hospital.

13. Any and all correspondence and/or communication between Mercy St. Vincent Medical Center and ProMedica Toledo Hospital in any way discussing Fouad Butto, M.D. and the granting of privileges and/or care and treatment involving patients at ProMedica Toledo Hospital and/or Mercy St. Vincent Medical Center from 2005 through to 2015.

14. A listing of all privileges Fouad Butto, M.D. was able to perform at Mercy St. Vincent Medical Center from 2005 to 2015.

16. A listing of all reprimands and/or loss of privileges of Fouad Butto, M.D. at Defendant, Mercy St. Vincent Medical Center, for any reason, including but not limited to any corrective action taken by Defendant, Mercy St. Vincent Medical Center, against Fouad Butto, M.D. at any time.

19. A listing of all periodic reappraisals for reappointment, clinical privileges or specified services, or the loss thereof involving Fouad Butto, M.D., in any way, at Defendant, Mercy St. Vincent Medical Center, from 2005 to 2015.

20. A listing of all applications for appointment, clinical privileges or specialized services by Fouad Butto, M.D. at Defendant, Mercy St. Vincent Medical Center, from 2005 through to 2015.

21. A listing of all corrective or disciplinary actions taken against Fouad Butto, M.D. by Defendant, Mercy St. Vincent Medical Center, from 2005 through to 2015.

22. A listing of all hearing and/or appellate reviews taken against Fouad Butto, M.D. by Defendant, Mercy St. Vincent Medical Center, from 2005 through to 2015.

23. A listing of all claims reviews of any cases, by and on behalf of Mercy St. Vincent Medical Center, in regard to questionable care and/or treatment by Fouad Butto, M.D. from 2005 through to 2015.

24. A listing of all risk management and/or liability prevention activities taken by Defendant, Mercy St. Vincent Medical Center, against Fouad Butto, M.D. from 2005 through to 2015.

25. A listing of all Defendant Mercy St. Vincent Medical Center, department, section or staff activities related to any monitoring of Fouad Butto, M.D. in regard to maintaining quality and efficient patient care and appropriate professional conduct from 2005 through to 2015.

{¶ 10} Mercy St. Vincent appealed that portion of the trial court's judgment entry that ordered it to produce "any documents" in response to these requests, arguing that the broad order compels production of documents protected by the peer review privilege and attorney-client privilege. It assigns a single...