Stull v. Summa Health Sys.

1

2024-Ohio-5718

Kalvyn Stull, an Incompetent Person, by and through His Guardian of the Estate, Brian Zimmerman, et al., Appellees, v. Summa Health System, et al., Appellants.

No. 2023-0352

Supreme Court of Ohio

December 10, 2024

Submitted November 14, 2023

Appeal from the Court of Appeals for Summit County, No. CA-29969 2022-Ohio-457.

Plakas Mannos, Lee E. Plakas, Megan J. Frantz Oldham, Collin S Wise, and Lauren A. Gribble; and Brian Zimmerman, for appellees.

Roetzel & Andress, L.P.A., Stephen W. Funk, Megan M. Millich, and Lindsay A. Casile, for appellants.

Flowers & Grube, Louis E. Grube, Paul W. Flowers, Kendra Davitt; and the Mellino Law Firm, L.L.C., and Calder Mellino, urging affirmance for amici curiae Ohio Association for Justice and Cleveland Academy of Trial Attorneys.

Schulman, Roth and Associates, Co., L.P.A., and Andrew R. Burton, urging affirmance for amicus curiae Stark County, Ohio Association for Justice.

Bricker Graydon L.L.P., Anne Marie Sferra and Wan Zhang, urging reversal for amici curiae American Medical Association, Ohio Hospital Association, Ohio State Medical Association, and Ohio Osteopathic Association.

Donnelly, J., authored the opinion of the court, which Kennedy, C.J., and Fischer, DeWine, Stewart, Brunner, and Deters, JJ., joined.

Donnelly, J.

{¶ 1} This case centers on a discovery dispute about a hospital's file that contains documents about a resident physician. We are asked to decide whether a "residency file" is protected by the peer-review privilege as a matter of law under R.C. 2305.252. One side claims that the file is protected based on an affidavit stating that the file is used and maintained exclusively by multiple peer-review committees. The other side claims that the file is not protected, because the affidavit contained ambiguities and did not adequately establish that the file was entirely within the scope of peer review.

{¶ 2} We hold that the presence of factual ambiguities in affidavit testimony does not alone determine whether the privilege applies as a matter of law. The Rules of Civil Procedure should be applied to resolve the factual disputes at issue in this controversy. We reverse the judgment of the Ninth District Court of Appeals and remand the cause to the trial court to conduct an in camera review of the residency file and any other appropriate factual inquiry necessary to resolve the legal question of whether the file is privileged.

I. FACTS AND PROCEDURAL HISTORY

{¶ 3} Appellees, Kalvyn Stull, along with his estate, his guardians, and family members^[1] (collectively, "the Stulls") filed a medical-malpractice action against appellants, Summa Health System, its various departments and corporate entities, and health professionals, including resident physician, Dr. Mazen Elashi^[2](collectively, "Summa"). The action arose from Summa's medical treatment of head injuries that Kalvyn suffered during an automobile crash. The Stulls allege that the medical treatment provided by Summa, primarily an improper intubation, deprived Kalvyn Stull of oxygen, causing cardiac arrest and additional, severe brain damage.

{¶ 4} As part of discovery, the Stulls requested Dr. Elashi's "entire resident file, including every evaluation completed for every rotation." Summa objected, contending that "this request seeks information that is privileged by peer review" and further stating that "the entire file is privileged." Later on in the discovery process, the Stulls filed a motion to compel the production of various items, including the "resident file for Dr. Elashi."

{¶ 5} In their motion to compel, the Stulls argued that the peer-review privilege did not apply to the residency file, which the Stulls maintained was different from "any peer review, credentialing, or quality assurance committee files."

{¶ 6} Summa supported its claim of privilege by providing an affidavit from Dr. Erika Laipply, the interim program director of Summa's General Surgery Residency Program. In her affidavit, Dr. Laipply explained:

4. Summa conducts as part of its regular business activities professional credentialing, medical resident evaluations, resident performance reviews and quality review activities involving the competence of, professional conduct of, and quality of care provided by health care providers, including physicians . . . and resident physicians. . . .

6. . . . Summa's Graduate Medical Education Committee ("GMEC") is responsible for oversight of the quality assessment of residents and review of the care provided by residents. GMEC does this through its Medical Education Department ("Med Ed"). Med Ed is comprised of the administrative staff who administer the residency programs as agents of the GMEC. Each residency program has a residency director and faculty members who are physicians with clinical privileges at Summa and who participate in the peer review process of medical care rendered by the residents.

7. Under the umbrella of the GMEC is another group of committees which are directly responsible for the quality review of residents, and which report back to the GMEC. They are called the Clinical Competency Committee(s) ("CCC"), and there is one for each residency program. The CCC for each program is comprised of the specific residency program director, plus members of the faculty of that program. Their responsibility is to periodically gather and analyze any and all data from performance, formal or informal, and quality reviews of the individual residents, and to make recommendations to the program director and the GMEC about quality assurance, the status of the overall program, and the competence of, professional conduct of, or quality of care provided by the individual resident physicians.

8. . . . The residency file contains records of qualitative assessment by faculty members of the medical care rendered by the resident physicians, and the competence of, professional conduct of, and quality of care provided by the residents. Some of the data is general review of skill and quality of care, while sometimes the data pertains to specific patients.

9. Residency Coordinators (the administrative staff) maintain the residency quality files. Access to residency files is strictly limited to only those individuals who participate in the residency review and peer review processes.

10. For the purposes of this affidavit, I am using the term "peer review committee" to mean a committee of Summa (in relation to Summa or its medical staff) either in its entirety or at such times as the committee is engaged in peer review activities.

12. This request seeks information and documentation that directly relates to quality review activities involving the competence of, professional conduct of, or quality of care provided by resident physician Dr. Elashi. Dr. Elashi's residency file is subject to the peer review processes identified above and is contained in the records of the Summa peer review committees as it relates to the competence of, professional conduct of, or quality of care provided by Dr. Elashi.

{¶ 7} The trial court held that Summa had not met its burden of establishing that the peer-review privilege applied to the disputed file. Summit C.P. No. CV-2019-06-2259, 2021 WL 1550519, *3 (Apr. 16, 2021). The trial court indicated that for Summa to meet its burden, Summa had a choice between "'(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.'" Id. at *4, quoting Bansal v. Mt. Carmel Health Sys., Inc., 2009-Ohio-6845, ¶ 14 (10th Dist). The trial court noted that Summa chose the latter option and had not submitted the file for an in camera inspection. Thus, based on the affidavits that Summa submitted, the trial court recognized that "information in the resident file could be protected by the peer review privilege. However, [Summa has] the burden to show the information actually is protected." (Emphasis in original.) Id. It held, "Dr. Laippley's affidavit contains mostly generalities and conclusionary opinions. She does not identify any specific individuals who authored documents contained in Dr. Elashi's file or specifically identify any individuals as being part of a peer review committee." Id. The trial court concluded that the motion to compel should be granted regarding the residency file and ordered Summa to produce the file in its entirety. Id. at *4, 6.

{¶ 8} Summa filed an interlocutory appeal, and the Ninth District Court of Appeals affirmed the trial court's ruling. 2022-Ohio-457 (9th Dist.). Like the trial court, the appellate court stated that in order for Summa to establish that the peer-review privilege attached to the residency file, Summa had the options of "'"(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."'" Id. at ¶ 6, quoting Meade v. Mercy Health-Regional Med. Ctr., L.L.C., 2019-Ohio-438, ¶ 11 (9th Dist.), quoting Bansal at ¶ 14.

{¶ 9} The appellate court held that Dr. Laippley's affidavit was insufficient to establish that the residency file was a record within the scope of a peer-review committee because the affidavit contained ambiguities and incomplete information. 2022-Ohio-457 at ¶ 14 (9th Dist.). For example, the appellate court determined that although the affidavit provided that "residency coordinators" maintain residency files, the affidavit did not explain if those coordinators "are part of the administrative staff of the GMEC, a CCC, or some other aspect...