COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
COUNTY OF CUYAHOGA
NO. 80117
JOCELYN L. JOHNSON, et al. :
:
Plaintiffs-Appellees :
: JOURNAL ENTRY
:
vs. : and
:
UNIVERSITY HOSPITALS : OPINION
OF CLEVELAND :
:
Defendant-Appellant :
DATE OF ANNOUNCEMENT
OF DECISION: March 28, 2002
CHARACTER OF PROCEEDING: Civil appeal from
Common Pleas Court
Case No. CV-420890
JUDGMENT: REVERSED AND REMANDED.
DATE OF JOURNALIZATION: _______________________
APPEARANCES:
For Plaintiffs-Appellees: DAVID J. GUIDUBALDI, ESQ.
CATHLEEN M. BOLEK, ESQ.
Sindell, Young & Guidubaldi
55 Public Square, Suite 1020
Cleveland, Ohio 44113-1792
For Defendant-Appellant: VICTORIA L. VANCE, ESQ.
JEFFREY M. WHITESELL, ESQ.
IRENE C. KEYSE-WALKER, ESQ.
Arter & Hadden, LLP
925 Euclid Avenue
Cleveland, Ohio 44115-1475
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COLLEEN CONWAY COONEY, J.:
Defendant-appellant University Hospitals of Cleveland (UH)
appeals the trial court's order compelling it to disclose the
hospital incident reports regarding the instant matter. For the
reasons below, the trial court's decision is reversed and remanded.
Plaintiff-appellee Jocelyn Johnson, individually and as the
administratrix of the estate of Floryne Johnson, commenced this
action by filing a medical malpractice complaint against UH.
On October 12, 2000, Johnson requested that UH produce
incident reports which pertain to Johnson's claims, among other
discovery requests. UH was granted leave to respond to Johnson's
discovery requests.
On January 9, 2001, UH responded by objecting to the request
because the request sought *** privileged communications and
writings ***. Johnson filed a motion to compel discovery but did
not specifically mention the incident reports in its motion. The
trial court granted Johnson's motion to compel on March 7, 2001.
The next day, UH filed its brief in opposition to Johnson's motion,
arguing that Johnson's requests seek information that is clearly
privileged by Ohio's statutes on peer review and quality
assurance.
On March 12, 2001, the trial court again granted Johnson's
motion to compel and required compliance by March 23, 2001.
On March 23, 2001, UH filed a motion for leave to comply with
the court orders. The trial court denied the request.
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Discovery disputes continued throughout the course of this
action. In July 2001, Johnson moved for an order scheduling
discovery depositions and other discovery matters. On July 31,
2001, the trial court ordered UH to immediately produce all
documents requested in Plaintiff's Requests for Production of
Documents.
On August 9, 2001, after a pretrial was held, the trial court
ordered UH to produce the incident reports by August 16, 2001. The
court's order, however, permitted UH to file a motion for
protective order. UH timely filed a motion for protective order
regarding the incident reports. On August 17, 2001, the trial
court denied the motion and ordered UH to produce the incident
reports by the end of the day.
UH immediately filed an appeal of this order and sought a stay
pending appeal. It also filed a motion for Civ.R. 54(B)
certification which the trial court denied, stating:
This court having been notified that
defendant University Hospitals of Cleveland
filed a notice of appeal on August 17, 2001
regarding this court's denial of a motion for
protective order. Although this is not a
final appealable order, it is within the Court
of Appeals province to either grant a pending
motion to dismiss or exercise its jurisdiction
over said appeal. At this time, the 8th
District Court of Appeals has not rendered a
ruling. Motion for stay of court order to
produce incident reports filed August 20, 2001
is granted. On court's own motion, case
stayed pending Appellate Court ruling. Upon
8th District ruling, case to return to active
docket. Final.
UH raises the following issue on appeal:
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I. THE TRIAL COURT ERRED IN ORDERING THAT UNIVERSITY
HOSPITALS OF CLEVELAND'S INCIDENT REPORT,
CONTAINING CONFIDENTIAL AND PRIVILEGED MATERIALS,
BE PRODUCED.
Before we address the merits of this appeal, we must determine
whether the trial court's order denying the motion for protective
order is a final appealable order.
UH argues that it may appeal from the trial court's order
denying its motion for protective order because the journal entry
is final under R.C. 2505.02.
R.C. 2505.02, in pertinent part, provides:
(A) *** (3) "Provisional remedy" means a
proceeding ancillary to an action, including,
but not limited to, a proceeding for a
preliminary injunction, attachment, discovery
of privileged matter, or suppression of
evidence.
***
(B) An order is a final order that may be
reviewed, affirmed, modified, or reversed,
with or without retrial, when it is one of the
following:
***
(4) An order that grants or denies a
provisional remedy and to which both of the
following apply:
(a) The order in effect determines the action
with respect to the provisional remedy
prevents a judgment in the action in favor of
the appealing party with respect to the
provisional remedy.
(b) The appealing party would not be afforded
a meaningful or effective remedy by an appeal
following final judgment as to all
proceedings, issues, claims, and parties in
the action.
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In determining whether the order was final, we partially adopt
the analysis set forth in Chambers v. Chambers (2000), 137 Ohio
App. 3d 355; 738 N.E.2d 834.
First, we must determine whether the trial court's August 17,
2001 order granted or denied a provisional remedy. R.C. 2505.02
(B)(4). The discovery of privileged information is a provisional
remedy under R.C. 2505.02(A)(3). Here, Johnson requested incident
reports which UH argues were prepared for quality assurance
purposes and for review by its risk management committee and
counsel. Records which contain quality assurance materials are
confidential and privileged pursuant to R.C. 2305.24, R.C. 2305.25,
R.C. 2305.251. Thus, the court's order granted a provisional
remedy under R.C. 2505.02(A)(3).
Next, we must determine whether the disclosure of the incident
reports would conclusively determine the action with regard to the
materials. R.C. 2505.02(B)(4)(a). Obviously, once the information
is disseminated to Johnson, it is no longer confidential. Thus, UH
would be prevented from a judgment in its favor regarding the
provisional remedy at the close of trial. See R.C. 2505.02
(B)(4)(a). Therefore, the trial court's order meets the finality
requirement set forth in R.C. 2505.02(B)(4)(a).
Finally, we must determine whether UH can have a meaningful
remedy by way of appeal following final judgment on all issues,
claims, and parties. R.C. 2505.02(B)(4)(b). If UH is required to
disclose the privileged information, no meaningful or effective
remedy exists because once the information has been disclosed,
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there is no way to undo the damage. Thus, UH has met the
requirement set forth in R.C. 2505.02(B)(4)(b) because it would be
denied a meaningful remedy should it be required, after forced
disclosure, to wait until the ongoing underlying proceeding finally
was resolved. Conforte v. LaSalla (Nov. 1, 2001), Cuyahoga App.
No. 79358, unreported.
At this point, our analysis mirrors the analysis set forth in
Chambers. InChambers the trial court also ordered the disclosure
of privileged documents. However, despite finding that each
requirement of R.C. 2505.02 was met, Chambers dismissed the appeal
because it determined that [c]ompliance with both [R.C. 2505.02
and Civ.R. 54(B)] is necessary before a reviewing court has
jurisdiction to consider an appeal. Denham v. New Carlisle (1999),
86 Ohio St.3d 594, 716 N.E.2d 184. We find that Chambers added
an unnecessary requirement to its analysis, and dismissed the
appeal when it found that the trial court's order failed to meet
the second unnecessary element.
The quote from Denham, on which Chambers relied, states that
[a]n order of a court is final and appealable only if it meets the
requirements of both Civ.R. 54(B) and R.C. 2505.02. Chef Italiano
Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 88, 541 N.E.2d
64, 67.
In quoting Chef Italiano, Denham omits a critical portion of
the sentence on which it relies. The proposition of law set forth
in Chef Italiano actually states as follows:
An order of a court is a final, appealable
order only if the requirements of both Civ. R.
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54(B), if applicable, and R.C. 2505.02 are
met. Id. at 88. (Emphasis added.)
Thus, both R.C. 2505.02 and Civ.R. 54(B) need be met only when
Civ.R. 54(B) is applicable. See Conforte v. LaSalla (Nov. 1,
2001), Cuyahoga App. No. 79358, unreported (the finality of the
court's order was reviewed by this court without reference to Civ.
R. 54(B) because Civ.R. 54(B) did not apply when a non-party
appealed a court order requiring disclosure of privileged
documents.)
Here, Civ.R. 54(B) does not apply.
Civ.R. 54(B) provides:
Judgment upon multiple claims or involving
multiple parties. When more than one claim
for relief is presented in an action whether
as a claim, counterclaim, cross-claim, or
third-party claim, and whether arising out of
the same or separate transactions, or when
multiple parties are involved, the court may
enter final judgment as to one or more but
fewer than all of the claims or parties only
upon an express determination that there is no
just reason for delay. In the absence of a
determinationthat there is no just reason for
delay, any order or other form of decision,
however designated, which adjudicates fewer
than all the claims or the rights and
liabilities of fewer than all the parties,
shall not terminate the action as to any of
the claims or parties, and the order or other
form of decision is subject to revision at any
time before the entry of judgment adjudicating
all the claims and the rights and liabilities
of all the parties.
Civ.R. 54(B) does not apply to the instant situation because
no final judgment was entered as to any party or claim. See Owens
Flooring Co. v. Hummel Construction Co. (2000), 140 Ohio App.3d
825, 828. Therefore, because the order meets all of the
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requirements of R.C. 2505.02, we conclude that the order appealed
from in this case is a final appealable order.
Having determined that the trial court's order is final and
subject to appeal, we next determine whether the trial court erred
in compelling UH to disclose the incident reports.
R.C. 2305.24 provides, in pertinent part, that:
Any information, data, reports, or records
made available to a quality assurance
committee *** shall be confidential and shall
be used by the committee and the committee
members only in the exercise of the proper
functions of the committee. ***.
And, R.C. 2305.251, provides that:
Proceedings and records of all review
committees described in section 2305.25 of the
Revised Code shall be held in confidence and
shall not be subject to discovery or
introduction in evidence in any civil action
against a health care professional, [or] a
hospital *** arising out of matters that are
the subject of evaluation and review by the
committee.
The review committees described in R.C. 2305.25 include
quality assurance committees. R.C. 2305.25.
The privilege granted by R.C. 2305.24, 2305.25, and 2305.251
is not absolute. R.C. 2305.251 creates a major exception1 to the
privilege by stating that:
Information, documents, or records otherwise
available from original sources are not to be
construed as being unavailable for discovery
or for use in any civil action merely because
they were presented during proceedings of a
committee ***.
1In re Grandview Hospital (1990), 51 Ohio St.3d 94.
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In support of its contention that the incident reports are not
subject to discovery pursuant to R.C. 2305.24, 2305.25, and
2305.251, UH relies upon its Administrative Policy and Procedure
Manual II ( policy manual ). The policy manual states that
incident reports are: prepared for the risk management department
to identify opportunities for quality improvement, protected from
disclosure because the attorney-client privilege applies, and
confidential pursuant to R.C. 2305.251.
The policy manual also states that although incident reports
are not a part of a patient's medical record, the events of the
incident are documented in the patient's medical record.
Here, Johnson claims that UH failed to describe the events of
the incident in Floryne Johnson's medical record.
Nonetheless, [t]he mere fact that hospital incident report
contained information relating to patient's treatment and care that
should have been included in patient's medical records did not
prevent report from qualifying for protection under attorney-client
and peer review privileges. Tyes v. St. Luke's Hospital (Dec. 2,
1993), Cuyahoga App. No. 65394, unreported, citing, Ware v. Miami
Valley Hospital (1992), 78 Ohio App.3d 314, 604 N.E.2d 791.
However, Johnson's request does not concern the treatment and
care of Floryne Johnson, but the facts of the incident which led to
Floryne's death. The attorney-client privilege does not prevent
disclosure by employees of underlying facts. Tyes, citing, Upjohn
Co. v. United States (1981), 449 U.S. 383, 101 S.Ct. 677.
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Furthermore, UH cannot assert that it followed the policy
manual when it created the incident reports and thereby invoke the
cloak of privilege created by R.C 2305.24, 2305.25 and 2305.251,
but ignore its obligation under that same policy manual to describe
the events of the incident in the patient's medical record.
The trial court should have determined whether the events of
the incident were properly described in the medical record. Had it
determined that the events were not included in the medical record,
then only the portion of the incident report describing the events
would have been subject to disclosure, not the entire document.
As stated in Gates v. Brewer (1981), 2 Ohio App.3d 347, at
syllabus, 442 N.E.2d 72:
When a trial court is presented with a
situation in which *** a party attempts to
prevent the introduction of certain evidence
by asserting the privilege defined in R.C.
2305.251, it is incumbent upon the trial court
to hold an in camera inspection of the
information, documents or records in
question.
Applying the privileges set forth in R.C. 2305.24, 2305.25 and
R.C. 2305.251 to actual documents is a difficult task. See In re
Grandview Hospital (1990), 51 Ohio St.3d 94, 96. An in camera
inspection allows the trial court to make an informed decision as
to the admissibility of the evidence in relation to these statutory
privileges. See Gates at 351.
Here, the trial court erred by compelling the disclosure of
the incident reports in toto without conducting an in camera
inspection of the records. Thus, we reverse the trial court's
decision and remand to the trial court for an in camera comparison
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of the incident reports and medical record to determine whether the
events of the incident were properly explained in the medical
record. See Id.; see also, In re Grandview Hospital (1990), 51
Ohio St.3d 94; Winters v. Lutheran Medical Ctr. (1989), 43 Ohio
App.3d 119. If they were not, limited disclosure of the incident
report may be appropriate.
Accordingly, we find that the sole assignment of error has
merit.
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This cause is reversed and remanded to the lower court for
further proceedings consistent with this opinion.
It is, therefore, considered that said appellant recover of
said appellee its costs herein.
It is ordered that a special mandate be sent to the Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
ANNE L. KILBANE, P.J. and
ANN DYKE, J. CONCUR
JUDGE
COLLEEN CONWAY COONEY
N.B. This entry is an announcement of the court's decision. See
App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will
be journalized and will become the judgment and order of the court
pursuant to App.R. 22(E) unless a motion for reconsideration with
supporting brief, per App.R. 26(A), is filed within ten (10) days
of the announcement of the court's decision. The time period for
review by the Supreme Court of Ohio shall begin to run upon the
journalization of this court's announcement of decision by the
clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section
2(A)(1).
.