Brahm v. DHSC, L.L.C.

[Cite as Brahm v. DHSC, L.L.C., 2016-Ohio-1206.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
JAMES E. BRAHM, INDIVIDUALLY : Hon. Sheila G. Farmer, P.J.
AND AS EXECUTOR OF THE : Hon. W. Scott Gwin, J.
ESTATE OF MARY KATHLEEN : Hon. Patricia A. Delaney, J.
BRAHM :
:
Plaintiff-Appellee : Case No. 2015CA00172
:
-vs- :
: OPINION
DHSC, LLC, DBA AFFINITY
MEDICAL CENTER, ET AL

Defendant-Appellant

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case No. 2014CV01545

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: March 21, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

STEPHEN P. GRIFFIN STEPHEN E. MATASICH
MICHAEL J. KAHLENBERG Day Ketterer Ltd.
825 S. Main St. Millennium Centre – Suite 300
North Canton, OH 44720 200 Market Avenue
Box 24213
Canton, OH 44702
Stark County, Case No. 2015CA00172 2

Gwin, J.

{¶1} Appellant Mercy Medical Center [“Mercy”] appeals the August 28, 2015

Judgment Entry of the Stark County Court of Common Pleas ordering the production of

documents for an in camera inspection by the trial court to determine whether the

documents are privileged or discoverable in whole or in part by the appellee, James E.

Brahm, Individually and as Executor of the Estate of Mary Kathleen Brahm, Deceased.

[“Brahm”].

Facts and Procedural History

{¶2} Mary Kathleen Brahm was a 72-year old woman when she was transported

by EMS to Affinity Medical Center's emergency department on July 11, 2013. Mrs. Brahm

was diagnosed with a STEMI—a ST segment elevation myocardial infarction. This is a

cardiac emergency that requires immediate intervention. Therefore, the Cardiac

Catheterization Department was called in emergently to provide care and Mrs. Brahm was

brought to the catheterization lab.

{¶3} Co-Defendant-Appellant Joseph Surmitis, M.D. was the interventional

cardiologist on call and was paged to perform the heart catheterization. During the

procedure, Dr. Surmitis identified a complete occlusion of Mrs. Brahm's right coronary

artery. He passed a wire through the occlusion, used a balloon to dilate the right coronary

artery to eliminate the blockage and then placed a stent at the location of the prior

occlusion. A second balloon was used to improve the performance of the stent.

{¶4} Following the deflation and removal of that balloon, Dr. Surmitis noted a

perforation in the right coronary artery. He acted to stop the bleeding from this perforation
Stark County, Case No. 2015CA00172 3

and to address secondary complications caused by that blood leaking into the pericardium,

which was compromising the function of the heart.

{¶5} Dr. Surmitis also paged the on-call cardiovascular surgeon Dr. Tawil to

perform a procedure to repair the perforated vessel. Although Dr. Tawil was able to repair

the vessel during his procedure, Mrs. Brahm passed away on July 12, 2013.

{¶6} Appellee Brahm commenced this medical negligence action on June 30,

2014 against DHSC, LLC, DBA, Affinity Medical Center, Dr. Joseph Surmitis, and others,

seeking damages for injuries to, and the death of, his decedent, Mary Kathleen Brahm,

allegedly caused by negligent medical care.

{¶7} Mercy is not a party to the underlying litigation and the decedent was not

a patient at Mercy for any reason pertinent to the underlying case. On December 17, 2014,

Brahm filed an Amended Complaint, adding claims for negligent credentialing and agency

by estoppel against co-appellant Affinity. Apparently in furtherance of the negligent

credentialing claim, Brahm served the subpoena upon Mercy requesting, among other items,

complication rates, including morbidity/mortality rates' for coronary procedures performed by

Dr. Surmitis at Mercy.

{¶8} According to Affinity's nurse manager and coordinator of its catheterization

lab, Affinity's protocols and procedures for the lab include and adopt the American College

of Cardiology/Society for Cardiovascular Angiography and Interventions Expert

Consensus Document of Cardiac Catheterization Laboratory Standards ["ACC

Guidelines"]. The ACC Guidelines are a comprehensive statement of safe practices and

minimum statistical requirements for facilities that maintain cardiac catheterization labs.

Among others, it provides:
Stark County, Case No. 2015CA00172 4

1. The annual minimum operator interventional procedural

volume of 75 cases per year has become an acceptable standard.

2. At present, with overall in-hospital mortality averaging 2% and

rates of emergent CABG averaging <1%, a composite major complication

rate of <3% is to be expected.

{¶9} Because Affinity had adopted and incorporated the ACC Guidelines within

its own policies and protocols for the catheterization lab, Brahm sought discovery of the

statistical benchmarks to which the ACC and Affinity subscribe for its practitioners within

the lab. Specifically, Brahm directed written discovery to Affinity and Dr. Surmitis seeking

to learn:

1. Major In-Hospital Complication Rates, including

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for diagnostic procedures performed at Defendant's

Catheterization Lab, by percentage relative to myocardial infarction.

2. Major In-Hospital Complication Rates, including

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for interventional/therapeutic procedures performed at

Defendant’s Catheterization Lab, by percentage relative to myocardial

infarction.

3. Major In-Hospital Complication Rates, including

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for diagnostic procedures performed by Joseph M. Surmitis,
Stark County, Case No. 2015CA00172 5

M.D. at Defendant's Catheterization Lab, by percentage relative to

myocardial infarction.

4. Major In-Hospital Complication Rates, including

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for interventional/therapeutic procedures performed by

Joseph Surmitis, M.D. at Defendant's Catheterization Lab, by percentage

relative to myocardial infarction.

5. The number of contemporary percutaneous coronary

interventions for diagnostic procedures performed by Joseph M. Surmitis,

M.D. at Defendant's Catheterization Lab for each referenced calendar year.

6. The number of contemporary percutaneous coronary

interventions for interventional/therapeutic procedures performed by

Joseph M. Surmitis, M.D. at Defendant's Catheterization Lab for each

referenced calendar year.

{¶10} Furthermore, because Dr. Surmitis practiced interventional cardiology at

both Aultman Hospital and Mercy Medical Center, Plaintiff also issued subpoenas to those

non-party institutions seeking to learn:

1. Major In-Hospital Complication Rates, including

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for diagnostic procedures performed by Joseph M. Surmitis,

M.D. at Mercy/Aultman’s Main Campus Facility Catheterization Lab, by

percentage relative to myocardial infarction.
Stark County, Case No. 2015CA00172 6

2. Major In-Hospital Complication Rates, including

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for interventional/therapeutic procedures performed by

Joseph Surmitis, M.D. at Mercy/Aultman's Main Campus Facility

Catheterization Lab, by percentage relative to myocardial infarction.

3. The number of contemporary percutaneous coronary

interventions for diagnostic procedures performed by Joseph M. Surmitis,

M.D. at Mercy/Aultman's Main Campus Facility Catheterization Lab from

January 1, 2010 to the present.

4. The number of contemporary percutaneous coronary

interventions for interventional/therapeutic procedures performed by

Joseph M. Surmitis, M.D. at Mercy/Aultman's Main Campus Facility

Catheterization Lab from January 1, 2010 to the present.

{¶11} Evidence was discovered by Brahm that Affinity’s catheterization lab

recorded and maintained statistics relative to procedural volume and outcome within the

lab and that this information was provided to a number of entities, including the American

College of Cardiology "Cath PCI data registry.” Because these statistics were provided to

the ACC, Brahm issued a subpoena to ACC to confirm whatever information was provided to

it by Affinity, Mercy, or Aultman.

{¶12} Mercy did not claim privilege as to items 3 and 4 of the subpoena and has

produced such information to Brahm. Mercy did claim privilege as to items 1 and 2 claiming

those items request privileged peer review information barred from disclosure by R.C.
Stark County, Case No. 2015CA00172 7

2305.252. On May 20, 2015, Mercy filed its Motion of Non-Party Mercy Medical Center for

Protective Order and/or to Quash Subpoena.

{¶13} After extensive briefing on the issues of Peer Review, Quality Assurance

and privilege, on August 28, 2015, the Trial Court ordered that: (1) the number of

diagnostic and therapeutic procedures performed by Dr. Surmitis at the various facilities

be produced to Brahm; and (2) the documents reflecting all complication rates for the cath

lab, including morbidity/mortality rates, be produced to the Trial Court for an in-camera

review. Specifically the trial court ordered,

The Health Care Entities to produce the disputed material for in

camera review. At this juncture, it must be determined whether the records

consist of material addressing the specific care or treatment rendered to

particular patients or whether they are merely summaries of the patients

that were discussed without addressing the care and treatment rendered to

particular patients.

Judgment Entry, filed Aug. 28, 2015 at 9. In arriving at this conclusion, the trial court

noted,

In the case at bar, it is not clear on the face of the disputed discovery

requests that all of the documents requested by Plaintiffs are subject to the

peer review privilege. Therefore, defendants have the burden of proving

that the requested documents were privileged. An in camera inspection is

the best way for the Court to decide whether the privilege applies and to

protect the record for review.

Id. at 7.
Stark County, Case No. 2015CA00172 8

{¶14} Mercy filed its appeal herein on September 18, 2015, from the portion of

the August 28, 2015 Order as it pertains to the production of alleged privileged and

protected documents for an in-camera inspection.1

Assignment of Error

{¶15} Mercy raises one assignment of error,

{¶16} “I. The Trial Court Erred By Issuing A Discovery Order Directing Mercy

Medical Center To Produce Privileged, Peer Review Information For An In Camera

Inspection Contrary To O.R.C. §2305.252.”

Analysis

Jurisdiction of the Court of Appeals

{¶17} In the case at bar, we must address the threshold issue of whether the

judgment appealed is a final, appealable order. Appellee filed a motion to dismiss on

October 8, 2015 raising an issue that the appeal herein is not from a final appealable order.

Appellee again raises the issue in its merit brief filed December 9, 2015.

{¶18} Even if a party does not raise the issue, this court must address, sua sponte,

whether there is a final appealable order ripe for review. State ex rel. White vs. Cuyahoga

Metro. Hous. Aut., 79 Ohio St.3d 543, 544, 1997-Ohio-366, 684 N.E.2d 72.

{¶19} Appellate courts have jurisdiction to review the final orders or judgments of

lower courts within their appellate districts. Section 3(B) (2), Article IV, Ohio Constitution.

1 Each of the medical entities have appealed the August 28, 2015 Judgment Entry ordering the production
of documents for an in camera inspection by the trial court to determine whether the documents are
privileged or discoverable in whole or in part by Brahm. See, Brahm v. DHSC, LLC, dba Affinity Medical
Center, et al. 5th Dist. No. 2015CA00165 [Aultman Hospital]; Brahm v. DHSC, LLC, dba Affinity Medical
Center, et al. 5th Dist. No. 2015CA00171 [Affinity Medical Center]; Brahm v. DHSC, LLC, dba Affinity
Medical Center, et al. 5th Dist. No. 2015CA00179 [American College of Cardiology].
Stark County, Case No. 2015CA00172 9

If a lower court's order is not final, then an appellate court does not have jurisdiction to

review the matter and the matter must be dismissed. General Acc. Ins. Co. vs. Insurance

of North America, 44 Ohio St.3d 17, 20, 540 N.E.2d 266(1989); Harris v. Conrad, 12th

Dist. No. CA-2001-12 108, 2002-Ohio-3885. For a judgment to be final and appealable, it

must satisfy the requirements of R.C. 2505.02 and if applicable, Civ. R. 54(B). Denham

v. New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d 184 (1999); Ferraro v. B.F. Goodrich

Co., 149 Ohio App.3d 301, 2002-Ohio-4398, 777 N.E.2d 282. If an order is not final and

appealable, an appellate court has no jurisdiction to review the matter and it must be

dismissed.

{¶20} A proceeding for “discovery of privileged matter” is a “provisional remedy”

within the meaning of R.C. 2505.02(A)(3). Smith v. Chen, 142 Ohio St.3d 411, 2015-

Ohio-1480, 31 N.E.3d 633. An order granting or denying a provisional remedy is

final and appealable only if it has the effect of “determining the action with respect to the

provisional remedy and preventing a judgment in the action in favor of the appealing party

with respect to the provisional remedy” and “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.” Chen, ¶5; R.C. 2505.02(B)(4).

The burden “falls on the party who knocks on the courthouse doors asking for interlocutory

relief.” Chen, ¶8. As specifically noted by the Ohio Supreme Court, “an order must meet

the requirements in both subsections of the provisional-remedy section of the definition

of final, appealable order in order to maintain an appeal.” Chen, ¶5.

{¶21} If the party seeking to appeal fails to establish why an immediate appeal

is necessary, the court must presume an appeal in the ordinary course would be
Stark County, Case No. 2015CA00172 10

meaningful and effective. Chen, ¶8. However, “an order compelling disclosure of

privileged material that would truly render a post judgment appeal meaningless or

ineffective may still be considered on an immediate appeal.” Id.

{¶22} In this case, appellant argues there is a final appealable order under R.C.

2505.02(A)(3) and (B)(4)(b) because it requires the discovery of privileged matter, and

thereby grants a provisional remedy for which there would be no meaningful effective

remedy on subsequent appeal. Appellant maintains the trial court abused its discretion in

denying their request for a protective order and motion to quash, and in ordering the

production of what appellant believes qualify as peer review and quality assurance records

for an in-camera inspection. Appellant alleges that because the order encompasses what

it alleges are peer review records, it is a final, appealable order pursuant to R.C. 2305.252.

R.C. 2305.252 states that “* * *An order by a court to produce for discovery or for use at

trial the proceedings or records described in this section [i.e. peer review records] is a final

order.” Appellee argues that a trial court's order for an in camera inspection of certain

documents, rather than an order to provide documents to the adverse party, is a non-final

order. We agree with the appellee.

{¶23} Appellant cites Huntsman v. Aultman Hospital, 160 Ohio App.3d 196, 2005-

Ohio-1482, 826 N.E.2d 384[“Huntsman I”] for the proposition that an in camera review is

not permitted,2

Further, in this particular situation, the change to the statute is clearly

procedural. The change in the statute that is relevant in this case pertains

to the Ohio legislature’s apparent decision to foreclose a party from

2 Brief of Appellant Mercy Medical Center, filed Oct. 30, 2015 at 11-13.
Stark County, Case No. 2015CA00172 11

obtaining any information, documents, or records from the peer review

committee’s records. Previously, courts had interpreted the prior version of

the statute (R.C. 2305.251) to allow a trial court to conduct an in camera

review of the peer review committee’s records to determine whether the

privilege applied to individual documents. If the record was available from

its origin source, it was not privileged and could be obtained from the peer

review committee’s records. See, e.g., Doe v. Mount Carmel Health

Systems, Franklin App. No. 03AP–413, 2004-Ohio-1407, 2004 WL 557333.

The current version of the statute makes it clear that there is no need for an

in camera inspection because no documents can be obtained from the peer

review committee records, only from the records of the original source of

the information. We view this relevant revision to be a clarification of the

statute’s intent. Since this change affects only how information is to be

obtained, we find the change to be procedural.

Huntsman I, 160 Ohio App.3d at 200-201, 2005-Ohio-1482, 826 N.E.2d 384, ¶20.

[Emphasis added]. [Appellant’s Brief at 11-13]. However, Huntsman I stands for the

proposition that the statute prevents a court from requiring a facility to provide a list of

documents that could be found from other, original sources, utilizing a peer review

committee document to do so. In other words, a facility cannot be forced to divulge the

information contained in a peer review committee file. Large v. Heartland-Lansing of

Bridgeport Ohio, LLC, 7th Dist. Belmont No. 12 BE 7, 2013-Ohio-2877, 995 N.E.2d 872,

¶43.
Stark County, Case No. 2015CA00172 12

{¶24} Huntsman I is factually distinguishable from the instant case. In Huntsman

I, the plaintiff sought documents that were contained in the hospital’s credentialing and

peer-review files, whereas here, the trial court found that it could not determine from the

face of the disputed discovery requests that all of the documents requested by Brahm are

subject to the peer review privilege. See, also, Manley v. Heather Hill, Inc., 175 Ohio

App.3d 155, 2007-Ohio-6944, 885 N.E.2d 971(11th Dist.), ¶34. We find that whether or

not the requested records fall within the purview of the peer review privilege is a decision

best determined by an in camera review of the documents the appellee is requesting and

over which appellant is asserting privilege. Bailey v. Manor Care of Mayfield Hts., 8th Dist.

No. 99798, 2013-Ohio-4927, 4 N.E.3d 1071, ¶37.

{¶25} As this Court has noted,

Nothing in R.C. 2305.252 sets forth a right to privacy. Furthermore, the

protection of the free flow of information into a peer review process will not be

compromised by an in camera review. A private review, prior to any order for

the production of documents to an adverse party, by a competent judge who

is sworn to maintain confidentiality does not compromise the free flow of

information that the privilege is meant to protect.

Huntsman v. Aultman Hospital, 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, ¶88.

[“Huntsman II”] In Huntsman II, this Court further noted,

The documents subject to the court's order in the case sub judice are

not as homogeneous in nature. In other words, the trial court in the case sub

judice could issue different rulings regarding the peer review privilege as to

each document presented.
Stark County, Case No. 2015CA00172 13

5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, ¶89. This Court concluded, that the trial

court’s order requiring various insurance companies, the Bureau of Workers' Compensation,

Medicare, Medicaid, Aultcare HMO, and others to produce documents to the trial court for an

in camera inspection, is not a final, appealable order. Id. at ¶90.

{¶26} Despite appellant’s contention, the trial court’s judgment entry does not order

the release of any documents; rather the trial court itself will review the documents. The issue

of whether or not any document is discoverable has not yet been determined by the trial court.

The trial court’s order does not appear to exclude the possibility that the trial court will review

the documents to determine whether each is protected by the peer review privilege in R.C.

2305.252. The trial court has retained jurisdiction to make further determinations regarding

the discoverability of the requested materials. Huntsman II at ¶81.

{¶27} In the case at bar, we find that the trial court’s entry ordering an in-camera

inspection of the documents is not a final appealable order.

{¶28} Because there is no final appealable order, this court does not have

jurisdiction to entertain appellant's appeal.
Stark County, Case No. 2015CA00172 14

{¶29} For the foregoing reasons, appellant Mercy Medical Center’s appeal of the

August 28, 2015 Judgment Entry of the Stark County Court of Common Pleas, Stark

County, Ohio, is hereby dismissed.

{¶30} IT IS SO ORDERED.

By Gwin, J., and

Delaney, J. concur;

Farmer, P.J., dissents
Stark County, Case No. 2015CA00172 15

Farmer, P.J., dissents

{¶31} I respectfully dissent from the majority opinion that the discovery order sub

judice is not a final appealable order.

{¶32} I acknowledge in Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-148,

Justice O'Neill refined our scope of final appealable orders. Under R.C. 2305.252 and its

specific language, "[p]roceedings and 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***."

{¶33} As we addressed in Huntsman I, a parallel situation, even an in camera

review is violative of the statute. Huntsman I, 160 Ohio App.3d 196, 2005-Ohio-1482, at

¶ 20. I find the majority's reliance on Huntsman II, 5th Dist. Stark No. 2006 CA 00331,

2008-Ohio-2554, to be misplaced. Huntsman II involved information and sources

independent of the records and proceedings of the peer review committee. The statute

specifically permits discovery of information, documents, or records obtainable from

original sources. The matters sought to be discovered in Huntsman II were records from

insurance companies and other original sources.

{¶34} Because the trial court's order for in camera review is per se violative of the

plain meaning of the statute, I would find the matter is a final appealable order as it

resolves the issue and breaches the statutory confidentiality of records.