[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.
Brahm v. DHSC, L.L.C.
Combined Opinion