{¶ 57} I agree with the majority that current R.C. 2305.252 acts to prohibit the discovery of any documentation from a hospital to the extent it was used in the peer review process. However, because I believe that the statute sets forth a procedural rather than substantive right, I would hold the statute to apply retroactively.
{¶ 58} Current R.C. 2305.252 provides:
{¶ 59} "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 produced or presented during proceedings of a peer review committee, but the information, documents, orrecords are available only from the original sources and cannotbe obtained from the peer review committee's proceedings orrecords." (Emphasis added.)
{¶ 60} The statute manifests the legislature's clear intent to provide a complete shield to the discovery of any information used in the course of a peer review committee's proceedings. The language of the statute demonstrates that a party interested in obtaining information used by a peer review committee generated from another original source must seek such information from that source and not from the records of the committee's proceedings.
{¶ 61} Retroactive application of a statute is generally impermissible absent an express provision in the statute indicating the statute shall so apply. R.C. 1.48. Curry v.Curry (Sept. 26, 2001), 4th Dist. No. 01CA10, 2001-Ohio-2601,2001 WL 1287163, *2. However, the Supreme Court of Ohio has delineated an exception to this general rule: "In construing R.C.1.48, * * * this court has consistently held *Page 196 that the application of a statute, which affects procedural rather than substantive rights, to causes arising prior to the statute's effective date but tried thereafter is not an impermissible retroactive application." Viers v. Dunlap (1982),1 Ohio St.3d 173, 174, 1 OBR 203, 438 N.E.2d 881 (overruled on other grounds in Wilfong v. Batdorf (1983), 6 Ohio St.3d 100,6 OBR 162, 451 N.E.2d 1185), discussing Denicola v. ProvidenceHosp. (1979), 57 Ohio St.2d 115, 11 O.O.3d 290, 387 N.E.2d 231, and Kilbreath v. Rudy (1968), 16 Ohio St.2d 70, 45 O.O.2d 370,242 N.E.2d 658.
{¶ 62} While there is no simple way by which a court might distinguish substantive law from procedural law, authorities agree that "substantive law is that which creates duties, rights, and obligations, while procedural or remedial law prescribes methods of enforcement of rights or obtaining redress." State exrel. Holdridge v. Indus. Comm. (1967), 11 Ohio St.2d 175, 178,40 O.O.2d 162, 228 N.E.2d 621. Thus, when a court determines that a statute read in terms of its revision is procedural, it may apply retroactively to causes arising prior to its effective date but tried thereafter. Viers, supra.
{¶ 63} I believe that the revisions in the statute are procedural and thus may be properly applied retroactively. In arriving at this conclusion, I would adopt the Fifth Appellate District's holding in Huntsman v. Aultman Hosp.,160 Ohio App.3d 196, 2005-Ohio-1482, 826 N.E.2d 384. In Huntsman, the court noted that the statute does not impair the substantive law or the substantive right of a plaintiff to bring a cause of action, but only limits the admissibility of some evidence.21 Further, the court held:
{¶ 64} "The change in the statute that which is relevant to this case pertains to the Ohio Legislature's apparent decision to foreclose a party from 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[al] source, it was not *Page 197 privileged and could be obtained from the peer review committee's records. * * * 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." (Citations omitted.) Huntsman, supra, at ¶ 20. See, also,Hammonds v. Ruf, 9th Dist. No. 22109, 2004-Ohio-6273,2004 WL 2674609, at ¶ 11.
{¶ 65} Accordingly, while we do not know the precise nature of the documents reviewed in the trial court's in camera inspection, we do know that the documents were issued from the hospital's "Quality Assurance/Peer Review" records. Hence, the records reviewed by the court in camera were "produced or presented during proceedings of a peer review committee." Therefore, I would hold that the trial court abused its discretion in inspecting and ordering the documents in question to be discoverable in violation of the statutory mandate set forth in R.C. 2305.252. Accordingly, I would sustain UHHS's sole assignment of error.
{¶ 66} As a result, I would also hold Tenan's cross-appeal moot. That is, while we have no way of knowing the precise nature of the documents the court deemed discoverable, neither Tenan nor this court should be privy to the character and substance of the documents, as they are confidential pursuant to R.C. 2305.252. In effect, the retroactive application of current R.C. 2305.252 acts to prevent a trial court from reviewing any peer review committee records in camera. As the trial court erred in conducting an in camera inspection of the confidential records in the first place, an analysis as to whether it was required to release specified document titles resulting from its inspection would be inappropriate.
{¶ 67} In sum, I would sustain UHHS's sole assignment of error, but for reasons wholly different from those expressed in the majority's opinion; further, because my position would preclude an in camera review of the documents in question, I would additionally hold Tenan's cross-appeal to be moot.
21 Tenan disagrees with this observation; she asserts that affording a review committee's records absolute confidentiality will encumber a party's right to bring a negligent-credentialing claim against a hospital. In her view, a claimant will be unable to determine (and hence obtain) the sort of information a hospital used in awarding the physician privileges or other credentials he or she possessed. I find Tenan's position unpersuasive. While a claimant may not obtain information from the hospital's peer review committee itself, there is nothing that prohibits a claimant from seeking information from the physician. In fact, a physician would be a fine "outside, original source" for information or records concerning his or her education, medical training, licensing, as well as information regarding any past lawsuits or disciplinary actions, etc. Thus, in my estimation, a claimant may successfully pursue his or her negligent-credentialing claim without the benefit of discovery of the confidential records of a peer review committee. *Page 198