Aljaberi v. Neurocare Ctr., Inc.

[Cite as Aljaberi v. Neurocare Ctr., Inc., 2018-Ohio-1800.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

MOHAMMED M. ALJABERI, M.D. JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2017 CA 00176
NEUROCARE CENTER, INC., et al.

Defendants-Appellants OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Caes No. 2016 CV 02671

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: May 7, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

LEE E. PLAKAS MARTIN T. GALVIN
GARY A. CORROTO JONATHAN H. KROL
MARIA C. KLUTINOTY EDWARDS REMINGER CO., LPA
TZANGAS PLAKAS MANNOS LTD 101 West Prospect Avenue, Suite 1400
220 Market Avenue South Cleveland, Ohio 44115
8th Floor
Canton, Ohio 44702 ALLEN SCHULMAN
STACIE ROTH
236 Third Street SW
Canton, Ohio 44702
Stark County, Case No. 2017 CA 00176 2

Wise, P. J.

{¶1} Appellants Neurocare Center, Inc., Ryan S. Drake, D.O., and Andrew P.

Stalker, M.D. appeal the September 18, 2017, decision of the Stark County Court of

Common Pleas ordering production of certain documents sent to the State Medical Board

of Ohio.

{¶2} Appellee is Mohammed M. Aljaberi, M.D.

STATEMENT OF THE FACTS

{¶3} In 2002, Appellee Mohammed Aljaberi, M.D. became employed as a senior

physician at Appellant Neurocare. For more than a decade, in addition to being a

physician employee, he has been a shareholder and a director of the company. As of

September 2016, Neurocare was a close corporation with eight physician shareholders.

{¶4} On September 7, 2016, Dr. Aljaberi was locked out of his computer, and

Appellees Dr. Stalker and Dr. Drake informed Dr. Aljaberi that he should take a few days

off due to an incident involving colleagues. As per Dr. Stalker and Dr. Drake's instruction,

Dr. Aljaberi took the days off as they requested.

{¶5} On or about September 12, 2016, the members of the Neurocare Board of

Directors, held a meeting wherein Neurocare's doctors voted to remove Dr. Aljaberi as a

director and to terminate his employment as a senior physician with Neurocare.

Appellants cited repeated misconduct, including physically assaulting a staff member,

insulting/offending patients, and exposing staff members, including schedulers and a

medical student, to pornography on his work computer as the basis for the termination of

Dr. Aljaberi. At his deposition, Appellee admitted to all of this misconduct. He claimed that

he deserved to be disciplined, but not terminated.
Stark County, Case No. 2017 CA 00176 3

{¶6} On December 8, 2016, Appellee filed a Complaint against Appellants

Neurocare Center, Inc., Ryan S. Drake, D.O. and Andrew P. Stalker, M.D., which included

claims for Breach of Fiduciary Duty, Breach of Contract, Civil Conspiracy, and Declaratory

Judgment.

{¶7} On December 9, 2016, Appellants filed a complaint with the State Medical

Board of Ohio concerning Dr. Aljaberi.

{¶8} On May 4, 2017, Dr. Aljaberi amended his Complaint, asserting claims of

Breach of Fiduciary Duty, Breach of Contract, Civil Conspiracy, Conversion, Declaratory

Judgment, Production of Corporate Books and Records, Production of Annual Financial

Statements, and a Request for an Accounting.

{¶9} During discovery, Appellee made the following document request relating

to reports/complaints made to the Ohio State Medical Board:

Request for Production No. 8:

Produce all document relating to any communications, notes and

memoranda sent by any employee, agent and/or representative of

Neurocare to the State Medical Board of Ohio that in any way refer or relate

to Aljaberi. Appellants objected to this request on the basis that any

responsive documents would be privileged and thus completely shielded

from discovery by operation of statute.

{¶10} After the parties were unable to resolve their disagreement over the

appropriateness of this request, the issue was raised with the trial court at an on the

record pretrial. The trial judge issued a briefing schedule that the parties complied with.
Stark County, Case No. 2017 CA 00176 4

{¶11} After briefing was completed, the trial court ordered that any responsive

documents be submitted to the court for an in camera review. Appellants complied with

this directive.

{¶12} On September 18, 2017, the trial court ordered that the documents be

produced but delayed disclosing the documents to the Appellee so that Appellants could

file an interlocutory appeal concerning the ordered production of arguably privilege

materials, if they chose to do so.

{¶13} It is from this decision Appellants now appeal, raising the following error for

review:

ASSIGNMENT OF ERROR

{¶14} “I. THE TRIAL COURT ERRED BY ORDERING PRODUCTION OF

PRIVILEGED PHYSICIAN MANDATORY REPORT SUBMITTED TO THE OHIO STATE

MEDICAL BOARD, I.E., A REPORT PERTAINING TO THE PROFESSIONAL

CONDUCT OF A PHYSICIAN.”

{¶15} In their sole assignment of error, Appellants claim the trial court erred in

ordering the production of the requested material. We agree.

{¶16} The subject of the discovery dispute in this matter is the content of the report

made to the State Medical Board. Appellants maintain that such report is confidential and

privileged. Appellee argues that such report was made in retaliation and does not meet

the requirements of R.C. §4731.224 and thus should not be afforded any statutory

protection.
Stark County, Case No. 2017 CA 00176 5

Standard of Review

{¶17} In Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010–Ohio–6275, ¶

13, the Supreme Court of Ohio explained:

Ordinarily, a discovery dispute is reviewed under an abuse-of-

discretion standard. Tracy v. Merrell Dow Pharmaceuticals, Inc. (1991), 58

Ohio St.3d 147, 151–152, 569 N.E.2d 875. However, if the discovery issue

involves an alleged privilege, as in this case, it is a question of law that must

be reviewed de novo. Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181,

2009 Ohio 2496, 909 N.E.2d 1237, ¶13.

{¶18} Insofar as factual issues must be determined by the trial court as a predicate

to resolving the legal question of privilege, such factual determinations should be

accorded deference. MA Equip. Leasing I, LLC v. Tilton, 10th Dist. No. 12AP–564, 2012–

Ohio–4668, ¶ 18.

{¶19} Appellants herein argue that the report which is the subject of Appellee's

discovery request was a mandatory filing on their part and was confidential pursuant to

R.C. §4731.224, which provides:

(B)(1) Except as provided in division (B)(2) of this section, if any

individual authorized to practice under this chapter or any professional

association or society of such individuals believes that a violation of any

provision of this chapter, Chapter 4730., 4759., 4760., 4761., 4762., 4774.,

or 4778. of the Revised Code, or any rule of the board has occurred, the

individual, association, or society shall report to the board the information

upon which the belief is based.
Stark County, Case No. 2017 CA 00176 6

***

(F) All summaries, reports, and records received and maintained by

the board pursuant to this section shall be held in confidence and shall not

be subject to discovery or introduction in evidence in any federal or state

civil action involving a health care professional or facility arising out of

matters that are the subject of the reporting required by this section. The

board may use the information obtained only as the basis for an

investigation, as evidence in a disciplinary hearing against an individual

whose practice is regulated under this chapter, or in any subsequent trial or

appeal of a board action or order.

The board may disclose the summaries and reports it receives under

this section only to health care facility committees within or outside this state

that are involved in credentialing or recredentialing the individual or in

reviewing the individual's clinical privileges. The board shall indicate

whether or not the information has been verified. Information transmitted by

the board shall be subject to the same confidentiality provisions as when

maintained by the board.

{¶20} Appellants further cite R.C. §4731.22(F)(5), in support of their position that

the subject report was confidential and not discoverable:

(F)(5) A report required to be submitted to the board under this

chapter, a complaint, or information received by the board pursuant to an

investigation or pursuant to an inspection under division (E) of section
Stark County, Case No. 2017 CA 00176 7

4731.054 of the Revised Code is confidential and not subject to discovery

in any civil action.

{¶21} Appellee herein argues that the Complaint made against Dr. Aljaberi

to the State Medical Board does not meet the requirements of R.C. §4731.224

because the report was not made within 60 days of the complained of conduct as

required by subsection (C) of the said statute, which provides:

doctors of medicine and surgery, doctors of osteopathic medicine and

surgery, doctors of podiatric medicine and surgery, or practitioners of limited

branches of medicine that suspends or revokes an individual's membership

for violations of professional ethics, or for reasons of professional

incompetence or professional malpractice, within sixty days after a final

decision shall report to the board, on forms prescribed and provided by the

board, the name of the individual, the action taken by the professional

organization, and a summary of the underlying facts leading to the action

taken.

{¶22} Upon review, we find that the report which is the subject of this appeal would

have been made pursuant to R.C. §4731.224(B), not R.C. §4731.224(C), which does not

contain a time requirement. We therefore find this argument unpersuasive.

{¶23} Appellee further argues that Lisa Wesie’s testimony before the Medical

Board that she witnessed Dr. Aljaberi physically assault another employee waived any

potential privilege argument.
Stark County, Case No. 2017 CA 00176 8

{¶24} We likewise find this argument unpersuasive. Ms. Wesie is a medical

secretary employed by Neurocare and as such, she has no authority to make decisions

or waive privilege on behalf of the corporate entity. While the issue has never been

directly addressed in Ohio, it can safely be said that, in cases where a corporation,

partnership, or other collective entity is the client, the attorney-client privilege belongs to

the company and not to its employees outside of their employment capacity. Shaffer v.

OhioHealth Corp., 10th Dist. Franklin No. 03AP-102, 2004-Ohio-63, ¶10 citing

Commodity Futures Trading Com'n v. Weintraub (1985), 471 U.S. 343, 348, 105 S.Ct.

1986, 85 L.Ed.2d 372.

{¶25} Upon review of the applicable statutes, we find same to be unambiguous

and straightforward. These statutes clearly provide that reports made to or received by

the State Medical Board pursuant to R.C. Chapter 4731 are confidential and not subject

to discovery. It is apparent that the legislature made the decision to protect reporters in

this situation. While it is possible that such may serve to shield retaliatory reports in rare

instances, the legislature has decided that the benefit of providing protection for reporters

outweighs said possibility.

{¶26} Based on the foregoing, we find that the confidentiality protections and

privileges set forth in R.C. §4731.224 protect the reports made to the State Medical Board

in this case and that such are not subject to discovery. We therefore find the trial court

erred in compelling disclosure of the privileged documents.

{¶27} Accordingly, Appellants' assignment of error is sustained.
Stark County, Case No. 2017 CA 00176 9

{¶28} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas OF Stark County, Ohio, is reversed and remanded to the trial court for

further proceedings consistent with the law and this opinion.

By: Wise, P. J.

Gwin, J., and

Baldwin, J., concur.

JWW/d 0424