AMCNO Pleased with Ohio Supreme Court Decision Impacting Discovery Issues in Medical Malpractice Cases

The AMCNO scored a victory in the Burnham v. Cleveland Clinic Foundation case when the Ohio Supreme Court issued a decision that will make it easier to file immediate (aka interlocutory) appeals from trial court decisions requiring production of privileged information during discovery. 

This issue often arises in the context of medical malpractice plaintiff attorneys demanding to see records of hospital quality assurance committees, or other peer review materials.  Another context is when plaintiff attorneys request information to identify roommates, or information concerning other patients at the same facility who had a similar procedure performed, or were treated by the same physician.  Although these materials are all privileged under the law, and thus should not need to be produced, some trial courts in the past have ordered them produced nonetheless.  The remedy for this situation (prior to April, 2014) was always to take an immediate appeal to the appropriate court of appeals, per Ohio Revised Code 2505.02.

In 2014, the Supreme Court made it much more difficult to take such an immediate appeal, in the decision of Smith v. Chen.  In Chen, the Supreme Court said that in order to take such an immediate appeal, the appealing party needed to demonstrate that he would not have a “meaningful remedy” if he waited until after trial to file an appeal.  It was widely believed that many appellate districts were taking a very narrow view of this standard.  As a result, a large number of appeals from decisions requiring the production of privileged information were dismissed soon after they were filed, without a decision on whether they were privileged.

The Chen decision created a very confusing situation. The twelve Ohio district courts of appeals had no guidance as to what constituted a “meaningful remedy.”  More fundamentally, once a privileged document is ordered disclosed, it can never be retrieved.  Although the Burnham decision does not go quite as far as we had hoped, most adverse discovery orders in the medical malpractice context should once again be immediately appealable, if they involve quality assurance or peer review materials.  This is so because the Court said that matters involving constitutional protections, statutory protections, or attorney/client protection are always final and appealable.  The decision is definitely a major step in the right direction. 

Generally, the AMCNO is pleased with the opinion of the Ohio Supreme Court, as we believe that it will enhance our ability to effectively defend physicians and hospitals in medical malpractice actions.  We believe that the AMCNO amicus briefing helped produce the decision rectifying this area of the law. The Burnham decision will also ensure that quality assurance and peer review committees can continue to operate in private, without concern that confidential reviews will be disclosed during subsequent lawsuits.  More information on this case will be included in the next issue of the Northern Ohio Physician. 

The Pollen Line is now closed. See you in the spring!

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