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Large v. Heartland-Lansing of Bridgeport Ohio, LLC

Court of Appeals of Ohio, Seventh District

June 24, 2013

EDWARD W. LARGE, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF MARY RUTH LARGE PLAINTIFF-APPELLEE
v.
HEARTLAND-LANSING OF BRIDGEPORT OHIO, LLC, et al. DEFENDANTS-APPELLANTS

Civil Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 10 CV 307

For Plaintiff-Appellee: Atty. Christopher J. Regan, Atty. Jeremy M. McGraw, Bordas & Bordas, PLLC.

For Defendant-Appellant: Atty. G. Brenda, Coeyi Buckingham Doolittle & Burroughs, LLP.

JUDGES: Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Joseph J. Vukovich.

OPINION

WAITE, J.

{¶1} Appellee, Edward W. Large, filed a wrongful death suit over the death of his wife, Mary Ruth Large. The alleged cause of death was an infection resulting from pressure ulcers the deceased developed while in Appellant's care. Appellant, Heartland-Lansing, a nursing home, appeals the trial court's decision to allow discovery of a licensing report and survey materials generated by the Ohio Department of Health around the time the decedent was residing in the facility. This material collected by the Ohio Department of Health was to be provided to the facility itself, not the quality assurance committee specifically, in accordance with applicable state and federal law. Appellant contends that these materials are protected by the peer review privilege because Appellant's quality assurance committee may have analyzed them. Appellant also contends that licensing report documents are subject to an additional privilege under R.C. 3721.02(E)(1). Materials generated by the Ohio Department of Health and provided to a covered facility do not become privileged merely because they may have been analyzed by a peer review committee. No new privilege is created by R.C. 3721.02(E)(1). The trial court was correct in its determination that the material is discoverable. The judgment of the trial court is affirmed.

Factual and Procedural History

{¶2} In July of 2009, Mary Ruth Large, the deceased, entered Heartland-Lansing as a patient. She died on October 10, 2009. She was survived by her husband, Appellee Edward W. Large, who was later appointed executor of her estate. The underlying suit was filed by Appellee, both in his individual capacity and as executor. Appellee named Appellant and various employees in his suit, and alleged negligence or deliberate failure to exercise reasonable care with regard to the decedent, including: "failing to provide care * * * failing to follow [the] instructions of the plan of care * * * failing to take appropriate action to prevent infection; in failing to take appropriate action to prevent the development of pressure sores; * * * failing to provide adequate staffing; [and] in failing to properly train and supervise the persons responsible for failing to provide medical care to Mrs. Large." (6/30/10 Complaint, ¶11.)

{¶3} Answers were filed by various parties and an amended complaint was also filed. Discovery was undertaken by Appellee. Appellant complied with some of the discovery requests and the parties were able to resolve others. Disagreements over remaining questions were set for a hearing. The trial court's ruling can be broken into two parts. Part one involved discovery material that were to be set for an in-camera inspection before final determination was made as to their discoverability. This ruling was not appealed. Part two involves the court's decision as to the material relative to discovery requests numbered 20 and 36. Request number 20 sought "all complaint reports or surveys of resident opinion at the Heartland facility during the three years prior to October 10, 2009." Request number 36 sought "copies of any reviews that were conducted by HCFA (Health Care Financing Administration) or other governmental agencies at your facility from 2008 to 2009." (Appellant's Brf., pp. 3-4.) Appellant did identify as responsive to this request an Ohio Department of Health licensing report and survey documents, but claimed that these documents were privileged.

{¶4} The trial court held a telephonic hearing on October 20, 2011 concerning the discovery requests. On January 11, 2012, the trial court issued a decision ordering Appellant to comply with requests 20 and 36 and to produce the licensing report and survey materials. Appellant filed a timely appeal from this order.

Argument and Law

{¶5} Appellant identifies four assignments of error on the first page of its brief and presents five issues for review on the second. Appellant does not include or discuss the assignments of error in the body of the argument. Instead, Appellant's brief is organized around the five issues proposed for review. The first and second issues, as well as the first, third and fourth assignments of error, collectively argue that inspection reports prepared by the state department of health are privileged, that the trial court erred in ordering discovery of privileged material, and erred in finding that a statutory disclosure requirement waived the statutory privilege. These arguments will be considered together in an analysis as to the application R.C. 3721.02(E)(1) allegedly has to the material the trial court ordered Appellant to produce, under the heading of Appellant's first assignment of error.

{¶6} The remaining assignment of error and issue three challenge the trial court's decision to allow the discovery of family and patient complaint reports. The analysis of these arguments focuses on the trial court's decision pertaining to complaint reports and will be addressed under the heading of Appellant's second assignment of error.

{¶7} Resolution of the first, second and third assignments of error also resolve the various sub-issues raised by Appellant.

ASSIGNMENT OF ERROR NO. 1

The trial court erred in ordering Heartland-Lansing to produce inspection reports prepared by the Ohio Department of Health.

ASSIGNMENT OF ERROR NO. 3

The trial court erred when it ordered Heartland-Lansing to produce inspection reports prepared by the Ohio Department of Health and the family/patient complaint reports without first conducting an in-camera inspection of the documents.

ASSIGNMENT OF ERROR NO. 4

The trial court erred in finding that the inspection reports prepared by the Ohio Department of Health and the family/patient complaint reports were relevant.

Issues Presented for Review

I. UNDER R.C. 3721.02, INSPECTION REPORTS OF A NURSING HOME THAT ARE PREPARED BY THE OHIO DEPARTMENT OF HEALTH "SHALL NOT BE USED IN ANY COURT IN ANY ACTION OR PROCEEDING * * *." DID THE TRIAL COURT ERR IN ALLOWING PLAINTIFF-APPELLEE TO USE THOSE REPORTS THROUGH DISCOVERY IN PREPARING THEIR CASE AGAINST HEARTLAND-LANSING?
II. DID THE TRIAL COURT ERR IN CONCLUDING THAT HEARTLAND-LANSING WAIVED THE STATUTORY PRIVILEGES GOVERNING THE OHIO DEPARTMENT OF HEALTH INSPECTION REPORTS BY MAKING THE REPORTS AVAILABLE FOR INSPECTION BY PROSPECTIVE RESIDENTS OF THE NURSING HOME AS REQUIRED BY R.C. 3721.021.
IV. IS THE TRIAL COURT REQUIRED TO CONDUCT AN IN CAMERA INSPECTION OF PRIVILEGED DOCUMENTS BEFORE ORDERING THEIR DISCOVERY?
V. UNDER Civ.R. 26(B)(1), "[P]ARTIES MAY OBTAIN DISCOVERY REGARDING ANY MATTER, NOT PRIVILEGED, WHICH IS RELEVANT TO THE SUBJECT MATTER INVOLVED IN THE PENDING ACTION * * *." DID THE TRIAL COURT ERR IN FINDING THAT THE OHIO DEPARTMENT OF HEALTH INSPECTION REPORTS AND THE FAMILY/PATIENT COMPLAINT REPORTS WERE RELEVANT IN THIS MEDICAL NEGLIGENCE ACTION?

{¶8} Although Appellant identifies four assignments of error, its brief is instead structured in five sections headed by its issues presented for review. Again, due to the unusual organization of Appellant's brief, in this section we will address arguments raised under Appellant's first, third, and fourth ...


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