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Meck v. Cleveland Clinic Foundation

United States District Court, N.D. Ohio

May 17, 2017

CELESTE R. MECK, Individually and as the Executrix of the Estate of the Deceased John W. Meck, Plaintiff,
v.
CLEVELAND CLINIC FOUNDATION, Defendant.

          CHRISTOPHER BOYKO JUDGE

          MEMORANDUM OPINION & ORDER

          Jonathan D. Greenberg U.S. Magistrate Judge.

         This matter has been referred to the undersigned to resolve the discovery dispute set forth in Plaintiff Celeste R. Meck's Motion to Compel (Doc. No. 25) and Defendant Cleveland Clinic Foundation's Motion for a Protective Order (Doc. No. 28). For the following reasons, Plaintiff's Motion to Compel is DENIED and Defendant's Motion for Protective Order is GRANTED (Doc. Nos. 25, 28.)

         I. Background

         On October 14, 2015, Plaintiff Celeste R. Meck, individually and as the Executrix of the Estate of the Deceased John W. Meck, filed a Complaint in this Court against Defendant Cleveland Clinic Foundation (“CCF”). (Doc. No. 1.) In the Complaint, Plaintiff alleges the following.

         On or about February 7, 2013, John W. Meck (the husband of Plaintiff Celeste R. Meck) underwent surgery at CCF for repair of a thoracoabdominal aortic aneurysm. (Doc. No. 1 at ¶ 10.) This surgery is referred to as a Fenestrated Endovascular Aortic Aneurysm Repair (“FEVAR”) and was performed by Cleveland Clinic vascular surgeon Dr. Matthew Eagleton. (Id.) During the surgery, CCF personnel inserted a subarachnoid drain (“SA drain”) into the lower part of Mr. Meck's back, near the spinal cord, as a means of maintaining adequate spinal cord pressure during and following the procedure. (Id. at ¶ 24.) The SA drain was in place when Mr. Meck was taken to the cardiovascular intensive care unit after the surgery, and remained in place until it was removed several days later. (Id. at ¶ 25.) The SA drain was connected to apparatus to monitor spinal cord pressure and “was not intended as a route for the delivery of any medications.” (Id. at ¶ 26.) Plaintiff claims “delivery of medication into the subarachnoid drain could cause devastating neurologic consequences including paralysis and others.” (Id. at ¶ 28.)

         Plaintiff asserts a CCF nurse gave Mr. Meck at least one medication through a sampling portion of the SA drain at the time it was still inserted into Mr. Meck's back. (Id. at ¶ 30.) Plaintiff claims the nurse did not have a valid order to do so and, further, that delivery of medication into the SA drain was negligent. (Id. at ¶¶ 31, 32.)

         Several hours after the surgery, Mr. Meck “suddenly lost all feeling and movement at and below the level of his umbilicus.” (Id. at ¶ 20.) According to Plaintiff, the “wrongful delivery of the subject medication (or medications) by the Defendant Cleveland Clinic nurse supposedly was discovered by a Defendant Cleveland Clinic physician some time later, after Decedent Mr. Meck already was paralyzed.” (Id. at ¶ 33.) Plaintiff asserts the wrongful delivery of medication through the SA drain prevented treatment of any neurologic consequences of the FEVAR procedure and was the direct and proximate cause of Mr. Meck's injuries. (Id. at ¶¶ 34, 35.)

         Plaintiff claims CCF failed to inform Mr. Meck or any of his family members about the wrongful delivery of medication through the SA drain. (Id. at ¶ 36.) She also asserts CCF “failed to reasonably, properly and honestly document occurrences during the critical portions of Decedent Mr. Meck's admission to the cardiovascular intensive care unit, as there are gaps in the charting, inconsistencies in the charting, and other indicia of improper documentation indicative of substandard care.” (Id. at ¶ 39.)

         Mr. Meck became permanently paralyzed while a patient at CCF. (Id. at ¶ 21.) Plaintiff claims her husband's health deteriorated after the surgery, and he died from complications relating to his paralysis on October 17, 2014. (Id. at ¶ 40.)

         Defendant CCF filed an Answer on November 5, 2015 (Doc. No. 4) and the parties proceeded to conduct discovery. On April 13, 2017, Plaintiff filed a Motion to Compel, seeking an Order requiring Defendant to produce certain photographs and two Safety Event Reporting System (“SERS”) reports relating to the allegedly improper delivery of medication through Mr. Meck's SA drain. (Doc. No. 25.) Defendant CCF filed a Brief in Opposition and Motion for Protective Order on April 27, 2017, to which Plaintiff replied on May 1, 2017. (Doc. No. 28, 30.)

         The parties' discovery dispute was referred to the undersigned on April 28, 2017. (Doc. No. 29.) On May 3, 2017, this Court ordered Defendant to deliver two sets of unredacted copies of the SERS reports at issue to Chambers for in camera review.[1] (Doc. No. 32.) Defendant timely complied with the Court's Order and delivered the SERS reports for in camera inspection on May 8, 2017. (Doc. No. 34.) The undersigned has reviewed the two SERS reports produced by CCF for in camera review, and this matter is now ripe for adjudication.

         II. Discussion

         In March 2016, Plaintiff propounded document requests to Defendant CCF seeking (among other things) the following: (1) complete copies of any incident reports filed with reference to Mr. Meck; and (2) a listing of every meeting or review during which the care rendered to Mr. Meck was discussed. (Doc. No. 25-1 at Requests for Production Nos. 3, 4.) Defendant CCF objected to the requests, as follows:

3. Produce complete copies of any incident reports filed with reference to Mr. Meck. If you claim a privilege, please see instructions.
Response:
OBJECTION: The information sought by this Request is privileged and protected by the attorney client and work product privileges and by the Peer Review and Quality Assurance privileges granted by O.R.C. 2305.25, 2305.252, 2305.24 and 2305.253. Responsive documents were produced in Response to Request No. 7. Only documents withheld pursuant to this Objection is a Safety Event Reporting System (SERS) report dated 2/8/13 and 3/12/13, and the Clinic Ombudsman records dated 2/8/13 through 2/21/13.
4. Produce a listing of every meeting or review during which the care rendered to Mr. Meck was discussed (Please note that the fact that a meeting took place is not ...

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