Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Dickson Firm, L.L.C., Blake A Dickson, and Danielle M.
Chaffin, for appellee.
Reminger Co., L.PA., Brian D. Sullivan, Erin Siebenhar Hess,
and Michael J. Pelagalli, for appellants.
JOURNAL ENTRY AND OPINION
LASTER MAYS, J.
Background and Facts
1} This appeal arises from a wrongful death and
medical negligence action filed by plaintiff-appellee David
Howell, Jr. ("Howell"), as the personal
representative of his mother's estate, the Estate of
Pauline Wilbourn ("Estate"), against Harborside of
Cleveland Limited Partnership d.b.a. Park East Care and
Rehabilitation Center, Genesis HealthCare, L.L.C., Arnold
Whitman, 1995 Donna Reis Family Trust, GEN Management L.L.C.,
Sun Healthcare Group, Inc., FC-GEN Operations Investment,
L.L.C., Gazelle GEN, L.L.C., and GEN Management, L.L.C.
(collectively "Park East"). Howell v. Park E.
Care & Rehab., Cuyahoga C.P. No. CV-14-820136 (Jan.
Howell alleged that, on January 14, 2013, Pauline Wilbourn
("Wilbourn") was assaulted by Lewis Warren
("Warren") while both were residents at Park East.
Howell states that Wilbourn was "brutally attacked"
and that the nursing staff "stood by" while Warren
choked Wilbourn and pounded her head on the floor several
times. Wilbourn suffered physical and emotional injuries and
died on August 2, 2013. Appellee brief, p. 2.
During the course of discovery, Park East moved for a
protective order denying Howell's request that Park East
produce Warren's medical records and personal records
including any reports that Warren had previously acted in an
abusive manner. Warren was deceased and a probate estate was
never opened from which Howell could seek consent.
4} The trial court denied the motion and Park East
appealed. Howell v. Park E. Care & Rehab., 8th
Dist. Cuyahoga No. 102111, 2015-Ohio-2403 ("Howell
I "). This court dismissed the appeal for lack of a
final appealable order because Park East did not demonstrate
entitlement to a provisional remedy. "Park East does not
make any attempt to establish the necessity of an immediate
appeal or demonstrate actual prejudice to satisfy the
requirements of R.C. 2505.02(B)(4)(b)." Id. at
¶ 13. The discretionary appeal was not allowed by the
Ohio Supreme Court. Howell v. Park E. Care &
Rehab., 144 Ohio St.3d 1459, 2016-Ohio-172, 44 N.E.3d
288. Reconsideration was also denied. Howell v. Park E.
Care & Rehab., 145 Ohio St.3d 1426, 2016-Ohio-1173,
47 N.E.3d 169.
5} The case was dismissed without prejudice on
August 25, 2016, and the instant case was filed on February
24, 2017, asserting the same allegations of abuse and neglect
against Park East. Howell again pursued discovery regarding
Warren. Park East claimed that the information was privileged
under the Health Insurance Portability and Accountability Act
of 1996 ("HIPAA"); R.C. 3721.13 (Ohio's Nursing
Home Residents' Bill of Rights); R.C. 3721.02 (Ohio
Department of Health Reports); R.C. 2317.02
(physician-patient privilege); R.C. 2305.253 (incident-report
privilege); and R.C. 2305.25 (peer-review privilege).
6} On July 18, 2017, the trial court ruled on the
following disputed requests:
Request for Production of Documents 2: Documents relative to
[Warren], including nursing home chart, medical records,
physician notes, nurse statements and notes, progress notes,
documentation of activities of daily living, assessment
reports, incident/accident reports, physical therapy,
administration of narcotics, dietary records, communications
about [Warren], etc.
Request for Production of Documents 5: Documents relative to
[Warren] including medical records, documentation of any
incidents, police reports, and witness statements. Request
for Production of Documents 6: [Warren's] original
nursing home chart during his entire residency.
Request for Production of Documents 7: Documentation of any
incidents in which [Warren] verbally and/or physically
threatened, abused, assaulted, and/or otherwise attacked
anyone at the nursing home.
Request for Production of Documents 9: Documentation in any
incident, investigation, or abuse file which contains
reference to [Warren] or any incident involving or otherwise
pertaining to [Warren].
Request for Production of Documents 11: documentation
reported to the Ohio Department of Health relative to
[Warren], including any reports of injuries of unknown origin
or suspected abuse to that individual.
Request for Production of Documents 14: Billing that was sent
out relative to [Warren].
Request for Production of Documents 15: Documentation of
amounts paid relative to [Warren].
Request for Production of Documents 20: Incident reports
and/or witness statements relative, in any way, to [Warren].
Interrogatory 5: Identify and describe any and all instances
in which [Warren], at any time, verbally and/or physically
threatened, abused, assaulted, battered, and/or otherwise
attacked anyone in the building or on the premises of the
nursing home, or exhibited any type of aggressive behavior.
The interrogatory also seeks more specific information for
entry No. 99704847 (July 8, 2019), p. 2-3, and opinion.
7} The trial court granted Howell's motion to
compel. Park East was ordered to respond to Howell's
first request for production of documents and first set of
interrogatories, including production request numbers 2, 5,
6, 7, 9, 11, 14, 15, and 20 and Interrogatory 5. Id.
at p. 7.
8} Park East appealed. Howell v. Park E. Care
& Rehab., 8th Dist. Cuyahoga No. 106041,
2018-Ohio-2054 ("Howell II "). In
the opinion, this court discussed each of the asserted
9} For privilege under R.C. 2317.02(B), we
determined that the statute "does not protect a nonparty
from having to disclose his or her own medical information
when that information is relevant to the subject matter
involved in a pending civil action." Howell II
at ¶ 16, citing Ward v. Summa Health Sys., 128
Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514.
10} We also considered privilege under the nursing
home rights ...