Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Howell v. Park East Care and Rehabilitation

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 15, 2019

DAVID HOWELL, JR., Plaintiff-Appellee,
v.
PARK EAST CARE AND REHABILITATION, ET AL., Defendants-Appellants.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-876418

         JUDGMENT: AFFIRMED

          The 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

          ANITA LASTER MAYS, J.

         I. 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. 14, 2014).

         {¶2} 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.

         {¶3} 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 each incident.

         Journal 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 privilege claims.

         {¶ 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.