In an Ohio birth injury medical malpractice case where the parents sued the hospital where their child suffered serious brain damage allegedly as a result of negligent care and treatment during the mother’s labor and delivery, the plaintiffs sought to obtain in discovery the defendant hospital’s documents and materials related to hospital labor and delivery nursing policies, procedures, guidelines, protocols, and algorithms. Because the defendant hospital objected to producing the requested documents, the plaintiffs filed a motion to compel the production of the requested documents. The hospital responded that the requested documents “are confidential and proprietary to OhioHealth.”
The trial court granted the plaintiffs’ motion to compel, stating “hospital rules and regulations are, at the discretion of the trial court, admissible to provide evidence of the standard of care in a medical negligence action.” The trial court further found the policies requested by the plaintiffs were relevant and discoverable under Ohio Evid. R. 401. The hospital appealed.
In its February 13, 2023 Opinion, the Court of Appeals Richland County, Ohio Fifth Appellate District (“Ohio Appellate Court”) stated that where the party resisting discovery alleges the requested information is confidential or proprietary, courts apply a balancing test in determining whether to grant protective orders, weighing the competing interests to be served by allowing discovery to proceed against the harm that may result. The burden of establishing good cause for a protective order rests with the movant. To demonstrate good cause, the movant must articulate specific facts showing clearly defined and serious injury resulting from the discovery sought and cannot rely on mere conclusory statements.
The Ohio Appellate Court held: “We find the trial court did not abuse its discretion in finding OhioHealth failed to establish the documents in dispute are confidential. The record reveal OhioHealth disclosed similar documents in prior cases without stipulations. Further, the policies and procedures were created using information gathered from public sources including recommendations and guidelines of national health care associations as well as medical literature. OhioHealth’s “unique” compilation of such information does not transform otherwise public information into confidential information.”
The Ohio Appellate Court stated, however, that it disagreed with the trial court’s determination because OhioHealth is a not-for-profit company, it is not a “commercial” business; therefore, is not entitled to a protective order under Civ. R. 26(C)(7). The Ohio Appellate Court explained that the exchange of money for services, even by a nonprofit organization, is a quintessential commercial transaction.
Nonetheless, the Ohio Appellate Court held: “the trial court’s finding OhioHealth, as a not-for-profit company, was not entitled to a protective order was not the sole basis for the trial court’s denial of the protective order. The trial court found OhioHealth failed to establish a protection order was necessary. Oct. 31, 2022 Order at p. 8. We find the trial court did not abuse its discretion in finding OhioHealth failed to “articulate specific facts showing clearly defined and serious injury resulting from the discovery sought” … OhioHealth failed to identify anything unique or distinctive about its policies and procedures, which are different from the policies and procedures followed by other hospitals … “A conclusory statement that disclosure of the documents would provide competitors with an advantage” [is] insufficient to demonstrate ‘good cause,’ as such a generalized showing would undermine ‘the general principle of open access that underlies the judicial system.’””
“Based upon the foregoing, we find the trial court did not abuse its discretion in denying OhioHealth’s motion for a protective order. Upon review of the record, we further find there is some competent, credible evidence the documents in dispute are neither confidential nor proprietary.”
Source B.R.M. v. OhioHealth Corp., 2023-Ohio-2399.
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