April 12, 2022

The Ohio Court of Appeals Ninth Judicial Circuit (“Ohio Appellate Court”) held in its decision dated February 16, 2022 in a medical malpractice case where the plaintiff sought the residency file of the doctor who allegedly failed to provide proper medical care to him in the hospital following a traffic accident that allegedly led to more severe brain injury, “Upon review of the record, we conclude that the trial court correctly concluded that Summa failed meet its burden of establishing that the peer review privilege applies to Dr. Elashi’s resident file because it did not establish that the file is a record “within the scope of a peer review committee” under Section 2305.252(A).”

Ohio Peer Review Privilege 

Ohio’s peer review privilege under Revised Code Section 2305.252A) provides in relevant part that “records within the scope of a peer review committee of a health care entity shall be held in confidence and shall not be subject to discovery * * * in any civil action against a health care entity * * * arising out of matters that are the subject of evaluation and review by the peer review committee.”

After the plaintiff moved to compel the production of the residency file and other materials, the trial court granted the motion as to the resident file because it concluded that hospital did not meet its burden of establishing that the file is protected by the privilege. The hospital appealed, assigning as error that the court incorrectly compelled the production of Dr. Elashi’s entire residency file.

Ohio Appellate Court Opinion

The Ohio Appellate Court reviewed the affidavit of Dr. Laippley, who is the hospital’s Interim Program Director of the General Surgery Residency Program, which was submitted by the hospital in support of its argument against disclosure of the resident’s file. The Ohio Appellate Court stated: “The affidavit of Dr. Laippley establishes the existence of a resident peer review committee. Upon close review, however, the affidavit does not establish that Dr. Elashi’s residency file is a “record[ ] within the scope of” such a committee. R.C. 2305.252(A). Instead, the affidavit provides that residency files are maintained by residency coordinators. Residency coordinators are described only as “administrative staff[,]” and it is not explained whether they are part of the administrative staff of the GMEC [Graduate Medical Education Committee], a CCC [Clinical Competency Committee], or some other aspect of the hospital. There are no statements that the residency files are produced, managed, kept, maintained, or created by the GMEC or a CCC or any other similar language. It is also not indicated whether any reviews or associated documents produced by the GMEC or a CCC are kept within a resident’s file.”

“Dr. Laippley’s affidavit also explains that residency files may be accessed by anyone who participates “in the residency review and peer review processes.” It is unclear whether “residency review” refers to something different than the “peer review” being provided by the GMEC and CCCs, but it is implied by the language of the affidavit. Notably, the word review appears after both residency and peer, suggesting they are different review processes. The word “process[ ]” is also pluralized, indicating that “residency review” is a separate process from “peer review[.]””

The Ohio Appellate Court held: “Summa’s assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.”

Source Stull v. Summa Health Sys., 2022-Ohio-457.

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