Ohio Appellate Court Applies Peer Review Privilege To Prevent Discovery Of Incident Reports In Nursing Home Assault Lawsuit

The plaintiff in a nursing home negligence lawsuit alleged that John Sexton was assaulted by Vanesha Rice at Summit Leasing Co., LLC d/b/a Wood Glen Alzheimer’s Community (“Wood Glen”) in late January 2019 while Rice was an employee at Wood Glen and John Sexton was residing there. John Sexton died less than two months later. The plaintiff alleged claims of negligence, negligent hiring/retention, negligent supervision/control, intentional spoliation of evidence, breach of contract, and wrongful death resulting from Wood Glen’s employee Vanesha Rice’s assaulting John Sexton.

The plaintiff sought discovery of certain documents regarding other residents at Wood Glen. The trial court ordered some of the documents to be produced. The defendants appealed.

The Court of Appeals of Ohio Second Appellate District Montgomery County (“Ohio Appellate Court”) stated in its opinion dated March 25, 2022 “a peer review committee existed at Wood Glen and that the committee investigated the case in question. The incident reports contained in Exhibits B-25 through B-37 contained language at the bottom of each page that made it clear that the documents were prepared for the quality assurance program. Further, Dr. Patel stated that these incident reports were part of the investigations of alleged abuse at Wood Glen and the Quality Assurance Committee was required to, and did in fact, meet and review these investigation documents. These documents fit squarely within the peer-review privilege. Therefore, the trial court erred in ordering the production of these incident reports.”

The Ohio Appellate Court further stated “The skin assessments contained in Exhibits A-31 through A-34 do not have any statements identifying the documents as being created for the quality assurance program … But the inquiry does not end there. Appellants contend that these skin assessments should be precluded from discovery as containing protected health information pursuant to HIPAA, R.C. 3798.04, and R.C. 2317.02. Medical records are generally privileged from disclosure under R.C. 2317.02(B)(1), known as the physician-patient privilege … Also, HIPAA prohibits knowingly disclosing an individual’s identifiable health information to another person. 45 C.F.R. 164.512. Based on a review of the skin assessments, we conclude that these are medical records that should have been protected from disclosure. Similarly, the progress notes and evaluations in Exhibits B-25 through B-37 are medical records that should have been protected from disclosure. A simple redaction of the names on these medical records is not sufficient to provide the protection to which these medical records are entitled.”

Lastly, the Ohio Appellate Court held: “Finally, the witness statements contained in Exhibits B-25 through B-37 are covered by the peer-review privilege. According to Dr. Patel, these documents were part of the investigations of alleged abuse at Wood Glen and the Quality Assurance Committee was required to, and did in fact, meet and review these investigation documents. Therefore, the trial court erred in ordering these documents to be produced.”

The Ohio Appellate Court noted, however: “We acknowledge and share the trial court’s concerns that some parties may try to use the peer-review privilege “to hide from discovery any information regarding an incident by simply providing the information to the [quality assurance committee].” June 22, 2021 Decision, p. 3. Evidence that a party created a quality assurance committee or presented documents to its committee solely to hide otherwise discoverable documents would weigh strongly against applying the peer-review privilege to that party’s documents. However, no evidence of that was presented in the case before us.”

Source Sexton v. Healthcare Facility Mgt., L.L.C., 2022-Ohio-963.

If you or a loved one suffered injuries (or worse) while a resident of a nursing home in Ohio or in another U.S. state due to nursing home assault, nursing home neglect, nursing home negligence, nursing home abuse, nursing home under-staffing, or the nursing home failing to properly care for a vulnerable adult, you should promptly find a nursing home claim lawyer in Ohio or in your state who may investigate your nursing home claim for you and file a nursing home claim on your behalf or behalf of your loved one, if appropriate.

Click here to visit our website to be connected with medical malpractice attorneys (nursing home claim attorneys) in your U.S. state who may assist you with your nursing home claim, or call us toll-free in the United States at 800-295-3959.

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This entry was posted on Tuesday, June 7th, 2022 at 5:29 am. Both comments and pings are currently closed.

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