May 18, 2021

In its Journal Entry And Opinion dated April 28, 2021, the Court of Appeals of Ohio Eighth Appellate District (“Ohio Appellate Court”) held “that the peer-review privilege does not apply to the requested documents and that the trial court did not abuse its discretion in finding the documents did not contain trade secrets.”

The plaintiff, Eloise Hance, alleged that a neurosurgeon employed by the Cleveland Clinic operated on her back based on a medical misdiganosis, resulting in severe and persistent pain, decreased life expectancy, and left her permanently paralyzed from the waist down. The plaintiff further alleged that her surgeon failed to inform her that the surgery could substantially and permanently worsen her condition.

The plaintiff filed a motion to compel the Cleveland Clinic to produce documents referring to its efforts to motivate its neurosurgeons to increase patient access and revenue after the deposition testimony of one of its neurosuregons. In response, the Cleveland Clinic argued that the documents responsive to the plaintiff’s document requests are protected by the peer-review privilege and contain trade secrets.

The trial court issued a judgment entry explaining that it had reviewed the redacted documents and had determined that they are not privileged and are subject to production.The trial court ordered the Cleveland Clinic to produce those documents, “as redacted,” within ten days of the order. The Cleveland Clinic appealed the judgment.

Ohio Appellate Court Opinion

Peer Review Privilege

R.C. 2305.252 states in relevant part: “Proceedings and 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 or introduction in evidence in any civil action against a health care entity or health care provider[.]” The purpose of R.C. 2305.252 is to protect the integrity of the peer-review process to improve the quality of healthcare. But the privilege is not a generalized cloak of secrecy over the entire peer-review process.

The Ohio Appellate Court stated that the party asserting the peer-review privilege must establish the existence of a committee that meets the statutory definition of ‘peer review committee’ contained in R.C. 2305.25(E). Next, the party must show that each of the documents it refuses to produce is a record within the scope of a peer review committee. The party seeking to assert the privilege must provide evidence as to the specific documents requested, not generalities regarding the types of documents usually contained in a peer-review committee’s records.

R.C. 2305.25(E) defines “[p]eer review committee” as follows: ““Peer review committee” means a utilization review committee, quality assessment committee, performance improvement committee, tissue committee, credentialing committee, or other committee that does either of the following: (a) Conducts professional credentialing or quality review activities involving the competence of, professional conduct of, or quality of care provided by health care providers, including both individuals who provide health care and entities that provide health care; (b) Conducts any other attendant hearing process initiated as a result of a peer review committee’s recommendations or actions.”

The Cleveland Clinic argued that the requested documents arose from a “utilization review committee” that involves the “quality of patient care.” The Cleveland Clinic contended that the documents “contain information regarding the deliberative process” that its Neurological Institute and Center for Spine Health uses to “increase patient access and improve patient care.”

In response to the Cleveland Clinic’s argument, the Ohio Appellate Court stated: “The only evidence the Clinic produced in support of its peer-review argument is the affidavit of Dr. Mroz. But nothing in Dr. Mroz’s affidavit supports the Clinic’s contention that its “utilization review committee” fits the definition of a “peer review committee” or that the requested documents are within the scope of this committee. Indeed, the affidavit does not mention any committee at all, let alone a “utilization review committee” or any a committee that would fit the definition of “peer review.” The contested documents themselves consist of emails from Dr. Mroz to his “Team” and Center for Spine Health staff meeting minutes. The Clinic does not argue, or present evidence to show, that Dr. Mroz’s team or the Center for Spine Health is a peer-review committee. The headings of the staff meeting minutes do not include any language related to a peer review committee or “utilization review committee,” and they do not suggest that the documents were created for any purpose other than to record the material covered during the Center for Spine Health’s staff meetings” and therefore the Ohio Appellate Court held: “we find that the Clinic has not satisfied its burden to establish that the peer-review privilege applies to prevent it from responding to the plaintiffs’ document requests.”

Trade Secrets

The Ohio Appellate Court also rejected the Cleveland Clinic’s trade secrets argument.

R.C. 1333.61(D) defines a trade secret as follows: ““Trade secret” means information, including the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique, or improvement, or any business information or plans, financial information, or listing of names, addresses, or telephone numbers, that satisfies both of the following: (1) It derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. (2) It is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”

The Ohio Supreme Court has established the following six-factor test for determining whether information constitutes a trade secret pursuant to R.C. 1333.61(D): “(1) The extent to which the information is known outside the business; (2) the extent to which it is known to those inside the business, i.e., by the employees; (3) the precautions taken by the holder of the trade secret to guard the secrecy of the information; (4) the savings effected and the value to the holder in having the information as against competitors; (5) the amount of effort or money expended in obtaining and developing the information; and (6) the amount of time and expense it would take for others to acquire and duplicate the information.”

The Ohio Appellate Court stated: “We note that the Clinic submitted the requested documents to the trial court and to this court in a heavily redacted format. The small portions of the documents that are unredacted refer generally to a “budget” and the Center for Spine Health’s progress in complying with it. The documents contain no unredacted details regarding specific data or dollar amounts, and the Clinic represents that the plaintiffs are not requesting such details. On its face, the general nature of the unredacted content would not appear to derive economic value from not being generally known by others.”

The Ohio Appellate Court further stated: “The Clinic’s argument and Dr. Mroz’s affidavit consist of merely conclusory statements that mimic the trade secret factors without including any supporting evidence or demonstration of active steps the Clinic has taken to preserve the information’s secrecy … Dr. Mroz included no factual detail to support his assertions, and the Clinic submitted no other evidence to support Dr. Mroz’s affidavit or its opposition to the plaintiffs’ motion to compel. The Clinic’s reliance on conclusory affidavit statements is insufficient to satisfy its burden to show that the requested documents contain trade secrets … Even if the requested documents did contain trade secrets, the Clinic has not shown that it would be entitled to withhold their production altogether.”

The Ohio Appellate Court held: “Given the lack of evidence that the requested documents, as redacted, contain trade secrets, we find that the trial court’s decision that the documents contained no trade secrets was not unreasonable, arbitrary, or unconscionable. Therefore, we find that the trial court did not abuse its discretion.”

Source Hance v. Cleveland Clinic, No. 110129.

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