Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 08-06-2022
Case Style:
JAMES SEXTON, AS EXECUTOR OF
THE ESTATE OF JOHN DAVID
SEXTON v. HEALTHCARE FACILITY MGMT. LLC, dba COMMUNICARE FAMILY OF COMPANIES, et al.
Case Number: 29262
Judge:
Ronald C. Lewis; Presiding Judge
Christopher B. Epley
Michael L. Tucker
concur
Court:
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
Civil Appeal from Common Pleas Court
Plaintiff's Attorney:
Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World.
Re: MoreLaw National Jury Verdict and Settlement
Counselor:
MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public.
MoreLaw will publish litigation reports submitted by you free of charge
Info@MoreLaw.com - 855-853-4800
Defendant's Attorney: JEFFREY W. VAN WAGNER
DIANE L. FEIGI
Description:
Dayton, Ohio - Nursing Home Abuse lawyer represented Plaintiff-Appellee with a Nursing Home Abuse charge.
This matter comes before us on an application for reconsideration pursuant
to App.R. 26(A) filed by Plaintiff-Appellee James Sexton, as Executor of the Estate of
John David Sexton (“Sexton”). In an opinion issued on March 25, 2022, we concluded
that the trial court should have granted a motion for protective order filed by DefendantsAppellants Health Care Facility Management LLC (“HCFM”) and Summit (Ohio) Leasing
Co., LLC d/b/a Wood Glen Alzheimer’s Community (“Wood Glen”). Sexton v. Healthcare
Facility Mgt. LLC, 2d Dist. Montgomery No. 29262, 2022-Ohio-963.
{¶ 2} In our March 25th Opinion, we noted that the documents at issue were
grouped into the following four categories: 1) skin assessments; 2) incident reports; 3)
progress notes and evaluations; and 4) witness statements regarding the allegations of
abuse by residents at Wood Glen other than John Sexton. Id. at ¶ 14-17. We concluded
that the second and fourth categories of documents were protected from discovery by the
peer review privilege and that the first and third categories were medical records that were
protected from discovery. Id. at ¶ 24-27.
{¶ 3} Sexton limits his application for reconsideration to the fourth category of
documents, the witness statements regarding the allegations of abuse by residents at
Wood Glen other than John Sexton. Application for Reconsideration, p. 4. These
witness statements are contained in Exhibits B-25 through B-37. Sexton contends that
our March 25, 2022 Opinion failed to consider the trial court’s finding that the witness
statements Sexton sought from HCFM and Wood Glen were not protected under the peer
review privilege, because Sexton was seeking those documents from their original
source, the defendant entities themselves, not from the peer review committee.
-3-
According to Sexton, he intends “to use the requested statements to prove that Wood
Glen was negligent in this case. That is, other employees at Wood Glen physically
abused other residents and Wood Glen was inadequate in their attempts to remedy the
problem.” Id. at p. 8.
{¶ 4} In our March 25, 2022 Opinion, we concluded the following with regard to the
witness statements:
Finally, the witness statements contained in Exhibits B-25 through B37 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.
Sexton at ¶ 27.
{¶ 5} The test generally applied to an application for reconsideration is whether it
“calls to the attention of the court an obvious error in its decision or raises an issue for our
consideration that was either not considered at all or was not fully considered by us when
it should have been.” Matthews v. Matthews, 5 Ohio App.3d 140, 143, 450 N.E.2d 278
(10th Dist.1982). “An application for reconsideration is not designed for use in instances
where a party simply disagrees with the conclusions reached and the logic used by an
appellate court.” State v. Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d 956 (11th
Dist.1996).
{¶ 6} Although we did note in our Opinion that there is an “original source”
-4-
exception to the peer review privilege, we agree with Sexton that we did not conduct a
specific analysis regarding the trial court’s finding that Sexton was seeking the witness
statements from an original source rather than from the peer review committee.
Therefore, we will grant Sexton’s application for reconsideration in order to address
whether the witness statements contained in Exhibits B-25 through B-37 fit within the
original source exception to the peer review privilege.
{¶ 7} R.C. 2305.252(A) provides that proceedings and records within the scope of
a peer review committee “shall be held in confidence and shall not be subject to discovery
* * * in any civil action against a health care entity or health care provider * * * arising out
of matters that are the subject of evaluation and review by the peer review committee.
* * *” However, R.C. 2305.252(A) goes on to provide the following “original source”
exception to this bar on discovery:
Information, documents, or records otherwise available from original
sources are not to be construed as being unavailable for discovery or for
use in any civil action merely because they were produced or presented
during proceedings of a peer review committee, but the information,
documents, or records are available only from the original sources and
cannot be obtained from the peer review committee's proceedings or
records.
{¶ 8} The trial court referenced this exception in its June 22, 2021 Decision. The
trial court stated, in part:
It is the Court’s understanding that plaintiffs are seeking these
-5-
records from the defendant entities themselves as produced by
persons within the scope of employment with the defendant entities,
and not “from the peer review committee’s proceedings or records.”
Therefore, the requested documents fall within the exception.
June 22, 2021 Decision, p. 6.
{¶ 9} As the First District has explained, “[t]here are two general categories of
documents that are considered records within the scope of the peer-review committee.
First, any documents that are generated by or exclusively for the peer-review committee
are protected from disclosure.” Spurgeon v. Mercy Health-Anderson Hosp., LLC, 2020-
Ohio-3099, 155 N.E.3d 103, ¶ 14 (1st Dist.). Second, any documents that are
maintained in the peer review committee’s records that were generated by an “original
source,” a source other than the peer review committee itself, and then presented to a
peer review committee are protected from disclosure. Id. at ¶ 15; R.C. 2305.252.
{¶ 10} But the records and proceedings of the peer review committee are not
necessarily coextensive with all the records of the facility in which the committee operates.
Id. at ¶ 16, citing Large v. Heartland-Lansing of Bridgeport Ohio, LLC, 2013-Ohio-2877,
995 N.E.2d 872, ¶ 35 (7th Dist.). “It is possible for the health care entity itself to be an
original source.” Spurgeon at ¶ 16, citing Cousino v. Mercy St. Vincent Med. Ctr., 2018-
Ohio-1550, 111 N.E.3d 529, ¶ 28 (6th Dist.) and Large at ¶ 35. For example,
“[d]ocuments that are accessible to the staff of the facility separate and apart from any
role on a review committee are not protected by the privilege.” Spurgeon at ¶ 16, citing
Large at ¶ 39.
-6-
{¶ 11} The trial court’s finding that Sexton was seeking production of the
documents from an original source, the defendant entities themselves, necessary implied
that the trial court also was finding that the documents were not generated by the
committee itself, but rather were generated by another part of the defendant entities that
subsequently shared the witness statements with the committee. Appellants take issue
with this implication. According to Appellants, the Quality Assurance Committee was the
original source of the witness statements, because the “witness statements were
prepared for the sole use of the Quality Assurance Committee[.]” Brief in Opposition to
Application for Reconsideration, p. 7. But there is nothing in the affidavits of Dr.
Meenakshi Patel or John Quattrone to establish that the witness statements contained in
Exhibits B-25 through B-37 were prepared for the sole use of the Quality Assurance
Committee.
{¶ 12} Paragraph 18 of John Quattrone’s October 23, 2020 affidavit states that
“[t]he written statements and incident reports were prepared for the use of the Quality
Assurance Committee.” But this paragraph referred to documents attached to his
affidavit that related to the incident involving John Sexton and Vanesha Rice. These
particular documents were contained in Exhibits A-3 through A-24. The documents
contained in Exhibits B-25 through B-37 were not mentioned in Quattrone’s affidavit. Dr.
Meenakshi Patel’s November 16, 2020 affidavit is the one that specifically addresses the
documents contained in Exhibits B-25 through B-37. Dr. Patel’s affidavit does not
contain a paragraph similar to paragraph 18 of Quattrone’s affidavit. Further, unlike the
incident reports themselves, the witness statements do not contain a statement at the
-7-
bottom of the page that “This document is for internal use only within our quality assurance
program.”
{¶ 13} We must keep in mind that privileges are to be strictly construed and that
the party claiming the privilege has the burden of proving that the privilege applies to the
requested information. Giusti v. Akron Gen. Med. Ctr., 178 Ohio App.3d 53, 2008-Ohio4333, 896 N.E.2d 769, ¶ 17 (9th Dist.). Appellants did not carry their burden of proving
that the witness statements contained in Exhibits B-25 through B-37 were being sought
from a peer review committee’s records or that the statements were specifically prepared
for the use of a peer review committee. Given the trial court’s finding that the documents
were being sought from an original source that was not a peer review committee, we
conclude that the witness statements in Exhibits B-25 through B-37 fit within the original
source exception to the peer review privilege. See Ridenour v. Glenbeigh Hosp., 8th
Dist. Cuyahoga No. 100550, 2014-Ohio-2063 (analyzing the difference between
documents simply shared with a peer review committee versus documents specifically
prepared for the committee). But our analysis does not end there.
{¶ 14} The witness statements contained in Exhibits B-25 through B-37 relating to
allegations of abuse involving other residents at Wood Glen are grouped in the exhibits
with the incident reports associated with those allegations. R.C. 2305.253(A) applies to
incident reports and provides:
Notwithstanding any contrary provision of section 149.43, 1751.21,
2305.24, 2305.25, 2305.251, 2305.252, or 2305.28 of the Revised Code,
an incident report or risk management report and the contents of an incident
-8-
report or risk management report are not subject to discovery in, and are
not admissible in evidence in the trial of, a tort action. * * *
{¶ 15} R.C. 2305.25(D) defines incident report or risk management report as:
a report of an incident involving injury or potential injury to a patient
as a result of patient care provided by health care providers * * * that is
prepared by or for the use of a peer review committee of a health care entity
and is within the scope of the functions of that committee.
{¶ 16} Dr. Meenakshi Patel, in her affidavit, stated that “[t]he purpose, in part, of
the Quality Assurance Committee is to review investigations of any alleged incidents,
including statements taken relative to any alleged incidents and incident reports.” Patel
Affidavit, ¶ 8. She also stated that the Quality Assurance Committee was required to
meet to review the alleged incidents contained in Exhibits B-25 through B-37 and that the
“Committee complied with the QAPI Policy and reviewed the investigations of the alleged
incidents contained in Exhibits B-25 through B-37.” Id. at ¶ 15-16. However, there is no
statement in Dr. Patel’s affidavit that can be construed as establishing that the witness
statements are actually part of the incident report. And the definition of incident report in
R.C. 2305.25(D) is not broad enough on its own to include these witness statements.
Further, as noted above, there is no statement in Dr. Patel’s affidavit that the witness
statements were prepared by or for the use of the committee. Consequently, we
conclude that the blanket protection from discovery provided to incident reports in R.C.
2305.253 does not apply to the witness statements contained in Exhibits B-25 through B37.
-9-
{¶ 17} Sexton’s application for reconsideration is granted. The trial court correctly
found that the witness statements in Exhibits B-25 through B-37 were not protected from
discovery by the peer review privilege.
Outcome: Having granted Sexton’s application for reconsideration, the trial court’s
judgment is affirmed in part and reversed in part, for the reasons set forth in this opinion and our March 25, 2022 opinion. The cause will be remanded for further proceedings consistent with this opinion and our prior opinion
Plaintiff's Experts:
Defendant's Experts:
Comments: