[Cite as Griffith v. Aultman Hosp.,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

GENE'A GRIFFITH, EXECUTRIX : JUDGES: FOR THE ESTATE OF HOWARD E. : GRIFFITH, DECEASED : Hon. John W. Wise, P.J. : Hon. Patricia A. Delaney, J. Plaintiff - Appellant : Hon. Craig R. Baldwin, J. : : : -vs- : : AULTMAN HOSPITAL : Case No. 2013CA00142 : : Defendant - Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2013CV00487

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 25, 2014

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

LEE E. PLAKAS RICHARD S. MILLIGAN MEGAN J. FRANTZ OLDHAM Milligan Pusateri Co., LPA COLLIN S. WISE 4684 Douglas Circle NW Tzangas, Plakas, Mannos, Ltd. P.O. Box 35459 220 Market Avenue South, Eighth Floor Canton, OH 44735 Canton, OH 44702 Stark County, Case No. 2013CA00142 2

Baldwin, J.

{¶1} Plaintiff-appellant Gene’a Griffith, Executrix for the Estate of Howard E.

Griffith, Deceased, appeals from the June 28, 2013 Judgment Entry of the Stark

County Court of Common Pleas granting the Motion for Summary Judgment filed by

defendant-appellee Aultman Hospital.

STATEMENT OF THE FACTS AND CASE

{¶2} Howard E. Griffith was a patient at appellee Aultman Hospital from May 2,

2012 until his death on May 8, 2012. Griffith had surgery on May 2, 2012 and, after

developing a heart arrthymia, was placed on a cardiac monitor on May 4, 2012. On May

6, 2012, he was found unresponsive with the leads to his cardiac monitor detached from

his chest. He was taken off of life support on May 8, 2012 and died on such date.

Appellant is his daughter and the Executrix of his estate.

{¶3} After her attempts to obtain a complete copy of her father’s medical

records were unsuccessful, appellant, who had received some medical records from

appellee, filed an action on February 12, 2013 against appellee pursuant to R.C.

3701.74 to compel production of her father’s complete medical record from his

admission on May 2, 2012 until his death on May 8, 2012. Appellant, in her complaint,

alleged, in part, that appellee had failed to produce any monitoring strips for her father’s

vital signs from the early morning of May 6, 2012, among other times, and any nurses’

records from the morning of May 6, 2012, among other times. Appellee, on March 8,

2013, filed an answer to appellant’s complaint. Appellee, in its answer, alleged that it

had provided appellant with her father’s complete medical record on February 28, 2013. Stark County, Case No. 2013CA00142 3

{¶4} Appellant, on March 11, 2013, deposed Jennifer Reagan-Nichols,

appellee’s Director of Medical Records. Reagan-Nichols testified that a medical record

consisted of a patient’s chart minus any type of document that did not belong as part of

the patient’s permanent medical record. She further testified that appellee decided what

was part of a patient’s medical record and that appellee’s definition of what was a

medical record was the same definition as set forth in R.C. 3701.74. Reagan-Nichols

further testified that Bates Numbers 655 to 707, which appellee produced in response to

Request for Production No. 1, were not part of the medical record because “those

documents are [EKG] rhythm strips that do not print out of other systems that we don’t

get….” Reagan-Nichols Dep. Vol. I at 42. She testified that the nursing staff did not

print out the same and send them to the medical records department and that the

medical records department did not have access to the rhythm strips. She was unable

to say where the rhythm strips were maintained and testified that she did not know if

they met the definition of a medical record.

{¶5} Appellee, on March 14, 2013, filed a Motion for Summary Judgment

supported by the sworn interrogatory answers of Reagan-Nichols. Reagan-Nichols, in

her answers, indicated that a complete copy of Howard Griffith’s medical chart had been

provided to appellant. On March 28, 2013, appellant filed a memorandum in opposition

to appellee’s Motion for Summary Judgment and a Motion to Conduct Additional

Discovery pursuant to Civ.R. 56(F).

{¶6} After Reagan-Nichols submitted an errata sheet that changed her

testimony, the trial court permitted appellant to take a second deposition of Reagan-

Nichols. During the May 24, 2013 deposition, Reagan-Nichols testified that the reason Stark County, Case No. 2013CA00142 4

Bates Numbers 655 to 707 were not considered part of Howard Griffith’s medical record

was because they were never provided to the medical records department. Reagan-

Nichols testified that they had been printed at the direction of appellee’s Risk

Management Department and stored by such department. She further testified that if a

record or document is not given to the medical records department, it is not made part

of the patient’s medical record even if another part of the hospital may have a copy.

Reagan-Nichols, when asked, testified that she meant to change her testimony to state

that Bates Numbers 655 to 707 did not meet the legal definition of a medical record.

When asked if she agreed that they were medical records of a patient, she stated that

she did. According to Reagan-Nichols, “if they provide it to us [the medical records

department], then we make it part of the medical record. Reagan-Nichols Dep. Vol. II at

103. She agreed that the only distinction as to what was part of a patient’s medical

record was what the medical providers gave to the medical records department and that

it was within the provider’s discretion as to what to provide to the medical records

department.

{¶7} During her deposition, Reagan-Nichols testified that she did not know if

the Risk Management Department had any other records for Howard Griffiths that had

not been provided to appellant.

{¶8} After Reagan-Nichol’s second deposition, both parties filed supplemental

briefs. Appellant, in her June 7, 2013 supplemental brief, asked, in the alternative, to be

permitted to conduct additional discovery pursuant to Civ.R. 56(F) “to determine where

and why another page from Mr. Griffith’s medical record suddenly appeared, what other

departments including risk management have other medical records regarding Mr. Stark County, Case No. 2013CA00142 5

Griffith that have not been produced, and to obtain the additional monitoring equipment

information regarding Mr. Griffith that has not been produced.” Attached to the brief was

a letter from defense counsel dated May 31, 2013 supplementing the prior discovery

responses with Bates Number 708.

{¶9} On June 28, 2013, an oral hearing was held on appellee’s Motion for

Summary Judgment. Pursuant to a Judgment Entry filed on the same day, the trial court

granted appellee’s motion, finding that appellee had produced Griffith’s medical record

as defined by R.C. 3701.74(A)(8).

{¶10} Appellant now raises the following assignments of error on appeal:

{¶11} “I. THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO

WHETHER AULTMAN HAS PRODUCED MR. GRIFFITH’S ENTIRE MEDICAL

RECORD FROM HIS MAY 2, 2012 ADMISSION BECAUSE 1) AULTMAN’S

DEFINITION OF “MEDICAL RECORD” IS INCONSISTANT WITH STATE AND

FEDERAL LAW AND, AS SUCH, ANY CERTIFICATIONS OR ASSERTIONS BY

AULTMAN THAT IT HAS PRODUCED MR. GRIFFITH’S ENTIRE MEDICAL RECORD

ARE MEANINGLESS, 2) JENNIFER REAGAN-NICHOLS WHO CERTIFIED SUCH

RECORDS TESTIFIED THAT SHE DOES NOT KNOW IF OTHER AULTMAN

DEPARTMENTS HAVE MEDICAL RECORDS REGARDING MR. GRIFFITH, AND 3)

BASED ON JENNIFER REAGAN-NICHOL’S TESTIMONY, ADDITIONAL RECORDS

OF MR. GRIFFITH SHOULD EXIST THAT HAVE NOT BEEN PRODUCED.”

{¶12} “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

GENE’A GRIFFITH ADDITIONAL TIME TO CONDUCT DISCOVERY BEFORE

RULING ON AULTMAN’S MOTION FOR SUMMARY JUDGMENT FOR REASONS Stark County, Case No. 2013CA00142 6

INCLUDING THAT FACT THAT AULTMAN HOSPITAL’S MOTION FOR SUMMARY

JUDGMENT WAS FILED ONLY A MONTH AFTER THE COMPLAINT WAS FILED

AND THERE A (SIC) SUFFICIENT BASIS TO BELIEVE THAT AULTMAN IS IN

POSSESSION OF ADDITIONAL MEDICAL RECORDS NOT PRODUCED.”

Standard of Review

{¶13} We refer to Civ.R. 56(C) in reviewing a motion for summary judgment

which provides, in pertinent part:

{¶14} Summary judgment shall be rendered forthwith if the pleading,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence in the pending case and written stipulations of fact, if any, timely filed in the

action, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law. * * * A summary judgment shall not be

rendered unless it appears from such evidence or stipulation and only from the

evidence or stipulation, that reasonable minds can come to but one conclusion and that

conclusion is adverse to the party against whom the motion for summary judgment is

made, such party being entitled to have the evidence or stipulation construed most

strongly in the party's favor.

{¶15} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element

of the nonmoving party's claim. Dresher v. Burt,

, 1996-Ohio-

107,

. The nonmoving party then has a reciprocal burden of specificity

and cannot rest on the allegations or denials in the pleadings, but must set forth Stark County, Case No. 2013CA00142 7

“specific facts” by the means listed in Civ.R. 56(C) showing that a “triable issue of fact”

exists. Mitseff v. Wheeler,

,

(1988).

{¶16} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. Vahila v. Hall,

,

,

, citing

I

{¶17} Appellant, in her first assignment of error, argues that the trial court erred

in granting appellee’s Motion for Summary Judgment because there is a genuine issue

of material fact as to whether appellee had produced Griffith’s entire medical record

from his May 2, 2012 admission.

{¶18} As is stated above, appellant filed her complaint seeking the medical

records pursuant to R.C. 3701.74. R.C. 3701.74 states, in relevant part, as follows:

{¶19} “(B) A patient, a patient's personal representative or an authorized person

who wishes to examine or obtain a copy of part or all of a medical record shall submit to

the health care provider a written request signed by the patient, personal representative,

or authorized person dated not more than one year before the date on which it is

submitted. The request shall indicate whether the copy is to be sent to the requestor,

physician or chiropractor, or held for the requestor at the office of the health care

provider. Within a reasonable time after receiving a request that meets the requirements

of this division and includes sufficient information to identify the record requested, a

health care provider that has the patient's medical records shall permit the patient to

examine the record during regular business hours without charge or, on request, shall

provide a copy of the record in accordance with section 3701.741 of the Revised Code, Stark County, Case No. 2013CA00142 8

except that if a physician or chiropractor who has treated the patient determines for

clearly stated treatment reasons that disclosure of the requested record is likely to have

an adverse effect on the patient, the health care provider shall provide the record to a

physician or chiropractor designated by the patient. The health care provider shall take

reasonable steps to establish the identity of the person making the request to examine

or obtain a copy of the patient's record.

{¶20} “(C) If a health care provider fails to furnish a medical record as required

by division (B) of this section, the patient, personal representative, or authorized person

who requested the record may bring a civil action to enforce the patient's right of access

to the record.”

{¶21} R.C. 3701.74(A)(8) defines a “medical record” as meaning “ data in any

form that pertains to a patient's medical history, diagnosis, prognosis, or medical

condition and that is generated and maintained by a health care provider in the process

of the patient's health care treatment.”

{¶22} At the June 28, 2013 hearing before the trial court on appellee’s Motion for

Summary Judgment, appellee argued that that the critical word in the above statute was

“maintained” and that “the only meaning that can attached to it, is that the hospital

record is to be that which the hospital maintains, not that which a Plaintiff in a

legal malpractice case - - or in a medical malpractice case thinks should be maintained,

not everything having to do with the patient, but that which a hospital determines needs

to be maintained by a health care provider in the process of a patient’s health care.”

Transcript at 6-7. We agree. As is stated above, Jennifer Reagan-Nichols, the Director

of Medical Records who maintained the medical records, testified that the medical Stark County, Case No. 2013CA00142 9

record consisted of what the medical provider gave to her. Thus, the medical record

consists of what was maintained by the medical records department and information

that the provider decides not to maintain is not part of the medical record. Appellee

certified that it had produced the medical records at issue in this case. On such basis,

we find that the trial court did not err in granting summary judgment in favor of appellee.

{¶23} It is apparent that the purpose of R.C. 3701.74 is to enable a patient to

obtain his or her file in order, for example, to obtain a second opinion or transfer to

another medical provider. There is nothing in the statute indicating that the statute was

intended to be used as a broad discovery device. We note that R.C. 3701.74 is

contained in Title 37 of the Revised Code, which is titled “Health-Safety-Morals.” More

specifically, R.C. 3701.74 is a miscellaneous provision contained in Chapter 3701,

which is titled “Department of Health.” The civil rules do not contain a similar provision.

{¶24} Appellant’s first assignment of error is, therefore, overruled.

II

{¶25} Appellant, in her second assignment of error, argues that the trial court

abused its discretion when it denied her additional time to conduct discovery pursuant to

Civ.R. 56(F) before ruling on appellee’s Motion for Summary Judgment.

{¶26} Civ.R. 56(F) provides:

{¶27} “(F) When affidavits unavailable.

{¶28} “Should it appear from the affidavits of a party opposing the motion for

summary judgment that the party cannot for sufficient reasons stated present by

affidavit facts essential to justify the party's opposition, the court may refuse the Stark County, Case No. 2013CA00142 10

application for judgment or may order a continuance to permit affidavits to be obtained

or discovery to be had or may make such other order as is just.”

{¶29} The decision of whether to grant or deny a Civ.R. 56(F) continuance is

within the sound discretion of the trial court. Beegle v. Amin,

,

2004–Ohio–1579,

(7th Dist. Jefferson). In order to find an abuse of

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore,

,

(1983).

{¶30} In the case sub judice, appellant, in her motion for additional discovery,

argued, in part, that she should be permitted to conduct additional discovery regarding

Bates Number 708. A letter from defense counsel dated May 31, 2013 had

supplemented the prior discovery responses with Bates 708 (EKG rhythm strips).

However, Reagan-Nichols testified that such strips did not meet the legal definition of

medical records. While appellant also alleged that she was entitled to additional

discovery to determine whether any department other than the medical records

department, including Risk Management, had medical records regarding her father

that were not produced, as is stated above, such documents do not meet the definition

of a medical record because they were not “maintained’ by the medical records

department. We find that the information that appellant sought through additional

discovery either did not fall within the definition of a medical record and/or was already

provided by appellee. We further find, therefore, that the trial court did not abuse its

discretion in not allowing appellee additional time for discovery before ruling on

appellant’s Motion for summary Judgment. Stark County, Case No. 2013CA00142 11

{¶31} Appellant’s second assignment of error is, therefore, overruled.

{¶32} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.

By: Baldwin, J.

and Wise, P.J. concur.

and Delaney, J. dissents. Stark County, Case No. 2013CA00142 12

Delaney, J., dissenting.

{¶33} I respectfully dissent from the majority opinion.

{¶34} Any claim for malpractice is governed by Civ.R. 10(D) which requires the

filing of an affidavit of merit with the complaint for any medical claim, dental claim,

optometric claim or chiropractic claim. In order to meet this evidentiary requirement, it is

imperative that sufficient medical records available for review are provided to a patient

for an expert to opine whether the standard of care has been violated.

{¶35} R.C. 3701.74 permits a patient to file a civil action against a health care

provider to enforce the patient’s right of access to a copy of part or all of the patient’s

medical record that is “generated and maintained by a health care provider in the

process of the patient’s health care treatment.” R.C. 3701.74(A)(8).

{¶36} The majority improperly limits a patient’s ability to access all of the

patient’s medical records to those records given to a medical record department, even

though the health care provider’s other departments, such as Risk Management in this

case, also has or may have medical records of the patient. I find such a limitation is not

found in the plain language of the statute, nor is R.C. 3701.74 limited in any way to the

patient’s need for his or her medical records (e.g., to obtain a second opinion or file a

malpractice action).

{¶37} Health care providers have a responsibility to maintain up-to-date,

accurate and complete patient records. This is for the benefit of both the patient and the

health care provider. I am concerned the majority’s opinion could lead to the

concealment, even though unintended, of medical records if a health care provider can Stark County, Case No. 2013CA00142 13

self-define the statutory definition of “maintain” to only include those records it

determines to send to its medical records department.

{¶38} Based upon the record before us, I would sustain the first and second

assignments of error and remand this matter to the trial court for further proceedings.