[Cite as Brahm v. DHSC, L.L.C.,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: JAMES E. BRAHM, INDIVIDUALLY : Hon. Sheila G. Farmer, P.J. AND AS EXECUTOR OF THE : Hon. W. Scott Gwin, J. ESTATE OF MARY KATHLEEN : Hon. Patricia A. Delaney, J. BRAHM : : Plaintiff-Appellee : Case No. 2015CA00179 : -vs- : : OPINION DHSC, LLC, DBA AFFINITY MEDICAL CENTER, ET AL

Defendant-Appellant

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Case No. 2014CV01545

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: March 21, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

STEPHEN P. GRIFFIN STEPHEN C. KREMER MICHAEL J. KAHLENBERG REMINGER CO., L.P.A. 825 S. Main St. Hanna, Campbell & Powell North Canton, OH 44720 400 Courtyard Square Akron, OH 44308 Stark County, Case No. 2015CA00179 2

Gwin, J.

{¶1} Appellant, The American College of Cardiology [“ACC”] appeals the August

28, 2015 Judgment Entry of the Stark County Court of Common Pleas ordering the

production of documents for an in camera inspection by the trial court to determine

whether the documents are privileged or discoverable in whole or in part by the appellee,

James E. Brahm, Individually and as Executor of the Estate of Mary Kathleen Brahm,

Deceased. [“Brahm”].

Facts and Procedural History

{¶2} Mary Kathleen Brahm was a 72-year old woman when she was transported

by EMS to Affinity Medical Center's emergency department on July 11, 2013. Mrs. Brahm

was diagnosed with a STEMI—a ST segment elevation myocardial infarction. This is a

cardiac emergency that requires immediate intervention. Therefore, the Cardiac

Catheterization Department was called in emergently to provide care and Mrs. Brahm

was brought to the catheterization lab.

{¶3} Co-Defendant-Appellant Joseph Surmitis, M.D. was the interventional

cardiologist on call and was paged to perform the heart catheterization. During the

procedure, Dr. Surmitis identified a complete occlusion of Mrs. Brahm's right coronary

artery. He passed a wire through the occlusion, used a balloon to dilate the right coronary

artery to eliminate the blockage and then placed a stent at the location of the prior

occlusion. A second balloon was used to improve the performance of the stent.

{¶4} Following the deflation and removal of that balloon, Dr. Surmitis noted a

perforation in the right coronary artery. He acted to stop the bleeding from this perforation Stark County, Case No. 2015CA00179 3

and to address secondary complications caused by that blood leaking into the

pericardium, which was compromising the function of the heart.

{¶5} Dr. Surmitis also paged the on-call cardiovascular surgeon Dr. Tawil to

perform a procedure to repair the perforated vessel. Although Dr. Tawil was able to repair

the vessel during his procedure, Mrs. Brahm passed away on July 12, 2013.

{¶6} Appellee Brahm commenced this medical negligence action on June 30,

2014 against DHSC, LLC, DBA, Affinity Medical Center, Dr. Joseph Surmitis, and others,

seeking damages for injuries to, and the death of, his decedent, Mary Kathleen Brahm,

allegedly caused by negligent medical care.

{¶7} According to Affinity's nurse manager and coordinator of its catheterization

lab, Affinity's protocols and procedures for the lab include and adopt the American College

of Cardiology/Society for Cardiovascular Angiography and Interventions Expert

Consensus Document of Cardiac Catheterization Laboratory Standards ["ACC

Guidelines"]. The ACC Guidelines are a comprehensive statement of safe practices and

minimum statistical requirements for facilities that maintain cardiac catheterization labs.

Among others, it provides:

1. The annual minimum operator interventional procedural

volume of 75 cases per year has become an acceptable standard.

2. At present, with overall in-hospital mortality averaging 2% and

rates of emergent CABG averaging <1%, a composite major complication

rate of <3% is to be expected.

{¶8} Because Affinity had adopted and incorporated the ACC Guidelines within

its own policies and protocols for the catheterization lab, Brahm sought discovery of the Stark County, Case No. 2015CA00179 4

statistical benchmarks to which the ACC and Affinity subscribe for its practitioners within

the lab. Specifically, Brahm directed written discovery to Affinity and Dr. Surmitis seeking

to learn:

1. Major In-Hospital Complication Rates, including

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for diagnostic procedures performed at Defendant's

Catheterization Lab, by percentage relative to myocardial infarction.

2. Major In-Hospital Complication Rates, including

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for interventional/therapeutic procedures performed at

Defendant’s Catheterization Lab, by percentage relative to myocardial

infarction.

3. Major In-Hospital Complication Rates, including

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for diagnostic procedures performed by Joseph M. Surmitis,

M.D. at Defendant's Catheterization Lab, by percentage relative to

myocardial infarction.

4. Major In-Hospital Complication Rates, including

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for interventional/therapeutic procedures performed by

Joseph Surmitis, M.D. at Defendant's Catheterization Lab, by percentage

relative to myocardial infarction. Stark County, Case No. 2015CA00179 5

5. The number of contemporary percutaneous coronary

interventions for diagnostic procedures performed by Joseph M. Surmitis,

M.D. at Defendant's Catheterization Lab for each referenced calendar year.

6. The number of contemporary percutaneous coronary

interventions for interventional/therapeutic procedures performed by

Joseph M. Surmitis, M.D. at Defendant's Catheterization Lab for each

referenced calendar year.

{¶9} Furthermore, because Dr. Surmitis practiced interventional cardiology at

both Aultman Hospital and Mercy Medical Center, Brahm also issued subpoenas to those

non-party institutions seeking to learn:

1. Major In-Hospital Complication Rates, including

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for diagnostic procedures performed by Joseph M. Surmitis,

M.D. at Mercy/Aultman’s Main Campus Facility Catheterization Lab, by

percentage relative to myocardial infarction.

2. Major In-Hospital Complication Rates, including

morbidity/mortality rates, for all contemporary percutaneous coronary

interventions for interventional/therapeutic procedures performed by

Joseph Surmitis, M.D. at Mercy/Aultman's Main Campus Facility

Catheterization Lab, by percentage relative to myocardial infarction.

3. The number of contemporary percutaneous coronary

interventions for diagnostic procedures performed by Joseph M. Surmitis, Stark County, Case No. 2015CA00179 6

M.D. at Mercy/Aultman's Main Campus Facility Catheterization Lab from

January 1, 2010 to the present.

4. The number of contemporary percutaneous coronary

interventions for interventional/therapeutic procedures performed by

Joseph M. Surmitis, M.D. at Mercy/Aultman's Main Campus Facility

Catheterization Lab from January 1, 2010 to the present.

{¶10} Evidence was discovered by Brahm that Affinity’s catheterization lab

recorded and maintained statistics relative to procedural volume and outcome within the

lab and that this information was provided to a number of entities, including the American

College of Cardiology "Cath PCI data registry.” Because these statistics were provided to

the ACC, Brahm issued a subpoena to ACC to confirm whatever information was provided to

it by Affinity, Mercy, or Aultman.

{¶11} Each medical entity filed motions for a Protective Order and/or to Quash

Subpoenas, claiming the items Brahm sought to discover are privileged peer review

information barred from disclosure by R.C. 2305.252. ACC also claimed that the trial

court lacked subject matter jurisdiction over an out of state non-party, because ACC was

not properly served with the subpoena duces tecum.

{¶12} After extensive briefing on the issues of Peer Review, Quality Assurance

and privilege, on August 28, 2015, the Trial Court ordered that: (1) the number of

diagnostic and therapeutic procedures performed by Dr. Surmitis at the various facilities

be produced to Brahm; and (2) the documents reflecting all complication rates for the

catheterization lab, including morbidity/mortality rates, be produced to the Trial Court for

an in-camera review. Specifically the trial court ordered, Stark County, Case No. 2015CA00179 7

The Health Care Entities to produce the disputed material for in

camera review. At this juncture, it must be determined whether the records

consist of material addressing the specific care or treatment rendered to

particular patients or whether they are merely summaries of the patients

that were discussed without addressing the care and treatment rendered to

particular patients.

Judgment Entry, filed Aug. 28, 2015 at 9. In arriving at this conclusion, the trial court

noted,

In the case at bar, it is not clear on the face of the disputed discovery

requests that all of the documents requested by Plaintiffs are subject to the

peer review privilege. Therefore, defendants have the burden of proving

that the requested documents were privileged. An in camera inspection is

the best way for the Court to decide whether the privilege applies and to

protect the record for review.

Id. at 7.

{¶13} On September 28, 2015, ACC filed its notice of appeal from the trial court’s

August 28, 2015 Judgment Entry ordering the production of documents for an in camera

inspection by the trial court to determine whether the documents are privileged or

discoverable in whole or in part by Brahm.1

1 Each of the medical entities have appealed the August 28, 2015 Judgment Entry ordering the production of documents for an in camera inspection by the trial court to determine whether the documents are privileged or discoverable in whole or in part by Brahm. See, Brahm v. DHSC, LLC, dba Affinity Medical Center, et al. 5th Dist. No. 2015CA00165[Aultman Hospital]; Brahm v. DHSC, LLC, dba Affinity Medical Center, et al. 5th Dist. No. 2015CA00171 [Affinity Medical Center]; Brahm v. DHSC, LLC, dba Affinity Medical Center, et al. 5th Dist. No. 2015CA00172 [Mercy Medical Center]. Stark County, Case No. 2015CA00179 8

Assignment of Error

{¶14} ACC raises one assignment of error,

{¶15} “I. THE TRIAL COURT ERRED WHEN IT ORDERED OUT OF STATE„

NON-PARTY-APPELLANT AMERICAN COLLEGE OF CARDIOLOGY TO SUBMIT TO

THE TRIAL COURT FOR AN IN-CAMERA REVIEW PRIVILEGED AND PROTECTED

DOCUMENTS FROM PEER REVIEW AND QUALITY ASSURANCE INFORMATION.”

Analysis

Jurisdiction of the Court of Appeals

{¶16} In the case at bar, we must address the threshold issue of whether the

judgment appealed is a final, appealable order. Appellee filed a motion to dismiss on

October 8, 2015 raising an issue that the appeal herein is not from a final appealable

order. Appellee again raises the issue in its merit brief filed December 9, 2015.

{¶17} Even if a party does not raise the issue, this court must address, sua sponte,

whether there is a final appealable order ripe for review. State ex rel. White vs. Cuyahoga

Metro. Hous. Aut.,

, 544,

,

.

{¶18} Appellate courts have jurisdiction to review the final orders or judgments of

lower courts within their appellate districts. Section 3(B) (2), Article IV, Ohio Constitution.

If a lower court's order is not final, then an appellate court does not have jurisdiction to

review the matter and the matter must be dismissed. General Acc. Ins. Co. vs. Insurance

of North America,

,

(1989); Harris v. Conrad, 12th

Dist. No. CA-2001-12 108,

. For a judgment to be final and appealable,

it must satisfy the requirements of R.C. 2505.02 and if applicable, Civ. R. 54(B). Denham

v. New Carlisle,

,

(1999); Ferraro v. B.F. Goodrich Stark County, Case No. 2015CA00179 9

Co.,

,

,

. If an order is not final and

appealable, an appellate court has no jurisdiction to review the matter and it must be

dismissed.

{¶19} A proceeding for “discovery of privileged matter” is a “provisional remedy”

within the meaning of R.C. 2505.02(A)(3). Smith v. Chen,

, 2015-

Ohio-1480,

. An order granting or denying a provisional remedy is

final and appealable only if it has the effect of “determining the action with respect to the

provisional remedy and preventing a judgment in the action in favor of the appealing party

with respect to the provisional remedy” and “the appealing party would not be afforded a

meaningful or effective remedy by an appeal following final judgment as to all

proceedings, issues, claims, and parties in the action.” Chen, ¶5; R.C. 2505.02(B)(4).

The burden “falls on the party who knocks on the courthouse doors asking for interlocutory

relief.” Chen, ¶8. As specifically noted by the Ohio Supreme Court, “an order must meet

the requirements in both subsections of the provisional-remedy section of the

definition of final, appealable order in order to maintain an appeal.” Chen, ¶5.

{¶20} If the party seeking to appeal fails to establish why an immediate appeal

is necessary, the court must presume an appeal in the ordinary course would be

meaningful and effective. Chen, ¶8. However, “an order compelling disclosure of

privileged material that would truly render a post judgment appeal meaningless or

ineffective may still be considered on an immediate appeal.”

{¶21} In this case, ACC states,

The ACC incorporates by reference the arguments set forth by the

Hospital Entities in their Briefs in the Fifth District Court of Appeals Case Stark County, Case No. 2015CA00179 10

Nos. 2015-CA-00171 and 2015-CA00172 regarding an in camera

inspection of the peer review documents requested by Plaintiff as, pursuant

to their Participation Agreement with the National Cardiovascular Data

Registry and its Confidentiality provisions, the data and/or information

subject to the Trial Court's August 28, 2015 Order belongs to the Hospital

Entities. As such, the privilege related to that data, also belongs to the

Hospital Entities. Each of the Hospital Entities have separately appealed

the August 28, 2015 Order based on Ohio's Peer Review Statute, R.C.

Section 2305.

Brief of Defendant-Appellant, The American College of Cardiology, filed Dec. 8, 2015 at

5.

{¶22} Each of the medical entities argues there is a final appealable order under

R.C. 2505.02(A)(3) and (B)(4)(b) because it requires the discovery of privileged matter,

and thereby grants a provisional remedy for which there would be no meaningful effective

remedy on subsequent appeal. The essence of ACC’s argument is the trial court abused

its discretion in ordering the production of what appellant believes qualify as peer review

and quality assurance records for an in-camera inspection. The medical entities alleges

that because the order encompasses what it alleges are peer review records, it is a final,

appealable order pursuant to R.C. 2305.252. R.C. 2305.252 states that “* * *An order by

a court to produce for discovery or for use at trial the proceedings or records described in

this section [i.e. peer review records] is a final order.” Appellee argues that a trial court's

order for an in camera inspection of certain documents, rather than an order to provide

documents to the adverse party, is a non-final order. We agree with the appellee. Stark County, Case No. 2015CA00179 11

{¶23} The medical entities cite Huntsman v. Aultman Hospital,

,

,

[“Huntsman I”] for the proposition that an in camera

review is not permitted,

Further, in this particular situation, the change to the statute is clearly

procedural. The change in the statute that is relevant in this case pertains

to the Ohio legislature’s apparent decision to foreclose a party from

obtaining any information, documents, or records from the peer review

committee’s records. Previously, courts had interpreted the prior version of

the statute (R.C. 2305.251) to allow a trial court to conduct an in camera

review of the peer review committee’s records to determine whether the

privilege applied to individual documents. If the record was available from

its origin source, it was not privileged and could be obtained from the peer

review committee’s records. See, e.g., Doe v. Mount Carmel Health

Systems, Franklin App. No. 03AP–413,

,

.

The current version of the statute makes it clear that there is no need for an

in camera inspection because no documents can be obtained from the peer

review committee records, only from the records of the original source of

the information. We view this relevant revision to be a clarification of the

statute’s intent. Since this change affects only how information is to be

obtained, we find the change to be procedural.

Huntsman I,

,

,

.

[Emphasis added]. [Appellant’s Brief at 11-13]. However, Huntsman I stands for the

proposition that the statute prevents a court from requiring a facility to provide a list of Stark County, Case No. 2015CA00179 12

documents that could be found from other, original sources, utilizing a peer review

committee document to do so. In other words, a facility cannot be forced to divulge the

information contained in a peer review committee file. Large v. Heartland-Lansing of

Bridgeport Ohio, LLC, 7th Dist. Belmont No. 12 BE 7,

,

,

¶43.

{¶24} Huntsman I is factually distinguishable from the instant case. In Huntsman

I, the plaintiff sought documents that were contained in the hospital’s credentialing and

peer-review files, whereas here, the trial court found that it could not determine from the

face of the disputed discovery requests that all of the documents requested by Brahm are

subject to the peer review privilege. See, also, Manley v. Heather Hill, Inc.,

,

,

(11th Dist.), ¶34. We find that whether or

not the requested records fall within the purview of the peer review privilege is a decision

best determined by an in camera review of the documents the appellee is requesting and

over which appellant is asserting privilege. Bailey v. Manor Care of Mayfield Hts., 8th

Dist. No. 99798,

,

, ¶37.

{¶25} As this Court has noted,

Nothing in R.C. 2305.252 sets forth a right to privacy. Furthermore, the

protection of the free flow of information into a peer review process will not be

compromised by an in camera review. A private review, prior to any order for

the production of documents to an adverse party, by a competent judge who

is sworn to maintain confidentiality does not compromise the free flow of

information that the privilege is meant to protect. Stark County, Case No. 2015CA00179 13

Huntsman v. Aultman Hospital, 5th Dist. No. 2006 CA 00331,

.

[“Huntsman II”] In Huntsman II, this Court further noted,

The documents subject to the court's order in the case sub judice are

not as homogeneous in nature. In other words, the trial court in the case sub

judice could issue different rulings regarding the peer review privilege as to

each document presented.

5th Dist. No. 2006 CA 00331,

. This Court concluded, that the trial

court’s order requiring various insurance companies, the Bureau of Workers' Compensation,

Medicare, Medicaid, Aultcare HMO, and others to produce documents to the trial court for an

in camera inspection, is not a final, appealable order. Id. at ¶90.

{¶26} Despite appellant’s contention, the trial court’s judgment entry does not order

the release of any documents; rather the trial court itself will review the documents. The

issue of whether or not any document is discoverable has not yet been determined by the

trial court. The trial court’s order does not appear to exclude the possibility that the trial court

will review the documents to determine whether each is protected by the peer review privilege

in R.C. 2305.252. The trial court has retained jurisdiction to make further determinations

regarding the discoverability of the requested materials. Huntsman II at ¶81.

{¶27} In the case at bar, we find that the trial court’s entry ordering an in-camera

inspection of the documents is not a final appealable order.

{¶28} Because there is no final appealable order, this court does not have

jurisdiction to entertain appellant's appeal.2

2We note that the trial court did not address ACC’s argument concerning personal jurisdiction. However, because the trial court will conduct further proceedings in this case, ACC will be free to renew the argument and request a ruling from the trial court. Stark County, Case No. 2015CA00179 14

{¶29} For the foregoing reasons, appellant ACC’s appeal of the August 28, 2015

Judgment Entry of the Stark County Court of Common Pleas, Stark County, Ohio, is

hereby dismissed.

{¶30} IT IS SO ORDERED.

By Gwin, J., and

Delaney, J. concur;

Farmer, P.J., dissents

Farmer, P.J., dissents Stark County, Case No. 2015CA00179 15

{¶31} I respectfully dissent from the majority opinion that the discovery order sub

judice is not a final appealable order.

{¶32} I acknowledge in Smith v. Chen,

,

,

Justice O'Neill refined our scope of final appealable orders. Under R.C. 2305.252 and its

specific language, "[p]roceedings 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***."

{¶33} As we addressed in Huntsman I, a parallel situation, even an in camera

review is violative of the statute. Huntsman I,

,

. I find the majority's reliance on Huntsman II, 5th Dist. Stark No. 2006 CA 00331,

, to be misplaced. Huntsman II involved information and sources

independent of the records and proceedings of the peer review committee. The statute

specifically permits discovery of information, documents, or records obtainable from

original sources. The matters sought to be discovered in Huntsman II were records from

insurance companies and other original sources.

{¶34} Because the trial court's order for in camera review is per se violative of the

plain meaning of the statute, I would find the matter is a final appealable order as it

resolves the issue and breaches the statutory confidentiality of records.