[Cite as McVay v. Aultman Hosp., 2015-Ohio-4050.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



JAMES H. MCVAY, INDIVIDUALLY                    :   JUDGES:
AND AS EXECUTOR FOR THE                         :   Hon. W. Scott Gwin, P.J.
ESTATE OF PATRICIA G. MCVAY,                    :   Hon. Sheila G. Farmer, J.
DECEASED                                        :   Hon. Craig R. Baldwin, J.
                                                :
        Plaintiff-Appellee                      :
                                                :
-vs-                                            :   Case No. 2015CA00008
                                                :
AULTMAN HOSPITAL                                :
                                                :
        Defendant-Appellant                     :   OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2013CV01704



JUDGMENT:                                           Reversed and Remanded




DATE OF JUDGMENT:                                   September 29, 2015




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

LEE E. PLAKAS                                       RICHARD S. MILLIGAN
MEGAN J. FRANTZ OLDHAM                              PAUL J. PUSATERI
220 Market Avenue South                             JENNA M. MCKEAN
Eighth Floor                                        4684 Douglas Circle, NW
Canton, OH 44702                                    P.O. Box 35459
                                                    Canton, OH 44735-5459
Stark County, Case No. 2015CA00008                                                       2

Farmer, J.

       {¶1}   On June 25, 2013, appellee, James H. McVay, Individually and as

Executor for the Estate of Patricia G. McVay, Deceased, filed a complaint against

appellant, Aultman Hospital, and others, claiming medical negligence, medical

malpractice, and wrongful death. Amended complaints were filed on December 5, 2013

and May 28, 2014. The complaint arose from the death of Patricia McVay at Aultman

Hospital due to cardiac arrest on June 25, 2012 at approximately 18:08. The complaint

alleged Mrs. McVay was not properly monitored and appellee refused to provide Mrs.

McVay's medical records relative to monitoring information from 16:51 to 17:37 for June

25, 2012.

       {¶2}   Through deposition testimony, it was established that the time on Mrs.

McVay's cardiac monitor was off by ten minutes.

       {¶3}   On November 5, 2014, appellee submitted a second request for

production of documents, seeking in part any and all documents regarding whether the

time on the cardiac monitor/station was accurate or not.       Appellant objected to the

request, citing work product privilege.

       {¶4}   Counsel for the parties exchanged letters and in a letter dated December

12, 2014, appellant's counsel claimed work product privilege regarding a "note"

"prepared by a person in risk management in anticipation of litigation on this issue."

       {¶5}   On December 15, 2014, appellee filed a motion to compel production of

the note, citing good cause under Civ.R. 26(B)(3). In its opposition brief filed December

19, 2014, appellant disputed good cause, arguing the information in the note concerning
Stark County, Case No. 2015CA00008                                                    3


the timing of the cardiac monitor/station had already been disclosed via deposition

testimony.

      {¶6}   On December 16, 2014, appellant had filed a motion for a protective order

from a Civ.R. 30(B)(5) deposition notice, arguing the subject matters of the requested

deposition i.e., the accuracy of the timing on the cardiac monitor/station and any

inspections on the equipment, had already been disclosed.

      {¶7}   By judgment entry filed January 7, 2015, the trial court granted appellee's

motion to compel and ordered the production of the note, finding insufficient facts to

establish the note constituted work product privilege and even if it was privileged,

appellee established good cause.

      {¶8}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶9}   "THE TRIAL COURT ERRED IN ORDERING AULTMAN HOSPITAL TO

PRODUCE A DOCUMENT CREATED IN ANTICIPATION OF LITIGATION BY AN

EMPLOYEE IN ITS RISK MANAGEMENT DEPARTMENT AS PART OF AN

INVESTIGATION OF A HOSPITAL INCIDENT THAT GAVE RISE TO PLAINTIFF'S

LAWSUIT."

      {¶10} Oral arguments in this case were held on July 30, 2015.          This court

requested a separate briefing on the question of whether the judgment entry appealed

from was a final appealable order given the recent decision by the Supreme Court of

Ohio in Smith v. Chen, 142 Ohio St.3d 411 (2015).
Stark County, Case No. 2015CA00008                                                   4

      {¶11} In Chen, Justice O'Neill, writing for the majority, concluded that although

the matter appealed met the qualifications under R.C. 2905.02(A)(3) as discovery of

privileged matter and was a provisional remedy, the requirements of R.C. 2905.02(B)(4)

must be met. R.C. 2905.02(B)(4) states the following:



             (B) An order is a final order that may be reviewed, affirmed,

      modified, or reversed, with or without retrial, when it is one of the

      following:

             (4) An order that grants or denies a provisional remedy and to

      which both of the following apply:

             (a) The order in effect determines the action with respect to the

      provisional remedy and prevents a judgment in the action in favor of the

      appealing party with respect to the provisional remedy.

             (b) 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.



      {¶12} The determination that the order sub judice is in fact a provisional remedy

is clear on its face: "This matter came on for consideration upon Plaintiff's Motion to

Compel Documents Regarding the Accuracy of the Time on the Central Monitor Used

on Mrs. McVay. On December 19, 2014, Defendants filed a Brief Opposing Motion to

Compel. Thereafter, on December 31, 2014, Plaintiff filed a Reply."
Stark County, Case No. 2015CA00008                                                          5


      {¶13} Under R.C. 2905.02(B)(4), the issues are whether the order determines

the action as to the provisional remedy and prevents a judgment in favor of appellant

and whether appellant would not be afforded a meaningful or effective remedy by an

appeal following a final judgment. Unlike the issue raised in Chen, the argument in this

case is that the work product claim asserts a specific privilege i.e., a "note" prepared by

an employee of appellant's in risk management regarding the investigation of the

incident after the claimed act of malpractice/negligence.

      {¶14} The trial court ordered the note from risk management released, thereby

forever disclosing the matter to appellee. Although the admissibility of the note might

well remain an issue for trial, any facts gained from the disclosure would not be barred.

      {¶15} Therefore, we find the only time for meaningful and appropriate appeal is

at the present time. The determination of the provisional remedy is final now as to the

rights asserted by appellant.     We conclude the order in this case meets all the

requirements of R.C. 2505.02(B)(4).

                                             I

      {¶16} Appellant claims the trial court erred in ordering disclosure of the note as

the note constitutes privileged work product. Specifically, appellant claims: (1) the trial

court erred in not finding sufficient evidence to support the fact that the note was

prepared in anticipation of litigation, (2) there was no showing of good cause for

disclosure pursuant to Civ.R. 26(B)(3), and (3) the trial court erred in not holding an

evidentiary hearing or conducting an in camera inspection.

      {¶17} Civ.R.26 governs discovery. Subsection (B)(3) states the following:
Stark County, Case No. 2015CA00008                                                         6

                (3) Trial preparation: materials. Subject to the provisions of

       subdivision (B)(5) of this rule, a party may obtain discovery of documents,

       electronically stored information and tangible things prepared in

       anticipation of litigation or for trial by or for another party or by or for that

       other party's representative (including his attorney, consultant, surety,

       indemnitor, insurer, or agent) only upon a showing of good cause therefor.

       A statement concerning the action or its subject matter previously given by

       the party seeking the statement may be obtained without showing good

       cause.     A statement of a party is (a) a written statement signed or

       otherwise adopted or approved by the party, or (b) a stenographic,

       mechanical, electrical, or other recording, or a transcription thereof, which

       is a substantially verbatim recital of an oral statement which was made by

       the party and contemporaneously recorded.



       {¶18} On November 5, 2014, appellee submitted a second request for

production of documents, seeking in part any and all documents regarding whether the

time on the cardiac monitor/station was accurate or not.          Appellant objected to the

request, citing work product privilege:



                REQUEST NO. 1:

             Any and all documents regarding whether the time on the central
       monitor station used on Mrs. McVay on June 25, 2012 was accurate or not
       accurate.
Stark County, Case No. 2015CA00008                                                 7


              RESPONSE:

              Objection, work product.

              REQUEST NO. 2:

              Any and all documents to support the claim that the time on the
       central monitoring station used on Mrs. McVay on June 25, 2012 was not
       accurate.

              RESPONSE:

           Objection, work product.        Without waiving objection, see Bates
       AHMcVay03564-03568.


       {¶19} Counsel for the parties exchanged letters and in a letter dated December

12, 2014 (attached to appellee's December 15, 2014 motion to compel as Exhibit 5),

appellant's counsel claimed work product privilege regarding the note "prepared by a

person in risk management in anticipation of litigation on this issue":



              Aultman Hospital's knowledge of any specific inspection, work

       and/or house calls is reflected in Bates AHMcVay03564-03568 as stated.

       Aultman Hospital is not aware of any additional documentation. Aultman

       Hospital is unaware of any employee having a specific recollection of

       "inspection, work and/or house calls" beyond that in the produced

       documentation.

              ***

              The basis for Aultman Hospital's objection to Request for

       Production of Documents No. 1 as protected under the work product
Stark County, Case No. 2015CA00008                                                        8


       privilege is that Aultman Hospital is in possession of a note prepared by a

       person in risk management in anticipation of litigation on this issue.



       {¶20} On December 15, 2014, appellee filed a motion to compel production of

the note, citing good cause under Civ.R. 26(B)(3). In support of this motion, appellee

cited the deposition of Kristi Cain, RN, the Unit Director of Memorial 4 East, who

testified the cardiac monitor used on Mrs. McVay was off by ten minutes. Cain depo. at

103-104.

       {¶21} In its December 19, 2014 response to appellee's motion to compel,

appellant, in opposing appellee's good cause argument, cited the deposition testimony

of Jennifer Casserman, RN, a nurse on Memorial 4 East, who admitted the subject

monitor's time was off by ten minutes; therefore, there was no dispute that the timing

was off. Casserman depo. at 48-49.

       {¶22} On December 16, 2014, appellant had filed a motion for protective order

from a Civ.R. 30(B)(5) deposition notice. Appellant argued the subject matters of the

requested deposition had already been addressed and in support, cited the December

12, 2014 letter above, the Casserman deposition testimony, the responses to the

second request for production of documents above, and the deposition testimony

already obtained by appellee of Denny Drumm, the clinical engineer who performed the

inspections on the subject monitoring equipment. Appellant once again claimed work

product privilege.

       {¶23} It is from these conflicting positions that the trial court, without holding an

evidentiary hearing or an in camera inspection, determined (1) the facts were
Stark County, Case No. 2015CA00008                                                        9


insufficient to establish privilege, and/or (2) if there was privilege, appellee established

good cause under Civ.R. 26. See, Judgment Entry filed January 7, 2015.

       {¶24} Given the contradictory facts argued and the lack of a dispute raised by

appellant in its December 19, 2014 response, we conclude at the very minimum, a

hearing or an in camera inspection is required in this case.

       {¶25} The sole assignment of error is granted in part.

       {¶26} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby reversed, and the matter is remanded to said court to conduct an evidentiary

hearing and/or an in camera inspection on the requested document(s).

By Farmer, J.

Gwin, P.J. and

Baldwin, J. concur.




SGF/sg 730
