[Cite as Brahm v. DHSC, L.L.C., 2016-Ohio-1204.]


                                      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. 2015CA00165
                                                   :
-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                                     RICHARD S. MILLIGAN
MICHAEL J. KAHLENBERG                                  PAUL J. PUSATERI
825 S. Main St.                                        THOMAS R. HIMMELSPACH
North Canton, OH 44720                                 4684 Douglas Circle NW.
                                                       P.O. Box 35459
                                                       Canton, OH 44735-5459
Stark County, Case No. 2015CA00165                                                         2

Gwin, J.

       {¶1}   Appellant Aultman Hospital 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.

                                  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

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

pericardium, which was compromising the function of the heart.
Stark County, Case No. 2015CA00165                                                       3


      {¶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.        The complaint alleged Mary Brahm

underwent a coronary catheterization performed by Dr. Surmitis, and that during the

procedure the walls of her coronary artery were torn.

       {¶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. 2015CA00165                                                        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. 2015CA00165                                                    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, M.D. at
Stark County, Case No. 2015CA00165                                                       6


       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.

       {¶12} By judgment entry of August 28, 2015, the court denied Aultman Hospital's

motion as to the second two categories of documents, referring to those as "raw data"

records, and directing Aultman Hospital to produce them to Brahm.               As to the

"complication rate" records (the first two categories in the list above), the court ordered

Aultman Hospital to produce those by September 10, 2015 for in-camera inspection

where the court would determine "whether the documents are privileged in whole or in

part .... “ (Judgment Entry, p.9.) Specifically the trial court ordered,
Stark County, Case No. 2015CA00165                                                          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 10, 2015, Aultman Hospital filed a statement with the court

on its partial performance of the court's order to produce information on the number of

percutaneous coronary interventions for diagnostic and for therapeutic purposes. It

explained that the information was maintained in the form described in the subpoena only

in the peer review and quality assurance processes.             Aultman Hospital explained,

however, that it could extract from its financial information the total number of

percutaneous coronary interventions performed by Dr. Surmitis, but was incapable of

separating within that information the therapeutic and diagnostic procedures, as
Stark County, Case No. 2015CA00165                                                                   8


described in the subpoena. Aultman Hospital said it would produce information on the

total number of procedures that it could extract from its financial records, but that it was

appealing the order to produce the peer review and quality assurance records that could

distinguish between therapeutic and diagnostic procedures.1

                                           Assignment of Error

       {¶14} Aultman Hospital raises one assignment of error,

       {¶15} “I. UNDER R.C. 2305.252, RECORDS WITHIN THE SCOPE OF A

HOSPITAL'S PEER REVIEW COMMITTEE ARE NOT DISCOVERABLE IN ANY CIVIL

ACTION AGAINST A HEALTH CARE PROVIDER ARISING OUT OF MATTERS THAT

ARE THE SUBJECT OF EVALUATION AND REVIEW BY THE PEER REVIEW

COMMITTEE. R.C. 2305.24 PROVIDES THAT RECORDS OF HOSPITAL QUALITY

ASSURANCE COMMITTEES ARE ALSO CONFIDENTIAL. DID THE TRIAL COURT

ERR IN ORDERING AULTMAN HOSPITAL TO PRODUCE MATERIALS FROM ITS

PEER REVIEW AND QUALITY ASSURANCE DEPARTMENTS IN A CIVIL ACTION

ARISING OUT OF MATTERS THAT WERE THE SUBJECT OF THE COMMITTEES'

EVALUATION AND REVIEW?”




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. 2015CA00171 [Affinity Medical Center]; Brahm v. DHSC, LLC, dba Affinity
Medical Center, et al. 5th Dist. No. 2015CA00172 [Mercy Medical Center]; Brahm v. DHSC, LLC, dba
Affinity Medical Center, et al. 5th Dist. No. 2015CA0079 [American College of Cardiology].
Stark County, Case No. 2015CA00165                                                           9

                                              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., 79 Ohio St.3d 543, 544, 1997-Ohio-366, 684 N.E.2d 72.

       {¶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, 44 Ohio St.3d 17, 20, 540 N.E.2d 266(1989); Harris v. Conrad, 12th

Dist. Warren No. CA-2001-12 108, 2002-Ohio-3885. 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, 86 Ohio St.3d 594, 596, 716 N.E.2d 184 (1999); Ferraro

v. B.F. Goodrich Co., 149 Ohio App.3d 301, 2002-Ohio-4398, 777 N.E.2d 282(9th Dist.).

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, 142 Ohio St.3d 411, 2015-

Ohio-1480, 31 N.E.3d 633. An order granting or denying a provisional remedy is
Stark County, Case No. 2015CA00165                                                        10


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 at ¶5; R.C. 2505.02(B)(4).

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

relief.” Chen at ¶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.” Id.

       {¶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. Id. 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.” Id.

       {¶21} In this case, appellant 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. Appellant maintains the trial court abused its discretion

in denying their request for a protective order and motion to quash, and in ordering the

production of what appellant believes qualify as peer review and quality assurance

records for an in-camera inspection.         Appellant 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
Stark County, Case No. 2015CA00165                                                             11


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.

       {¶22} Appellant cites Huntsman v. Aultman Hospital, 160 Ohio App.3d 196, 2005-

Ohio-1482, 826 N.E.2d 384[“Huntsman I”] for the proposition that an in camera review is

not permitted2,

                 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, 2004-Ohio-1407, 2004 WL 557333.

       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



       2   Brief of Appellant Aultman Hospital, filed Nov. 2, 2015 at 8.
Stark County, Case No. 2015CA00165                                                         12


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

       obtained, we find the change to be procedural.

Huntsman I, 160 Ohio App.3d at 200-201, 2005-Ohio-1482, 826 N.E.2d 384, ¶20.

[Emphasis added]. However, Huntsman I stands for the proposition that the statute

prevents a court from requiring a facility to provide a list of 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, 2013-Ohio-2877, 995 N.E.2d 872, ¶43.

       {¶23} 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., 175 Ohio

App.3d 155, 2007-Ohio-6944, 885 N.E.2d 971(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, 2013-Ohio-4927, 4 N.E.3d 1071, ¶37.

       {¶24} 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
Stark County, Case No. 2015CA00165                                                               13


       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.

Huntsman v. Aultman Hospital, 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, ¶88.

[“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. Stark No. 2006 CA 00331, 2008-Ohio-2554, ¶89. 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.

       {¶25} 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.

       {¶26} 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.
Stark County, Case No. 2015CA00165                                              14


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

jurisdiction to entertain appellant's appeal.

       {¶28} For the foregoing reasons, Aultman Hospital’s appeal of the August 28,

2015 Judgment Entry of the Stark County Court of Common Pleas, Stark County, Ohio,

is hereby dismissed.

       {¶29} IT IS SO ORDERED.



By Gwin, J., and

Delaney, J. concur;

Farmer, P.J., dissents
Stark County, Case No. 2015CA00165                                                       15

Farmer, P.J., dissents

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

judice is not a final appealable order.

       {¶31} I acknowledge in Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-148,

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***."

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

review is violative of the statute. Huntsman I, 160 Ohio App.3d 196, 2005-Ohio-1482, at

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

2008-Ohio-2554, 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.

       {¶33} 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.
