[Cite as Meade v. Mercy Health-Regional Med. Ctr., L.L.C., 2019-Ohio-438.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

DUANE MEADE, Administrator of the                         C.A. No.           18CA011307
Estate of Mattie E. Meade

        Appellee
                                                          APPEAL FROM JUDGMENT
        v.                                                ENTERED IN THE
                                                          COURT OF COMMON PLEAS
MERCY HEALTH-REGIONAL                                     COUNTY OF LORAIN, OHIO
MEDICAL CENTER, LLC, et al.                               CASE No.   15CV187572

        Appellants

                                DECISION AND JOURNAL ENTRY

Dated: February 11, 2019



        CALLAHAN, Judge.

        {¶1}    Appellants, Mercy Health-Regional Medical Center, LLC, dba Mercy Regional

Medical Center, Mercy Health, and Mercy Health Lorain, LLC (collectively “Mercy”), appeal

the March 28, 2018 judgment of the Lorain County Common Pleas Court which granted the

motion to compel filed by Appellee, Duane Meade, administrator of the estate of Mattie Meade

(“Mr. Meade”), and ordered Mercy to respond to Mr. Meade’s first set of interrogatories and

second set of requests for production of documents. For the reasons set forth below, this Court

reverses.

                                                     I.

        {¶2}    In September 2015, Mr. Meade filed a complaint alleging medical malpractice,

wrongful death, and loss of consortium claims against Mercy and multiple other medical

facilities and doctors who are not parties to this appeal. A year later, Mr. Meade filed a second
                                                 2


complaint against Mercy alleging claims of negligent credentialing, wrongful death, and loss of

consortium arising from the same facts in the first complaint. The second complaint specifically

identified Dr. Alexander Zolli, a defendant in the first complaint, as the medical provider at issue

in the negligent credentialing claim.

       {¶3}    Upon Mr. Meade’s motion, the two cases were consolidated. A few months later,

the trial court granted motions by Mercy and Dr. Zolli to bifurcate the negligent credentialing

claim from the other claims for purposes of trial, but denied their request to stay discovery as to

the negligent credentialing claim.

       {¶4}    After the issuance of this order, the parties proceeded with discovery as to all of

the claims. Multiple discovery disputes arose. Among them was a request for an in camera

inspection of Dr. Zolli’s credentialing file wherein the trial court ruled portions of the file were

protected by the peer review privilege. As to Mr. Meade’s most recent motion to compel, the

trial court found that the peer review privilege did not apply to the second round of discovery

requests and ordered Mercy to respond to the interrogatories and request for production of

documents. Mercy filed a motion for reconsideration of this discovery order, which was denied.

       {¶5}    Mercy timely appeals, asserting one assignment of error.

                                                II.

                                     ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN GRANTING [MR. MEADE’S] MOTION TO
       COMPEL DISCOVERY IN ITS MARCH 28, 2018 JUDGMENT ENTRY AS
       THE INFORMATION SOUGHT BY [MR. MEADE] IS PROTECTED BY THE
       PEER REVIEW PRIVILEGE AS SET FORTH IN O.R.C. 2305.252.

       {¶6}    Mercy argues that the trial court incorrectly ordered the disclosure of information

from and about Dr. Zolli’s credentialing file that had been previously deemed protected by the

peer review privilege. This Court agrees.
                                                   3


        {¶7}     At oral argument, Mercy clarified that it is not challenging the trial court’s ruling

as to the second set of requests for production of documents.            We will limit our review

accordingly.

        {¶8}     The parties disagree as to what the applicable standard of review is in this case.

Mercy argues this Court’s standard of review is de novo, while Mr. Meade argues it is an abuse

of discretion.     Generally, the abuse-of-discretion standard is applicable when reviewing

discovery orders. Ward v. Summa Health Sys., 184 Ohio App.3d 254, 2009-Ohio-4859, ¶ 11

(9th Dist.), citing Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, ¶ 13.

However, this Court has recognized that “the Supreme Court of Ohio has concluded that the

issue of whether the information sought is confidential and privileged from disclosure is a

question of law that should be reviewed de novo.” Ward at ¶ 11, citing Schlotterer at ¶ 13. In

this matter, we will review the trial court’s decision de novo because the appeal questions the

trial court’s interpretation and application of R.C. 2305.252. See Giusti v. Akron Gen. Med. Ctr.,

178 Ohio App.3d 53, 2008-Ohio-4333, ¶ 12 (9th Dist.).

        {¶9}     The “peer review privilege” originates in R.C. 2305.252 and states in pertinent

part:

        Proceedings 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 or
        introduction in evidence in any civil action against a health care entity or health
        care provider, including both individuals who provide health care and entities that
        provide health care, arising out of matters that are the subject of evaluation and
        review by the peer review committee.

R.C. 2305.252(A). The statute also sets forth the original source provision:

        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
                                                 4


       only from the original sources and cannot be obtained from the peer review
       committee’s proceedings or records.

Id. The peer review statute also excludes certain testimony from those involved with the peer

review process:

       No individual who attends a meeting of a peer review committee, serves as a
       member of a peer review committee, works for or on behalf of a peer review
       committee, or provides information to a peer review committee shall be permitted
       or required to testify in any civil action as to any evidence or other matters
       produced or presented during the proceedings of the peer review committee or as
       to any finding, recommendation, evaluation, opinion, or other action of the
       committee or a member thereof.

Id. While these individuals “cannot be asked about [their] testimony before the peer review

committee, information [they] provided to the peer review committee, or any opinion [they]

formed as a result of the peer review committee’s activities[,]” they are permitted to “testify[] as

to matters within [their] knowledge[.]” Id.

       {¶10} R.C. 2305.252(A) “set[s] forth the confidentiality of records and proceedings in

the peer review process” and “provides an umbrella of protection to information which is

collected and maintained by a peer review committee during a peer review process.” Lowrey v.

Fairfield Med. Ctr., 5th Dist. Fairfield No. 08 CA 85, 2009-Ohio-4470, ¶ 28. This Court has

recognized that while “[t]he purpose of the statute is to protect the integrity of the peer[]review

process in order to improve the quality of health care[,] * * * [t]he peer[]review privilege is not a

generalized cloak of secrecy over the entire peer[]review process.” Giusti at ¶ 14.

       {¶11} The party asserting the peer review privilege carries the burden of establishing

that the privilege is applicable to the information being sought. Giusti at ¶ 17. This burden may

be satisfied by “(1) submitting the documents in question to the trial court for an in camera

inspection, or (2) presenting affidavit or deposition testimony containing the information

necessary for the trial court to adjudge whether the privilege attaches.” Bansal v. Mt. Carmel
                                                  5


Health Sys., Inc., 10th Dist. Franklin No. 09AP-351, 2009-Ohio-6845, ¶ 14. This Court has

stated that this privilege is proven by establishing that “‘a peer[]review committee existed and

that it actually investigated the incident.’” Ward, 184 Ohio App.3d 254, 2009-Ohio-4859, at ¶

17, quoting Giusti at ¶ 17. Additionally, the party seeking the privilege is required to show that

each of the documents over which it asserts the privilege is a “‘record[] within the scope of a

peer review committee.’” (Alterations sic.) Bansal at ¶ 15, quoting R.C. 2305.252(A). When a

party fails to present this evidence, it fails to carry its burden and the peer review privilege does

not apply. See Ward at ¶ 17; Giusti at ¶ 27-28.

       {¶12} Mr. Meade argues that Mercy failed to establish its burden that the peer review

privilege applied to the first set of interrogatories. Additionally, Mr. Meade asserts that the trial

court’s prior in camera review and protective order ruling of Dr. Zolli’s credentialing file have

“nothing to do with the instant discovery dispute on appeal.” (Emphasis deleted.)             Mercy

concedes that it did not submit an affidavit or deposition testimony in support of this burden.

Nor did Mercy present documents for an in camera inspection in response to this motion to

compel. Instead, Mercy argues that it had previously submitted the credentialing file for an in

camera review relative to the motion for protective order and the trial court deemed parts of the

credentialing file to be protected by the peer review privilege.1 Thus, Mercy contends it was

unnecessary to present such evidence to reestablish its burden a second time because the trial

court, six months earlier, had ordered that these same documents were not to be produced in

discovery because of the peer review privilege. This Court agrees.




1
  This Court makes no determination as to whether the earlier motion for protective order filed
by Dr. Zolli, and joined by Mercy, contained evidence satisfying their burden of establishing that
the peer review privilege was applicable to the credentialing file.
                                                6


        {¶13} Six months before Mr. Meade propounded the first set of interrogatories to

Mercy, Dr. Zolli filed a motion for protective order, a request for in camera inspection, and a

privilege log regarding his credentialing file at Mercy. Dr. Zolli asserted multiple bases for the

nondisclosure of his credentialing file, including the peer review privilege. Mercy joined Dr.

Zolli’s motion for protective order and request for in camera inspection.         The trial court

conducted the in camera inspection of the credentialing file and ordered that portions of the

credentialing file were protected from disclosure pursuant to the peer review privilege, while

other portions were not protected by the privilege and were to be produced to Mr. Meade. There

was no appeal taken from that discovery ruling. Nor were there any modifications to that

discovery order.

        {¶14} While Mr. Meade is accurate in his statement that “[o]nly the information sought

in this second round of discovery * * * is at issue in this appeal[,]” the prior protective order

governs the second round of discovery because those interrogatories sought information related

to Dr. Zolli’s credentialing file. Because Mercy was not asserting the peer review privilege as to

new documents, but instead as to documents that were already afforded that protection by the

trial court in the same case, it was unnecessary for Mercy to present evidence to establish its

burden when responding to Mr. Meade’s motion to compel. See Lowrey, 2009-Ohio-4470, at ¶

37, 39 (Addressing a waiver argument, the appellate court found there was no reason for a

hospital to file an objection regarding plaintiff’s attachment of peer review documents to a

motion filed under seal because the trial court had previously granted a protective order

prohibiting the plaintiff from seeking peer review information and the protective order remained

in place.).
                                                 7


       {¶15} Despite the existing order of protection for Dr. Zolli’s credentialing file, and

Mercy’s reliance upon the same in answering Mr. Meade’s first set of interrogatories, the trial

court ordered Mercy to answer the first twelve interrogatories because “the court agree[d] with

[Mr. Meade] that the discovery of certain ‘credentialing information’ relative to the outcome or

results of [Mercy’s] peer review process d[id] not violate the statute * * * regarding the

considerations made by the peer review members during the process.” (Emphasis sic.) The trial

court found the peer review privilege did not apply because the interrogatories sought

“‘credentialing information’ relative to the outcome or results of [Mercy’s] peer review process.”

(Emphasis deleted.) However, contrary to the trial court’s ruling, the statute protects not only the

information and considerations during the peer review process, but also the outcomes or results

of the committee. See R.C. 2305.252(A) (prohibiting testimony “as to any finding,

recommendation, evaluation, opinion, or other action of the committee or a member thereof.”).

       {¶16} Mr. Meade’s interrogatories asked Mercy to: 1) identify and explain changes and

gaps in Dr. Zolli’s clinical privileges and changes in his application for surgical privileges; 2)

state whether Dr. Zolli was subject to discipline, suspensions, or terminations, and the reason,

nature, and date of the action; 3) state whether there were any hearings or appeals regarding Dr.

Zolli’s clinical privileges, compliance with state and federal laws, and his conduct and patient

care, and the basis and date of the hearings; 4) state whether Dr. Zolli was removed from any

committees and the reason; and 5) state whether Dr. Zolli violated the attendance requirements.

       {¶17} Mercy asserts that these interrogatories “are an obvious attempt to obtain

information that was already excluded from production by the trial court.” (Emphasis deleted.)

Mr. Meade responds that “this second round of discovery seeks new information that was neither

requested nor produced in the first round of discovery.” In comparing the two sets of discovery,
                                                 8


we find that while there are new questions, there are also questions that overlap both sets of

discovery.

       {¶18} While the questions are different, Mr. Meade is nonetheless seeking to obtain

privileged information from Dr. Zolli’s credentialing file through a different discovery

mechanism in the second round of discovery. “It is axiomatic that a party cannot do indirectly

that which he could not do directly[.]” See Kalb v. Morehead, 100 Ohio App.3d 696, 701-702

(4th Dist.1995). Upon the filing of Dr. Zolli’s motion for protective order, the trial court

conducted an in camera inspection of his credentialing file from Mercy and ordered that Mr.

Meade only be permitted to obtain portions of the file because it found the peer review privilege

applied to the other portions. A comparison of Dr. Zolli’s credentialing file2 and the trial court’s

order of protection reveals that Mr. Meade is seeking information that was contained within the

portions of the credentialing file to which he was previously denied access.

       {¶19} Further, Mr. Meade’s position that “these [i]nterrogatories are simply yes or no

questions” and that “[s]imply stating whether such action was taken does not amount to revealing

the proceedings or record of a peer review committee” is not well-taken. (Emphasis deleted.) Ten

of the twelve interrogatories are conditional questions where an affirmative answer requires

Mercy to go on to provide the reason for an occurrence and/or the date of the occurrence. While

there are two interrogatories that are not conditional questions, these two questions, along with

the other ten questions, all require the disclosure of information contained in the peer review

proceedings and records which could identify the records before the committee. See Huntsman

v. Aultman Hosp., 160 Ohio App.3d 196, 2005-Ohio-1482, ¶ 27 (5th Dist.).



2
  Dr. Zolli’s credentialing file was filed under seal and included as part of the record in this
appeal.
                                                9


       {¶20} Lastly, Mr. Meade argues that the trial court’s decision should be affirmed

because Mercy and its staff are “outside [sic] sources” of much of the information sought in the

interrogatories, and thus the peer review privilege does not apply. It appears that Mr. Meade is

arguing for the application of the original source provision found in the peer review statute. On

appeal, Mr. Meade suggests that Mercy’s department heads, scheduling personnel, website

manager, and various staff with whom Dr. Zolli works on a daily basis, in addition to the peer

review committee, would have knowledge of the information being requested in the

interrogatories, and thus Mercy must answer the interrogatories.        See Large v. Heartland-

Lansing of Bridgeport Ohio, LLC, 7th Dist. Belmont No. 12 BE 7, 2013-Ohio-2877, ¶ 36, 39

(When documents and information are provided by the hospital to the peer review committee,

but the documents were not prepared exclusively for the committee and the information is known

to hospital staff outside of the peer review forum, such information is not protected by the

privilege and must be produced by the hospital in discovery.); Bansal, 2009-Ohio-6845, at ¶ 16,

fn. 3. While Mr. Meade argued in this motion to compel that Dr. Zolli was an original source

under the statute, Mr. Meade did not make any arguments that Mercy was an original source, and

he may not raise the issue for the first time on appeal. JPMorgan Chase Bank, Natl. Assn. v.

Burden, 9th Dist. Summit No. 27104, 2014-Ohio-2746, ¶ 12.

       {¶21} In light of the foregoing, the trial court disregarded its prior order of protection as

to the peer review portions of Dr. Zolli’s credentialing file and incorrectly applied R.C.

2305.252(A) to Mr. Meade’s first set of interrogatories. Accordingly, the trial court erred in

granting Mr. Meade’s motion to compel Mercy to answer interrogatories 1-12.                Mercy’s

assignment of error is sustained.
                                                10


                                                III.

       {¶22} The sole assignment of error by Mercy Health-Regional Medical Center, LLC,

dba Mercy Regional Medical Center, Mercy Health, and Mercy Health Lorain, LLC is sustained.

The judgment of the Lorain County Common Pleas Court is reversed, and the cause is remanded

for further proceedings.

                                                                              Judgment reversed
                                                                            and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT


SCHAFER, P. J.
TEODOSIO, J.
CONCUR.
                                          11




APPEARANCES:

RYAN K. RUBIN and LEAH Z. DUGAN, Attorneys at Law, for Appellants.

CHRISTOPHER M. MELLINO, MEGHAN C. LEWALLEN, and CALDER MELLINO,
Attorneys at Law, for Appellee.

PAUL W. FLOWERS, Attorney at Law, for Appellee.

LOUIS E. GRUBE, Attorney at Law, for Appellee.
