[Cite as Ridenour v. Glenbeigh Hosp., 2014-Ohio-2063.]



                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 100550


          CALEY RIDENOUR, INDIVIDUALLY, ET AL.

                                                          PLAINTIFFS-APPELLEES

                                                    vs.

                      GLENBEIGH HOSPITAL, ET AL.
                                                          DEFENDANTS-APPELLANTS



                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-12-784957

        BEFORE: Stewart, J., Jones, P.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                         May 15, 2014
ATTORNEYS FOR APPELLANTS

Brendan M. Richard
Todd A. Gray
Mannion & Gray Co., L.P.A.
1375 East 9th Street, Suite 1600
Cleveland, OH 44114


ATTORNEYS FOR APPELLEES

Christopher M. Mellino
Thomas D. Robenalt
Allen C. Tittle
Mellino & Robenalt, L.L.C.
19704 Center Ridge Road
Rocky River, OH 44116
MELODY J. STEWART, J.:

       {¶1} While in the care of defendant Glenbeigh Hospital, plaintiff Caley Ridenour

suffered a seizure, fell, and sustained life-altering brain injuries. Ridenour, through his

mother and legal guardian, Penny O’Dell, brought this negligence action against

Glenbeigh and other hospital personnel. During discovery, Ridenour asked that he be

provided with an “incident report” completed by a Glenbeigh nurse. Glenbeigh refused

to provide the report and, following Ridenour’s motion to compel discovery, sought a

protective order on grounds that the incident report was the record of a peer review

committee and thus privileged. The court denied the protective order and granted the

motion to compel. The sole question in this appeal is whether the court erred by finding

that the “incident report” was not privileged.

       {¶2} Glenbeigh based its motion for a protective order on R.C. 2305.252, that

states in 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.

       {¶3} There is no dispute that Glenbeigh operated a peer review process using the

name “performance improvement program.” It likewise eschewed the term “peer review

committee,” instead calling it a “Professional Staff Executive Committee” (“PSEC”).

The nomenclature is unimportant — the PSEC operated in all material respects as a peer

review committee. The term “peer review committee” has been defined to include a
“quality assessment committee” or a “performance improvement committee.”                  R.C.

2305.25(E)(1).   The PSEC is charged with, among other things, monitoring clinical

performance and enhancing the quality and safety of patient care services. These duties

are consistent with what would be regarded as a peer review committee.

       {¶4} The key dispute between the parties is whether the incident report was

prepared for the use of the PSEC. R.C. 2305.25(D) defines an “incident report” as:

       [A] report of an incident involving injury or potential injury to a patient as a
       result of patient care provided by health care providers, including both
       individuals who provide health care and entities that provide health care,
       that is prepared by or for the use of a peer review committee of a health care
       entity and is within the scope of the functions of that committee.

       {¶5} It is important to understand that documents available from “original sources”

are not privileged “merely because they were produced or presented during proceedings

of a peer review committee[.]” See R.C. 2305.252. “The fact that copies of certain

material may have been provided to a committee does not extend the protection afforded

committee proceedings, and committee generated records, to material generated outside

of the committee.” Bansal v. Mt. Carmel Health Sys., Inc., 10th Dist. Franklin No.

09AP-351, 2009-Ohio-6845, ¶ 17.           In other words, only documents specifically

generated by or for a peer review committee are privileged under R.C. 2305.252. Bailey

v. Manor Care of Mayfield Hts., 8th Dist. Cuyahoga No. 99798, 2013-Ohio-4927, ¶ 24.

       {¶6} Glenbeigh policy requires that an incident report be completed to “record all

incidents involving patients, staff, and/or visitors.” An “incident” is defined as “any

happening, not consistent with the routine operation of the hospital or the routine care of
a particular patient. It may be an accident or a situation that might result in an accident.”

 The policy sets forth the following procedure:

       1. The accident or injury is reported to a nurse on duty who then administers
       first aid as needed.

       2. The staff witness or the nurse completes all portions of the Incident
       Report form (see a copy of this form on the next page). Use the back of
       the form for further explanation, if needed. Draw diagrams of the hand,
       body, etc. to clarify location of the injury if necessary.

       3. Injuries to staff shall be reported immediately to the employee’s
       department head or supervisor.

       4. If a patient is involved, the incident is documented in the chart including
       care and treatment given. Do not document that an Incident Report was
       completed.

       5. The completed Incident Report is forwarded to the physician then to the
       Director of Nursing for review and signatures.

       6. The original Incident Report is then forwarded to the Human Resources
       Director who retains it on file. In the event of an employee injury or
       accident, a meeting will be held with the employee, Safety Director,
       Supervisor and/or the CEO to review for safety recommendations.

       7. All Incident Reports are reviewed by the PSEC for performance
       improvement. Identified problems and recommendations are told to the
       CEO.

       {¶7} Glenbeigh offered the affidavit of its executive director who stated that its

policies require that “incident reports are reviewed by the Professional Staff Executive

Committee (‘PSEC’) for performance improvement.” It thus argues that the incident

report prepared following Ridenour’s fall was prepared for use by the peer review

committee. But saying that an incident report was prepared for review by the PSEC is

not the same thing as saying it was prepared specifically for the PSEC.
         {¶8} In fact, Glenbeigh’s policies show that the incident report was not prepared

specifically for the PSEC. Glenbeigh policy states that the original incident report is to

be forwarded and retained by Glenbeigh’s director of human resources — the PSEC only

gets a “copy” of the incident report. Contrast this with the other policy that states that

“[t]he PSEC is the major depository for documentation on all performance activities and

outcomes.”     If the incident report had been prepared specifically for the PSEC, the

director of human resources would not get the original report while the PSEC received a

copy of that report.

         {¶9} The party asserting a privilege is required to show that each of the allegedly

privileged documents is a “record within the scope of a peer review committee.”       Smith

v. Cleveland Clinic, 197 Ohio App.3d 524, 2011-Ohio-6648, 968 N.E.2d 41, ¶ 15 (8th

Dist.). Our de novo review of Glenbeigh’s claimed privilege, Ward v. Summa Health

Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, ¶ 13, convinces us that

Glenbeigh has failed to show that the requested incident report was prepared for the

PSEC. The incident report was prepared for other purposes, and PSEC was merely

provided a copy of that report, which it reviewed in the course of peer review

proceedings. Certainly, the incident report served the dual purpose of documenting an

incident occurring in the hospital and providing a basis for reviewing performance of

staff.   That dual purpose, however, was enough to show that, in accordance with

Glenbeigh’s own stated policies, the incident report was not prepared exclusively for peer
review. The incident report was not privileged. The court did not err by ordering that

the report be provided to Ridenour.

      {¶10} Judgment affirmed.

      It is ordered that appellees recover of appellants their costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.           A      certified

copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of

Appellate Procedure.




MELODY J. STEWART, JUDGE

LARRY A. JONES, SR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
