Ohio Appeals Court requires attending physician to reveal colleague conversation in negligence lawsuit

September 12, 2008

The Ohio Court of Appeals affirmed a state trial court's decision to compel treating physician to answer deposition questions about the conversation he had with the head of Akron General Medical Center's emergency department chairman shortly after the death of plaintiff's son. The appeals court found the conversation was not protected by the state peer review privilege.

This material originally appeared in the September 5, 2008, issue of Health Lawyers Weekly, a publication of the American Health Lawyers Association (www.healthlawyers.org).

The Ohio Court of Appeals, Ninth Judicial District affirmed August 27 a state trial court’s decision to compel treating physician, Dr. William Kurtz, to answer deposition questions about the conversation he had with the head of Akron General Medical Center’s (Akron) emergency department chairman, Dr. Daniel T. Schelble, shortly after the death of plaintiff's son. The appeals court found the conversation was not protected by the state peer review privilege.  

Plaintiff George Giusti sued Akron and various physicians alleging negligent failure to diagnose and treat the aortic dissection that allegedly caused his son’s death, the appeals court explained. 

During a discovery deposition, Akron’s lawyer refused to allow Kurtz to answer certain questions regarding his conversation with Schelble, citing the peer review privilege under Ohio Rev. Code § 2305.252. Akron’s attorney also objected to interrogatories and requests for production of documents based on peer review privilege.

After a hearing, the trial court granted Giusti’s motion as to the deposition questions, but denied his motion in regard to the written discovery requests.

On appeal, Akron argued that the trial court erred in granting the motion to compel Kurtz’s deposition testimony, asserting that the questions at issue would elicit responses from Kurtz that were provided to a peer review committee.

Giusti contended, however, that Akron failed to carry its burden to properly invoke the Ohio peer review privilege.

Agreeing with Giusti, the appeals court concluded that Kurtz’s deposition testimony was not shielded by state peer review law, and that the hospital had failed to carry its burden of proving the conversation at issue was protected from discovery.

“The evidence revealed that the Hospital had a process for ‘performing quality assurance reviews of patient care’ and that Dr. Schelble was part of that process,” the appeals court said. “The evidence did not prove, however, that a peer review committee ever initiated or performed any type of review” of the death of plaintiff’s son, nor did it prove that the conversation between Schelble and Kurtz was part of a peer review proceeding.

Next, the appeals court found the trial court’s order denying Guisti’s motion to compel written discovery responses was not a final, appealable order.

“The trial court’s order in this case required Dr. Kurtz to answer questions regarding a conversation the Hospital claims was part of a peer review proceeding,” the appeals court continued. “As the Hospital has made a claim of privilege [under § 2305.252], that part of the order is final and appealable.”

Unlike an order compelling production of claimed privileged material, compliance with an order denying production will not destroy any privilege that may apply,” the court said. “Therefore, an interlocutory appeal is unnecessary.” 

A dissenting opinion expressed the view that other physicians’ testimony and affidavits were sufficient to establish that the conversation between Kurtz and Schelble was “part and parcel” of a peer review process, and therefore, the trial court’s order granting Giusti’s request to compel Kurtz’s deposition testimony should have been reversed.

Giusti v. Akron General Med. Ctr.,  No. 24023 (Ohio Ct. App. Aug. 27, 2008).