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OH Appelate Court: Disclosure Of Errors To Family Not Peer Review
Similar to laws on the books in every state, Ohio law protects a hospital that reveals an admission of error in peer review from having that information being discovered and used in malpractice cases. In the case of medical malpractice case Smith v Cleveland Clinic, et al., the defendants attempted to prevent statements made by the hospital’s chief medical officer during a conference with the family being admitted in court claiming they were privileged as part of peer review.
Howard L. Smith, 73, underwent an uneventful knee surgery at Community Health Partners Regional Medical Center, now known as Mercy Regional Medical Center, in Lorain, Ohio, on February 17, 2010. Postoperative routine blood work orders were entered and Smith’s blood was taken on the 18th. One of the ordered tests was for serum potassium. On February 19th Smith suffered a cardiac arrest, was resuscitated, but removed from life support on March 4 after it was determined that the cardiac arrest had resulted in severe brain damage. After the cardiac arrest on the 19th, a laboratory report reached Smith’s caregivers showing a critically high potassium level which was the very likely cause of his cardiac event. As it turned out the hospital’s laboratory machine which did the potassium testing was broken, delaying the result significantly. The family met with the chief medical officer who disclosed this information. What he did not know was the family secretly recorded the meeting. The Ohio Court of Appeals writes in their decision:
It is plaintiff’s contention that Mr. Smith’s sudden cardiac arrest was caused by a critically high potassium level in his blood that was detected in a blood draw that had been sent to defendants-appellants’ laboratory for analysis; because of malfunctioning equipment and low staffing, that elevated level was not reported to the hospital floor until after Mr. Smith had arrested. After Mr. Smith went into cardiac arrest, he was declared brain dead by his treating physicians and passed away on March 4 after being removed from life support.
Prior to Mr. Smith’s death, Leonard Smith, along with his three siblings, met with defendants- appellant’s Chief Medical Officer, Haysam El-Dalati M.D., on March 1, 2010, to discuss the care and treatment of their father. During the meeting, Leonard Smith and his family members used a hidden tape recording device to record the content of the meeting, unbeknownst to Dr. El-Dalati and the two staff members who were present on behalf of the defendants-appellants. For one hour, Leonard Smith and his siblings questioned Dr. El-Dalati regarding his knowledge of the treatment provided to their father. In response, Dr. El-Dalati made sympathetic and apologetic comments to the plaintiffs and admitted fault on the part of the hospital for Howard Lester Smith’s current condition.
On January 3, 2011, plaintiffs filed this medical malpractice and wrongful death and survivorship action in Common Pleas Court. Subsequent to the filing, plaintiffs noticed the deposition of Dr. El-Dalati. During the initial discovery phase of this trial, defendants-appellants learned of the Smith family’s use of the hidden recording device. In response, defendants-appellants filed a motion for a protective order, requesting an order precluding plaintiffs from deposing Dr. El-Dalati. Specifically, defendants-appellants argued that any information held by Dr. El-Dalati was derived from his participation in peer review activities and thus, was not discoverable under Ohio’s peer review privilege statute, R.C. 2305.252. The motion also requested exclusion of the tape recording of the March 1, 2010 meeting. Plaintiffs opposed the motion, and on April 29, 2011, the trial court denied defendants-appellants’ motion, finding as follows:
“It is not clear that the ‘Root Cause Analysis’ Dr. El-Dalati did falls within the definition of ‘Peer Review Committee.’ Even if it does, Dr. El-Dalati waived the privilege by communicating the committee’s findings to the patient’s family. The disclosures here were to non-professionals, and as such, were not part of the ‘free flow of information’ among professionals aimed at improving the quality of health care.”
The defendants appealed arguing that the trial court erred in not finding its root cause analysis committee to be a peer review committee whose activities are protected under R.C. 2305.252. The appellate court agreed with the lower court’s findings. The Court found that Dr. El-Dalati did not participate in, or disclose information from, a peer review process. As such anything he said to the family was not protected.
Ohio law allows the recording of a conversation if one party to the conversation consents. Ohio Rev. Code § 2933.52. Thus, if you operate in Ohio, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. This is not the case in many states. In Maryland for example recording this conversation would have been a crime since both parties must consent to the recording in advance.
Read the entire decision by the court below:
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