Smith v. Cleveland Clinic

197 Ohio App.3d 524, 2011-Ohio-6648, 968 N.E.2d 41 (8th Dist. 2011)

This was a wrongful death action against a hospital for medical malpractice resulting in the death of Howard L. Smith. Smith, who had undergone knee replacement surgery, suffered a cardiac arrest at the hospital due to improper follow-up care. After this event, but prior to Smith’s death, Smith’s adult children met with the hospital’s chief medical officer to discuss the care and treatment of their father. Unbeknownst to the chief medical officer and the two staff members who accompanied him, Smith’s children used a hidden tape recording device to record the content of the meeting. In response to their questioning, the chief medical officer admitted fault on the part of the hospital for Smith’s condition.

When Smith died, the family filed suit and confronted the hospital with the tape-recorded admission of fault. The hospital filed a motion for a protective order, claiming the information imparted to the Smith family during that meeting was subject to Ohio’s statutory peer review privilege. The trial court denied the motion, which meant that the admission of fault did not have to be kept secret and that the plaintiffs could inquire into the documentation underlying that admission.

The hospital filed an immediate appeal, but the court of appeals affirmed. Noting that the peer review privilege must be strictly construed against the party seeking to assert it, the court found that the hospital had not met its burden of showing the privilege applied. Particularly problematic was the hospital’s claim that its administrator’s knowledge was the result of a confidential peer review process when, on the tape, he told the Smith family that the peer review process had not yet begun. The court emphasized that the hospital’s “merely labeling a committee or a document ‘peer review’ is insufficient to meet the burden of proving that the privilege applies to the requested information.”

Plaintiffs’ attorneys on the appeal: Brenda M. Johnson and co-counsel