OSMA Working in the Courts to Protect Resident/Fellow Privacy
Join the Effort!
This summer, OSMA’s legal team worked with several other physician and healthcare organizations to file an amicus brief in an important Ohio case arguing that peer review files of resident physicians should be held in confidence and not subject to discovery. OSMA believes strongly that the Ohio Supreme Court must ensure that Ohio’s peer review statute applies to a hospital’s review and assessment of the quality of care provided by resident physicians. The Court heard oral arguments from the parties on Tuesday, November 14. We now await a decision by the Court.
This case is a great example of OSMA’s advocacy work on behalf of resident and fellow physicians from across Ohio.
See full background on the case and OSMA’s arguments below*...
Ohio Resident Physicians: Please consider joining OSMA to ensure similar legal, legislative and regulatory efforts are possible in 2024.
*Stull v. Summa Health System
(Peer Review Privilege) Case No. 2023-0352
The Plaintiff, Stull, sued Summa Health for medical malpractice. During the discovery process, Plaintiff requested the “residency file” of a resident of Summa, Dr. Elashi. Summa objected on grounds that the file itself was a “record” of Summa’s peer review committee, which reviews the competence, professional conduct and quality of care of the Summa’s resident physicians.
Per R.C. 2305.252, any “[p]roceedings 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.” Certainly the policy behind keeping records of peer review committees confidential is so that these committees can freely report and review the care of young physicians, who are still learning to practice.
Ohio’s Ninth District Court of Appeals affirmed the trial court’s order compelling the entire file to be produced to Plaintiff. The file includes all performance evaluations of Dr. Elashi’s work performed for Summa. The Court held that Summa didn’t show in sufficient detail as to how the file constituted a record of a peer review committee subject to the privilege under R.C. 2305.252. Essentially, the Court said that the affidavit submitted by Summa in proving that the privilege applied was not specific enough to meet the burden of the privilege.
Summa has appealed this decision to the Ohio Supreme Court. If the Supreme Court does not overturn this holding, there is a genuine possibility that it could be applied in future medical malpractice claims to obtain otherwise privileged records against resident physicians in residency programs, and open those physicians to negligence exposure.
The Court accepted jurisdiction on May 23, 2023.
OSMA has joined the Ohio Hospital Association, the Ohio Osteopathic Association, and the American Medical Association in submitting an amicus (“friend of the Court”) brief arguing the public policy issues underlying the peer review privilege, specifically the purpose and intent of the peer review privilege, and that Ohio Supreme Court must ensure that Ohio’s peer review statute applies to a hospital’s review and assessment of the quality of care provided by resident physicians.
We argue that all records created by a peer review committee are privileged regardless of where and who maintains the records, and that everything produced to a peer review committee is privileged and is thus not discoverable in litigation. Further, we argue that a properly structured peer review committee and file designed to oversee the quality of residents is entitled to the same protection as peer review committees/files for attending physicians. Without this privilege, open and honest peer review discussions and feedback between the committee and resident are severely hindered, which in turn hinders quality improvement efforts for residents, harming patient care.
We filed our brief on July 31, 2023. We await either oral argument or a decision by the Court.