KALVYN STULL, et al., Plaintiff v. SUMMA HEALTH SYSTEM, et al., Defendant CASE NO. CV-2019-06-2259 IN THE COURT OF COMMON PLEAS, COUNTY OF SUMMIT April 16, 2021 McLaughlin, Kelly L., Judge ORDER This matter comes before the Court on Plaintiffs’ Motion to Compel dealing with Defendants’ claimed peer review privilege objections. Defendants filed a Brief in Opposition and Plaintiffs file a Reply. Factual Background This case involves medical treatment that Plaintiff Kalvyn Stull received by Summa following an automobile crash that occurred on June 18, 2018. The crash resulted in in significant injuries to Kalvyn, including to his head and skull. Plaintiffs allege medical negligence during Kalvyn’s care at Summa’s hospital. Specifically, Plaintiffs allege that Kalvyn was deprived of oxygen to his brain, resulting in a “second, more serious brain injury[.]” As part of discovery, Plaintiffs requested the resident file of Dr. Mazen Elashi, asked questions during a deposition about a conversation that occurred on June 20, 2018 between Dr. Elashi and Defendant Dr. Nathan Blecker, and requested a copy of a PowerPoint presentation Dr. Elashi presented at a “Morbidity and Mortality Review (“M&M”) Conference.” Defendants have asserted the peer review privilege as to all three. Analysis The Peer Review Privilege R.C. 2305.252 addresses the confidentially of peer review committee proceedings and provides, 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. No individual who attends a meeting of a peer review committee, serves as a member of a peer review committee, works for or on behalf of a peer review committee, or provides information to a peer review committee shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the proceedings of the peer review committee or as to any finding, recommendation, evaluation, opinion, or other action of the committee or a member thereof. As explained by the Ninth District, A peer-review committee, as defined by statute, is a committee within a hospital or other qualifying provider of health care that “[c]onducts professional credentialing or quality review activities involving the competence of, professional conduct of, or quality of care provided by health care providers.” R.C. 2305.25(E)(1)(a). R.C. 2305.252 provides, “Proceedings and records within the scope of a peer review committee * * * 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 * * * provider * * * arising out of matters that are the subject of evaluation and review by the * * * committee.” The purpose of the statute is to protect the integrity of the peerreview process in order to improve the quality of health care. Gureasko v. Bethesda Hosp. (1996), 116 Ohio App.3d 724, 730, 689 N.E.2d 76, citing Gates v. Brewer (1981), 2 Ohio App.3d 347, 349, 2 OBR 392, 442 N.E.2d 72 (upholding the constitutionality of R.C. 2305.251, the former version of the peer-review statute). The peer-review privilege is not a generalized cloak of secrecy over the entire peer-review process. “If all materials viewed and utilized by review committees were deemed undiscoverable, a hospital could never be held accountable for any negligent act within the purview of the committee.” Huntsman v. Aultman *60 Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL 2572598, at ¶ 47, citing Wilson v. Barnesville Hosp., 151 Ohio App.3d 55, 2002-Ohio-5186, 783 N.E.2d 554, at ¶ 23. The statute protects several classes of people from testifying in civil lawsuits, including those who attend meetings or serve as members of a peer-review committee, those who work for or on behalf of the committee, and those who provide information to the committee. These persons are not permitted to testify regarding “any evidence or other matters produced or presented during the proceedings of the * * * committee” or “any finding, recommendation, evaluation, opinion, or other action of the committee or a member thereof.” R.C. 2305.252. These individuals, however, “shall not be prevented from testifying as to matters within the individual's knowledge.” Id. Information within the knowledge of a witness does not become privileged merely because it was disclosed to a committee member or discussed at a peer-review committee meeting. Giusti v. Akron Gen. Med. Ctr., 178 Ohio App.3d 53, 896 N.E.2d 769, 2008- Ohio-4333, ¶¶13-15 (9th Dist. Summit). “The party claiming the privilege has the burden of proving that the privilege applies to the requested information.” Id. at ¶17. “A party claiming the peer-review privilege, at ‘a bare minimum,’ must show that a peer-review committee existed and that it actually investigated the incident.” Id. Dr. Blecker’s affidavit and deposition testimony Before reaching the merits of Plaintiffs’ Motion, the court finds it necessary to address an evidentiary issue. Defendants support their Brief in Opposition with several documents and affidavits, including an affidavit from Dr. Blecker dated November 23, 2020. Within this affidavit, Dr. Blecker avers, I was and am a member of the Clinical Competency Committee (“CCC”) for the Department of Surgery from August 2017 continuing to the present. The responsibility of the CCC is to conduct quality review activities of involving the competence of, professional conduct of, or quality of care provided by resident physicians. The CCC accomplishes its quality review activities by periodically gathering and analyzing any and all data from performance, formal or informal, delivering quality reviews to the individual residents, and making recommendations to the Resident Director of the Department of Surgery about quality assurance, the status of the overall program, and the competency of the individual resident physicians. Plaintiffs deposed Dr. Blecker on July 29, 2020. The court notes that Dr. Blecker is a named defendant and counsel for Defendants represented him at the deposition. During the deposition, Dr. Blecker gave the following testimony: Q. Since you started your employment at Summa in August 2017 through the present, have you served on any professional committees? A. I am not on any professional committee, no. I -- Q. Have you served on any committees at Summa? A. Oh, No. My only hesitation is I -- I’ve -- it’s not officially a committee, but when we interview new residents to come, I help interview applicants for the residency program. Q. Okay. Other than interviewing -- assisting interviewing potential new residents, have you ever served on any committee at Summa. A. No. Presumably, Dr. Blecker and his counsel were aware of his deposition testimony when he made the affidavit, yet he did not explain the conflicting testimony. Further, Plaintiffs addressed the conflicting testimony in their Reply, and despite the plethora of briefing in this case, Defendants did not file a sur-reply or request leave to do so. No party has requested a hearing. When a witness offers testimony at trial that conflicts with their deposition testimony, the trier of fact need not reject the testimony. Schaffner v. Danko, 9th Dist. Summit No. 9037, 1978 WL 215553 (Dec. 29, 1978). “[S]uch controversy may effect the weight to be given to the testimony[.]” Id. In this situation, the court is not in a position to make a credibility determination solely from a printed deposition transcript and an affidavit. However, the conflict raises concerns as to credibility. Even when a deponent alters their deposition testimony pursuant to the allowed procedure in Civ.R. 30(E), which Dr. Blecker did not do, “substantive changes in deposition testimony bring the credibility of these deponents into play[.]” Wright v. Honda of Am. Mfg., Inc., 73 Ohio St.3d 571, 576 fn. 6, 653 N.E.2d 381 (1995). When reviewing a motion for summary judgment, courts generally disregard affidavits when they conflict with prior sworn deposition testimony. See Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455. As explained by the Fourth District, “The limitation on affidavits that conflict with prior depositions applies only when: (1) the affiant is a party to the litigation, (2) her affidavit is inconsistent with her own prior deposition, and (3) the affidavit neither suggests that the affiant was confused at the deposition nor offers a reason for the contradiction in her prior testimony.” Vanderpool v. Southern Ohio Medical Center, Scioto App. No. 01CA2777, 2001-Ohio-2434, citing Push v. A-Best Prods. Co. (Apr. 18, 1996) Scioto App. No. 94CA2306; see, also, Clemmons v. Yaezell (Dec. 29, 1988), Montgomery App. No. 11132. Hull ex rel. Hull v. Lopez, 4th Dist. Scioto No. 01CA2793, 2002-Ohio-6162, ¶40. Applying this limitation, Dr. Blecker is a party to the case, his November 23, 2020 affidavit directly contradicts his July 29, 2020 deposition testimony, and he does not offer a reason for the contradiction. The court finds it appropriate to disregard the averments in his affidavit that conflict with his deposition testimony. The June 20, 2018 conversation During Dr. Elashi’s deposition, Plaintiffs learned that he had a “personal conversation” with Dr. Blecker just after the event involving Kalvin. With regard to this conversation, Dr. Elashi testified that he “had talked to Dr. Blecker on the same day of the event just to gain a better understanding,” and “it was a personal conversation.” Defendants claim that the peer review privilege protects the contents of this conversation. Defendants cite to R.C. 2305.252(A), stating, “[a] member of a peer review committee cannot be compelled to testify about their findings, recommendations, evaluations, or opinions.” However, Dr. Elashi is not part of a peer review committee, and Dr. Blecker testified at his deposition that he has never served on any committee at Summa, other than helping to interview applicants for residency positions. Furthermore, in response to an interrogatory asking when they initiated peer review regarding Kalvyn, the earliest date they provided was July 17, 2018 (when they added the matter to the agenda for a July 20, 2018 M&M conference). The court finds that Defendants have not met their burden to establish that the peer review privilege protects the June 20, 2018 conversation. Dr. Elashi’s Residency File Plaintiffs seek Dr. Elashi’s resident file, which they say should contain: 1) Evaluations that are completed by the attending physician at the end of each of the resident’s rotation and the program director, which the resident receives a copy of; 2) Submissions such that the resident can perform certain procedures, such as an intubation; 3) Evaluations of the resident performing intubations; 4) Step 1 and Step 2 test results, utilized when training or orienting residents on intubating patients; and 5) Number of intubations performed by the resident including when and with what attending. Defendants have refused to provide the file, claiming the peer review privilege protects the file. Defendants have provided an affidavit from Dr. Erica Laippley, who describes the residency program and the residency file. She generally avers that the residency file contains “information and documentation that directly relates to quality review activities involving the competence of, professional conduct of, quality of care provided by resident physician Dr. Elashi.” She also avers, “[t]he residency file contains records of qualitative assessment by faculty members of the medical care rendered by the resident physicians, and the competence of, professional conduct of, and quality of care provided by the residents.” As explained by the Tenth District, A health care entity asserting the R.C. 2305.252 privilege bears the burden of establishing the applicability of the privilege. Lowrey v. Fairfield Med. Ctr., 5th Dist. No. 08 CA 85, 2009–Ohio– 4470, ¶ 35; Giusti v. Akron Gen. Med. Ctr., 178 Ohio App.3d 53, 896 N.E.2d 769, 2008–Ohio–4333, ¶ 17. “Simply labeling a document ‘peer review,’ ‘confidential,’ or ‘privileged’ does not invoke the statutory privilege.” Selby v. Fort Hamilton Hosp., 12th Dist. No.2007–05–126, 2007–Ohio–2413, ¶ 14. Rather, to attain the benefits of the peer review privilege, a health care entity must establish that the documents at issue satisfy the criteria of R.C. 2305.252.2 A health care entity may attempt to meet this burden by: (1) submitting the documents in question to the trial court for an in camera inspection, or (2) presenting affidavit or deposition testimony containing the information necessary for the trial court to adjudge whether the privilege attaches. Bansal v. Mt. Carmel Health Sys., Inc., 10th Dist. No. 09AP-351, 2009-Ohio6845, ¶14. Defendants have chosen the latter, and have not submitted any documents to the court for an in camera inspection. Based on the information Defendants have provided, the court recognizes that information in the resident file could be protected by the peer review privilege. However, Defendants have the burden to show the information actually is protected. To meet its burden, “[t]he health care entity must provide evidence as to the specific documents requested, not generalities regarding the types of documents usually contained in a peer review committee's records.” Id. at ¶15. Dr. Laippley’s affidavit contains mostly generalities and conclusionary opinions. She does not identify any specific individuals who authored documents contained in Dr. Elashi’s file or specifically identify any individuals as being part of a peer review committee. Plaintiffs cite to information that should be in the resident file that is not protected by the peer review privilege: evaluations by Dr. Blecker (who is not a member of any committee at Summa); evaluations by Dr. Porter (who Summa has not identified as being part of a peer review committee); and evaluations from a respiratory therapist (who Summa has not identified as being part of a peer review committee). Based on the evidence before the court, the court finds that Defendants have failed to meet their burden to establish that the peer review privilege protects Dr. Elashi’s resident file. Dr. Elashi’s PowerPoint Presentation It is undisputed that Dr. Elashi specifically drafted the PowerPoint presentation at issue for use at a M&M conference. The parties disagree as to whether Summa’s M&M conferences constitute a peer review committee. While Dr. Elashi is not a member of a peer review committee, the peer review privilege applies as to an individual who “works for or on behalf of a peer review committee, or provides information to a peer review committee[.]” R.C. 2305.252. The privilege protects “any evidence or other matters produced or presented during the proceedings of the peer review committee[.]” Id. Therefore, if the M&M conference qualifies as a peer review committee, the privilege protects the PowerPoint presentation. Defendants have provided the court with a copy of Summa’s Morbidity and Mortality Review Policy. It states that the purpose of the review is, “[t]o prevent and/or minimize deaths or adverse events through professional peer evaluation[,] and “establish guidelines for reviewing provider-related care issues of the trauma patient.” It provides that “[e]ach case will be presented by the Attending physician[,]” and that meetings will be scheduled on the fourth Wednesday of each month. It further provides that: All mortalities will be identified by the Trauma Registrar and forwarded to the Trauma Medical Director for review. Provider-related issues can be identified on daily rounds, Trauma Registrar, Trauma Clinician or Trauma Case Manager and will be reviewed by the Trauma Medical Director. Each Attending Trauma Surgeon will be notified by email that he/she has a mortality to present . . . . Each Attending Trauma Surgeon will be notified by email that Trauma Services has identified a provider-related issue that he/she is required to present . . . . Each sub-specialty physician will be notified by email that Trauma Services has identified a provider-related issue that he/she is required to present at a set date, time and location. The Chief Surgical Resident on Trauma rotation for that particular month will be notified by email that Trauma Services has identified a resident-related issue that he/she is required to present . . . . The policy does not mention general surgery residents. Dr. Blecker gave deposition testimony as to the M&M conference for which Dr. Elashi prepared the PowerPoint. He testified that meeting occurs almost every Friday, and all general surgery residents are required to attend. He further testified that general surgery attending physicians are invited to attend, but are not required to attend. He testified that the residency program director (Dr. Joel Porter at the time Kalvyn’s case was presented) chooses the cases that are presented with input from the residents, and that the purpose of the presentation is educational. As to the M&M conference at issue, Dr. Elashi testified, as part of the educational process when there are complications from surgery or procedures or patients that were in -- actively taking care or, we generally as residents submit a, what’s called a morbidity and mortality, depending on if the patient is deceased or whether it was a complication and they’re still alive and present it on a specific day of the week that we always do hold this conference. Dr. Elashi further testified that there are multiple cases presented every week. As Plaintiffs note in their Reply, the details contained in Summa’s policy do not entirely align with Dr. Blecker an Dr. Elashi’s description. However, Summa also provides an affidavit from Dr. Bradley Martin, Summa’s Vice President, Medical Affairs & Chief Medical Officer of Quality. He avers that “resident physicians draft a PowerPoint Presentation regarding a case . . . [a]s part of the M&M Conference,” and specifically mentions Dr. Elashi’s presentation. He indicates the conference took place on July 20, 2018 (a Friday). He further avers that the purpose of the conference “was quality and peer review activities involving the competence of, professional conduct of, or quality of care provided by health care providers[.]” Dr. Blecker and Dr. Elashi describe the purpose of the M&M conference for which Dr. Elashi prepared the PowerPoint as “educational.” Plaintiffs argue that courts should strictly construe the peer review privilege and further argue that the statue does not address an “educational” purpose. Given that Dr. Blecker and Dr. Elashi are not members of a peer review committee, the court will not hold Defendants to their label as to the purpose of the M&M conference. Further, the court finds more similarities than differences between the “educational” label given by Dr. Blecker and Dr. Elashi, and the description given in the policy and by Dr. Martin. In addition, while the differences between the written policy and how the M&M conference actually functions do raise questions, they are not significant enough to disregard the policy. Considering all the evidence Defendants presented in the totality, the court finds that Defendants have met their burden to establish that the M&M conference is a protected peer review activity. As Dr. Elashi created the PowerPoint solely for the M&M conference, the peer review privilege protects it as well. Conclusion The court GRANTS the Motion to Compel in part. Defendants shall provide the disputed documents within fourteen days from the date of this order. As to the deposition questions, Defendants shall make the witnesses available to Plaintiffs within a reasonable amount of time considering the necessary attorneys’ schedules. The court DENIES the Motion to Compel as to Dr. Elashi’s PowerPoint presentation. The court will hold the issue of sanctions in abeyance at this time. The court notes that there are other outstanding motions regarding sanctions and it anticipates addressing sanctions at a forthcoming in person hearing. IT IS SO ORDERED.