Subject Matter: Medication Error Reports Not Privileged Discoverable Under Ohio Law Court Says
DENNIS J. FREUDEMAN, INDIVIDUALLY AND AS EXECUTOR FOR THE ESTATE OF DOROTHY V. FREUDEMAN, DECEASED Plaintiff,
THE LANDING OF CANTON, et al., Defendants.
United States District Court, N.D. Ohio, Eastern Division.
MEMORANDUM OF OPINION AND ORDER
BENITA Y. PEARSON, Magistrate Judge.
This diversity action was filed by Plaintiff, Dennis J. Freudeman, Individually and as Executor of the estate of the deceased Dorothy V. Freudeman, against Defendants Emeritus Corporation and Wegman Companies, Inc., the owner and operator of an assisted living facility, and The Landing of Canton, the assisted living facility, where the decedent resided prior to her death, alleging negligence, malpractice, and wrongful death, among other things regarding the death of Dorothy Freudeman.
Plaintiff seeks to compel the production of certain documents pursuant to Federal Rule of Civil Procedure 37(a). ECF No. 77. For the reasons provided below, the Court grants Plaintiff’s Motion to Compel and orders Defendants to redact and produce the responsive documents.
Plaintiff has moved the Court to compel Defendants to produce "Any and all Medication Error Reports for errors and/or suspected errors made at The Landing of Canton from March 10, 2000 to July 5, 2007 with confidential information redacted." ECF No. 77 at 8. Defendants have objected on the ground that the sought after documents are privileged, as they contain confidential medical information that is protected from discovery by Ohio’s physician-patient privilege, codified at Ohio Revised Code Â§ 2317.02. ECF No. 81. Plaintiff replied that the documents requested are not protected by the physician-patient privilege and are more akin to "incident reports" used to record the occurrence of errors made in dispensing medication. While admitting that incident reports meeting certain Ohio statutory requirements are protected under a peer-review privilege, Plaintiff counters that those sought in this case do not fit that profile and, as a result, the peer-review privilege does not apply as well. ECF No. 85. After oral argument, the Court ordered the parties to submit supplemental briefs addressing, among other thing, whether the documents sought should be analyzed according to Ohio’s physician-patient or incident report (or "peer-review") privilege statutes and whether the law permits an in camera review. ECF Nos. 89, 92, 93 & 94.
Plaintiff’s counsel orally withdrew Plaintiff’s request for Medication Error Reports (also "MERs") pertaining to the decedent Dorothy Freudeman after Defendants advised that no such reports "regarding Dorothy Freudeman exist." ECF Nos. 81 at 3 & 81-1 at 4. Plaintiff persists, however, in his request for Medical Error Reports related to non-party residents who received medical care and treatment at The Landing of Canton, the facility where decedent lived prior to her fatal illness, alleging the likelihood that such documents would lead to admissible evidence showing Defendant’s liability, supporting Plaintiff’s claim for punitive damages, establishing prior occurrences, and assisting Plaintiff in assessing the credibility of witnesses.
Defendants cast the issue before the Court as whether information provided by a patient to a nurse for the purposes of medical diagnosis and treatment is undiscoverable and privileged under Ohio’s physician-patient privilege and in accordance with Ohio Supreme Court’s ruling in Roe v. Planned Parenthood Southwest Ohio Region, full cite infra. The Court finds the true question, as formed by the briefing and arguments, is whether information gathered and reported after an incident or accident involving a patient under Defendants’ care is privileged. Defendants have conceded that the information contained in these error reports is not part of the patient’s medical records. And, Defendants have not shown that this information is used to treat a patient. Rather, the evidence shows that these reports are used to record accidents â€” things out of the ordinary â€” which quite, frankly are, (1) not necessarily in the best interest of the patient, (2) should not have occurred in the first instance, and (3) should not be repeated. While it is true that the recording of an accident or incident may help to diagnose the resulting problem, that result, it seems, is secondary to the primary reason for which the error reports are created. To the extent the error reports contain patient information that is customarily kept private, that information should be protected. That, however, is not justification for not disclosing the balance of the error reports. For these and the reasons that follow, Plaintiffs motion to compel is granted.
Firm/Company: US District Ct. - ND OH Northeast District 2010
Document Date: May 31, 2010
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