Ohio Appellate Court reviews standard for claiming peer review privilege


By: Shafiyal Ahmed

In Stull v. Summa Health Sys., 2022-Ohio-457, the Ohio Ninth District Court of Appeals held that the Defendant Health System failed to establish that a physician’s residency file was privileged as a record within the scope of a peer review committee pursuant to Ohio Revised Code §2305.252.  

The Plaintiff in Stull received treatment after being seriously injured in an automobile accident. Plaintiff alleged that the treatment he received worsened his brain damage and brought claims for medical negligence against the physician and hospital system. Plaintiff requested the treating physician’s residency file be introduced into evidence to prove his negligence claim.  

Defendants argued that the residency file was protected from discovery under the peer review privilege set forth in Ohio Revised Code §2305.252, which provides that a peer review committee’s proceedings and records are to be held in confidence and are not subject to discovery, nor are they to be introduced into evidence in any civil action against a health care entity or provider. 

Ohio courts consistently have held that a party seeking the protection of R.C. § 2305.252 must first establish that the information at issue does, in fact, fall within the statute’s protection. To do so, the party claiming privilege must present more than a mere assertion that the privilege applies. Instead, the party must present evidence that a proceeding meeting the statutory description of a peer review committee was, in fact, convened, and that the records at issue were prepared by or for the use of that committee.  

The court in Stull determined that the health system did not meet its required burden of proof to establish that the residency file was explicitly exempt from discovery. The court determined that affidavits entered to support a finding of privilege failed to establish that the physician’s residency file was “a record within the scope” of a resident peer review committee as:  

  1. the affidavits made no statements that the residency files were produced, managed, kept, maintained, or created by the hospital’s residency committees; 
  1. the affidavits failed to indicate whether any reviews or associated documents produced by the residency committees were kept within a resident’s file; and 
  1. the affidavits failed to distinguish between the health system’s “residency review” and “peer review” processes, despite suggesting they are different processes.  

The premise of the peer review process is to provide a safe and confidential forum for health care providers to candidly discuss and evaluate standards of care with the overarching goal of improving the efficiency and quality of care. The Ninth District’s holding indicates that peer review privileges, although seemingly broad, cannot be based on generalities. The burden of proving its applicability is far from negligible.  

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