Supreme Court of Ohio Decides on a Peer-Review Privilege Issue in Stull v. Summa

Background

On December 10, 2024, the Supreme Court of Ohio issued its decision in Stull v. Summa, a medical negligence case in which the defendants argued that Ohio’s statutory peer-review privilege protected from discovery the file the hospital maintained on a resident physician, which included, among other things, quality reviews and assessments of the resident’s clinical competency and professional conduct. The Supreme Court of Ohio decided one issue: Does the peer-review privilege in R.C. 2305.252 apply to a health care entity’s files about resident physicians?

This case arose from the medical treatment of head injuries that the patient sustained during a car crash. The patient and his guardians filed a medical negligence lawsuit against the hospital and its employed health care professionals, including a resident physician who participated in the patient’s care. The plaintiffs alleged that the resident improperly intubated the patient, causing the patient to sustain a brain injury.

As part of discovery, the plaintiffs requested that the hospital produce the resident’s “entire resident file, including every evaluation completed for every rotation.” The hospital objected on the basis that the requested file was protected by Ohio’s peer-review privilege. The plaintiffs ultimately filed a motion to compel the production of the requested residency file and contended that the peer-review privilege did not apply to the residency file. The hospital supported its position by submitting an affidavit from a residency program director explaining that the plaintiffs’ request sought information directly related to quality review activities of the resident, which were privileged from discovery in a civil action under Ohio’s peer-review statute.

The trial court ruled in the plaintiffs’ favor, and the Ninth District Court of Appeals affirmed the trial court’s ruling.  These courts reasoned that the hospital’s affidavit was insufficient to support the privileged nature of the requested residency file, finding that the affidavit had some minor inconsistencies.  The trial court did not conduct an in-camera review of the residency file, but decided the issue based on a review of the affidavit and the parties’ written arguments. The hospital appealed to the Supreme Court of Ohio, which accepted the appeal. Several associations that advocate for hospitals, doctors, and the medical community filed a joint amicus brief in support of the hospital’s position that the peer-review privilege protects residency files maintained by the hospital because the peer-review privilege plays a significant role in a hospital’s ability to conduct candid quality review activities of their resident physicians. After oral arguments, the Supreme Court of Ohio issued its decision on December 10, 2024.

The Supreme Court of Ohio’s Decision

While the Supreme Court of Ohio agreed with the lower courts’ decision that the hospital’s affidavit alone was insufficient to establish the privileged nature of the residency file, it also rejected the plaintiffs’ contention that an insufficient affidavit justifies a blanket order to disclose the entire contents of the residency file. Instead, the Supreme Court of Ohio placed the power in the hands of the trial court to review the requested file in-camera. “The trial court had the power to take a more active role and control the discovery process related to the peer-review privilege […].” The case will therefore return to the trial court, which will conduct an in-camera review of the file and determine whether the peer-review privilege protects it from discovery.

Stull’s Implication on Future Peer-Review Privilege Challenges

Stull is the first case in which the Ohio Supreme Court has addressed whether Ohio’s peer-review statute is applicable to the residency files that hospitals maintain for the purposes of evaluating and improving their residents’ care. The Court’s decision to require trial courts to engage more actively in the discovery process, and to review potentially privileged materials to determine whether they are privileged, may result in trial courts being called upon more frequently to conduct in-camera reviews of arguably privileged materials. The facts of each case will vary, but it seems reasonable to expect that parties may request in-camera reviews more often than they have historically done. Likewise, the court’s rejection of a rigid “either-or” approach to claiming privilege – either by only presenting an affidavit describing the document, or by only engaging in an in-camera review – means that courts are more likely to conduct hearings to determine whether a document is shrouded by the peer-review privilege.

Understanding that resident physicians are subject to various quality review activities during their residency training, it is imperative that hospitals that employ resident physicians assess the sufficiency of their peer review process for resident physicians. Resident physicians, as doctors in training, are most often reviewed by peer review committees that are separate and distinct from the peer review committee(s) that conduct peer review of physicians with clinical privileges at the hospital. Hospitals must pay attention to how they structure the committees that oversee the training, process improvement, evaluation, peer review, and quality improvement of resident physicians. While the peer review process for physicians and other privileged practitioners at a hospital often garners close attention from an organization, it is time to apply the same level of diligence to assess the sufficiency and scope of the review process for resident physician peer review committees to ensure that quality review activities for residents receive the maximum protection afforded by Ohio’s peer-review statute.