Smith v. Manor Care of Canton, Inc., 2006 Ohio 1182 (Ohio Ct. App. 2006)

Resident died after becoming entrapped between a mattress and bedrail. Nursing home employee provided report to nursing home administrator, which administrator crumpled and put in desk drawer. Later, second report was prepared. During deposition, Plaintiffs asked: “(1) what was Ms. Airhart’s reaction upon learning of the events about Mr. Mathias; (2) what did Ms. Airhart say when she crumpled up Ms. Boykins’ and the aide’s statements and threw them into the desk drawer; (3) what additional conversation did Ms. Airhart have with Ms. Boykins and the aide during their meeting; (4) what conversation did Ms. Boykins have with the director of nursing a day or two after Mr. Mathias’ death during a meeting initiated by Ms. Boykins and another nurses aide; and (5) what concerns did Ms. Boykins and the aide express to the director of nursing at their meeting.” Employee was instructed not to answer because information was subject to the peer review privilege and non-discoverable. Plaintiff filed a motion to compel. Defendants did not respond and the trial court granted the motion to compel. Defendants then filed a motion to reconsider and a motion for protective order. The trial court denied both motions. On appeal, Defendants argued that the trial court should have reviewed the information in camera before determining there was no privilege. On appeal, the court found that Defendant could not complain that the trial court did not review information to determine whether it was subject to the privilege when no information was given to the trial court. To support a claim of peer review privilege, at a bare minimum the party claiming privilege must bring to the court’s attention the existence of such a committee and show that the committee investigated the case in question. Defendant should also have shown that the person Plaintiff inquired about was a member of the committee or participated in its investigation. The court rejected Defendants’ argument that its failure to respond to the original motion to compel as excusable neglect.

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