Ohio Supreme Court Orders In Camera Review in Peer Review Privilege Dispute

In a discovery dispute over the applicability of peer review privilege, the Ohio Supreme Court ruled that the trial court should conduct an in camera review of the contested residency file. The case involves allegations that health care providers improperly intubated the plaintiff, causing severe medical complications. The plaintiff requested access to the residency file of one defendant-physician, which the defendants sought to protect under peer review privilege. The Supreme Court reversed the Ninth District’s decision, asserting that the trial court has the authority to conduct an in camera review to assess whether the privilege applies.

This case concerns several health care providers and related corporate entities that provided medical care and treatment to the plaintiff after he suffered injuries from an automobile crash. The plaintiff alleged that the defendants improperly intubated him, which led to deprivation of oxygen, cardiac arrest and brain damage. 

The plaintiff requested the residency file of one of the defendant-physicians, to which the defendants objected, citing peer review privilege pursuant to R.C. 2305.252. The trial court held, citing Bansal v. Mt. Carmel Health Sys., Inc., 2009-Ohio-6845 (10th Dist.), that for the defendants to prove peer review privilege, they could either submit: (1) the documents for an in camera inspection, or (2) an affidavit with the information necessary for the trial court to decide whether privilege applies. The defendants chose the latter and submitted an affidavit from the general surgery residency director. 

The trial court held that the affidavit was not sufficient to meet their burden to establish privilege. On appeal, the Ninth District affirmed the trial court’s ruling. 

The Ohio Supreme Court examined the relevant statute, R.C. 2305.252, in conjunction with Civil Rule 26 and held that neither Bansal nor the strict construction of R.C. 2305.252 supports the trial court’s decision to order the defendants to disclose the residency file. Rather, “[a] trial court can take the step of in camera review, and any other step allowed by the Civil Rules, given its inherent power to control discovery in general.” The court cited trial courts’ extensive jurisdiction over discovery and held that, here, the trial court erroneously limited its own power over the discovery process. 

The Supreme Court reversed the Ninth District Court of Appeals judgment and remanded the case to the trial court to conduct an in camera review to determine whether the residency file is protected by peer review privilege. 

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