Bailey v. Manor Care of Mayfield HTS

• Decision Date: 07 November 2013
• Docket Number: No. 99798.,99798.
• Citation: 4 N.E.3d 1071
• Parties: Jennie BAILEY, Administrator, Plaintiff–Appellee v. MANOR CARE OF MAYFIELD HTS. etc., et al., Defendants–Appellants.
• Court: Ohio Court of Appeals

4 N.E.3d 1071

Jennie BAILEY, Administrator, Plaintiff–Appellee

v.MANOR CARE OF MAYFIELD HTS. etc., et al., Defendants–Appellants.

No. 99798.

Court of Appeals of Ohio,

Eighth District, Cuyahoga County.

Nov. 7, 2013.

Beth A. Nagel, Justin S. Greenfelder, Dirk E. Riemenschneider, Timothy A. Spirko, Buckingham, Doolittle & Burroughs, L.L.P., Cleveland, OH, attorneys for appellant.

Martin S. Delahunty, III, Richard V. Zurz, Slater & Zurz, L.L.P., Akron, OH, attorneys for appellee.

Before JONES, J., BOYLE, P.J., and BLACKMON, J.

LARRY A. JONES, SR., J.

{¶ 1} Defendant-appellant, Manor Care of Mayfield Heights, Ohio (“Manor Care”), appeals the trial court's ruling granting plaintiff-appellee's, Jennie Bailey, Administrator of the Estate of Dionne Dennard (“the Estate”), motion to compel and denying Manor Care's motion for protective order. We affirm in part, reverse in part, and remand.

I. Procedural History

{¶ 2} In 2012, Bailey filed a complaint against Manor Care, ManorCare Health Services, and various John Does alleging negligence and/or negligence per se, violation of statutory rights, and wrongful death. The complaint alleged that Dionne Dennard was a resident of Manor Care in November 2011. On November 12, 2011, due to Dennard's failing health and at her family's insistence, she was transferred to a hospital. Dennard died at the hospital on November 16, 2011. The complaint alleged that Manor Care failed to provide adequate medical, nursing, and health care to Dennard causing her mental, physical, and emotional pain, and ultimately her death.

{¶ 3} Manor Care answered the complaint on October 29, 2012, generally denying the allegations. The trial court set the case for a case management conference and, at the conference, issued standing orders governing the management, procedure, and scheduled dates for the case.

{¶ 4} On December 7, 2012, Manor Care moved for an extension to respond to the Estate's interrogatories, productions of documents, and request for admissions. The trial court granted the motion, giving Manor Care leave until January 7, 2013.

{¶ 5} On January 10, 2013, the Estate filed a notice of voluntary dismissal, dismissing its claims against defendant ManorCare Health Services only. On March 13, 2013, the parties filed a joint motion to continue the trial date and discovery deadlines, claiming that both parties needed more time to prepare for trial and take depositions. The trial court denied the motion and set a pretrial for March 19, 2013. After the pretrial, the court extended the non-expert discovery deadline to May 31, 2013, and the settlement conference to June 10, 2013, but ordered that all other deadlines were to remain in effect.

{¶ 6} On April 9, 2013, the Estate moved to compel the production of documents. In its motion, the Estate alleged that it had learned during the March 25, 2013 deposition of Saundra Brown, Manor Care's director of nursing, that there was an investigation “to determine if there was harm to the resident” after Dennard's death. The investigation included taking written witness statements from Manor Care employees. The Estate argued that Manor Care should have produced the investigatory file subject to its request for productions of documents and further, that if Manor Care claimed that the documents were privileged, it had a duty to identify those documents that were being withheld under a privilege argument, and had failed to do so. The Estate argued that federal law preempted state law; therefore, the documents pertaining to Dennard were subject to discovery. The Estate moved to compel Manor Care to produce the documents associated with the investigation along with attorney fees associated with the motion.

{¶ 7} Manor Care moved for leave to respond to the motion to compel. The trial court denied its motion at first, but then granted the motion. In granting Manor Care's motion for leave, the trial court noted that

Manor Care did not timely respond to discovery requests, did not move for an extension and did not file for a protective order. The court will rule on the [motion to compel] and the response is due by noon on 4/6/13.

{¶ 8} Manor Care timely filed its brief in opposition and motion for protective order, arguing that the requested materials were privileged and protected by the attorney-client and work-product privileges and by the peer review and quality assurance privileges. Manor Care further asserted that federal law does not preempt Ohio's “Peer Review Privilege” law. In support of its position, Manor Care submitted the affidavit of Manor Care's assistant administrator Marie Thur. Thur averred that she had personal and professional knowledge of all aspects of the reporting and investigation performed pertaining to Dennard. She also averred that “Quality Assurance Committee investigations and all related documents and investigative information are intended by Manor Care as peer review and legal work product documents as defined by Ohio law.” Thur further averred that

any and all Quality Assurance investigation reports, including but not limited to investigative information pertaining to Dionne Dennard as a result of her residency at Manor Care were prepared and performed within the scope and function of the Quality Assurance Committee at Manor Care.

{¶ 9} On April 17, 2013, the trial court granted the Estate's motion to compel. The court's order stated:

The court has read and reviewed the motion to compel and brief in opposition, and finds the plaintiff's motion well-taken. Therefore the motion to compel is granted and the defendant is ordered to provide all requested documents to the plaintiff on or before noon on 4/19/13, with verification to the court of compliance with this order. The court also notes for the record that in addition to not producing the records pursuant to the time parameters of the civil rule, the defendant did not seek a protective order upon receipt of the production request.

II. Law and Analysis

{¶ 10} Manor Care timely filed its notice of appeal and now raises the following assignment of error for our review:

I. The trial court erred in granting Plaintiff–Appellee's motion to compel production of investigation and incident reports and denying Defendant–Appellant's motion for protective order.

{¶ 11} A trial court's order compelling the production of allegedly privileged documents to an opposing party is a final appealable order. Pinnix v. Marc Glassman, Inc., 8th Dist. Cuyahoga Nos. 97998 and 97999, 2012-Ohio-3263, 2012 WL 2928647, ¶ 8, citing Cobb v. Shipman, 11th Dist. Trumbull No. 2011–T–0049, 2012-Ohio-1676, 2012 WL 1269128, ¶ 34–35;R.C. 2505.02(A)(3) and 2505.02(B)(4). When a discovery issue involves an alleged privilege, it is a question of law that we review de novo. Pinnix at id. citing Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, ¶ 13.

A. Federal Preemption

{¶ 12} The Estate argues that the trial court correctly found that federal law governing the rights of nursing home residents preempts Ohio law with regard to privileged or non-discoverable documents. As an initial matter, we note that the trial court did not state its reasoning behind the decision to grant the Estate's motion to compel; therefore, it is unclear whether the trial court found that federal law preempts state law in regard to this issue. But whether federal law preempts state law is a question of law; accordingly, we apply a de novo standard of review without deference to the trial court's decision. Norfolk S. Ry. Co. v. Bogle, 166 Ohio App.3d 449, 2006-Ohio-1540, 850 N.E.2d 1281, ¶ 6 (8th Dist.), overruled on other grounds, Norfolk S. Ry. Co. v. Bogle, 115 Ohio St.3d 455, 2007-Ohio-5248, 875 N.E.2d 919.

{¶ 13} In Darby v. A–Best Prods. Co., 102 Ohio St.3d 410, 2004-Ohio-3720, 811 N.E.2d 1117, the Ohio Supreme Court considered federal preemption of state law, giving three controlling principles:

(1) the critical question is whether Congress intended state law to be superseded by federal law—the historic police powers of the states are not to be superseded by federal law unless that is the clear and manifest purpose of Congress, (2) a presumption exists against preemption of state police-power regulations, and (3) federal law preempts state law where Congress has occupied the entire field

* * *.

Id. at ¶ 27, citing Minton v. Honda of Am. Mfg., Inc., 80 Ohio St.3d 62, 684 N.E.2d 648 (1997).

{¶ 14} In arguing that it should be granted full access to the investigatory file on Dennard, the Estate relies on 42 C.F.R. 483.10, which concerns the rights of residents of long-term-care facilities, such as Manor Care. 42 C.F.R. 483.10(b)(2)(i) provides that “[t]he resident or his or her legal representative has the right * * * upon an oral or written request, to access all records pertaining to himself or herself including current clinical records within 24 hours.”

{¶ 15} Manor Care relies on Ohio's Peer Review Privilege statutes in arguing that the file is privileged. R.C. 2305.25 et seq.

{¶ 16} To begin our analysis, we note that both state and federal law require peer review, also known as quality assurance or quality assessment committees. Federal law provides for a quality assessment committee under 42 U.S.C. 1396r. 42 U.S.C. 1396r(c)(1)(a)(iv) states:

Confidentiality. The right to confidentiality of personal and clinical records and to access to current clinical records of the resident upon request by the resident or the resident's legal representative, within 24 hours * * * after making such a request.

But 42 U.S.C. 1396r(b)(1)(B) provides:

Quality assessment and assurance. A nursing facility must maintain a quality assessment and assurance committee * * *. A State or the Secretary may not require disclosure of the records of such committee except insofar as such disclosure is related to the compliance of such committee with the requirements of this subparagraph.

{¶ 17} Courts have interpreted 42 U.S.C....