Gates v. Brewer

• Decision Date: 14 May 1981
• Citation: 442 N.E.2d 72,2 Ohio App.3d 347,2 OBR 392
• Parties: , 2 O.B.R. 392 GATES et al., Appellants, v. BREWER et al., Appellees.
• Court: Ohio Court of Appeals

Page 347

2 Ohio App.3d 347

442 N.E.2d 72, 2 O.B.R. 392

GATES et al., Appellants, v. BREWER et al., Appellees.

Court of Appeals of Ohio, Tenth District, Franklin County.

May 14, 1981.

Syllabus by the Court

1. R.C. 2305.25 and 2305.251 do not violate the Equal Protection Clause contained in the Fourteenth Amendment to the United States Constitution, nor the equal protection standards of Section 2, Article I of the Ohio Constitution.

2. R.C. 2305.25 and 2305.251 do not violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

3. R.C. 2305.251 does not violate Section 5, Article IV of the Ohio Constitution.

4. When a trial court is presented with a situation in which an individual attempts to avoid testimony or a party attempts to prevent the introduction of certain evidence by asserting the privilege defined in R.C. 2305.251, it is incumbent upon the trial court to hold an in camera inspection of the information, documents or records in question and to question the witness as to the nature of his testimony.

5. The following records are protected from discovery by R.C. 2305.251: (1) Any records or transcript of proceedings of a review committee defined in R.C. 2305.25 which considered the conduct of the defendant; (2) any evidence produced or presented at such proceedings, unless said evidence (information, documents or records) became available to the subpoenaed witness in any other capacity besides as a member of said committee; and (3) any finding, recommendation, evaluation, opinion, or other action of said committee.

Michael F. Colley & Associates and Frank A. Ray, Columbus, for appellants.

Lane, Alton & Horst, Jack R. Alton and Gayle E. Arnold, Columbus, for appellees.

STRAUSBAUGH, Presiding Judge.

This is an appeal of a judgment rendered by the Court of Common Pleas of Franklin County in favor of defendant-appellee Thomas H. Brewer, M.D. On November 5, 1974, plaintiffs-appellants, Willie and Helen Gates, filed a complaint in the court of common pleas alleging medical malpractice against Dr. Brewer.

During the course of the trial, Charles Turner, Administrator of defendant-appellee, St. Anthony Hospital, was served with a subpoena duces tecum ordering him to testify at said trial and ordering him to bring the following:

"All records concerning the performance of Dr. Thomas H. Brewer as a physician at St. Anthony Hospital, including but not limited to reports of conduct and restrictions implemented by the hospital on his medical practice there."

In response to that subpoena duces tecum, counsel for St. Anthony Hospital appeared before the trial court and moved that the subpoena duces tecum be quashed and that a protective order be issued preventing plaintiffs from obtaining access to the requested materials, pursuant to R.C. 2305.251. This appeal centers on the decision of the trial court to grant the protective order and quash the subpoena duces tecum. In appealing the decision of the trial court, plaintiffs raise the following assignments of error:

"1. The trial court erred by quashing a subpoena of a hospital administrator to produce certain records relating to the performance of the defendant/physician by relying upon Sections 2305.25 and 2305.251 of the Ohio Revised Code, which sections are violative of the U.S. and Ohio Constitutions.

"2. The trial court erred by quashing a subpoena of a hospital administrator to produce certain records relating to the performance of the defendant/physician by relying upon Sections 2305.25 and 2305.251 of the Ohio Revised Code, which did not apply."

Plaintiffs present three arguments in support of the first assignment of error. Plaintiffs argue that R.C. 2305.25 and 2305.251 violate the Equal Protection Clause contained in the Fourteenth Amendment to the United States Constitution by granting a special privilege and immunity to negligent physicians whose negligence is the subject of disciplinary action by a medical review committee. Plaintiffs also contend that the statutes in question deny plaintiffs in medical malpractice actions due process of law in that said statutes prevent plaintiffs access to the courts to recover damages. Additionally, plaintiffs argue that said statutes are in conflict with the right to discovery as defined by Civ.R. 26(B) and, therefore, in violation of Section 5(B), Article IV of the Ohio Constitution.

R.C. 2305.25 provides:

"No member or employee of a utilization review committee or tissue committee of a hospital or of a community mental health center or of a utilization committee of a state or local society composed of doctors of medicine or doctors of osteopathic medicine and surgery or doctors of podiatric medicine or of a peer review or professional standards review committee of a state or local society composed of doctors of medicine, doctors of osteopathic medicine and surgery, doctors of dentistry, doctors of optometry, doctors of podiatric medicine, psychologists, or registered pharmacists shall be deemed liable in damages to any person for any action taken or recommendation made within the scope of the functions of such committee, if such committee member or employee acts without malice and in the reasonable belief that such action or recommendation is warranted by the facts known to him after reasonable effort to obtain the facts of the matter as to which such action is taken or recommendation is made.

"This section shall also apply to any member or employee of a nonprofit corporation engaged in performing the functions of a peer review or professional standards review committee and shall apply to any member or employee of a hospital board or committee reviewing professional qualifications or activities of its medical staff or applicants for admission thereto."

R.C. 2305.251 provides:

"Proceedings and records of all review committees described in section 2305.25 of the Revised Code shall be held in confidence and shall not be subject to discovery or introduction in evidence in any civil action against a health care professional or institution arising out of matters which are the subject of evaluation and review by such committee. No person within attendance at a meeting of such committee shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any finding, recommendation, evaluation, opinion, or other action of such committee or member thereof. Information, documents, or records otherwise available from original sources are not to be construed as being unavailable for discovery or for use in any civil action merely because they were presented during proceedings of such committee nor should any person testifying before such committee or who is any member of such committee be prevented from testifying as to matters within his knowledge, but the witness cannot be asked about his testimony before such committee or opinion formed by him as a result of such committee hearing."

An examination of the above statutes reveals that members of the medical profession are accorded different treatment concerning the admissibility of any evidence in a civil action of the proceedings of a medical group or organization charged with the responsibility of review and discipline. We know of no other profession in which the proceedings of a disciplinary organization are inadmissible. Under traditional equal protection analysis, where the statutory classification does not affect a fundamental interest and when said classification is not based on "suspect" criteria, the classification will be upheld if there exists any conceivable set of facts under which the classification rationally furthers a legitimate legislative objective. McGowan v. Maryland (1961), 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393, 17 O.O.2d 151.

Plaintiffs contend that the statutes in question are unreasonable, having no fair and substantial relation to the admitted legitimate purpose of improving the quality of health care administered to the public. We disagree. After examination of the statutes in question, we find that a legislator could rationally believe that by conferring a privilege from discovery upon the proceedings of a medical disciplinary committee the quality of public health care would increase. By placing a blanket of confidentiality over such disciplinary and review proceedings, the legislature has provided for a manner in which a hospital or medical association may take remedial measures for the improvement of the care and treatment of patients. If said proceedings were the subject of discovery, the candid and conscientious opinions or evaluations necessary to the success of such a review would remain hidden for fear of their use in a civil action brought against a hospital or colleague. In essence, hospital and medical review or discipline...