By Martin T. Galvin

In Burnham v. Cleveland Clinic Foundation, Case No. 2015-1127 the Ohio Supreme Court recently issued a decision that will make it easier to file immediate (aka interlocutory) appeals from trial court decisions requiring production of privileged information during discovery.  Reminger was honored to prepare and file amicus briefs at both the jurisdictional and merit levels of the Supreme Court process for the Academy of Medicine of Cleveland and Northern Ohio. 

This issue often arises in the context of plaintiff attorneys demanding to see records of hospital quality assurance committees, or other peer review materials.  These privilege issues also often appear in many other types of lawsuits, such as professional liability and domestic relations. Although some categories of documents are privileged under the law, and thus should not need to be produced, trial courts in the past have ordered them produced nonetheless.  The remedy for this situation was always to take an immediate appeal to the appropriate court of appeals, per Ohio Revised Code 2505.02.

In 2014, the Supreme Court made it much more difficult to take such an immediate appeal, in the decision of Smith v. Chen.  In Chen, the Supreme Court held that in order to take such an immediate appeal, the appealing party needed to demonstrate that they would not have a “meaningful remedy” if they waited until after trial to file an appeal. 

This decision created a very confusing situation. The twelve Ohio district courts of appeals had no guidance as to what constituted a “meaningful remedy.”  More fundamentally, once a privileged document is ordered disclosed, it can never be retrieved.  The damage is done forever.  As they say, once a bell is rung, it can never be unrung. 

Most adverse discovery orders in the medical malpractice context should now again be immediately appealable, if they involve quality assurance materials.  This is so because the Court said that matters involving constitutional protections, statutory protections, or attorney/client protection are always final and appealable.  Quality assurance protections are provided by statute.  The majority opinion did state that other matters, such as attorney work product privilege disputes, are only appealable at the discretion of the court of appeals.  Thus, in other civil litigation contexts, such as where the attorney work product privilege is at stake, the question of whether there is a right to an immediate appeal will be decided on a case by case basis.

The concurring opinion in Burnham would have gone further and simply reinstituted the status quo prior to Smith v. Chen.  If the concurring decision had been adopted, all trial court orders requiring production of privileged information would be subject to an interlocutory appeal as a matter of right.  Arguably, this would be an easier and more clear standard in practice.

Still, the opinion of the Ohio Supreme Court should prevent unwarranted fishing expeditions into privileged matters by putting teeth into the various privileges that often come into play.

If you have any questions concerning this issue, or any question regarding healthcare malpractice or other professional liability, please feel free to call a member of our Medical Malpractice Liability Group.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.


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