Justices rule on discovery of nursing home documents

By Chris Dickerson | Jun 11, 2015

CHARLESTON – The state Supreme Court has ruled certain nursing home documents are open to discovery for trials while others are not.

On Tuesday, the Justices issued a ruling in a wrongful death case brought by Tom Hanna against HCR ManorCare, claiming Heartland of Charleston was negligent in her care during her time at the home. The matter before the state Supreme Court, however, focused on the discovery of nurse consultant reports and ManorCare Board of Directors briefing packets.

Plaintiffs attorneys wanted the consultant reports about Sharon Hanna’s stay at the home and the Board packets to argue against a defense claim that it didn’t operate or manage any nursing homes. ManorCare attorneys argued that Kanawha Circuit Judge Jim Stucky should have reviewed the filings privately instead of turning them over to the plaintiffs because the documents were protected from disclosure.

In the opinion written by Justice Menis Ketchum, the court said Stucky was correct to turn over the “Center Visit Summaries” nurse consultant reports, but that the Board briefing packets should have been excluded from discovery based on attorney-client privilege.

“This Court concludes that ManorCare’s requested relief concerning the Center Visit Summaries is without merit,” Ketchum wrote. “Consequently, we decline to grant relief in prohibition from the order. …

“However, this Court is of the opinion that the circuit court exceeded its jurisdiction in ordering production of the board of director Briefing Packets. The circuit court should have conducted an in camera proceeding to make an independent determination on whether the Briefing Packets are excluded from discovery pursuant to the attorney-client privilege. Accordingly, we grant relief.”

In an accompanying opinion, Justice Robin Jean Davis concurred in part and dissented in part.

Davis agreed that the board briefing packets were protected from disclosure by attorney-client privilege, but she also said she thinks the nurse consultant reports also should have been reviewed during an in camera proceeding because they are peer review documents.

“The requirement of an in camera review of documents allegedly protected by a statutory health care privilege is consistent with the law around the country,” Davis wrote, citing a similar 1992 West Virginia case styled Shroades v. Henry.

Shroades was a medical malpractice case in which the plaintiff sought certain documents from the defendant hospital. The hospital claimed the documents were peer review documents that were protected from disclosure. The circuit court summarily agreed with the hospital and denied the plaintiff’s request to compel disclosure of the documents. The plaintiff sought a writ of prohibition from the Supreme Court.

“It is clear that Shroades requires a party to tender to the circuit court documentation supporting application of the peer review privilege, and that consideration of the privilege issue must be done in camera,” Davis wrote. “The requirement of an in camera review of documents allegedly protected by a statutory health care privilege is consistent with the law around the country.”

In the Hanna case, Davis says ManorCare “repeatedly asked the trial court to hold an in camera proceeding to determine whether some of the Center Visit Summaries were protected from disclosure.”

“The circuit court refused to hold an in camera proceeding as required by Shroades and courts around the country,” she wrote. “The majority opinion erroneously concluded that the circuit court was not required to hold an in camera proceeding. Instead, the majority opinion found that the Petitioners failed to establish before the circuit court that they had a peer review organization as required ... The majority opinion’s finding on this issue is quite troubling.”

Davis said the record shows ManorCare offered to supply the circuit court with additional information on the existence of a peer review organization.

“The circuit court inexplicably refused to accept any additional information,” she wrote. “The majority opinion seems to suggest that the Petitioners did not timely offer to tender the information to the circuit court. Such an assertion is inconsistent with the record. …

“When the matter became an issue, the Petitioners offered to address it. The circuit court should have permitted the Petitioners to supply the information. In fact, the decision in Shroades expressly contemplated a party supplementing the record, if necessary, in order to show that a peer review organization exists.

“It is quite clear that Shroades gave the Petitioners the right to provide additional information on the issue of the existence of a peer review organization. The circuit court and majority opinion arbitrarily stripped the Petitioners of that right. This arbitrary decision was simply wrong.”

The Hanna case was in the headlines earlier this year because ManorCare attorney Robert Anspach filed a motion in February asking Davis to recuse herself from the case because of national media coverage of another ManorCare case. Davis refused to recuse herself from the Hanna case.

Anspach, of Dayton-based Anspach Meeks Ellenberger, is the attorney for HCR Manorcare in the Hanna case and the high-profile Douglas case that was ruled upon last year by the state Supreme Court. The Douglas case resulted in an approximate $40 million verdict against HCR. Davis was Chief Justice at the time and wrote the majority opinion in the case.

The Douglas case has been under scrutiny since December when ABC News reported that plaintiff’s counsel in the case, particularly Michael Fuller of the McHugh Fuller Law Group from Hattiesburg, Miss., had purchased a Learjet from the Charleston-based Segal Law Firm, owned by Davis’ husband Scott Segal, for more than $1 million in 2011. The ABC News story also reported that Fuller and other attorneys at the firm had been responsible for raising more than $35,000 for Davis’ 2012 successful re-election campaign.

In June, Davis authored the majority opinion in the Douglas case, upholding a jury verdict in favor of Fuller’s client, Tom Douglas. The ruling did, however, cut the punitive damages award from $80 million to nearly $32 million.

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