CHARLESTON – The West Virginia Supreme Court of Appeals ruled that Ohio Circuit Court needs to conduct an in camera review of documents involved in a lawsuit against Wheeling Hospital.

The court granted as moulded the requested writ of prohibition, which prohibited the Ohio Circuit Court from enforcing its Feb. 26, 2015, order requiring Wheeling Hospital to disclose certain documents.

The appeal was argued before the court on Oct. 7. The opinion was filed on Feb. 9.Justice Robin Jean Davis authored the majority opinion.

“With regard to the remaining documents, we find that the existing privilege log lacks sufficient detail to permit a definitive determination as to whether the peer review privilege shields such documents from disclosure,” the opinion states. “Accordingly, Wheeling Hospital is directed to submit a revised privilege log containing the information identified in the body of this opinion, and, upon receipt thereof, the circuit court is instructed to conduct an in camera review to determine whether the remaining documents addressed in its prior opinion are or are not protected by the statutory peer review privilege.”

Wheeling Hospital, Dr. David A. Ghaphery and A.D. Ghaphery Professional Association sought a writ of prohibition to preclude the enforcement of an order entered Feb. 26, 2015, by Ohio Circuit Court.

“By that order, the circuit court directed Wheeling Hospital to disclose to the respondent…various documents it claimed to be subject to the peer review privilege,” the opinion states. “Before this court, Wheeling Hospital asserts that the documents ordered to be disclosed are protected by the peer review privilege...”

The respondent, Stephanie Mills, rejects the arguments and contents that the circuit court properly ordered the subject documents to be disclosed.

“Upon our review of the parties’ arguments, the appendix record presented for our consideration and the pertinent authorities, we grant as moulded the requested writ of prohibition,” the opinion states. “Specifically, we find that certain of the challenged documents, including those comprising Dr. Ghaphery’s request to renew his staff privileges, as well as other documents, are specifically protected by the peer review privilege.”

With respect to the remaining challenged documents, the court concluded that the circuit court did not conduct a thorough in camera review of the documents and that Wheeling Hospital did not provide a privilege log with sufficient detail to permit the circuit court to determine whether such documents are protected by the peer review privilege.

“Therefore, we prohibit the enforcement of the circuit court’s February 26, 2015, order, and further direct Wheeling Hospital to submit a revised privilege log addressing the remaining documents and the circuit court to conduct further in camera proceedings in accordance with this opinion,” the opinion states.

In 2011, Mills consulted with Ghaphery for treatment of a medical condition and had a thyroidectomy on Oct. 13, 2011. Following the surgery, she had difficulty breathing and swallowing and was unable to talk.

Mills consulted with a specialist, who informed her that the nerves surrounding her thyroid gland had been severed during the thyroidectomy, this resulting is bilateral vocal cord paralysis. Mills then filed her suit against the defendants in Ohio Circuit Court.

During the lawsuit, Mills sought documents regarding Ghaphery’s surgeries that he had performed at the hospital and whether the procedures had been accompanied by complications or infections or whether those patients subsequently required readmission to the hospital. The hospital failed to respond to the discovery requests.

“Ultimately, Ms. Mills filed a motion to compel, which the circuit court granted, ordering Wheeling Hospital to produce a privilege log of the documents it claimed to be exempt from disclosure,” the opinion states. “The parties reached agreement regarding disclosure of certain documents, but approximately 350 documents remained in dispute.”

The circuit court conducted an in camera review of the remaining disputed documents, which the hospital claimed were protected by the peer review privilege, HIPAA and/or evidentiary and discovery rules regarding relevancy.

By order entered Feb. 26, 2015, the circuit court ordered the majority of the documents to be disclosed. Following this ruling, Wheeling Hospital requested the State Supreme Court to issue a writ of prohibition to prevent the circuit court from enforcing the disclosure order.

“Insofar as Wheeling Hospital’s privilege log provided information about the ‘author or origin of document,’ we cannot ascertain, from the use of the disjunctive ‘or,’ whether the information in that field identifies the document’s author or its origin in terms of the location from which the document is being provided,” the opinion states. “Neither can we determine from the privilege log, or the documents, themselves, whether the subject documents were used exclusively by the peer review committee or whether they also were used for other, external purposes.”

Given this dearth of information, the court said it cannot definitively say whether the circuit court erred by ordering the remaining documents to be disclosed because they do not have enough information to guide their review thereof vis-à-vis the peer review privilege.

“Therefore, we grant as moulded the requested writ of prohibition regarding the remaining challenged documents, and we prohibit the circuit court from enforcing its order requiring the remaining challenged documents to be disclosed,” the opinion states. “Additionally, we direct the circuit court to conduct further in camera proceedings to determine whether the remaining challenged documents are privileged or subject to disclosure.”

During these further proceedings, Wheeling Hospital should provide a revised privilege log that contains the information detailed in the court’s holdings herein, and the circuit court should conduct a new in camera review following its receipt of this additional detail regarding the specific origin and precise use of each of the challenged documents.

Wheeling Hospital is represented by Edmund L. Olszewski Jr. of Dickie, McCamey & Chilcote PC. Ghaphery and A.D. Ghaphery Professional Association were represented by Patrick S. Casey and D. Kevin Coleman of Casey & Chapman. Mills was represented by Christopher J. Regan, J. Zachary Zatezalo and Meaghan L. Tague of Bordas & Bordas.

W.Va. Supreme Court of Appeals case number: 15-0558

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