The Case of the Hospital's Secretly Taped Admission of Error

To ensure that peer review is open and frank, Ohio law protects a hospital from revealing an admission of error in peer review from use in malpractice cases. In this wrongful death case, however, the patient's family had already obtained the admission because it had secretly tape-recorded it. The hospital then sought to bar the plaintiffs from using it in the case, citing the special protection. But Ohio courts refused to do so, stating that the hospital had failed to prove the admission was connected to peer review.

Howard L. Smith, 76, had uneventful knee surgery at Community Health Partners Regional Medical Center, now known as Mercy Regional Medical Center, in Lorain, Ohio. Afterwards, his family met with Haysam El-Dalati, MD, the hospital's chief medical officer, to discuss his treatment in a 1-hour meeting. Dr. El-Dalati had something important to say. "We believe in being open, honest about everything that happened," he prefaced. "We hide nothing." Unbeknownst to him and 2 other hospital officials in the room, the family was tape-recording his every word.

Dr. El-Dalati told the family that a blood analysis for Mr. Smith had been delayed because lab equipment had been malfunctioning. The test results were still incomplete when Mr. Smith experienced a sudden cardiac arrest and died. According to the family, the blood test showed a high potassium level, which helped create the cardiac arrest.

The Smith family filed a wrongful death lawsuit against the hospital and also named the Cleveland Clinic, because it employed the knee surgeon in the case. The centerpiece of evidence was Dr. El-Dalati's secretly taped confession. The hospital, however, declared that the confession was off-limits because the lab snafu had already been in peer review. It claimed Dr. El-Dalati was delivering the family the results of a "root cause analysis," part of the peer review process. How else, the hospital asked, would its chief medical officer, who had no direct role in Mr. Smith's care, know about the problem?

The trial court denied the peer review protection and the hospital appealed that decision, but the appeals court also issued a denial. Under Ohio law, the court said, the hospital has the burden of proving the privilege applies and had failed to do so. In the tape recording, the court noted, Dr. El-Dalati repeatedly stated that the peer review process had not begun yet.

At "a bare minimum," the appeals court said, the hospital had to show that a committee undertaking the "root cause analysis" existed and had investigated the incident. But apart from Dr. El-Dalati's sworn affidavit that the analysis took place, the hospital could not provide evidence that the committee existed or had any written policies on matters such as the scope of its authority or committee members, the court stated.

"The peer-review privilege is not a generalized cloak of secrecy over the entire peer-review process," the appeals court declared. The case is expected to go to trial in March. Community Health Partners, however, has not given up its bid for protection. "We are continuing to pursue protections afforded under Ohio's peer review statute," Ryan K. Rubin, an attorney for the hospital, wrote in an email. "We cannot comment further on pending litigation." Ellen M. McCarthy, an attorney for the Smith family, declined to make a comment.

Leigh Page