[Cite as Brahm v. DHSC, L.L.C., 2016-Ohio-1204.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

JAMES E. BRAHM, INDIVIDUALLY 

AND AS EXECUTOR OF THE 

ESTATE OF MARY KATHLEEN 

BRAHM 

 Plaintiff-Appellee 

-vsDHSC, LLC, DBA AFFINITY 

MEDICAL CENTER, ET AL 

 Defendant-Appellant 

JUDGES: 

: Hon. Sheila G. Farmer, P.J. 

: Hon. W. Scott Gwin, J. 

: Hon. Patricia A. Delaney, J. 

: 

: 

: Case No. 2015CA00165 

: 

: 

: OPINION 

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of 

Common Pleas, Case No. 2014CV01545 

JUDGMENT: Dismissed 

DATE OF JUDGMENT ENTRY: March 21, 2016 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

STEPHEN P. GRIFFIN RICHARD S. MILLIGAN 

MICHAEL J. KAHLENBERG PAUL J. PUSATERI 

825 S. Main St. THOMAS R. HIMMELSPACH 

North Canton, OH 44720 4684 Douglas Circle NW. 

 P.O. Box 35459 

 Canton, OH 44735-5459 
Stark County, Case No. 2015CA00165 2 

Gwin, J. 

{¶1} Appellant Aultman Hospital appeals the August 28, 2015 Judgment Entry 

of the Stark County Court of Common Pleas ordering the production of documents for an 

in camera inspection by the trial court to determine whether the documents are privileged 

or discoverable in whole or in part by the appellee, James E. Brahm, Individually and as 

Executor of the Estate of Mary Kathleen Brahm, Deceased. 

Facts and Procedural History 

{¶2} Mary Kathleen Brahm was a 72-year old woman when she was transported 

by EMS to Affinity Medical Center's emergency department on July 11, 2013. Mrs. Brahm 

was diagnosed with a STEMI—a ST segment elevation myocardial infarction. This is a 

cardiac emergency that requires immediate intervention. Therefore, the Cardiac 

Catheterization Department was called in emergently to provide care and Mrs. Brahm 

was brought to the catheterization lab. 

{¶3} Co-Defendant-Appellant Joseph Surmitis, M.D. was the interventional 

cardiologist on call and was paged to perform the heart catheterization. During the 

procedure, Dr. Surmitis identified a complete occlusion of Mrs. Brahm's right coronary 

artery. He passed a wire through the occlusion, used a balloon to dilate the right coronary 

artery to eliminate the blockage and then placed a stent at the location of the prior 

occlusion. A second balloon was used to improve the performance of the stent. 

{¶4} Following the deflation and removal of that balloon, Dr. Surmitis noted a 

perforation in the right coronary artery. He acted to stop the bleeding from this perforation 

and to address secondary complications caused by that blood leaking into the 

pericardium, which was compromising the function of the heart. 
Stark County, Case No. 2015CA00165 3 

{¶5} Dr. Surmitis also paged the on-call cardiovascular surgeon Dr. Tawil to 

perform a procedure to repair the perforated vessel. Although Dr. Tawil was able to repair 

the vessel during his procedure, Mrs. Brahm passed away on July 12, 2013. 

{¶6} Appellee Brahm commenced this medical negligence action on June 30, 

2014 against DHSC, LLC, DBA, Affinity Medical Center, Dr. Joseph Surmitis, and others, 

seeking damages for injuries to, and the death of, his decedent, Mary Kathleen Brahm, 

allegedly caused by negligent medical care. The complaint alleged Mary Brahm 

underwent a coronary catheterization performed by Dr. Surmitis, and that during the 

procedure the walls of her coronary artery were torn. 

{¶7} According to Affinity's nurse manager and coordinator of its catheterization 

lab, Affinity's protocols and procedures for the lab include and adopt the American College 

of Cardiology/Society for Cardiovascular Angiography and Interventions Expert 

Consensus Document of Cardiac Catheterization Laboratory Standards ["ACC 

Guidelines"]. The ACC Guidelines are a comprehensive statement of safe practices and 

minimum statistical requirements for facilities that maintain cardiac catheterization labs. 

Among others, it provides: 

1. The annual minimum operator interventional procedural 

volume of 75 cases per year has become an acceptable standard. 

2. At present, with overall in-hospital mortality averaging 2% and 

rates of emergent CABG averaging <1%, a composite major complication 

rate of <3% is to be expected 

{¶8} Because Affinity had adopted and incorporated the ACC Guidelines within 

its own policies and protocols for the catheterization lab, Brahm sought discovery of the 
Stark County, Case No. 2015CA00165 4 

statistical benchmarks to which the ACC and Affinity subscribe for its practitioners within 

the lab. Specifically, Brahm directed written discovery to Affinity and Dr. Surmitis seeking 

to learn: 

1. Major In-Hospital Complication Rates, including 

morbidity/mortality rates, for all contemporary percutaneous coronary 

interventions for diagnostic procedures performed at Defendant's 

Catheterization Lab, by percentage relative to myocardial infarction. 

2. Major In-Hospital Complication Rates, including 

morbidity/mortality rates, for all contemporary percutaneous coronary 

interventions for interventional/therapeutic procedures performed at 

Defendant’s Catheterization Lab, by percentage relative to myocardial 

infarction. 

3. Major In-Hospital Complication Rates, including 

morbidity/mortality rates, for all contemporary percutaneous coronary 

interventions for diagnostic procedures performed by Joseph M. Surmitis, 

M.D. at Defendant's Catheterization Lab, by percentage relative to 

myocardial infarction. 

4. Major In-Hospital Complication Rates, including 

morbidity/mortality rates, for all contemporary percutaneous coronary 

interventions for interventional/therapeutic procedures performed by 

Joseph Surmitis, M.D. at Defendant's Catheterization Lab, by percentage 

relative to myocardial infarction. 
Stark County, Case No. 2015CA00165 5 

5. The number of contemporary percutaneous coronary 

interventions for diagnostic procedures performed by Joseph M. Surmitis, 

M.D. at Defendant's Catheterization Lab for each referenced calendar year. 

6. The number of contemporary percutaneous coronary 

interventions for interventional/therapeutic procedures performed by 

Joseph M. Surmitis, M.D. at Defendant's Catheterization Lab for each 

referenced calendar year. 

{¶9} Furthermore, because Dr. Surmitis practiced interventional cardiology at 

both Aultman Hospital and Mercy Medical Center, Brahm also issued subpoenas to those 

non-party institutions seeking to learn: 

1. Major In-Hospital Complication Rates, including 

morbidity/mortality rates, for all contemporary percutaneous coronary 

interventions for diagnostic procedures performed by Joseph M. Surmitis, 

M.D. at Mercy/Aultman’s Main Campus Facility Catheterization Lab, by 

percentage relative to myocardial infarction. 

2. Major In-Hospital Complication Rates, including 

morbidity/mortality rates, for all contemporary percutaneous coronary 

interventions for interventional/therapeutic procedures performed by 

Joseph Surmitis, M.D. at Mercy/Aultman's Main Campus Facility 

Catheterization Lab, by percentage relative to myocardial infarction. 

3. The number of contemporary percutaneous coronary interventions 

for diagnostic procedures performed by Joseph M. Surmitis, M.D. at 
Stark County, Case No. 2015CA00165 6 

Mercy/Aultman's Main Campus Facility Catheterization Lab from January 1, 

2010 to the present. 

4. The number of contemporary percutaneous coronary interventions 

for interventional/therapeutic procedures performed by Joseph M. Surmitis, 

M.D. at Mercy/Aultman's Main Campus Facility Catheterization Lab from 

January 1, 2010 to the present. 

{¶10} Evidence was discovered by Brahm that Affinity’s catheterization lab 

recorded and maintained statistics relative to procedural volume and outcome within the 

lab and that this information was provided to a number of entities, including the American 

College of Cardiology "Cath PCI data registry.” Because these statistics were provided to 

the ACC, Brahm issued a subpoena to ACC to confirm whatever information was provided to 

it by Affinity, Mercy, or Aultman. 

{¶11} Each medical entity filed motions for a Protective Order and/or to Quash 

Subpoenas, claiming the items Brahm sought to discover are privileged peer review 

information barred from disclosure by R.C. 2305.252. 

{¶12} By judgment entry of August 28, 2015, the court denied Aultman Hospital's 

motion as to the second two categories of documents, referring to those as "raw data" 

records, and directing Aultman Hospital to produce them to Brahm. As to the 

"complication rate" records (the first two categories in the list above), the court ordered 

Aultman Hospital to produce those by September 10, 2015 for in-camera inspection 

where the court would determine "whether the documents are privileged in whole or in 

part .... “ (Judgment Entry, p.9.) Specifically the trial court ordered, 
Stark County, Case No. 2015CA00165 7 

The Health Care Entities to produce the disputed material for in 

camera review. At this juncture, it must be determined whether the records 

consist of material addressing the specific care or treatment rendered to 

particular patients or whether they are merely summaries of the patients 

that were discussed without addressing the care and treatment rendered to 

particular patients. 

Judgment Entry, filed Aug. 28, 2015 at 9. In arriving at this conclusion, the trial court 

noted, 

In the case at bar, it is not clear on the face of the disputed discovery 

requests that all of the documents requested by Plaintiffs are subject to the 

peer review privilege. Therefore, defendants have the burden of proving 

that the requested documents were privileged. An in camera inspection is 

the best way for the Court to decide whether the privilege applies and to 

protect the record for review. 

Id. at 7. 

{¶13} On September 10, 2015, Aultman Hospital filed a statement with the court 

on its partial performance of the court's order to produce information on the number of 

percutaneous coronary interventions for diagnostic and for therapeutic purposes. It 

explained that the information was maintained in the form described in the subpoena only 

in the peer review and quality assurance processes. Aultman Hospital explained, 

however, that it could extract from its financial information the total number of 

percutaneous coronary interventions performed by Dr. Surmitis, but was incapable of 

separating within that information the therapeutic and diagnostic procedures, as 
Stark County, Case No. 2015CA00165 8 

described in the subpoena. Aultman Hospital said it would produce information on the 

total number of procedures that it could extract from its financial records, but that it was 

appealing the order to produce the peer review and quality assurance records that could 

distinguish between therapeutic and diagnostic procedures.1

Assignment of Error 

{¶14} Aultman Hospital raises one assignment of error, 

{¶15} “I. UNDER R.C. 2305.252, RECORDS WITHIN THE SCOPE OF A 

HOSPITAL'S PEER REVIEW COMMITTEE ARE NOT DISCOVERABLE IN ANY CIVIL 

ACTION AGAINST A HEALTH CARE PROVIDER ARISING OUT OF MATTERS THAT 

ARE THE SUBJECT OF EVALUATION AND REVIEW BY THE PEER REVIEW 

COMMITTEE. R.C. 2305.24 PROVIDES THAT RECORDS OF HOSPITAL QUALITY 

ASSURANCE COMMITTEES ARE ALSO CONFIDENTIAL. DID THE TRIAL COURT 

ERR IN ORDERING AULTMAN HOSPITAL TO PRODUCE MATERIALS FROM ITS 

PEER REVIEW AND QUALITY ASSURANCE DEPARTMENTS IN A CIVIL ACTION 

ARISING OUT OF MATTERS THAT WERE THE SUBJECT OF THE COMMITTEES' 

EVALUATION AND REVIEW?” 

 

1 Each of the medical entities have appealed the August 28, 2015 Judgment Entry ordering the production 

of documents for an in camera inspection by the trial court to determine whether the documents are 

privileged or discoverable in whole or in part by Brahm. See, Brahm v. DHSC, LLC, dba Affinity Medical 

Center, et al. 5th Dist. No. 2015CA00171 [Affinity Medical Center]; Brahm v. DHSC, LLC, dba Affinity 

Medical Center, et al. 5th Dist. No. 2015CA00172 [Mercy Medical Center]; Brahm v. DHSC, LLC, dba 

Affinity Medical Center, et al. 5th Dist. No. 2015CA0079 [American College of Cardiology]. 
Stark County, Case No. 2015CA00165 9 

Analysis 

Jurisdiction of the Court of Appeals 

{¶16} In the case at bar, we must address the threshold issue of whether the 

judgment appealed is a final, appealable order. Appellee filed a motion to dismiss on 

October 8, 2015 raising an issue that the appeal herein is not from a final appealable 

order. Appellee again raises the issue in its merit brief filed December 9, 2015. 

{¶17} Even if a party does not raise the issue, this court must address, sua sponte, 

whether there is a final appealable order ripe for review. State ex rel. White vs. Cuyahoga 

Metro. Hous. Aut., 79 Ohio St.3d 543, 544, 1997-Ohio-366, 684 N.E.2d 72. 

{¶18} Appellate courts have jurisdiction to review the final orders or judgments of 

lower courts within their appellate districts. Section 3(B) (2), Article IV, Ohio Constitution. 

If a lower court's order is not final, then an appellate court does not have jurisdiction to 

review the matter and the matter must be dismissed. General Acc. Ins. Co. vs. Insurance 

of North America, 44 Ohio St.3d 17, 20, 540 N.E.2d 266(1989); Harris v. Conrad, 12th 

Dist. Warren No. CA-2001-12 108, 2002-Ohio-3885. For a judgment to be final and 

appealable, it must satisfy the requirements of R.C. 2505.02 and if applicable, Civ. R. 

54(B). Denham v. New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d 184 (1999); Ferraro 

v. B.F. Goodrich Co., 149 Ohio App.3d 301, 2002-Ohio-4398, 777 N.E.2d 282(9th Dist.). 

If an order is not final and appealable, an appellate court has no jurisdiction to review the 

matter and it must be dismissed. 

{¶19} A proceeding for “discovery of privileged matter” is a “provisional remedy” 

within the meaning of R.C. 2505.02(A)(3). Smith v. Chen, 142 Ohio St.3d 411, 2015-

Ohio-1480, 31 N.E.3d 633. An order granting or denying a provisional remedy is 
Stark County, Case No. 2015CA00165 10 

final and appealable only if it has the effect of “determining the action with respect to the 

provisional remedy and preventing a judgment in the action in favor of the appealing party 

with respect to the provisional remedy” and “the appealing party would not be afforded a 

meaningful or effective remedy by an appeal following final judgment as to all 

proceedings, issues, claims, and parties in the action.” Chen at ¶5; R.C. 2505.02(B)(4). 

The burden “falls on the party who knocks on the courthouse doors asking for interlocutory 

relief.” Chen at ¶8. As specifically noted by the Ohio Supreme Court, “an order must 

meet the requirements in both subsections of the provisional-remedy section of the 

definition of final, appealable order in order to maintain an appeal.” Id. 

{¶20} If the party seeking to appeal fails to establish why an immediate appeal 

is necessary, the court must presume an appeal in the ordinary course would be 

meaningful and effective. Id. However, “an order compelling disclosure of privileged 

material that would truly render a post judgment appeal meaningless or ineffective may 

still be considered on an immediate appeal.” Id. 

{¶21} In this case, appellant argues there is a final appealable order under R.C. 

2505.02(A)(3) and (B)(4)(b) because it requires the discovery of privileged matter, and 

thereby grants a provisional remedy for which there would be no meaningful effective 

remedy on subsequent appeal. Appellant maintains the trial court abused its discretion 

in denying their request for a protective order and motion to quash, and in ordering the 

production of what appellant believes qualify as peer review and quality assurance 

records for an in-camera inspection. Appellant alleges that because the order 

encompasses what it alleges are peer review records, it is a final, appealable order 

pursuant to R.C. 2305.252. R.C. 2305.252 states that “* * *An order by a court to produce 
Stark County, Case No. 2015CA00165 11 

for discovery or for use at trial the proceedings or records described in this section [i.e. 

peer review records] is a final order.” Appellee argues that a trial court's order for an in 

camera inspection of certain documents, rather than an order to provide documents to 

the adverse party, is a non-final order. We agree with the appellee. 

{¶22} Appellant cites Huntsman v. Aultman Hospital, 160 Ohio App.3d 196, 2005-

Ohio-1482, 826 N.E.2d 384[“Huntsman I”] for the proposition that an in camera review is 

not permitted2, 

Further, in this particular situation, the change to the statute is clearly 

procedural. The change in the statute that is relevant in this case pertains 

to the Ohio legislature’s apparent decision to foreclose a party from 

obtaining any information, documents, or records from the peer review 

committee’s records. Previously, courts had interpreted the prior version of 

the statute (R.C. 2305.251) to allow a trial court to conduct an in camera 

review of the peer review committee’s records to determine whether the 

privilege applied to individual documents. If the record was available from 

its origin source, it was not privileged and could be obtained from the peer 

review committee’s records. See, e.g., Doe v. Mount Carmel Health 

Systems, Franklin App. No. 03AP–413, 2004-Ohio-1407, 2004 WL 557333. 

The current version of the statute makes it clear that there is no need for an 

in camera inspection because no documents can be obtained from the peer 

review committee records, only from the records of the original source of 

the information. We view this relevant revision to be a clarification of the 

 2 Brief of Appellant Aultman Hospital, filed Nov. 2, 2015 at 8. 
Stark County, Case No. 2015CA00165 12 

statute’s intent. Since this change affects only how information is to be 

obtained, we find the change to be procedural. 

Huntsman I, 160 Ohio App.3d at 200-201, 2005-Ohio-1482, 826 N.E.2d 384, ¶20. 

[Emphasis added]. However, Huntsman I stands for the proposition that the statute 

prevents a court from requiring a facility to provide a list of documents that could be found 

from other, original sources, utilizing a peer review committee document to do so. In 

other words, a facility cannot be forced to divulge the information contained in a peer 

review committee file. Large v. Heartland-Lansing of Bridgeport Ohio, LLC, 7th Dist. 

Belmont No. 12 BE 7, 2013-Ohio-2877, 995 N.E.2d 872, ¶43. 

{¶23} Huntsman I is factually distinguishable from the instant case. In Huntsman 

I, the plaintiff sought documents that were contained in the hospital’s credentialing and 

peer-review files, whereas here, the trial court found that it could not determine from the 

face of the disputed discovery requests that all of the documents requested by Brahm are 

subject to the peer review privilege. See, also, Manley v. Heather Hill, Inc., 175 Ohio 

App.3d 155, 2007-Ohio-6944, 885 N.E.2d 971(11th Dist.), ¶34. We find that whether or 

not the requested records fall within the purview of the peer review privilege is a decision 

best determined by an in camera review of the documents the appellee is requesting and 

over which appellant is asserting privilege. Bailey v. Manor Care of Mayfield Hts., 8th 

Dist. No. 99798, 2013-Ohio-4927, 4 N.E.3d 1071, ¶37. 

{¶24} As this Court has noted, 

Nothing in R.C. 2305.252 sets forth a right to privacy. Furthermore, the 

protection of the free flow of information into a peer review process will not be 

compromised by an in camera review. A private review, prior to any order for 
Stark County, Case No. 2015CA00165 13 

the production of documents to an adverse party, by a competent judge who 

is sworn to maintain confidentiality does not compromise the free flow of 

information that the privilege is meant to protect. 

Huntsman v. Aultman Hospital, 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, ¶88. 

[“Huntsman II”] In Huntsman II, this Court further noted, 

The documents subject to the court's order in the case sub judice are 

not as homogeneous in nature. In other words, the trial court in the case sub 

judice could issue different rulings regarding the peer review privilege as to 

each document presented. 

5th Dist. Stark No. 2006 CA 00331, 2008-Ohio-2554, ¶89. This Court concluded, that the 

trial court’s order requiring various insurance companies, the Bureau of Workers' 

Compensation, Medicare, Medicaid, Aultcare HMO, and others to produce documents to the 

trial court for an in camera inspection, is not a final, appealable order. Id. at ¶90. 

{¶25} Despite appellant’s contention, the trial court’s judgment entry does not order 

the release of any documents; rather the trial court itself will review the documents. The 

issue of whether or not any document is discoverable has not yet been determined by the 

trial court. The trial court’s order does not appear to exclude the possibility that the trial court 

will review the documents to determine whether each is protected by the peer review privilege 

in R.C. 2305.252. The trial court has retained jurisdiction to make further determinations 

regarding the discoverability of the requested materials. Huntsman II at ¶81. 

{¶26} In the case at bar, we find that the trial court’s entry ordering an in-camera 

inspection of the documents is not a final appealable order. 
Stark County, Case No. 2015CA00165 14 

{¶27} Because there is no final appealable order, this court does not have 

jurisdiction to entertain appellant's appeal. 

{¶28} For the foregoing reasons, Aultman Hospital’s appeal of the August 28, 

2015 Judgment Entry of the Stark County Court of Common Pleas, Stark County, Ohio, 

is hereby dismissed. 

{¶29} IT IS SO ORDERED.

By Gwin, J., and 

Delaney, J. concur; 

Farmer, P.J., dissents 

 
Stark County, Case No. 2015CA00165 15 

Farmer, P.J., dissents

{¶30} I respectfully dissent from the majority opinion that the discovery order sub 

judice is not a final appealable order. 

{¶31} I acknowledge in Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-148, 

Justice O'Neill refined our scope of final appealable orders. Under R.C. 2305.252 and its 

specific language, "[p]roceedings and records within the scope of a peer review 

committee of a health care entity shall be held in confidence and shall not be subject to 

discovery***." 

{¶32} As we addressed in Huntsman I, a parallel situation, even an in camera 

review is violative of the statute. Huntsman I, 160 Ohio App.3d 196, 2005-Ohio-1482, at 

¶ 20. I find the majority's reliance on Huntsman II, 5th Dist. Stark No. 2006 CA 00331, 

2008-Ohio-2554, to be misplaced. Huntsman II involved information and sources 

independent of the records and proceedings of the peer review committee. The statute 

specifically permits discovery of information, documents, or records obtainable from 

original sources. The matters sought to be discovered in Huntsman II were records from 

insurance companies and other original sources. 

{¶33} Because the trial court's order for in camera review is per se violative of the 

plain meaning of the statute, I would find the matter is a final appealable order as it 

resolves the issue and breaches the statutory confidentiality of records.