The Daily

The Endless Courthouse Drama When Hospitals Are Determined To Hide Their Policies And Procedures

I posted recently about frivolous defenses and appeals raised by defendants, often because their insurance carriers have the resources to waste time and the incentive to hold on to the money that will eventually be paid to satisfy the claim. When we hear about frivolous claims, it is usually from insurance interests complaining that non-meritorious claims burden the system. While that is not my experience (and there aren’t any economic incentives for plaintiffs or their lawyers to act that way), I can say with certainty that insurance carriers are often the reason for unnecessary time, expense, and delays in the judicial system. As mentioned above, they have every economic incentive to behave this way.

I cannot tell you how often I have felt like the Ohio plaintiff’s lawyers who pursued these issues. Good on them for having the patience, determination, and skill to see it through.

During discovery, Dillon and Maurer filed a motion to compel the production of documents, and the hospital claimed that some of the documents relating to its policies and procedures were confidential and proprietary and asked the plaintiffs to sign a confidentiality agreement before turning them over. The hospital also argued that the documents were not relevant to the proceedings.

The trial court found that the documents were relevant to the standard of care, that the hospital had not shown what harm would occur should they be made public, and that as a not-for-profit business, the hospital was not covered by a state law protecting commercial businesses.

The judges added that while hospital staff said the policies were created by the hospital, they were still based on publicly available information.

“The policies and procedures were created using information gathered from public sources including recommendations and guidelines of national health care associations as well as medical literature,” the judges wrote. “OhioHealth’s ‘unique’ compilation of such information does not transform otherwise public information into confidential information.”

In addition, the panel found that the hospital failed to show what harm would occur as a result of producing the documents, saying Medical Director Dr. Marian K. Schuda’s direct examination testimony was “purely speculative,” as she said, “I’m not aware of any specific harm, but I can tell you it’s not good.”

John A. Lancione of The Lancione Law Firm, representing the parents, told Law360 that the hospital has made the same arguments in other cases, even taking a similar appeal to the Ohio Supreme Court, and lost there as well.

“The opinion came as no surprise,” Lancione said Thursday. “What was frankly surprising was that they actually pursued an appeal.”

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