Court Holds That Peer Review Privilege Statutes Are Not Preempted by Federal Law

An appellate court in Ohio has ruled that a family’s motion to compel was wrongly granted because there had not been an in camera inspection of the requested documents under that state’s peer review laws.

In this case, the nursing home decedent was living at Manor Care of Mayfield Heights. Her health had deteriorated while living there. The family sued Manor Care and others claiming negligence, statutory violations under the laws of the nursing home care law of the state and other claims. During the course of the litigation, the family of the decedent moved to compel production of documents related to an alleged investigation into the nursing home resident’s death. The trial judge granted that motion.

The appellate court reversed the trial court noting that although 42 C.F.R. §483.10 provides nursing home residents with timely access to their own records, under 42 U.S.C. §13.96(r) disclosure of records from a quality assessment and assurance committee is limited.

The appellate court added that courts have interpreted §13.96(r) to mean that records created or generated for quality assurance purposes at nursing homes are protected from discovery.

The court concluded that this case involved issues of state law where the court held that under its law, peer review privilege statutes are not preempted by federal law and therefore apply in this case.

Accordingly, the appellate court reversed and remanded the case for an in camera inspection of the documents at issue and for a determination of whether they are privileged under §13.96(r).

Bailey v. Manor Care of Mayfield Heights, 2013 WL 5969631 (Ohio App. 8th Dist. Nov. 7, 2013).

Kreisman Law Offices has been handling Illinois nursing home injury and abuse cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Morton Grove, Rolling Meadows, Rosemont, Lincolnwood, Lincolnshire, Alsip, Long Grove, Blue Island, Chicago Heights, Calumet City, Palos Heights, Richton Park, Schaumburg, Schiller Park, Barrington and Mundelein, Ill.