What Happened on Remand: Won the Battle But Lost the War? Burnham v. Cleveland Clinic.

In Burnham v. Cleveland Clinic, Slip Opinion No. 2016-Ohio-8000, in a very fragmented 6-1 decision, the Supreme Court of Ohio held that the order compelling discovery in this case was final and appealable. Read the analysis of the merit decision here.

Case Background

What was this fight all about? The incident report from a slip and fall in a hospital room. Darlene Burnham sued the Cleveland Clinic and the Cleveland Clinic Health System (“Clinic”) and some Clinic employees for injuries she sustained when she slipped and fell in her sister’s hospital room at the Clinic. Burnham alleged in her complaint that an employee had poured liquid on the floor and had failed to warn her of the hazard.

During discovery, Burnham sought the identification of anyone who had made statements or reports about the accident, and copies of any written statements or reports. The employee involved was identified, but neither party could find her for deposition.  The Clinic refused to produce the incident report (technically known as the Safety Event Reporting System, or “SERS” Report ) arguing it was protected by various privileges, including attorney-client privilege, the one pertinent to this appeal.

Burnham filed a motion to compel discovery. The trial court reviewed the privilege log, which included a copy of the contested SERS report, and an affidavit from a Clinic lawyer averring that the SERS report had been generated as part of Clinic protocol to notify the legal department of events that could be the basis for a lawsuit. The trial court granted Burnham’s motion to compel.

The Clinic appealed the trial court’s order to compel, arguing that the incident report was protected by attorney-client privilege and was not discoverable. The Clinic argued that the report was prepared to assist risk management, the law department, and outside counsel in the investigation of a potential lawsuit. But the Eighth District held there was no final appealable order, and dismissed the case. That is what the Supreme Court reversed, and remanded the case to the appeals court to determine whether the trial court erred in ordering the release of the incident report.

On Remand

On remand, the Eighth District proceeded to address the merits of the Clinic’s assignment of error, which was that the trial court erred in ordering the production of the SERS Report. On April 6, 2017, in a unanimous opinion authored by Judge Kilbane, and joined by Judges Boyle and Sean Gallagher, the court upheld the order to produce the SERS report. The appeals court rejected the Clinic’s argument that the SERS report was protected by attorney client privilege, finding “no indication in the record that the person who completed the SERS report, did so in anticipation of litigation or was a risk manager or an employee of the Clinic’s Office of General Counsel.”

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