To Defeat a Privilege or Protection from Discovery Evidence is Required

Post number 5353

To Defeat a Privilege or Protection from Discovery Evidence is Required
Not Enough Evidence to Allow Application of the Peer Review Privilege
In Chelsey Holland, Individually And As Mother, Natural Guardian, And Next Friend Of A.T., A Minor v. Dayton Children’s Hospital, C. A. No. 30516, 2026-Ohio-1678.

FACTS

Chelsey Holland sued Dayton Children’s Hospital for medical negligence and breach of fiduciary duty arising from injuries allegedly caused when hospital staff attempted to insert a nasogastric feeding tube into her infant daughter, A.T., in January 2015.

Dayton Children’s withheld the emails on claims of peer-review privilege and work-product protection.

LEGAL ISSUES - PEER-REVIEW PRIVILEGE

Under R.C. 2305.252(A) protects proceedings and records within the scope of a peer review committee of a healthcare entity. To invoke the privilege, the resisting party must show: 1. the existence of a qualifying peer review committee; and 2. that the specific documents withheld are records within the scope of that committee.

Work-Product Protection

Under Civ.R. 26 the doctrine protects materials reflecting attorneys’ mental impressions, conclusions, strategies, or legal theories, or materials prepared by or at the direction of counsel in anticipation of litigation.

Peer-Review Privilege

The court reviewed the peer-review issue because privilege is a legal question, but reviewed the work-product ruling for abuse of discretion because it concerns a general discovery dispute.

The court noted multiple ambiguities.

Work-Product Doctrine

On work product, the court agreed with the trial court that Dayton Children’s had not met its burden. The affidavits did not show that:

1. the emails were prepared by an attorney,
2. at the direction of an attorney,
3. for attorney review, or
4. transmitted to an attorney.

ANALYSIS

For peer review, the hospital’s proof was inadequate to establish privilege outright, but not so inadequate as to justify immediate compelled disclosure without further inquiry.

CONCLUSION

It affirmed the trial court’s ruling that the emails were not protected by the work-product doctrine.

ZALMA OPINION

Privileges and protections are important to protect private communications to lawyers or peer reviewers and keep it out of litigation. The Court of Appeals acknowledge that there was no attorney involved so no need to provide the protection but there should have been more analysis of the peer review protection and sent the case back to the trial court to determine if there were facts allowing the privilege to be asserted.

(c) 2026 Barry Zalma & ClaimSchool, Inc.
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