An 18-year-old was treated at an Akron hospital after a 2018 auto accident. His family alleges that a tube to help him breathe was improperly inserted into his throat and he is now in a semi-vegetative state requiring 24-hour care.

The family of Kalvyn Stull sued three doctors, a nurse, and the Summa Health System, which operates Akron City Hospital. The Stulls have requested the entire resident file on Dr. Mazen Elashi, who was one of the doctors who treated Kalvyn.

Summa declined to produce Elashi’s file, arguing that it is protected from disclosure by state law. The family questions whether every document in the file is privileged.

The lawsuit has reached the Supreme Court of Ohio, which will hear arguments in the case next week.

The American Medical Association and the Ohio hospital, medical, and osteopathic associations have submitted a joint amicus brief in the case. They are backing the hospital’s views. The Ohio Association of Justice and two other attorney groups have filed amicus briefs in support of the Stulls’ arguments.

Young Man Has Trouble Breathing, Suffers Heart Attack
Kalvyn had surgery following the accident. A tube was removed from his throat on the morning of June 20, 2018. By the afternoon, Kalvyn was struggling with his breathing, and a tube was again inserted. The Stulls allege that Elashi incorrectly inserted the tube into Kalvyn’s stomach. Kalvyn went into cardiac arrest and suffered brain damage.

A state law, R.C. 2305.252, prevents the disclosure of records related to the activities of healthcare entity peer review committees. Records that fall in “the scope of a peer review committee” are confidential and not subject to discovery in a civil lawsuit, according to the law.

As part of discovery in their lawsuit, the Stulls asked for Elashi’s entire resident file, including his evaluations. They expect that the file includes authorization for Elashi to perform intubations, test results from his training on the procedure, the number of procedures performed, and evaluations of his prior intubations. Summa offered affidavits from two hospital doctors to support its view that the entire file is confidential.

The trial court ruled in April 2021 that the doctors’ statements didn’t meet Summa’s burden to prove that the file couldn’t be released. Summa appealed to the Ninth District Court of Appeals, which upheld the trial court. Summa appealed to the Supreme Court, which accepted the case.

Confidential Files Encourage Meaningful Reviews of Residents, Healthcare Entity Argues
Summa explains that residents don’t have decades of experience. Residents work under the supervision of licensed physicians and continue learning as part of their residencies. Summa contends that residents are evaluated during this time for competence, professional conduct, and the quality of care they provide. The information is kept in the resident file, Summa states. The healthcare entity maintains that preserving the confidentiality of the information enables healthcare providers to candidly review the care given by residents. Without confidentiality, healthcare providers statewide won’t be able to honestly evaluate residents, Summa concludes.

In their amicus brief, the medical groups note that in 2020 there were 7,270 resident physicians in Ohio and about 35,000 active licensed physicians. Clinical training for post-graduate medical students is crucial, and the statute is meant to ensure candid conversations and meaningful reviews of residents, the associations argue. Summa maintains that the Court has already ruled the credentialing, peer review, and quality assurance files on licensed physicians are privileged and exempt from discovery. Summa and the medical groups contend that files on residents should also be confidential.

“To protect the integrity of the peer review process, the practice of medicine, and quality of health care services provided to patients in Ohio, it is imperative that resident physicians are afforded the same peer review privilege that is provided to fully-licensed physicians with years or even decades of medical experience,” the brief from the medical groups states.

Not All Documents in Resident Files Fall Under Peer Review Privilege, Family Contends
The Stull family argues there is a difference between the entire residency file and the records of the hospital peer review committee. The Stulls assert that Summa must release the documents that aren’t peer review records and therefore aren’t privileged. The purpose of the law is to protect patient health and safety and to improve healthcare, the Stulls contend. They maintain that the law can’t be used to cloak dangerous medical care at the expense of patients.

The Ohio Association of Justice and Cleveland Academy of Trial Lawyers add that Summa’s reading of the law is too broad. In their amicus brief, they reject the idea that all documents generated from a resident’s training fall within the “scope” of a peer review committee, arguing that view “will serve no purpose but to hide the truth and impede tort victims from recovering justly.” The hospital must show that individual records in the file were actually prepared during peer review proceedings or kept only by the peer review committee, the legal groups contend.

The Stark County Association of Justice argues in its amicus brief that because Summa thinks the resident file is privileged, it must prove that the privilege applies to each of the records. The association also asserts that scholars and courts have criticized the peer review privilege, concluding it is ineffective in addressing problems in medical care. The association points to studies, including one that found state licensing boards imposed twice as many disciplinary actions against doctors as peer review committees did.

“[P]eer-review statutes, including Ohio’s statute, should be met with substantial skepticism and strictly construed as they harm the truth-finding goal of litigation while simultaneously failing to advance any legitimate interest,” the association writes.

The Supreme Court will hear Stull v. Summa Health System and the three cases below during one day of oral arguments on Nov. 14. Detailed case previews from the Office of Public Information are available by clicking on the name of each case.

Other Cases Before the Court
Jury Trials
In 2016, a Delaware County woman filed a breach of contract lawsuit against a company that installed a swimming pool. In her complaint, she requested a jury trial, and as part of the court rules, she paid a $500 jury deposit. The trial was delayed several times, and the woman agreed to switch to a bench trial , but the contractor objected. The judge allowed the bench trial to proceed because the contractor did not pay a jury deposit after the woman withdrew her jury request. In Tomlinson v. Mega Pool Warehouse, the Court will consider whether the contractor’s rights to a jury trial were denied.

Drilling Rights
In 2013, a Belmont County farmer signed a lease with an oil and gas drilling company that gave the company the right to drill in “the formation commonly known as the Utica Shale.” The contract did not give the company the right to drill below the Utica Shale. The farmer filed a lawsuit against the driller, claiming the company drilled below Utica into the Point Pleasant rock formation, and conducted lucrative natural gas extraction without paying the proper amount of royalties to the farmer. In TERA v. Rice Drilling, the Court will determine whether the Point Pleasant formation was part of the area “commonly known” as the Utica Shale and if the driller was within its rights to extract the gas.

Excluded Evidence
In State v. Sheckles, a man was charged following a 2019 shooting at a Cincinnati bar. The Hamilton County trial court determined that an edited compilation of surveillance footage from cameras at the bar wasn’t properly authenticated. The court also concluded that a former federal prosecutor couldn’t testify because he didn’t receive authorization from the U.S. Department of Justice. The court excluded the video and testimony as evidence. The Court will address whether the bar owner could authenticate the video and whether the federal prosecutor had the approval he needed to testify.

Watch Oral Arguments Online
Oral arguments begin at 9 a.m. The arguments will be streamed live online at supremecourt.ohio.gov and broadcast live on the Ohio Channel, where they are archived.