State v. Brown

Holmes, J.,

dissenting. Because I believe the court of appeals properly addressed its jurisdiction to issue a writ of prohibition, I dissent from today’s majority opinion.

In its opinion, the court of appeals made seventeen separate findings of fact. Based upon these findings, the court of appeals concluded that the incident reports were “absolutely privileged as an attorney-client communication, R.C. 2317.02(A), and as a report made available to a utilization committee, R.C. 2305.24.” After so concluding, the court of appeals analyzed the reports in light of this court’s decision in State, ex rel. Lambdin, v. Brenton (1970), 21 Ohio St. 2d 21 , 50 O.O. 2d 44, 254 N.E. 2d 681 . In Brenton , we determined that certain medical records were privileged and issued a writ of prohibition to prevent their production. We further reasoned that because the trial court in the underlying action erred in its order regarding the records, “* * * damage to plaintiff’s rights by such forced disclosure could not be avoided by an appeal. Under such circumstances, the court’s order amounts to a usurpation of judicial power, and appeal, under the circumstances, is not an adequate remedy at law.” Brenton, supra, at 24 , 50 O.O. 2d at 46, 254 N.E. 2d at 683 .

I believe such reasoning applies to the facts in this case. If appellee is required to produce the incident report, ¿formation intended by the General Assembly to be privileged will be available for public consumption. Such result does violence to the purpose of the privilege statutes.

In addition, once the information contained within this report becomes exposed, the appellant will suffer immediate and irreparable harm. As in Brenton, supra, this harm cannot be corrected on appeal and, therefore, the trial court’s order amounts to a usurpation of judicial power and appeal is an inadequate remedy at law. Accordingly, I strongly dissent from the majority’s opinion, as I would grant the appellee a writ of prohibition.