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Rinaldi v. City View Nursing & Rehabilitation Center12/1/2005
ting privileged documents to the court for an in camera inspection and will await this court's ruling." We find this insufficient to demonstrate that the disputed documents were, in fact, incident reports of the type described in and protected by R.C. 2905.253. City View presented no evidence to the trial court indicating that the records were prepared by or for the use of a peer review committee or that the records were within the scope of the functions of that committee. Although the reports are titled "investigation report" or "incident statements," that is insufficient to demonstrate that the reports were incident reports actually prepared for use by City View's peer review committee. City View's notice contained no explanation whatsoever as to how the documents at issue were "incident reports" as defined by the statute. Moreover, contrary to City View's assertion, we find nothing in the record to indicate that appellee's counsel ever stipulated that the disputed records were indeed the requisite type of incident reports.
{ } Furthermore, City View presented no evidence to the trial court that it even had a peer review committee that performed any of the functions identified in R.C. 2305.25(E) or would review the documents at issue. Indeed, at oral argument, City View's counsel conceded that she did not know whether City View had a peer review committee, but merely assumed that it did.
{ } A party asserting the privilege set forth in R.C. 2905.253 has the burden of establishing that the privilege is applicable. See, e.g., Waldmann v. Waldmann (1976), 48 Ohio St.2d 176, 178; Svoboda v. Clear Channel Commun., Inc., 156 Ohio App.3d 307, 2004-Ohio-894, at ; Perfection Corp. v. Travelers Cas. & Sur., 153 Ohio App.3d 28, 2003-Ohio-3358, at . City View having failed to adduce any evidence whatsoever to establish the privilege, we cannot find that the trial court abused its discretion in ordering it to produce the documents to Rinaldi.
{ } Accordingly, Rinaldi's motion to dismiss is overruled as moot and appellant's first assignment of error is overruled.
{ } Our disposition of appellant's first assignment of error renders its other assignment of error moot and, therefore, we need not address it. App.R. 12(A)(1)(c).
Affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
CHRISTINE T. McMONAGLE JUDGE
FRANK D. CELEBREZZE, JR., P.J., and ANTHONY O. CALABRESE, JR., J., CONCUR.
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