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A family secretly recorded a doctor when he gave them an update on their loved one. The Ohio Court of Appeals recently ruled that the recording can be used against the hospital in a medical malpractice wrongful death lawsuit.

In 2010, a man opted to have an elective knee surgery in Lorain, Ohio, at Mercy Regional Medical Center, court documents indicate. Two days after the man had surgery, his heart stopped, and doctors declared he was brain dead.

According to the court records in the wrongful death lawsuit, the man had an excessively high amount of potassium in his blood, which caused the heart attack. Blood tests indicated the man had a high potassium level, but doctors were not told about the high levels in time to prevent the man from going into cardiac arrest.

Before the man died, his children met with the hospital’s chief medical officer, who apologized for their father’s condition and admitted the hospital staff had made mistakes.

What the chief medical officer did not know was that the family was recording the conversation. In Ohio, as long a one person in a conversation knows it is being secretly recorded, such recordings are legal.

When the hospital learned about the recording during the discovery process for the lawsuit, it filed a motion asking the judge rule the recording inadmissible. The hospital claimed the information the chief medical officer shared with the family came from a peer review conversation. Ohio law prevents attorneys from obtaining information about peer review activities.

The judge in the lawsuit ruled the family could use the recording at trial. The hospital appealed the ruling. However, the Ohio Court of Appeals determined there was not proof the information the chief medical officer shared with the family came from the peer review process.

The appellate court further ruled that if the information did not come from the peer review process, it is not protected under the peer review privilege.

Source: American Medical News, “Family may use secret recording in medical negligence suit,” Alicia Gallegos, Feb. 27, 2012