2019 Ohio 2750
Ohio Ct. App.2019Background
- Decedent Michael Dominique presented to Good Samaritan Hospital with chest pain; pulmonary embolism was a differential but not evaluated; he underwent cardiac catheterization and died of a massive pulmonary embolism two days later.
- His spouse, Rhonda Karimian-Dominique, sued for medical negligence, wrongful death, survivorship, loss of consortium, and other claims.
- Dr. Latit Goyal moved to compel execution of authorizations for Dominique’s psychotherapy records (from Dr. Craig Olson and Antoinette Cordell & Associates) after plaintiff’s counsel had rescinded earlier releases.
- Plaintiff sought a protective order and an in-camera review asserting physician‑patient/psychotherapist privilege and that the privilege was not waived because Dominique is deceased and mental health was not a genuine issue.
- The trial court ordered disclosure, finding the psychotherapy records were not privileged to the extent they were causally or historically related to claims (including loss of consortium and wrongful death) and denied the protective order and in-camera review.
- The appellate court affirmed, holding plaintiff bore the burden to identify specific records that remain privileged and that general assertions did not justify in-camera review or blanket protection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether psychotherapy records are protected by privilege and not waived by suit | Karimian-Dominique: privilege survives; decedent’s mental records are unrelated to the malpractice/wrongful death claims and thus not waived | Goyal: filing wrongful death/survivorship/consortium claims waives privilege for records causally or historically related to issues | Privilege waived for records causally/historically related to claims; disclosure ordered where records are within ambit of litigation |
| Whether plaintiff was entitled to a protective order barring production | Plaintiff: broad protective order needed to prevent disclosure of psychotherapy records | Defendant: records are discoverable under Civ.R. 26 and R.C. 2317.02 where related to claims | Protective order denied; records discoverable to extent relevant |
| Whether trial court should conduct in-camera review before disclosure | Plaintiff: court should examine records in camera to determine privilege applicability | Defendant: in-camera review unnecessary absent a factual showing identifying privileged items | No abuse of discretion in denying in-camera review because plaintiff failed to present a factual basis identifying specific privileged records |
| Scope of required authorizations/releases | Plaintiff: rescinded authorizations, limiting access | Defendant: plaintiff must execute releases for psychotherapy records relevant to claims | Court compelled execution of authorizations for the psychotherapy records at issue, subject to confidentiality protections to be addressed by parties/court |
Key Cases Cited
- Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 909 N.E.2d 1237 (Ohio 2009) (medical records generally privileged but statutory exceptions exist)
- Marcum v. Miami Valley Hosp., 32 N.E.3d 974 (Ohio Ct. App. 2015) (party asserting privilege bears burden to show records are not causally/historically related; in-camera review discretionary)
- Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (Ohio 1983) (abuse of discretion standard explained)
- Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 585 N.E.2d 384 (Ohio 1992) (loss of consortium elements and scope)
- Wargo v. Buck, 123 Ohio App.3d 110, 703 N.E.2d 811 (Ohio Ct. App. 1998) (privilege statute aims to create confidentiality; protective orders can ameliorate privacy concerns)
- Langenfeld v. Armstrong World Industries, Inc., 299 F.R.D. 547 (S.D. Ohio 2014) (agreed protective orders can obviate need for in-camera inspection)