Bogart v. BlakelyBogart v. Blakely
Rendered on the 24th day of September, 2010.
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PETER D. TRASKA, Atty. Reg. No. 0079036 and KEVIN L. LENSON, Atty. Reg. No. 0066898, Landerhaven Corporate Center, 6105 Parkland Blvd., Mayfield Hts., Ohio 44124 Attorneys for Plaintiff-Appellant
STEVEN O. DEAN, Atty. Reg. No. 0009095, 130 West Second Street, Suite 2000, Dayton, Ohio 45402 Attorney for Defendant-Appellee
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DONOVAN, P.J.
{¶ 1} This matter is before the Court on the Notice of Appeal of David W. Bogart, filed April 13, 2010. On September 10, 2009, Bogart filed a “Complaint for Money” against David B. Blakely and John Does 1 through 5, after Bogart and Blakely were in an automobile accident on September 18, 2009. According to the Complaint, “As a result of
{¶ 2} On February 18, 2010, Blakely filed a Motion to Compel Discovery, asking the trial court to order Bogart to “provide full information regarding his past medical history and authorizations sufficient to obtain release of all medical records generated within the last ten years within a date certain * * *.” Specifically, Blakely sought authorizations for the release of “medical records, Social Security disability records, employment records and Bureau of Workers’ Compensation records.” Bogart filed a memorandum in opposition, in which he argued in part that “the use of an in camera review can be used to determine what is and what is not discoverable.” Blakely filed a Reply, in which he asserted in part that “Defendant is entitled to, at a minimum, executed authorizations regarding the prior issues involving the neck and back.”
{¶ 3} On March 15, 2010, the trial court issued an order granting Blakely‘s motion that provided in part, “The issue is whether the Plaintiff may be required to sign blanket medical authorizations as have been requested during discovery. In this appellate district the answer is yes. State ex rel. Floyd v. Court of Common Pleas (1978), 55 Ohio St. 2d 27, and the Second District Court of Appeals decisions of Menda v. Springfield Radiologists, Inc. (2000), 136 Ohio App.3d 656, and Horton v. Addy (Jan. 25, 1993), Montgomery App. No. 13524.” The court ordered Bogart to “execute complete medical authorizations as
{¶ 4} Bogart asserts two assignments of error. His first assignment of error is аs follows:
{¶ 5} “1. THE TRIAL COURT ERRED BY GRANTING DEFENDANT BLAKELY‘S MOTION FOR AN ORDER TO COMPEL DISCOVERY AS TO MEDICAL AUTHORIZATIONS.
{¶ 6} “A. By Civil Rule and by Statute, Privileged Information is not Discoverable, let alone Admissible.
{¶ 7} “B. The Trial Court Relied on Case Law that is Superceded or Outdated.
{¶ 8} “C. Case Law from other Ohio Jurisdictions Honors the Privilege and
{¶ 10} “Medical records are generally privileged from disclosure under
{¶ 11}
{¶ 12}
{¶ 13} “The following persons shall not testify in certain respects:
{¶ 14} ” * * *
{¶ 15} “(B)(1) A physician or a dentist concerning a communication made to the physician or dentist by a patient in that relation or the physician‘s or dentist‘s advice to a patient except as otherwise provided in this division, division (B)(2), and division (B)(3) of this section, * * *.
{¶ 16} “The testimonial privilege established under this division does not apply, and a physician or dentist may testify or may be compelled to testify, in any of the following circumstances:
{¶ 17} “(a) In any civil action, in accordance with the discovery provisions of the Rulеs of Civil Procedure in connection with a civil action, * * * under any of the following circumstances:
{¶ 18} “* * *
{¶ 19} “(iii) If a medical claim, dental claim, chiropractic claim, or optometric claim, as defined in
{¶ 20} * *
{¶ 21} “(3)(a) If the testimonial privilege described in division (B)(1) of this section does not apply as provided in division (B)(1)(a)(iii) of this section, a physician or dentist may be compelled to testify or to submit to discovery under the Rules of Civil Procedure only as to a communication made to the physician or dentist by the patient in question in that relation, or the physician‘s or dentist‘s advice to the patient in question, that related causally
{¶ 22} ” ‘Communication’ means acquiring, recording, or transmitting any information, in any manner, concerning any facts, opinions, or statements necessary to enable a physician or dentist to diagnose, treat, prescribe, or act for a patient. A ‘communication’ may include, but is not limited to, any medical or dental, office, or hospital communication such as a record, chart, letter, memorandum, laboratory test and results, x-ray, photograph, financial statement, diagnosis, or prognosis.”
{¶ 23} It is well settled that there “existed no physician-privilege at common law. McCormick, Evidence (3 Ed. Lawyer‘s Ed. 1984), 243, Section 98; (citation omitted). Since the privilege is in derogation of the common law, it must be strictly construed against the party seeking to аssert it. (Citation omitted); Weis v. Weis (1947), 147 Ohio St. 416 * * *.” Hollis v. Finger (1990), 69 Ohio App.3d 286, 293. ” * * * [O]ur decisions have long reflected the belief that discovery should be liberally allowed.” Arroyo v. Wagon Wheel Auto Sales Inc. (Aug. 11, 2000), Montgomery App. No. 18235, citing, in part, Horton v. Addy.
{¶ 24} Regarding the appropriate standard of review, it is clear that the purely legal question herein has been resolved, namely that physician-patient communications are privileged. By filing suit, Bogart has waived the privilege as to the specific information that is “related causally or historically” to the injuries that form the basis of his complaint. In other words, the privilege Bogart asserts is dependent upon his records not being causally or historically related to the allegations in his complaint, and whether the privilege applies
{¶ 25} ” ‘Abuse of discretion’ has been defined as an attitude that is unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.
{¶ 26} “A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novо, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result.” AAAA Enterprises, Inc. v. River Place Community Redevelopment (1990), 50 Ohio St.3d 157, 161.
{¶ 27} We will first examine those authorities relied upon by the trial court in ruling for Blakely. In Floyd, the plaintiffs, relators in a personal injury action, sought a writ of prohibition to prevent a judge from enforcing pretrial orders providing for discovery of allegedly privileged medical information. The Supreme Court of Ohio, in a per curiam opinion, upheld the order issued by the trial court in Floyd v. Copas (1977), 9 Ohio Ops.3d 298 (Rice, J.) The physician-patient privilege statute in effect then did not provide for waiver of the privilege by the filing of a civil action, as it does now, and the Supreme Court determined, it “is clear that suсh privilege has not been waived. A party does not waive the
{¶ 28} “Relators are seemingly confusing waiver with disclosure of privileged information. Until a waiver occurs, defense counsel may not use the information at trial.” Floyd, at 28-29. It was significant to the Supreme Court that the trial court relied upon
{¶ 29} In Horton v. Addy, we relied upon Floyd when deciding an interlocutory appeal from an order to plaintiffs’ counsel to provide “all medical records, both before and after, the accident,” to defense counsel, or to provide the records to the court for forwarding to a physician for the purpose of determining whether the records were discoverable in the personal injury action. We note that Horton was overturned on a procedural issue by the Ohio Supreme Court, 69 Ohio St.3d 181 (1994). At the time of Horton, as now, the physician-patient privilege was waived if the patient filed a civil action. The plaintiffs
{¶ 30} We noted that “Judge Rice responded to a similar argument in Floyd v. Copas * * * :
{¶ 31} ” ‘An argument could be made that the scope of court ordered disclosure must be limited to only those medical reports made by those persons who will testify at the trial, to those hospital records from institutions in which the injured plaintiff was a patient following the incident which forms the basis of the lawsuit in question, to prior hоspitalizations for the same or similar physical conditions or injuries claimed as arising from the incident in question, or, at the outside, to those records that are relevant to the issues framed by the pleadings.
{¶ 32} ” ‘This court cannot agree with such a contention because, inter alia, it would make the court, or the party against whom disclosure is sought, the arbiter of what is and what is not either relevant or likely to lead to the discovery of relevant evidence.
{¶ 33} ” * * *
{¶ 34} ” ‘Therefore, as long as the item to be disclosed might be within the ambit of the injured plaintiff‘s possible waiver of the physician-patient privilege, the disclosure will be ordered. The court can think of nothing more unfair than for an injured plaintiff,
{¶ 35} We noted, “while the trial court is necessarily the final arbiter of what is and is not relevant, disputes over what must be revealed during pretrial preparation has the potential of involving the trial court in such disputes at a point at which the court is not in a good position to make ultimate determinations as to relevance. The time for the trial court to become involved is immediately prior to, or during trial, when both sides have been afforded complete discovery and complete disclosure, when both sides have finalized their trial objectives, strategies, and tactics, and when both sides are in the optimum position to apprise the trial court of their respective positions concerning the relevance of certain information obtained by either discovery or disclosure. We thus approve, as did the Supreme Court, at least tacitly, in [Floyd], of the order made in this case, notwithstanding thаt the Hortons may well be required to disclose more than is relevant under
{¶ 36} We further noted that in Floyd, “the Supreme Court observed that the
{¶ 37} ” * * *
{¶ 38} “The distinction between ‘discovery’ and ‘disclosure’ is not without difficulty. Although ‘disclosed’ information may not also be ‘discovered’ information, disclosed information is nevertheless revealed to third parties. Judge Rice restricted the defendant‘s use of disclosed information to ‘preparing the instant litigation for trial’ and ‘strictly and expressly prohibited’ any other use.” Id. (quoting Floyd v. Copas).
{¶ 39} As was noted in the concurring opinion in Horton, “At the time of the Floyd cases, the medical privilege was not deemed to have been waived until the plaintiff took the stand and testified concerning his medical condition. As Judge Rice noted in his opinion, * * * that worked a terrible injustice upon the defendant, who had no opportunity to discover the plaintiff‘s medical evidence until during trial.
{¶ 40} “Today, a plaintiff is deemed to have waived his medical privilege as soon as
{¶ 41} “Nevertheless, unless and until the Ohio Supreme Court should see fit to reconsider its approval, in State , ex rel. Floyd v. Court of Common Pleas (1978), 55 Ohio St.2d 27, of the distinction between the disclosure and the discovery of privileged information, we must assume that that distinction is still good law.” Id. (Fain, J., concurring).
{¶ 42} Finally, in Menda v. Springfield Radiologists, Inc., a patient and his mother sued a doctor and the corporation in which he was a shareholder for malpractice. We affirmed the trial court‘s denial of the doctor‘s request for a protective order barring discovery of evidence relating to the doctor‘s emotional and psychiatric condition, which had been obtained in a separate lawsuit involving a business dispute brought by the doctor against the corporation. We noted that “other courts may have concluded that a waiver of the physician-patient privilege in one case does not constitute a waiver in another case.” (Citations omitted). Id., at 661. We determined, however, “because we are convinced that the primary purpose of the physician-patient privilege - privacy - cannot be furthered by allowing a party to invoke the privilege after he has disclosed his physical or mental condition in a separate lawsuit, and because
{¶ 43} Bogart contends that none of the above authorities apply to the matter herein. Bogart asserts that Floyd was decided under a previous version of the privilege statute, and that the waiver of privilege and the restrictions on that waiver that apply herein were added after Floyd was decided. Bogart further asserts that Floyd is distinguishable from the instant matter because it addressed the disclosure of information pursuant to
{¶ 44} Bogart initially directs our attention to Calihan v. Fullen (Jan. 15,1992), 78 Ohio App.3d 266. Calihan brought a medical malpractice case against her physician following a surgical procedure in November, 1987. She sought the physician‘s medical records, having learned in the course of his deposition that he had been diagnosed with multiple sclerosis in 1988, and that he had experienced sensory problems since 1979. The trial court granted the plaintiff‘s motion to compel. The First District determined that the records were relevant to Calihan‘s claims but privileged pursuant to
{¶ 46} Regarding Horton, Bogart asserts that it is the minority position in Ohio and that we should align our case law with other jurisdictions, directing our attention initially to two Sixth District cases. In Piatt v. Miller, Lucas App. No. L-09-1202, 2010-Ohio-1363, the plaintiff brought an action individually and as executrix of her husband‘s estate following a car accident. The trial court granted defendant‘s motion to compel discovery of medical records, including records of treatments prior to the accident, and it denied
{¶ 47} Finally, Bogart points out that the Tenth District is critical of Horton. In Ward v. Johnson‘s Industrial Caterers, Inc. (June 25, 1998), Franklin App. No. 97APE11-1531, the defendants filеd a motion to compel authorizations for the release of medical records in a negligence cause of action. Ward had returned the releases signed but with additional language “limiting the release of those records concerning any injury, condition, treatment or complaint relative to her neck, shoulders, low back and left leg.” She also requested an in camera review and filed a motion for a protective order. “The trial court indicated * * * that the proper time for determining what is related causally or historically to the alleged injuries is at trial,” and it granted the motion to compel and denied the motion for a protective order.
{¶ 48} The Tenth District applied a de novo standard of review to the issue and determined that the trial court erred in two ways. “Most importantly,
{¶ 49} “In addition, the trial court cited to Horton v. Addy * * * in support of its position. We do not agree with the analysis in such case. The Horton court concluded that disputes over what must be revealed during pre-trial preparation has the potential of involving the trial court when such court is not in a good position to make ultimate determinations as to what is relеvant. The court of appeals stated that the time for the trial court to become involved was immediately prior to or during trial. Id. * * *
{¶ 50} “The holding in Horton seemingly ignores the fact that
{¶ 51} Finally, regarding Menda, Bogart points to Hageman v. Southwest General Health Center, 119 Ohio St.3d 185, 190, 2008-Ohio-3343, ¶ 17, in which the Supreme Court determined that “when the cloak of confidentiality that applies to medical records is waived for the purposes of litigation, the waiver is limited to that case.” In Hageman, the Supreme Court of Ohio held that an attorney may be liable to an opposing party for the unauthorized disclosure of that party‘s medical information that was obtained through litigation. Id., at ¶ 1. Hageman‘s wife initiated divorce proceedings, and Hageman filed a counterclaim for custody of their minor child. While the divorce was ongoing, Hageman was receiving psychiatric treatment. After he allegedly assaulted his wife, criminal charges were brought. Counsel for Hageman‘s wife in the divorce subpoenaed and received Hagemаn‘s medical records from his psychiatrist, and she gave the prosecutor in the criminal matter a copy of the records. Hageman then sued, inter alia, his wife‘s counsel for the unauthorized disclosure. The Supreme Court determined that permitting attorneys “with such information obtained through discovery to treat the information as public would violate the policy of maintaining the confidentiality of individual medical records.” Id., at ¶ 20. Bogart points out that we have noted, “our holding in Menda has most probably been overruled” by Hageman. State v. Branch, Montgomery App. No. 22030, 2009-Ohio-3946, ¶ 77.
{¶ 52} Having attempted to discredit Floyd, Horton and Menda, Bogart directs our attention to case law from other Ohio jurisdictions examining the physician-patient privilege. In addition to Hageman, and Ward, Bogart relies upon McCoy v. Maxwell (Oct. 2, 2000), 139 Ohio App.3d 356, to again assert that his waiver only extends to the information that is related causally or historically to his injuries. McCoy filed a complaint against Maxwell, alleging malicious prosecution, libel and slander. The trial court granted Maxwell‘s motion
{¶ 53} Bogart also directs our attention to Hudson v. United Services Automobile Association Insurance Company et al (Oct. 21, 2008), 150 Ohio Misc.2d 23, 2008-Ohio-7084, ¶ 5, in which the Greene County Court of Common Pleas reviewed a request for medical information ” ‘during [plaintiff‘s] lifetime,’ ” and it determined that it “must reluctantly but dutifully involve itself in discovery.” The Hudson court relied upon Miller v. Bassett, Cuyahoga App. No. 86938, 2006-Ohio-3590, which, according to the common pleas court, “found that requesting medical records over the previous ten years was overbroad. To ask for information on a lifetime of medical treatment is even more overbroad, and the court rejects it.” Hudson, at ¶ 26.
{¶ 54} Having reviewed the above authorities, we agree with Blakely that Bogаrt‘s attempts to discredit Floyd and Horton fail. Floyd has not been overturned or superseded
{¶ 55} We further agree with Blakely that whether waiver in a prior suit equates to waiver in a subsequent suit is not at issue, thus whether Menda has been overruled pursuant to Hageman and Branch is irrelevant. While the concern in Hageman was the anticipated result of permitting attorneys with privileged information “to treat the information as public,” we note that the trial court herein expressly restricted the dissemination of Bogart‘s records, as did the trial court in Floyd v. Copas.
{¶ 56} Regarding the other authorities relied upon by Bogart, McCoy is distinguishable because McCoy alleged injury merely to his personal and professional reputation. In contrast, Bogart alleges permanent and extensive physical and mental injuries. An examination of Miller v. Bassett, the authority relied upon in Hudson, which the Greene County Court of Common Pleas oversimplifies, supports our distinction. Miller appealed from the trial court‘s grant of Bassett‘s motion to compel discovery, arguing in part that the motion was not related to the subject matter of Miller‘s professional negligence action. Miller alleged negligent infliction of emotional distress and serious mental anguish. In
{¶ 57} The Eighth District further determined, regarding “disclosure of Miller‘s primary/family physician, any medical condition which required hospitalization over the last ten years, and disclosure of any mental or physical condition present within the last ten years, * * * the trial court‘s order compelling discovery must partially stand. By asserting claims of negligent infliction of severe emotional distress, Miller has put his mental health directly in issue. While * * * the underlying action is nonetheless a professional negligence action, when a party directly places their health at issue, the basis for this underlying cause of action is discoverable.” Id., at ¶ 24.
{¶ 58} Regarding the request for information on any medical condition that has required hospitalization or that has arisen within the past ten years, the court concluded,
{¶ 59} “First, Miller put his ‘mental health’ directly at issue by contending that Bassett caused him to suffer from severe emotional distress. He makes no further assertion of failing physical health, nor has any discovery been conducted to an extent that this court could find that Miller also put his physical health at issue, or to assert that these claims of emotional distress contain a physical element. Therefore, any discovery that seeks information regarding Bassett‘s physical health is not germane at this time, and would be protected under the doctrine of physician patient-privilege. To clarify, this court can see no waiver of privilege and, therefore, we find that information relating to Miller‘s physical health is protected by physician-patient privilege.
{¶ 60} “The second issue surrounding the trial court‘s order compelling discovery is the time frame during which Bassett seeks to discover information. Although Bassett requests a ten-year ‘look-back’ period, there is no indication why such a time span was chosen or when the time frame would begin to run. * * * Since there is no indication as to the proper look-back period, an evidentiary hearing must be held on the issue of timing so that specific dates can be given.” Id., at ¶ 26-27.
{¶ 61} The Miller court reversed the decision of the trial court compelling production of discovery as to alleged drug and alcohol use and regarding all motor vehicle accidents. The court affirmed the grant of the motion to compel “as to any request for the mental health information that Miller has directly put at issue and through his claim for severe emotional distress,” subject to the evidentiary hearing. Id., at ¶ 28.
{¶ 62} Unlike Miller (and McCoy), Bogart has alleged multiple and permanent
{¶ 63} As we noted in Horton, “The distinction between discovery and disclosure attempts to accommodate three competing values: the confidentiality of privileged medical information, a personal injury defendant‘s right to effectively prepare for trial, and minimization of judicial involvement in pretrial discovery disputes. Perhaps no better accommodation is possible, particularly when trial judges must manage increasing numbers of cases. Unless and until the Supreme Court withdraws its tacit approval of the order entered in Floyd v. Copas, supra, orders similar to the order in this case should survive appellate scrutiny.” We note, in granting the motion to compel, our resolution of this assigned error is addressed to the court‘s control of pretrial prоceedings and not to the scope of Bogart‘s waiver of the physician-patient privilege and the admissibility at trial of his records.
{¶ 64} Since the trial court did not abuse its discretion in granting Blakely‘s motion to compel, Bogart‘s first assigned error is overruled.
{¶ 65} Bogart‘s second assignment of error is as follows:
{¶ 66} “2. IN CAMERA REVIEW IS A NECESSITY WHEN THE PARTIES CANNOT AGREE ON WHETHER MEDICAL RECORDS ARE RELATED CAUSALLY OR HISTORICALLY TO THE INJURIES CLAIMED.”
{¶ 67} Again, Bogart directs our attention to several cases from other districts to assert that he is entitled to in camera review. In Mason v. Booker, Franklin App. No. 09AP-500, 2009-Ohio-6198, a personal injury case, the Tenth District conducted de novo review and determined, citing Ward, that the trial court‘s failure to conduct an in camera review required reversal of its order to compel the release of all medical records from a specific hospital. Bogart further relies upon Piatt, which held, “Although we agree with the Horton court that discovery should be kept as simple as possible and rarely involve the court, we believе the same result may be obtained within the majority structure by requiring a factual basis antecedent to any in camera inspection. As stated in [Patterson v. Zdanski, Belmont App. No. 03 BE 1, 2003-Ohio-5464], ¶ 19:
{¶ 68} ” ‘[B]efore engaging in an in-camera inspection of the material, ” ‘the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person’ that in camera review of the materials may reveal evidence establishing an applicable privilege or that the privilege is outweighed by other rights.” (Citations omitted). This is because the party opposing the discovery request has the burden to establish that the requested information would not reasonably lead to discovery of admissible evidence. (Citation omitted). Thus, if the trial court believes there is not a gоod faith belief that a review of the materials may reveal privileged material, then it does not need to conduct an in-camera inspection of those materials.’ ” Piatt, at ¶ 17-18.
{¶ 69} The Zandanski court, quoted in Piatt, noted that in camera review serves two purposes: ” ‘First, it allows the trial court to make an informed decision as to the evidentiary nature of the material in question rather than depending on the representations of counsel. Secondly, the in camera inspection allows the trial court to discern that aspect of the evidence which has evidentiary value from that which does not, as well as to allow the trial court to restrict the availability of that evidence, which has limited evidentiary value.’ ” (citation omitted). Zandanski, at ¶ 18.
{¶ 70} We nоte that while the above authorities require a “factual basis” justifying the trial court‘s in camera review, as Blakely asserts, Bogart failed to move the court for an in camera inspection. Bogart has alleged multiple and permanent injuries. Prior to trial, it is unreasonable and impractical to require a trial judge to attempt to determine whether a plaintiff‘s extensive medical history is relevant to the underlying action, and we accordingly conclude that Bogart is not entitled to in camera review. See Nester v. Lima Memorial Hospital , 139 Ohio App.3d 883, 2000-Ohio-1916, Walters, J., dissenting (“The appellant in this case has alleged a myriad of physical and mental ailments, * * * . This extensive range of allegations essentially places the appellant‘s entire medical history at issue. Therefore, I believe that the trial court did not abuse its discretion by ordering discovery of all medical records from 1973 to the present. Furthermore, I cannot agree with the majority‘s decision to remand for an in camera inspection, since I fail to see how a trial judge is supposed to determine whether a previous medical problem is relevant to the
{¶ 71} Bogart‘s second assignment of error is overruled, and the judgment of the trial court is affirmed.
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FAIN, J., concurs.
GRADY, J., concurring:
{¶ 72} Bogart‘s complaint waived his privilege with respect to medical records of his treatment for injuries that proximately resulted from Blakely‘s alleged negligence. If Bogart wished to withhold the access to his medical records that Blakely sought through discovery, on a claim of privilegе, it was Bogart‘s duty to make that claim “expressly . . . supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable (Blakely) to contest the claim.”
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Peter D. Traska
Kevin L. Lenson
Steven O. Dean
Hon. Jeffrey M. Welbaum