This сause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Hamilton County Court of Common Pleas, the transcript of the proceedings, the briefs and the arguments of counsel. We have sua sponte removed this cause from the accelerated calendar.
Defendant-appellant, William Fullen, M.D., has taken the instant appeal from the trial court’s entry granting the motion of plaintiff-appellee, Katherine Calihan, to compel the production of Fullen’s personal medical records. Fullen presents on appeal a single assignment of error in which he contends that the trial court erred in granting Calihan’s motion to compel because the matters sought to be discovered were proteсted by the physician-patient privilege. We agree.
In September 1988, Calihan brought an action against Fullen, William Fullen, M.D., Inc., John J. McDonough, M.D., and Bethesda Oak Hospital, seeking damages for injuries allegedly sustained in the course of a surgical procedure performed on Calihan by Fullen in November 1987 at Bethesda Oak Hospital. In July 1989, Calihan’s counsel deposed Fullen. In the course of *268 his deposition, Fullen admitted that, in November 1988, he was diagnosed as suffering from multiple sclerosis. Subject to his counsel’s objection on the basis of the physician-patient privilege, Fullen testified that he had experienced sensory problems in his lower extremities since 1979. A medical evaluation of his condition at the time resulted in a diagnosis of polymyаlgia rheumatica, which affects the central nervous system. Fullen stated that from 1979 to March 1989, when he last performed surgery, the numbness in his lower extremities required treatment with the drug Prednisone and required him to remain seated while performing, among other surgiсal procedures, a microcholecystectomy, the procedure performed on Calihan.
Calihan subsequently submitted to Fullen a request for the production of documents, in which she sought the records of medical care rendered to Fullen prior to November 1987. Invoking the physician-patient privilege, Fullen declined the request. Calihan countered with a motion to compel production of the requested documents. By entry dated June 12, 1990, the trial court granted Calihan’s motion to compel, and Fullen appealed.
I
We reject at the outset Calihan’s assertion that the order from which Fullen has appealed is not a final appealable order. Pursuant to R.C. 2505.03, an appeal may be taken only from a final order, judgment or decree. R.C. 2505.02 defines a final order, in relevant part, as “an order that affects a substantial right made in a special proceeding.”
The order from which Fullen has appealed, compelling the production of his medical records, implicates the legislatively protected confidential relationship between a patient and his physician and, therefore, affects a substantial right. See
Humphry v. Riverside Methodist Hosp.
(1986),
II
Turning to the merits of Fullen’s challenge to the trial court’s order compelling the production of his medical records, we note thаt Civ.R. 37(A)(2) authorizes a party seeking the production of documents under Civ.R. 34 to obtain an order compelling the production of documents if the party from whom discovery is sought refuses or fails to respond to a proper request for the prоduction of documents. Pursuant to Civ.R. 34, a request for the production of documents is subject to the provisions governing the scope of discovery set forth in Civ.R. 26, which provides in relevant part:
“(B) Scope of discovery. Unless otherwise ordered by the court in accordance with these rules, the scope of discovery is as follows:
“(1) In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * *.”
We are unpersuaded by Fullen’s contention that the documents sought to be discovered were not relevant to the pending action. To sustain a claim for medical malpractice, the plaintiff must establish,
inter alia,
the standard of care of a physician in thе community and his physician’s failure to provide care in conformity with that standard.
Bruni v. Tatsumi
(1976),
We hold, however, that the matters sought to be discovered are not discoverable under Civ.R. 26(B) because they are protected under the R.C. 2317.02(B) physician-patient privilege. R.C. 2317.02 provides in relevant part:
“The following persons shall not testify in certain respects:
*270 a * * *
“(B)(1) A physiciаn * * * concerning a communication made to him by his patient in that relation or his advice to his patient, except as otherwise provided in this division * * *.
“The testimonial privilege under this division is waived, and a physician * * * may testify or may be compellеd to testify in a civil action [or] in accordance with the discovery provisions of the Rules of Civil Procedure in connection with a civil action * * * under the following circumstances:
“(a) If the patient * * * gives express consent;
* * *
“(c) If a medical claim * * * [or] any other type of civil aсtion * * * is filed by the patient * * *.
U * * *
“(3) As used in divisionf] (B)(1) * * * of this section, ‘communication’ means acquiring, recording, or transmitting any information, in any manner, concerning any facts, opinions, or statements necessary to enable a physician
* * * to diagnose, treat, prescribe, or act for a patient. A ‘communication’ may include, but is not limited to, any medical * * *, office, or hospital communication such as a record, chart, letter, memorandum, laboratory test and results, x-ray, photograph, financial statement, diagnosis, or prognosis.
“(4) Divisions (B)(1) * * * and (3) of this section apply to doctors of medicine, doctors of osteopathic medicine, doctors of podiatric medicine, and dentists.”
Physician-patient communications enjoyеd no privilege at common law. The physician-patient privilege, being in derogation of the common law, must, therefore, be strictly construed against the party asserting it.
Weis v. Weis
(1947),
The patient is the holder of the physician-patient privilege and mаy invoke the privilege to preclude access under the Rules of Civil Procedure governing discovery or to bar testimony at trial to information acquired by virtue of the physician-patient relationship upon satisfaction of the following criteria:
(1) The matter sought to be disclosed constituted a “communication” as defined under R.C. 2317.02(B)(3);
(2) The communication took place between the patient and a doctor of medicine, doctor of osteopathic medicine, doctor of podiatric medicine or dentist; see R.C. 2317.02(B)(4); and
*271 (3) The patient has not waived the privilege by express consent or by filing a civil claim. See R.C. 2317.02(B)(1).
The matters sought to be discovered here were conveyed between Fullen and a doctor of medicine and fall within the R.C. 2317.02(B)(3) definition of “communication[s].’’ Fullen has not waived the physician-patient privilege either by express consent or by filing a civil action, nor will a waiver be implied from Fullen’s testimony as if on cross-examination and over his counsel’s objection in his deposition. See
Kromenacker, supra.
See, also,
State ex rel. Lambdin v. Brenton
(1970),
The decision of the Ohio Supreme Court in
State ex rel. Floyd v. Montgomery Cty. Court of Common Pleas
(1978),
The Hamilton County Common Pleas Court has not exercised the authority conferred by Civ.R. 16(6) to adopt a local rule comparable to that adopted in Montgomery County, permitting a court to order the pretrial exchange of
*272
medical reports and hospital records. Thе order of the court below, compelling the production of Fullen’s medical records, was issued, not under the Civil Rules pertaining to pretrial procedure, but under the Rules of Civil Procedure governing discovery. Unlike Civ.R. 16(6), Civ.R. 26(B), which governs the scope of discovery, expressly exempts from discovery those matters that are “privileged” and does not by its terms permit discovery of matters protected by the R.C. 2317.02(B) privilege in the absence of an effective waiver. The significance of the diffеrences between Civ.R. 16 and Civ.R. 26 is acknowledged in the Staff Note to Civ.R. 16, which states that “a pretrial rule [adopted under Civ.R. 16] may require the production or exchange of materials which would be strictly privileged during discovery or at trial,” and was recоgnized in
Floyd,
in which the court noted that Civ.R. 16, by permitting compelled disclosure of privileged material without a waiver of the privilege, “creates a distinction between a court-ordered disclosure and the use at trial or discovery of that informаtion.” (Footnote omitted.)
Id.,
Upon our determination that the R.C. 2317.02(B) physician-patient privilege shielded Fullen’s medical records from cоmpelled disclosure pursuant to the Civil Rules of procedure governing discovery, we hold that the trial court erred in granting Calihan’s Civ.R. 37 motion to compel their production. We, therefore, sustain Fullen’s sole assignment of error, reverse the judgment entered below, and remand this cause for further proceedings consistent with law and this decision.
Judgment reversed
and cause remanded.
Notes
. Civ.R. 16 provides in relevant portion:
"A court may adopt rules concerning pretrial procedure to accomplish the following objectives:
"(6) The exchange of medical reports and hospital records;
"The producing by any party of mеdical reports or hospital records does not constitute a waiver of the privilege granted under Section 2317.02, Revised Code.”
Local Rule 2.21(C) of the Court of Common Pleas of Montgomery County provided that a court may order the pretrial " ‘exchange [of] medical reports and hospital records.' ” See Floyd, supra,55 Ohio St.2d at 29 ,9 O.O.3d at 17 ,377 N.E.2d at 795 .