Chasteen v. Stone Transport, Inc.Chasteen v. Stone Transport, Inc.
Richard Cordray, Ohio Attorney General, and Carolyn S. Bowe, Assistant Attorney General for appellee, Administrator, Ohio Bureau of Workers’ Compensation for appellee.
* * * * *
SINGER, J.
{¶ 1} Appellant appeals an order to compel discovery issued by the Fulton County Court of Common Pleas. For the reasons that follow, we affirm.
{¶ 3} In 2006, appellant sought to amend his workers’ compensation claim to include “aggravation of pre-existing lumbar degenerative arthritis L2-S1 and spondylolisthesis at L5.” When appellant‘s additional claim was denied and his administrative appeals exhausted, he appealed with a notice of appeal and petition filed in the trial court, pursuant to
{¶ 4} During discovery in the trial court, appellee requested that appellant provide medical releases for treatment records from Toledo Hospital and Bay Park Hospital. Appellee stated that prior workers’ compensation records indicated that appellant had previously been treated for low back pain at these facilities. Appellant responded to the request, advising appellee that he would review the requested records and provide releases “[i]f they include orthopedic conditions * * *.” If not, the records would be provided to the court for an in camera inspection.
{¶ 5} When, after nearly two months, the releases had not been provided, appellee moved to compel. Appellant responded with a memorandum in opposition, noting that
{¶ 6} Appellee answered with a reply brief in which it argued its position and requested that a release from appellant‘s family physician also be compelled. Following this, according to appellant, he reviewed the records and determined that records from the Toledo Hospital related to treatment for his back. Appellant executed a release for Toledo Hospital, but declined to do so for the other medical providers.
{¶ 7} Following what appellant characterizes as a hearing and appellee calls a pretrial conference, the trial court granted appellee‘s motion to compel, reserving its decision of the admissibility of the material produced. From this order, appellant now brings this appeal, setting forth the following assignment of error:
{¶ 8} “The trial court erred when it granted Defendant/Appellee Administrator‘s motion to compel and ordered Plaintiff/Appellant to execute medical authorizations releasing confidential medical records without first conducting an in camera inspection of the records to determine whether these records are causally or historically related to the injuries at issue in this worker‘s compensation case.”
{¶ 9} “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * *. It is not ground for objection that the information sought will be inadmissible at the trial if the information
{¶ 10} “The following persons shall not testify in certain respects:
{¶ 11} “* * *
{¶ 12} “(B) (1) A physician * * * concerning a communication made to the physician * * * by a patient in that relation or the physician‘s * * * advice to a patient, except as otherwise provided in this division, division (B)(2), and division (B)(3) of this section, and except that, if the patient is deemed by [
{¶ 13} “The testimonial privilege established under this division does not apply, and a physician * * * may testify or may be compelled to testify, in any of the following circumstances:
{¶ 14} “(a) In any civil action, in accordance with the discovery provisions of the Rules of Civil Procedure in connection with a civil action, or in connection with a claim under [workers’ compensation], under any of the following circumstances:
{¶ 15} “* * *
{¶ 16} “(iii) If * * * a claim under [workers’ compensation] is filed by the patient * * *.”
{¶ 17} “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 * * * may be
{¶ 18} Accordingly, a defendant “* * * may discover [a plaintiff‘s] communications to his physicians, including medical records, but only those that relate causally or historically to his claimed injuries.” Patterson v. Zdanski, 7th Dist. No. 03 BE 1, 2003-Ohio-5464, ¶ 15
{¶ 19} Discovery issues are ordinarily reviewed by an abuse of discretion standard. Tracy v. Merrell Dow Pharmaceuticals, Inc. (1991), 58 Ohio St.3d 147, 151-52. If the discovery issue is one of privilege, however, it is a question of law that must be reviewed de novo. Cornwell v. N. Ohio Surgical Ctr., 6th Dist. No. E-09-001, 2009-Ohio-6975, ¶ 18, citing Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, ¶ 13.
{¶ 20} Citing numerous Ohio appellate cases, appellant insists that the proper method for a court to ascertain whether medical records are causally or historically related to a worker‘s claim and, therefore, subject to discovery is to conduct an in camera inspection of the documents. Had the court examined the documents, appellant suggests, it would have discovered that the Bay Park Hospital records relate to a hammertoe surgery and there are no mentions of appellant‘s back in his personal physician‘s records.
{¶ 21} In response, appellee initially notes that appellant failed to support its assertion of error with a transcript of the proceedings in the trial court or a suitable substitute, pursuant to
{¶ 22} Moreover, appellee maintains, it is the burden of the party asserting a privilege to prove the validity of the privilege. Since the privilege appellant asserts is dependent on the documents not being causally or historically related to his claim, it is appellant who has the burden of showing the lack of such a connection. To place the burden on appellee to prove that such a relation exists in documents it has never examined would simply be unfair, appellee insists.
{¶ 23} Notwithstanding its lack of duty to show a relation, appellee points to its original demand letter, attached as an exhibit to its motion to compel. The letter states that, in reviewing its records from a prior workers’ compensation claim, it found that appellant had been subject to low back problems since 1998 and that he appears to have
{¶ 24} Ohio appellate courts have differed in methodology as to the manner in which a causal and historic relationship is established. The minority position is articulated in Horton v. Addy (Jan. 25, 1993), 2d Dist. No. 13524, vacated on other grounds (1994), 69 Ohio St. 3d 181. The Horton court expressly rejected the notion that all such issues be resolved by an in camera inspection and held that the burden of establishing a lack of causal and historic relation is on the party asserting the privilege. As a result, the court concluded, the party asserting the privilege should either provide to opposing counsel the material requested, “* * * or [supply] all medical records to the opposing counsel‘s physician or specialist so that that specialist can determine relevancy and the costs of the physician‘s review and report must be borne by the objecting party.” The court‘s rationale for this conclusion was that “* * * the discovery process should be as simple as possible and not involve the Court unless absolutely necessary.”
{¶ 25} The Horton analysis was rejected in Ward v. Johnson‘s Ind. Caterers (June 25, 1998), 10th Dist. No. 97APE11-1531. There a plaintiff, who sued for injuries to her neck, shoulders, back and leg, refused to sign a general medical records release. The trial court granted the defendant‘s motion to compel a general release. When the plaintiff
{¶ 26} We agree that something more that a mere recitation that documents are not causally or historically related to a claimed injury must be set forth by the party claiming the privilege before any in camera inspection of the documents is necessary. As the Seventh District Court of Appeals noted in Patterson, supra, at ¶ 19:
{¶ 27} “[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
{¶ 28} However, we have found a sufficient factual basis for an in-camera inspection by the trial court where the party asserting the privilege has asserted in the record that it has actually examined the materials requested, and did not find them causally or historically related. In Piatt v. Miller, 6th Dist. No. L-09-1202, 2010-Ohio-1363, we recently discussed a similar assignment of error. In Piatt, appellant appealed a trial court order in a personal injury case denying her motion for a protective order and granting appellee’s motion to compel authorizations disclosing privileged medical records from appellant’s date of birth forward, without the court first conducting an in camera inspection of the records to determine whether or not they were causally or historically related to the injuries claimed in the accident. We reversed the trial court because we found that the appellant had asserted to the trial court that she had examined the requested records and did not find them to be related. We found a sufficient factual basis for an in camera examination by the trial court.
{¶ 30} Absent such evidence, we cannot say that the trial court erred in denying appellant‘s request for document inspection or in granting appellee‘s motion to compel. Accordingly, appellant‘s sole assignment of error is not well-taken.
{¶ 31} On consideration whereof, the judgment of the Fulton County Court of Common Pleas is affirmed. This case is remanded to the trial court for further proceedings. It is ordered that appellant pay court costs of this appeal pursuant to
JUDGMENT AFFIRMED.
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
CONCUR.
JUDGE
Keila D. Cosme, J., dissents
{¶ 32} COSME, J. I must respectfully dissent from the majority‘s decision regarding the requirements for obtaining an in camera review upon the party‘s assertion that the BWC administrator‘s request for medical records was not historically and causally related to the workers’ compensation claim or his previous claim. Although
{¶ 33} As I recently noted in my concurrence in Piatt v. Miller, broadly stated, unlimited HIPPA releases do not comply with
{¶ 34} The majority‘s focus is on what information appellant divulged to the trial court in order to assert the privilege. Rather, the focus, in this instance, should be on whether the initial medical record releases for Toledo Hospital and Bay Park Hospital were adequately tailored to solicit only relevant medical records to which the privilege arguably has been waived. They were not, but the record indicates that appellant was, nevertheless, attempting to comply with those requests. In fact, after determining that records from Toledo Hospital were related to the claim, appellant executed a release for that provider.
{¶ 35} Appellant opposed the motion to compel, stating that the releases were overbroad and would include records that were not relevant to appellant‘s claim. In my view, appellant‘s objection and notice to the court that counsel was still reviewing records to determine which were “causally and historically” related was enough to warrant denial of the motion to compel. If the court required a better factual basis, then an in camera inspection should have been conducted to preserve appellant‘s privacy interests.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.