[Cite as Harvey v. Cincinnati Ins. Co., 2017-Ohio-9226.] CAROLYN HARVEY, et al. v. THE CINCINNATI INSURANCE COMPANY, et al.
Appellate Case No. 27470
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
Rendered on the 22nd day of December, 2017.
Trial Court Case No. 15-CV-5655 15-CV-5712 (Civil Appeal from Common Pleas Court)
HALL, P.J.
PAUL RODERER, Atty. Reg. No. 0019707, 4 E. Schantz Avenue, Dayton, Ohio 45409 Attorney for Plaintiff-Appellee Barbara Petersen
NICHOLAS SUBASHI, Atty. Reg. No. 0033953 and ANNE KEETON, Atty. Reg. 0076811, The Greene Towne Center, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440 Attorney for Defendant-Appellant Donald Hartman
OPINION
I. Background
{¶ 2} In June 2014, around 7:40 p.m., Donald Hartman was driving south on Main Street, in downtown Dayton. He stopped for a red light at the mid-block crosswalk between First and Second Streets, near the Schuster Performing Arts Center. It was raining, and the wind was blowing. When the light turned green, Hartman entered the crosswalk. Suddenly, he saw two pedestrians on his left. Hartman hit the brakes, but it was too late. His car had hit Carolyn Harvey and Barbara Petersen. Each woman filed a personal-injury suit against Hartman, claiming negligence. The cases were later consolidated.
{¶ 3} Hartman was deposed by counsel for Harvey in September 2016. A couple of months before the deposition, Hartman had had eye surgery to remove cataracts. During the deposition, counsel asked Hartman about his eyesight and medical history. Hartman‘s attorney instructed him not to answer some of the questions. Later, at an in-chambers conference in February 2017, Harvey‘s counsel raised the issue of Hartman‘s eyesight and orally moved for an order requiring Hartman to sign authorizations allowing counsel to obtain his medical records related to his vision. The trial court sustained the motion and ordered Hartman to sign medical-release authorizations allowing Harvey‘s
{¶ 4} Hartman appealed.
II. Analysis
{¶ 5} The sole assignment of error alleges that the trial court erred by ordering Hartman to sign the medical-release authorizations and erred by permitting further inquiry into his eyesight.
{¶ 6} While as a general matter discovery orders are not final and appealable, a proceeding for “discovery of privileged matter” is a “provisional remedy,”
{¶ 7} “Ordinarily, a discovery dispute is reviewed under an abuse-of-discretion standard.” (Citation omitted.) Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, ¶ 13. But “if the discovery issue involves an alleged privilege, as in this case, it is a question of law that must be reviewed de novo.” (Citation omitted.) Ward at ¶ 13.
{¶ 8}
{¶ 9} The disputed discovery order here (Doc. 65, 15-CV-5712) states, in full:
On September 8, 2016, Plaintiff‘s Counsel took the deposition of Defendant Donald Hartman. During the deposition, Plaintiff‘s counsel certified three questions regarding Defendant Hartman‘s medical history as it pertains to his eyesight. Defendant‘s counsel instructed the witness not to answer those questions or any other questions regarding his medical history.
In chambers on February 3, 2017, Plaintiff‘s counsel made an oral motion for a ruling on the certified questions and further requested access to Defendant Hartman‘s medical records concerning his eyesight. Upon due consideration and after arguments of counsel, the Court hereby ORDERS the following: 1) Defendant Hartman sign medical release authorizations allowing Plaintiff‘s counsel to acquire his medical records for diagnosis and treatment of his eyesight for the period encompassing July 18, 2013 to present. 2) If necessary, Plaintiff‘s counsel is allowed to inquire further regarding Defendant‘s eyesight after receipt of the subject records.
{¶ 10} We conclude that the release order is overbroad. The medical-release authorization referred to in the order is not in the record. But it seems likely that at least some of the medical records covered by the order are protected under
{¶ 11} As to the order allowing further questioning about Hartman‘s eyesight, the Ohio Supreme Court held in Ward v. Summa Health System that ”
{¶ 12} The sole assignment of error is sustained.
III. Conclusion
{¶ 13} The trial court‘s order is vacated, and this case is remanded for further proceedings. On remand, the trial court may compel Hartman to authorize the release only of non-privileged information or records. And if the court permits further questioning about Hartman‘s eyesight, it should be limited so that it does not allow inquiry into communications from, or records of, a provider to whom the privilege applies.
Copies mailed to:
Jeffrey Snead
Paul Roderer
Nicholas Subashi
Anne Keeton
Lance Oliver
Brian McHenry
Hon. Timothy N. O‘Connell