*1
adopt
would
reasoning
the Second District
Appeals
Court of
Ratliff,
202,
(2d
State v.
App.3d
O’Connor, concurs the foregoing opinion. Timothy McGinty, Cuyahoga County Prosecuting Attorney, and Kristen L. Sobieski, Assistant Prosecuting Attorney, for appellee. Co., L.P.A.,
John P. Hildebrand Sr., and John P. Hildebrand for appellant. Leopold Hauling Rigging al., Appellees, et v. &
Company Appellant. al., Appellees; Laurence, et [Cite as v. Ace
Co., 136 Ohio
257,
{¶ 1} for a denying request court her of the trial affirming a decision Appeals Stillwagon and Ace seeking prohibit Stephen protective order room emergency made to statements she Company using against Stillwagon prior in a lawsuit she produced that she had personnel held that court appellate out of the same accident. arising and Ace Doran injury action privilege by filing personal physician-patient waived the Laurence denied correctly therefore the trial court recovery injuries for her seeking for a order. request protective circumstance, the waiver issue to resolve In this we need not reach at least privilege, establishing Pursuant to the statute case. Laurence by that the statements made specify separate provisions two reasons, affirm the judgment these we privileged. no For longer appellate court. History and Procedural
Facts 2008, occurred on Interstate 90 6, a multivehicle accident March On a tractor-trailer driven Cleveland, involved were Among the vehicles Ohio. cars, one driven for Ace Doran and two Stillwagon transporting goods Stephen personnel Leopold. Emergency Todd Laurence and one driven for treatment as a result of Medical Center Laurence to MetroHealth transported had hit a time, room that she emergency personnel At that she told the accident. pushed hit a semi and into from behind car in front of her and then concrete wall. Doran, seeking and Ace Stillwagon Laurence sued In November discovery, In she in the accident. injuries she suffered
recovery
personal
records,
deposed
which
used
produced
they
defense counsel
her; after that
her case.
deposition,
voluntarily
she
dismissed
wife,
Linda,
October
Todd
and his
sued
Ace
Stillwagon,
Doran, and
Brokerage
seeking
sus-
Company,
recovery
tained
the same
They
brokerage
accident.
dismissed
company
Laurence,
their
add
complaint
asserting
amended
that her
had
negligence
against
caused
accident. Laurence then
Stillwagon
cross-claimed
indemnification,
Doran for contribution
claiming
caused
Stillwagon had
Stillwagon
the collision.
and Ace Doran
her for
against
thereafter cross-claimed
contribution,
indemnification or
contending that she had caused
accident.
29, 2011,
On April
protective order,
Laurence
seeking
moved for a
preclude counsel from
the medical
she
using
produced
her 2008
*3
She
physician-patient
lawsuit.
claimed that the
medical
privilege protected her
prior
records
disclosure and that her
the
to
privilege applied only
waiver of
motion,
her 2008 lawsuit. The court denied her
she appealed.
The appellate
denial,
court affirmed the
that
concluding
“Laurence’s decision to file a claim of
Doran],
personal injury against [Stillwagon and
which
was based
upon
same accident that
the basis
underlies
for the claims and defenses
posed
herein,
parties
served to waive her
with
to that
physician-patient privilege
respect
¶
2371.02(B).”
same accident. Analysis
Law and provides: R.C. 2317.02 respects: in certain shall not following persons * * * *4 * * * (B)(1) made concerning communication A physician * * * * * * physician’s in that relation or the aby patient
physician division, division provided as otherwise except to a patient, advice that, (B)(3) section, if the is except patient (B)(2), of this and division any to have waived of the Revised Code section 2151.421 by deemed division, may compelled be physician this privilege under testimonial subject. on the same added.) (Emphasis exception created legislatively At in this case is 12}
{¶ R.C. 2317.02(B)(1)(a)(iii), further restricted which is in contained R.C. 2317.02(B)(3)(a). 2317.02(B)(1)(a)(iii)provides: The testimonial privilege established under this division apply, does not * * *
and a physician may testify may in compelled testify, any be of following circumstances: * * *
(a) action, In any civil or in connection with a claim under Code, 4123. of the Revised under circum- following stances:
% * * * * * (iii) If a medical claim any other type [or] or a claim under Chapter 4123. of the Revised Code is patient filed added.) (Emphasis exception This type all-inclusive as to the action that be patient and does not contain any exclusion for or limitation of
indemnification or contribution claims. Laurence filed a in civil action instant litigation for indemnification or against Stillwagon —one contribution — Hence, and Ace Doran. cross-claim, because Laurence filed a the elements of the 2317.02(B)(1)(a)(iii) in exception contained R.C. satisfied, with the result that the testimonial privilege does not and a physician may testify may compelled to testify to the communications. The limitation at 2317.02(B)(3)(a): issue is contained R.C. (B)(1) testimonial privilege described in division this section
If (B)(1)(a) (iii) does not apply provided as section, division * * * physician may be compelled to testify or to discovery submit under the Rules of Civil Procedure as ato communication made to * * * physician by the question relation, in that or the * * * physician’s advice to question, that related causally or historically to physical or mental that are relevant to issues in * * * other civil action. added.) (Emphasis This subsection applies because the
{¶ elements are 16} satisfied the facts demonstrated this case. original statement made by Laurence to emergency room personnel in the ease she filed and later voluntarily dismissed *5 causally relates historically injuries and to that are relevant to issues cross-claim because that statement is her own version of how the accident occurred. Since the statute provides that a physician may testify or compelled be to testify to communications that relate causally historically or to physical or is not civil her statement in the other to issues injuries relevant mental privilege. 2317.02(B)(3)(a) to compelled physician Thus, to R.C. pursuant made to a communication discovery only as or submit to injuries mental relevant physical or causally historically or that related and causally both statement related other civil action. Laurence’s issues in the injuries consequently the accident occurred historically to how Thus, privilege it. does as a result of that could be awarded damages apply.
Conclusion 2317.02(B)(1) testimonial the physician-patient establishes R.C. a communication made to the testifying about physician prohibits out Assembly exceptions has carved by a The General physician patient. instances, or be to do may testify compelled and a physician in certain action or claim under R.C. action if any type so described R.C. patient. is filed When 2317.02(B)(1) 2317.02(B)(1)(a)(iii), physician provided as apply does to a communication that related to do so may testify compelled or be other civil mental relevant historically physical causally action. appeals. affirm of the court of Accordingly, judgment we affirmed.
Judgment Kennedy JJ., O’Connor, concur. French, JJ., dissent. Lanzinger, Pfeifer, O’Neill, J., dissenting.
Lanzinger,
of the court of
judgment
and would reverse the
respectfully dissent
Ctr.,
v.
Health
119 Ohio St.3d
Hageman
I would
Southwest Gen.
appeals.
263 that attorney party held be liable to an for the unauthorized opposing “[a]n of party’s litiga- disclosure that medical information that was obtained through Id. at syllabus. tion.” The in a attorney, represented custody who the wife divorce and 22}
{¶ pursu- obtained husband’s medical from his proceeding, psychiatrist the records Later, copy ant to waiver. the of those gave in prosecutor Writing for use a criminal the husband. for a proceeding against court, of the plurality Moyer Chief Justice first set forth the basic of policy in confidentiality Hosp., established Biddle v. Warren 86 Ohio Gen. (1999). observed,
N.E.2d 518 “If right confidentiality He the is to mean an anything, individual be able to own must direct the disclosure of his or her ¶ private rejecting information.” at 13. In the expansive same waiver for medical appellees records that the now urge Moyer Chief Justice that “there is a legal justification stated neither for nor a practical benefit that a proposition specific, waiver for limited is a purpose waiver for another ¶at purpose.” explained Id. 14. He that an “[cjreating expansive waiver would be inconsistent with generally in recognized confidentiality provisions Ohio ¶ and federal law.” Id. at Although 15. the husband admitted that he had made in his health issue the divorce action by filing custody a cross-claim of seeking child, minor his waiver medical was limited to that case and not effective in the second. majority opinion the instant case does take a on position application Hageman, although it parties’ sets forth the arguments with respect earlier case. believe reasoning expressed Hageman apply should here as well for the protection of the confidentiality of medical records. Laurence originally waived her in a separate action that was eventually dismissed. She did file this ease. second She a cross- claim for indemnification. The filing of a in an indemnification cross-claim “any 24} action is not other
{¶ type of action” provides that an exception to the physician-patient privilege 2317.02(B)(l)(a)(iii). within the meaning context, of R.C. When read that section relates to claims which the has placed condition at and states that the testimonial privilege will not if: claim, claim,
a medical claim, dental chiropractic claim, or optometric Code, defined in section 2305.113 the Revised an action for wrongful death, other or a claim under 4123. Revised Code is filed the patient, personal representative deceased, estate if guardian patient’s legal other representative. all split, on the ultimate issue was although vote Hageman, had his physician-patient the husband waived
justices agreed ¶ 14 at id. at his condition issue. See placed a counterclaim that he filed JJ.); J., concurring joined Lanzinger, (Cupp, Pfeifer and (Moyer, *7 J.); (O’Donnell, J., O’Connor, and judgment only, joined syllabus Stratton, J.). seen properly That counterclaim is joined by Lundberg dissenting, I now of the statute. But type meaning of civil action” within the as an “other meant to “any other action” was disagree phrase respectfully claim, claim such as the cross-claim every type particularly extend merely personal injury not or other health issue but which does relate to or contribution. to indemnification condition is at issue. Her medical records Laurence’s medical 2317.02(B)(1), in this pending and the waived order, and on these dissent. protective grounds, is entitled to a
lawsuit. She JJ., in the foregoing opinion. concur O’Neill, Pfeifer Marshall, Weaver, L. L.L.P., Philip appellees J. for Todd Smith Leopold. and Linda Robinson, Ltd.,
Ritter, James, George; and Shannon McCready & Goldstein, Co., L.P.A., appellant. Bruce Bruce Goldstein S. S. Co., Sullivan, Abbarno, L.P.A., Brian D. Kenneth P. and Martin
Reminger Galvin, appellees Stillwagon, L. Stephen T. Brokerage and Ace Doran
Company, Company. Compensation Unemployment Bernard, Appellant, v. Review Barry Commission; and Patricia Educational Wakeman Appellees. al., et
Foundation
Comp.
Unemp.
Comm.,
Rev.
Bernard v.
[Cite 264,