Lead Opinion
I
{¶ 1} The physician-patient privilege generally protects medical records from disclosure, subject to certain limited exceptions. This case asks us to determine whether the privilege prevents discovery of medical records by an insurance company in a civil fraud action against a physician when the patients have given broad consent to release their records to their insurer. We hold that a patient’s consent to the release of medical information is valid, and waives the physician-patient privilege, if the release is voluntary, express, and reasonably specific in identifying to whom the information is to be delivered.
II
{¶ 2} Defendant-appellee, Dr. William Schlotterer, is a practicing physician. Plaintiff-appellant, Medical Mutual of Ohio, provides insurance coverage to many of Schlotterer’s patients. In 1990, Schlotterer and Blue Cross Blue Shield of Ohio, Medical Mutual’s predecessor in interest, executed a participation agreement, which provides coverage for policyholders who receive treatment from Schlotterer. To document the services Schlotterer provides his patients, Schlot
{¶ 3} Medical Mutual’s complaint in this action explains that as part of the reports Schlotterer provides to Medical Mutual, he assigns AMA-developed common-procedural-technology codes to each patient visit, based on Schlotterer’s assessment of the patient’s condition, including the extent of the examination, the comprehensiveness of the medical history taken, and the complexity of the diagnosis and treatment. Those codes are detailed in the provider manual, which is incorporated into the participation agreement. Schlotterer is correspondingly compensated by Medical Mutual based on the codes he assigns. Medical Mutual notes that the code warranting the highest reimbursement, to be used “rarely” and “only where the provider faces significant and complex medical decisions,” is 99215.
{¶ 4} Medical Mutual’s review of Schlotterer’s billing reports in 2004 revealed a high percentage of 99215 code submissions. Medical Mutual then requested medical records for ten families, which Schlotterer provided. The insurer reviewed the records and determined that the 99215 billing code was not warranted in those cases. A subsequent investigation into Schlotterer’s coding practices allegedly revealed that Schlotterer had been overpaid by $269,576 for 99215 code submissions.
{¶ 5} Medical Mutual filed this action against Schlotterer for fraud, breach of contract, and a demand for an accounting of the doctor’s liabilities to it. Schlotterer denied the allegations in the complaint and filed a counterclaim, alleging that Medical Mutual had refused to honor any submissions for reimbursement since February 2005. To determine the extent of the alleged fraud, Medical Mutual filed a motion “for a Qualified Protective Order and order [directing Schlotterer] to respond to discovery” of patient records. These records were to have obscured the information that identified the patients. Medical Mutual argued that the records were discoverable according to Ohio law, the participation agreement, and the certificates of coverage issued to insureds. Schlotterer opposed the motion based on the physician-patient privilege.
{¶ 6} The certificates of coverage issued to each of Schlotterer’s patients insured by Medical Mutual include the following language in the Claim Review section:
{¶ 7} “Consent to Release Medical Information — Denial of Coverage
{¶ 8} ‘You consent to the release of medical information to Medical Mutual when you enroll and/or sign an Application.
{¶ 9} “When you present your identification card for Covered Services, you are also giving your consent to release medical information to Medical Mutual.
{¶ 10} The participation agreement signed by Schlotterer similarly contains the following provision in the Record Review section:
{¶ 11} “Provider agrees to furnish, upon request, to [Medical Mutual] or its agents all requested Records relating to claims filed with [Medical Mutual], as defined in [Medical Mutual’s] Professional Provider Manual.”
{¶ 12} The trial court granted Medical Mutual’s motion, ordering Schlotterer to respond to the discovery requests subject to the protective order. Schlotterer appealed pursuant to R.C. 2505.02(A)(3) and (B)(4), and the court of appeals vacated and remanded the trial court’s decision. Med. Mut. of Ohio v. Schlotterer, Cuyahoga App. No. 89388,
Ill
{¶ 13} We apply a de novo standard of review in this case. In general, discovery orders are reviewed under an abuse-of-discretion standard. State ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children & Family Servs.,
{¶ 14} Medical records are generally privileged from disclosure under R.C. 2317.02(B)(1). See Hageman v. Southwest Gen. Health Ctr.,
{¶ 15} The physician-patient privilege is designed to “ ‘promote health by encouraging a patient to fully and freely disclose all relevant information which may assist the physician in treating the patient.’ ” State Med. Bd. of Ohio v. Miller (1989),
{¶ 16} A consent to the release of medical information is valid, and waives the physician-patient privilege, if it is voluntary, express, and reasonably specific in identifying to whom the information is to be delivered. Generally “[pjersons may either expressly or impliedly waive statutory provisions intended for their own benefit.” State ex rel. Wallace v. State Med. Bd. of Ohio (2000),
{¶ 17} In Biddle v. Warren Gen. Hosp. (1999),
{¶ 18} We also held in Biddle that the form provided inadequate consent because it explicitly stated a purpose for releasing the information, namely completion of hospitalization claims, that was inconsistent with the hospital’s disclosure to the law firm to determine Supplemental Security Income eligibility.
IV
{¶ 19} The consent provisions in the certificates of coverage provided to all Medical Mutual insureds that were patients of Schlotterer meet the necessary requirements for disclosure. First, there is no contention that the releases were involuntary. Second, they qualify as express consent, given the sentence: “You consent to the release of medical information to Medical Mutual when you enroll and/or sign an Application.” And third, the provisions are reasonably specific in identifying to whom the release is made: i.e., Medical Mutual.
{¶ 20} Nor would discovery of the medical records at issue be inconsistent with any stated purpose in the consent provisions. The releases here are broader than those in Biddle,
{¶ 21} Schlotterer also points to the heading above the consent section in the certificates of coverage, Claim Review. We decline, however, to give significant weight to it. Medical Mutual’s purpose for obtaining these records falls within the category of claim review. The insurer is seeking to review prior coverage claims to investigate whether Schlotterer received proper reimbursement.
{¶22} Schlotterer further contends that disclosing medical records in the context of this litigation would entail releasing the records to Medical Mutual’s attorneys, who fall outside the specific language of the consent. This argument also fails. The disclosure of the medical information to the law firm in Biddle fell outside the release because it authorized the hospital to release records to the patient’s insurance company or a third-party payor only. Id.,
y
{¶ 23} Because Schlotterer’s patients that are insured by Medical Mutual validly consented to release their medical information to Medical Mutual, we hold that the consent exception to the physician-patient privilege in R.C. 2317.02(B)(1) applies. Medical Mutual is therefore entitled to discovery of the medical records in this action. We do stress, however, that Civ.R. 26(C) still applies to discovery that is excepted from privilege protection. Trial courts may use protective orders to prevent confidential information, such as that contained in the medical records at issue, from being unnecessarily revealed. Whether a protective order is necessary remains a determination within the sound discretion of the trial court. See State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register,
Judgment reversed and cause remanded.
Concurrence Opinion
concurring in part and dissenting in part.
{¶ 24} The insureds in this case did not consent to release medical information to enable Medical Mutual to pursue a lawsuit against a doctor; they consented to release medical information to enable Medical Mutual to determine whether specific insurance claims should be paid. The insureds in this case upheld their end of the bargain: their medical information was available to the insurance
{¶ 25} Nevertheless, the information sought by Medical Mutual should be available to it to pursue a claim against Dr. Schlotterer for fraud. I would adopt a new exception to the physician-patient privilege — one suggested by amici curiae Ohio State Medical Association and American Medical Association. As they say, “the exception should be narrowly defined and applied only after a demonstrated compelling need for the information sought.” They argue that an exception to the physician-patient privilege should be allowed only “where the insurer (1) has made a prima facie showing of fraud that could not have been discovered, with the exercise of due diligence, within the two-year period after payment was made to the provider as set forth in R.C. 3901.388 [addressing recovery of insurance-company overpayments to medical professionals], and (2) has demonstrated that consent of the nonparty patients cannot be obtained.” Adopting this exception would allow insurance companies to pursue claims against allegedly fraudulent doctors without eroding the physician-patient privilege. The result that the majority opinion reaches is laudable because its effect is to allow an insurance company to combat fraud, but the means used are too general and too likely to result in further litigation to determine the bounds of the general exception.
{¶ 26} I would remand to the trial court to apply this new exception to the physician-patient privilege. I dissent.