ARCELIA MEDINA v. MEDINA GENERAL HOSPITAL, ET AL.
No. 96171
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 11, 2011
[Cite as Medina v. Medina Gen. Hosp., 2011-Ohio-3990.]
Sweeney, J., Kilbane, A.J., and Jones, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-698231
JUDGMENT: AFFIRMED
ATTORNEYS FOR APPELLANTS
ATTORNEYS FOR APPELLEE
FOR ARCELIA MEDINA
Mitchell A. Weisman, Esq. Weisman, Kennedy & Berris Co. 1600 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115
Jerry Esrig, Esq. Zaideman & Esrig, P.C. 10 S. Riverside Plaza, Suite 1020 Chicago, Illinois 60606
FOR MARIA GRIFFITHS, M.D.
Mark R. Jones, Esq. Roetzel & Andress 1375 East Ninth Street Ninth Floor Cleveland, Ohio 44114
(Continued)
Thomas B. Kilbane, Esq. Reminger Co., L.P.A. 1400 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115-1093
FOR OHIO ANESTHESIOLOGY SERV., ET AL.
Anna M. Carulas, Esq. Ingrid Kinkopf-Zajac, Esq. Roetzel & Andress 1375 East Ninth Street Ninth Floor Cleveland, Ohio 44114
JAMES J. SWEENEY, J.:
{1} Defendant-appellant, Medina General Hospital (the “Hospital“) appeals the trial court‘s order that granted plaintiff-appellee‘s, Arcelia Medina (“Medina“) motion to compel the Hospital to answer certain discovery and denied the Hospital‘s motion for protective order. This matter is before us on appeal presenting the sole issue of whether the trial court‘s order involves the disclosure of privileged information contrary to the law. For the reasons that follow, we affirm.
{2} This is a wrongful death action wherein Medina has asserted causes of action against various defendants including allegations of medical malpractice and negligence. During the course of discovery, Medina requested the Hospital to answer the following interrogatories:
{3} “3. For the period January 1, 2007 through October 9, 2009, state the number of times Lana Mitchell signed an Anesthesia Record for a surgical procedure for which she was the sole anesthesia provider present during the surgery and for which general anesthesia was given to the patient and list the date of each such procedure.”
{4} “4. For each procedure included in your answer to Interrogatory No. 3 above, state whether Lana Mitchell charted any numerical values for the patient‘s end tidal CO2.”
{5} The trial court ordered the Hospital to answer the interrogatories, however, limited the time frame to the “period of nine months immediately preceding Victor Medina‘s surgery.” The trial court reasoned that the responsive discovery, i.e., “the number of times defendant Lana Mitchell charted end-tidal CO2 and the intervals at which she did so, does not involve the disclosure of confidential or privileged information.” The Hospital has appealed asserting the following error for our review:
{6} “The trial court erred in granting Plaintiff-Appellee‘s Motion to Compel which required Defendant-Appellant Medina General Hospital to disclose medical information which may only be derived from confidential patient medical records that are statutorily protected pursuant to the statutory physician-patient privilege contained in
{7} The subject order constitutes a final, appealable order only to the extent that the Hospital is asserting that it calls for the disclosure of a privileged matter.
{8}
{9} The burden of showing that testimony or documents are confidential or privileged rests upon the party seeking to exclude it. Lemley v. Kaiser (1983), 6 Ohio St.3d 258, 263-264, 452 N.E.2d 1304. The decision whether to grant or deny the protective order is within the trial court‘s discretion, and will not be reversed absent an abuse of that discretion. Ruwe v. Bd. of Springfield Twp. Trustees (1987), 29 Ohio St.3d 59, 61, 505 N.E.2d 957. However, we review matters involving the discovery of alleged confidential and privileged information de novo. Roe v. Planned Parenthood S.W. Ohio Region, 122 Ohio St.3d 399, 2009-Ohio-2973, 912 N.E.2d 61, ¶ 29.
{10} The Hospital contends that the trial court‘s order violates the physician patient privilege codified in
{11} “The purpose of [the physician-patient] privilege is to encourage patients to make a full disclosure of their symptoms and conditions to their physicians without fear that such matters will later become public * * *.” State v. Antill (1964), 176 Ohio St. 61, 64-65, 197 N.E.2d 548. It is the Hospital‘s position that deriving any information from medical records pertaining to non-parties violates the physician-patient privilege and the Hospital relies heavily upon the Ohio Supreme Court‘s decision in Roe.
{12} The discovery sought in this case, however, is distinguishable from Roe. There, the plaintiff was seeking the production of “any reports of abuse made pursuant to
{13} In a later case that distinguished Roe, the Ohio Supreme Court stated, “[w]e have never held that the physician-patient privilege provides an absolute protection against the disclosure of medical information.” Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, ¶ 29 (emphasis added). The codified privilege at issue protects “communications,” as defined in
{14} In this case Medina seeks the identification of defendant Mitchell‘s conduct and does not seek the disclosure of nonparty patient‘s confidential medical records. Roe does not preclude discovery of Hospital procedures or its employee‘s or contractor‘s practices simply because the non-privileged information is extracted from confidential records. Medina is not seeking the disclosure of any nonparty medical records themselves, which Medina agrees is privileged from disclosure. Medina instead
{15} Based on the foregoing, we find that the trial court‘s order does not require the disclosure of non-party patients confidential medical records and does not violate
{16} For the same reasons, we conclude that the discovery order does not involve the disclosure of any PHI as defined by HIPAA. It is well-settled that Ohio law is more restrictive in regards to the disclosure of privileged information than HIPAA. “The HIPAA privacy regulation, found in Section 164.512, Title 45, C.F.R. allows disclosure of protected health information in the course of any judicial or administrative proceeding in response to a court order. HIPAA also allows for discovery of privileged health information by subpoena, discovery request, or by other lawful processes if the covered entity receives adequate assurances that the individual who is the subject of the health information has been given notice of the request or that reasonable efforts have been
Judgment affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
MARY EILEEN KILBANE, A.J., and LARRY A. JONES, J., CONCUR