JOHN E. MORAWSKI, ADMINISTRATOR, ET AL., Plаintiffs-Appellees, v. MICHAEL B. DAVIS, ET AL., Defendants-Appellants.
No. 112033
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
June 8, 2023
2023-Ohio-1898
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-20-941420
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 8, 2023
Appearances:
Spangenberg Shibley & Liber LLP, Dennis R. Lansdowne, and Michael P. Lewis, for appellee.
Williams, Moliterno & Scully Co, L.P.A., Kelly Grigsby Jones, and Ian R. Luschin, for appellant.
EMANUELLA D. GROVES, J.:
{¶ 1} This case came to be heard upon the accelerated calendar pursuant to
Procedural History and Factual Background
{¶ 2} Morawski timely initiated wrongful death actions against defendant-appellant, Davis and his parents, Gary Davis and Elizabeth Davis, for claims resulting from the death of their son, Gregory Morawski. On July 4, 2017, Davis intentionally drove his car into oncoming traffic in an attempt to commit suicide. Instead, Davis collided head-on with the car Gregory Morawski was driving, killing Morawski and seriously injuring his fiancee. Davis was charged with murder and pled not guilty by reason of insanity. Davis claimed that he was in the midst of a psychоtic break at the time of the collision and subpoenaed two of his treating physicians to testify at his criminal trial. Davis was subsequently convicted of murder and is currently serving a sentence of 15 years to life, at the Grafton Correctional Institution.
{¶ 3} On December 15, 2020, Morawski refiled the civil action against Davis for wrongful death on behalf of his son‘s estate after a prior voluntary dismissal of his claims on January 2, 2020. The complaint alleges claims of negligence against appellant-defendant Michael Davis, negligent entrustment against Davis’ parents, Gary and Elizabeth Davis, and wrongful death against all defendants.
{¶ 4} On April 8, 2021, the court held a case-management conference and, among other things, ordered all discovery to be completed by October 4, 2021. On June 11, 2021, Morawski served his first set of interrogatories, request for
{¶ 5} Davis did not respond to written discovery within 28 days of service or by the court‘s October 4, 2021 discovery cutoff date. On January 11, 2022, Davis finally informed Morawski that he would not be signing medicаl authorizations. On February 1, 2022, Morawski filed a motion to compel discovery and a motion for a court order to enforce the subpoenas. On the same day, Davis served his responses to the interrogatories, request for admissions, and request for production of documents first served on him in June 2021. Davis also objected to the motion to compel and motion for a court order to enforce subpoenas, arguing that his medical records were irrelevant1 and protected by physician-patient privilege under
Assignment of Error
The trial court erred when it granted Morawskis’ motion to compel, thereby ordering appellant Davis to produce his medical records and or enforce subpoenas to secure the same, which are confidential and privileged under
Revised Code 2317.02(B) . The privilege has never been waived and no exception to the statutory privilege applies.
{¶ 7} Davis argued that all of his medical records were exempted from disclosure as privileged physician-patient records pursuant to
Standard of Review
{¶ 8} Generally, a discovery dispute is reviewed for abuse of discretion. However, whether the information sought in discovery is confidential and privileged is a question of law that is reviewed de novo. Hance v. Cleveland Clinic, 2021-Ohio-1493, 172 N.E.3d 478, ¶ 25 (8th Dist.). When the trial court‘s order will result in the disclosure of confidential patient information, it is treated as a final appealable order. Humphrey v. Riverside Methodist Hosp., 22 Ohio St.3d 94, 97, 488 N.E.2d 877 (1986); Grove v. Northeast Ohio Nephrology Assocs., 164 Ohio App.3d 829, 2005-Ohio-6914, 844 N.E.2d 400, ¶ 9 (9th Dist.); Burnham v. Cleveland Clinic, 151 Ohio St.3d 356, 2016-Ohio-8000, 89 N.E.3d 536, ¶ 24.
Ohio Civ.R. 26 and 45
{¶ 9}
“[w]hen information subject to discovery is withheld on a claim that is privileged or subject to protection as trial preparation material, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.” Huntington Natl. Bank v. Dixon, 8th Dist. Cuyahoga No. 93604, 2010-Ohio-4668, ¶ 20.
{¶ 10} Before the court becomes involved in the discovery process, it is incumbent upon the parties to attempt an informal resolution of any discovery dispute and to follow the civil rules. See
On timely motion, the court from which the subpoena was issued shall quash or modify the subpoena, or order appearance or production only under specified conditions if the subpoena does any of the following:
* * *
(b) Requires disclosure of privileged or otherwise protected matter and no exception or waiver applies;
* * *
(Emphasis added.)
Civ.R. 45 .
Privilege Must Attach Before Application of R.C. 2317.02
{¶ 11} Davis claimed physician-patient privilege with respect to every communication within his mediсal records. Since the physician-patient privilege is not absolute, Davis must demonstrate that privilege attached to the requested records. Privilege attaches to communications between the patient and physician when they are created for the purpose of diagnosis or treatment.
{¶ 12} Prior to the application of
(B)(1) A physician or a dentist concerning a communication made to the physician or dentist by a patient in that relation or the physician‘s or dentist‘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
section 2151.421 of the Revised Code to have waived any testimonial privilege under this division, the physician may be compelled to testify on the same subject.* * *
(5) (a) As used in divisions (B)(1) to (4) of this section, “communication” means acquiring, recording, or transmitting any information, in any manner, concerning any facts, opinions, or statements necessary to enable a physician or dentist to diagnose, treat, prescribe, or act for a patient. A “communication” * * * may include, but is not limited to, any medical or dental, office, or hospital communication such as a record, chart, letter, memorandum, laboratory test and results, x-ray, photograph, financial statement, diagnosis, or prognosis.
R.C. 2317.02 .
{¶ 13} In Hopfer, the court held that “the privilege accorded by
{¶ 14} Morawski argued that privilege did not attach to communications between Davis’ parents and doctors. Davis claims every communication within his medical records is privileged. Statutory privilege must be strictly construed against the party seeking to assert it аnd may be applied only to those circumstances specifically named in the statute. Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, ¶ 15. The Conley Court reasoned that “communications to a physician which were intended to be shared with third parties are not made in the confidentiality of the physician-patient relationship.” State v. Conley, 8th Dist. Cuyahoga No. 69597, 1996 Ohio App. LEXIS 3547, ¶ 16 (Aug. 22, 1996). See Hopfer at 553 (communications within a medical record concerning a mental examination were not privileged when the exam was conducted on behalf of counsel to assist them in representing their client during an amenability hearing). See also Hall at 568. Accordingly, communications contained within medical records between parties other than the physician or dentist and patient; or created for a purpose other than to treat, diagnose, prescribe, or act for the patient are not privileged communications under
Sufficiency of the Record
{¶ 15} In order for a reviewing court to determine whether the physician-patient privilege is attached to communications within a medical record, therе must be sufficient evidence in the record to review the privilege claims. Pietrangelo v. Hudson, 8th Dist. Cuyahoga No. 111805, 2023-Ohio-820, ¶ 22. This record contains
Davis: I am scheduled to meet with my client this week, and hope to have a response to the request for the signed authorization. I will also be working on his responses to discovery after my return to the office.
In addition to multiple emails to Morawski requesting a status on the signed authorizations, on January 6, 2022, Morawski emailed:
Morawski: * * * You‘ve already told me you have no objection to the subpoenas we previously sent and to date you have not objected to those subpoenas. Those prоviders we subpoenaed will not produce records absent authorization. Please send signed authorizations back as soon as possible. Also following up on the overdue discovery responses. Please advise.
{¶ 16} Here, neither the doctors nor Davis ever filed motions to quash, modify, issue a protective order, or conduct an in camera review of the documents
When information subject to a subpoena is withheld on a claim that it is privileged or subject to protectiоn as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.
The burden to show that testimony or documents are confidential or privileged is on the party seeking to exclude the material. Zimpfer v. Roach, 3d Dist. Shelby No. 17-16-03, 2016-Ohio-5176, ¶ 27. Here, we simply do not know what is contained in Davis’ medical records because he fаiled to comply with
{¶ 17} We reject Morawskis’ argument that Davis waived privilege when he made his mental condition an issue in his criminal case. The Ohio Supreme Court held that waiver in one case is limitеd to that case. Hageman v. Southwest Gen. Health Ctr., 119 Ohio St.3d 185, 2008-Ohio-3343, 893 N.E.2d 153, ¶ 17. However, we cannot say whether Davis disclosed unprivileged medical communications contained in his medical records, during his deposition, because the deposition transcript is not part of the record.
Conclusion
{¶ 18} We cannot conclude that privilege attaches to every document within Davis’ medical records because Davis did not include the disputed documents in the record. This record contains no evidence that Davis complied with his duty to provide this court with the information needed to decide his assignment of error.
{¶ 19} Davis’ unjustifiable delay in objecting to Morawskis’ requests for records until after the trial court‘s discovery cutoff date, combined with the procedural history of the claims, and Davis’ failure to comply with
{¶ 20} In closing, we must address the dissent‘s claim that the records requested by Morawski constitute “communications” subject to physician-patient
{¶ 21} Accordingly, we affirm the trial court‘s order granting a motion to compel discovery and enforcement of subpoenas.
It is ordered that appellee recover costs from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EMANUELLA D. GROVES, JUDGE
ANITA LASTER MAYS, A.J., CONCURS;
LISA B. FORBES, J., DISSENTS (WITH SEPARATE OPINION)
LISA B. FORBES, J., DISSENTING:
{¶ 22} I respectfully dissent from the majority‘s opinion and write separately because I believe that the trial court erred by granting Morawski‘s motion for a court order to enforce subpoenas issued to two of Davis‘s doctors seeking Davis‘s “medical
I. The Subpoenas
{¶ 23} “Medical records are generally privileged from disclosure under
{¶ 24} Ohio courts have held that a party asserting the physician-patient privilege must satisfy the following criteria:
- The matter sought to be disclosed constituted a “communication” as defined under
R.C. 2317.02(B)(3) ;
The communication took place between the patient and a doctor * * *; and - The patient has not waived the privilege by express consent or by filing a civil claim. See
R.C. 2317.02(B)(1) .
Calihan v. Fullen, 78 Ohio App.3d 266, 270, 604 N.E.2d 761 (1st Dist.1992). See also Miller v. Bassett, 8th Dist. Cuyahoga No. 86938, 2006-Ohio-3590, ¶ 22 (quoting the Calihan test with approval).
{¶ 25} In the case at hand, Morawski served two subpoenas that, as noted, specifically requested, among other things, Davis‘s “medical records, mental health records, psychiatric records, notes, prescriptions, progress notes, reports or test results.” Morawski acknowledges that the subpoenas were served on two of Davis‘s doctors. Davis describes the medical records Morawski requested as “mental health/medical records from treatment providers predating the subject collision.”
{¶ 26} Under these circumstances, I would find that Morawski specifically requested “cоmmunications” subject to the physician-patient privilege found in
{¶ 27} I would further find that no exception to the privilege, as defined in
{¶ 29} The fact pattern, procedural posture, and party dynamics in the case at hand are quite distinct from typical privilege cases in which the plaintiff puts his or her medical condition at issue by filing the complaint. In that scenario, pursuant to
{¶ 31} Morawski‘s argument that Davis waived the physician-patient privilege is two-fold: 1) Davis waived the privilege in a previous criminal proceeding when he put his mental health at issue by pleading not guilty by reason of insanity; and 2) Davis waived the privilege by virtue of testimony he gave at a deposition2 in the case at hand. I would not find Morawski‘s argument well taken.
{¶ 32} First, I agree with the majority that the Ohio Supreme Court has rejected the invitation to extend waiver of the privilege in one case to a subsequent case involving different parties. In Hageman, 119 Ohio St.3d 185, 2008-Ohio-3343, 893 N.E.2d 153 at ¶ 17, the court stated, “[W]e hold that when the cloak of confidentiality that applies to medical records is waived for the рurposes of litigation, the waiver is limited to that case.”
{¶ 33} Second, Morawski relies on two cases, both of which are inapposite. Morawski cites to Wargo v. Buck, 123 Ohio App.3d 110, 703 N.E.2d 811 (7th Dist.1997), in which the Seventh District Court of Appeals applies the statutory
{¶ 34} In short, Davis‘s medicаl records, as requested by the subpoenas issued in this case, include communications that are privileged under
{¶ 35} I would find that ordering the wholesale production of Davis‘s “medical records, mental health records, psychiatric records, notes, prescriptions, progress notes, reports or test results” was error, particularly without first ordering an in camera inspection and reviewing the documents. Such an inspection would
II. Discovery Requests to Davis
{¶ 36} With respect to the discovery requests propounded to Davis, the only documents at issue in this appeal are those that implicate medical information. As stated earlier, I would find that Morawski did not request Davis’ medical records frоm Davis with the discovery requests at issue in Morawski‘s motion to compel. Furthermore, the record establishes that Davis responded to Morawski‘s discovery requests, and I would find that this aspect of the appeal is moot.
{¶ 37} Accordingly, I would sustain Davis’ sole assignment of error and reverse the trial court‘s journal entry granting Morawski‘s motion for court order to enforce subpoenas. I would find Davis‘s appeal moot to the extent that he is challenging the trial court‘s journal entry granting Morawski‘s motion tо compel Davis‘s discovery responses.