OhioHealth Corp. v. RyanOhioHealth Corp. v. Ryan
OhioHealth Corporation, :
Plaintiff-Appellee, :
v. :
James M. Ryan, Jr., :
Defendant-Appellant. :
D E C I S I O N
Rendered on January 10, 2012
Weltman, Weinberg & Reis Co., L.P.A., and Matthew G. Burg, for appellee.
James M. Ryan, Jr., pro se.
APPEAL from the Franklin County Municipal Court
CONNOR, J.
{¶1} Defendant-appellant, James M. Ryan, Jr. (“appellant“), appeals from two judgments entered in the Franklin County Municipal Court. One of those judgments granted summary judgment in favor of plaintiff-appellee, OhioHealth Corporation (“OhioHealth“), on its claim upon an account. The other judgment granted OhioHealth‘s motion to dismiss appellant‘s counterclaim, which alleged OhioHealth created false identifiable health information and disclosed that protected health information to a third party, thereby damaging appellant. For the reasons that follow, we affirm the judgments of the trial court.
{¶3} On February 16, 2010, OhioHealth filed a motion to dismiss appellant‘s counterclaim, pursuant to
{¶4} Appellant opposed OhioHealth‘s motion to dismiss, citing to Biddle v. Warren Gen. Hosp., 86 Ohio St.3d 395, 1999-Ohio-115, and arguing that an independent tort does exist for the unauthorized, unprivileged disclosure to a third party of nonpublic
{¶5} On May 19, 2010, the trial court granted OhioHealth‘s motion to dismiss, finding that, although Ohio law does provide a cause of action for the release of medical information to unauthorized, unprivileged third parties, the disclosure here was in fact privileged. Because HIPAA allows for the release of medical information for payment, the trial court concluded the counterclaim failed to state a claim upon which relief could be granted and therefore granted OhioHealth‘s motion to dismiss.
{¶6} On June 3, 2010, appellant filed a notice of appeal in this court from the judgment entry ruling on the motion to dismiss. However, we subsequently dismissed the appeal for lack of a final appealable order on June 21, 2010.
{¶7} On June 7, 2010, OhioHealth requested leave to file a motion for summary judgment. The request for leave was granted and OhioHealth immediately filed its summary judgment motion, arguing appellant was indebted to OhioHealth for reasonable and necessary medical goods and services and failed to provide reimbursement. OhioHealth attached the affidavit of Kimberly Fox in support of its assertions. OhioHealth further argued appellant cannot meet his reciprocal burden, pursuant to
{¶9} On September 2, 2010, the trial court issued a judgment entry finding there were no genuine issues of material fact remaining for trial, and therefore, summary judgment was granted in favor of OhioHealth. Appellant has now filed a timely appeal from this entry, as well as the May 19, 2010 entry dismissing his counterclaim. Appellant asserts two assignments of error for our review:
FIRST ASSIGNMENT OF ERROR
The trial court erred in granting Plaintiff-Appellee, OhioHealth Corporation‘s Motion To Dismiss Defendant-Appellant Counterclaimant, James M. Ryan‘s Counterclaim.
SECOND ASSIGNMENT OF ERROR
The trial court erred in granting Plaintiff-Appellee, OhioHealth Corporation‘s Motion For Summary Judgment which granted judgment against James M. Ryan in the amount of $1,337.0[7] plus interest at the rate of 4% and costs. The trial court lacked jurisdiction to hear Plaintiff-Appellee, OhioHealth
{¶10} In his first assignment of error, appellant argues the trial court erred in dismissing his counterclaim, pursuant to
{¶11} “A motion to dismiss for failure to state a claim upon which relief can be granted tests the sufficiency of the complaint.” Volbers-Klarich v. Middletown Mgt., 125 Ohio St.3d 494, 2010-Ohio-2057, ¶11. The movant may not rely on allegations or evidence outside the complaint. Id. In reviewing whether a motion to dismiss should be granted, we must accept all factual allegations in the complaint as true. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192. In order to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt that plaintiff can prove no set of facts entitling him to relief. O‘Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, syllabus. A judgment granting a
{¶12} Appellant argues the trial court erred in dismissing his counterclaim because under Ohio law, an individual tort exists for the unauthorized, unprivileged disclosure to a third party of nonpublic information that a physician or hospital has learned within a physician-patient relationship. Appellant cites to Biddle in support of his position.
{¶13} OhioHealth, on the other hand, argues the trial court properly dismissed the counterclaim on the grounds that appellant failed to state a claim upon which relief could be granted because: (1) HIPAA protected OhioHealth‘s disclosure of the account and thus the information cannot be deemed an “unauthorized, unprivileged disclosure” under Biddle (which OhioHealth argues has limited application and is inapplicable anyway); and (2) no private cause of action exists under HIPAA, which is the preemptive authority here.
{¶14} In general, HIPAA governs the confidentiality of medical records and regulates how “covered entities” can use or disclose “individually identifiable health (medical) information (in whatever form) concerning an individual.” Stigall v. Univ. of Ky. Hosp. (Nov. 6, 2009), E.D.Ky. No. 5:09-CV-00224-KSF. HIPAA has established special rules governing the disclosure of individually identifiable health information. LL NJ, Inc. v. NBC-Subsidiary (WCAU-TV), L.P. (E.D.Mich.2008), 36 Media L. Rep. 1746. The relevant provisions, which make up the “privacy rule,” were promulgated by the Department of Health and Human Services and are found in
{¶16} Second, state laws which are contrary to HIPAA requirements are generally superceded by the federal requirements, unless they meet an exception. See
{¶17} Here, however, we are aware of no applicable exceptions to preemption, and because HIPAA is applicable to these circumstances, HIPAA is the governing authority. See Lumley v. Marc Glassman, Inc., 11th Dist. No. 2007-P-0082, 2009-Ohio-540, ¶89 (“The purpose of the [HIPAA] is to prevent the disclosure of protected health information by health care providers, except under certain exemptions as required by
{¶18} Significantly, HIPAA does not allow a private cause of action, according to Ohio law. See Henry v. Ohio Victims of Crime Compensation Program (Feb. 28, 2007), S.D.Ohio No. 2:07-cv-0052 (“Congress neither expressly nor impliedly provided for any private rights of action to enforce HIPAA.“); Shepherd v. Sheldon (July 21, 2011), N.D.Ohio No. 1:11 CV 127 (plaintiffs apparently conceded HIPAA did not create a private cause of action); Siegler v. Ohio State Univ. (May 23, 2011), S.D.Ohio No. 2:11-cv-170, citing to
{¶19} In addition, other district courts within the Sixth Circuit have also found no private right of action for alleged violations of HIPAA. See Murry v. Mich. Dept. of Corr., (Jan. 11, 2008), E.D.Mich. No. 07-14126, (although HIPAA includes civil and criminal penalties for improper disclosures of medical information, the regulations limit enforcement to the Secretary of Health and Human Services); Smith v. Smith (Aug. 13, 2007), E.D.Ky. No. 07-CV-242-JBC (no private right of action can be implied in favor of a private citizen to enforce the HIPAA regulations). See also Doe v. Bd. of Trustees of the Univ. of Ill. (N.D.Ill. 2006), 429 F.Supp.2d 930, 944 (every court to have considered the
{¶20} Consequently, even if a cause of action did exist under HIPAA, appellant himself is without the authority to bring it to court.
{¶21} Based upon the foregoing, we find the trial court properly dismissed appellant‘s counterclaim for failure to state a claim upon which relief can be granted, and we overrule appellant‘s first assignment of error.
{¶22} In his second assignment of error, appellant argues the trial court erred in granting summary judgment in favor of OhioHealth and in awarding judgment against appellant in the amount of $1,337.07, plus interest and costs. Appellant contends genuine issues of material fact remain because OhioHealth failed to provide adequate evidence to support its claim.
{¶23} Appellate review of summary judgment motions is de novo. Helton v. Scioto Cty. Bd. Of Commrs. (1997), 123 Ohio App.3d 158, 162. “When reviewing a trial court‘s ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.” Mergenthal v. Star Bank Corp. (1997), 122 Ohio App.3d 100, 103. We must affirm the trial court‘s judgment if any of the grounds raised by the movant at the trial court are found to support it, even if the
{¶24} Summary judgment is proper only when the party moving for summary judgment demonstrates that: (1) no genuine issue of material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in that party‘s favor.
{¶25} When seeking summary judgment on the ground that the nonmoving party cannot prove its case, the moving party bares the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on an essential element of the nonmoving party‘s claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. A moving party does not discharge this initial burden under
{¶27} OhioHealth, on the other hand, argues summary judgment was proper because OhioHealth presented evidence demonstrating a balance due on the account for services and appellant failed to establish the existence of a genuine issue of material fact.
{¶28} We find OhioHealth met its
{¶29} OhioHealth produced the affidavit of Ms. Fox, within which Ms. Fox averred she is the authorized keeper of records. Ms. Fox averred she is familiar with the operation of the business and with the circumstances of the records’ preparation, maintenance, and retrieval. She further averred appellant owes $1,337.07 on an account for reasonable and necessary medical services and that no credits or unapplied payments were outstanding. Attached to Ms. Fox‘s affidavit is the account statement
{¶30} Summary judgment is fundamentally governed by
{¶31} Appellant submits that because the affidavit at issue does not specifically state the information provided is based upon “personal knowledge,” the affidavit is insufficient. We disagree.
{¶32} “Personal knowledge” is “knowledge gained through firsthand observation or experience, as distinguished from a belief based on what someone else has said.” Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶26, quoting Black‘s Law Dictionary (7th ed.Rev.1999) 875; see also Starinchak v. Sapp, 10th Dist. No. 04AP-484 2005-Ohio-2715, ¶28. We find the affidavit here is sufficient to establish personal knowledge, despite its failure to use the “magic words,” as reasonable inferences can be drawn to infer personal knowledge under these circumstances. See Bank One, N.A. v. Swartz, 9th Dist. No. 03CA008308, 2004-Ohio-1986, ¶15 (“In the absence of a specific statement of personal knowledge, personal knowledge may be inferred from the contents of an affidavit.“). See also Wells Fargo Bank, N.A. v. Sessley, 188 Ohio App.3d 213, 2010-Ohio-2902, citing Swartz (where the affidavit attached to the motion for summary judgment stated: the affiant was an employee of the moving party;
{¶33} In addition, Ms. Fox‘s statements that she is the keeper of OhioHealth‘s records, she is familiar with the operation of the business, and she is familiar with the circumstances of the preparation, maintenance, and retrieval of these records all demonstrate her competency to offer testimony in this matter, without reference to the phrase “personal knowledge.”
{¶34} Finally, account evidence can be considered admissible evidence under the business records exception when the proper procedures are followed. See
{¶35} Despite appellant‘s claims to the contrary, we find Ms. Fox‘s affidavit meets the requirements of a proper affidavit under
{¶36} Under
{¶37} While appellant has provided an affidavit averring that he does not believe he owes the amount alleged in OhioHealth‘s motion for summary judgment, and he also avers he has never been provided with information as to the reasonable and customary pricing of the medical services purportedly rendered, these bare refutations, without more, do not defeat OhioHealth‘s motion for summary judgment. “[A] party may not simply use a self-serving affidavit to establish a genuine issue of material fact if such an affidavit contains nothing more than bare contradictions of other competent evidence and a conclusory statement of law.” Sessley at ¶30.
{¶38} Regarding the amount due, appellant submits he does not believe he owes the amount alleged by OhioHealth. However, he never specifically denies that he
{¶39} Based upon the foregoing, we find the evidentiary materials provided by OhioHealth in support of its motion for summary judgment were sufficient to meet its initial burden of showing there were no genuine issues of material fact, and that OhioHealth was entitled to judgment as a matter of law on its claim against appellant. Appellant‘s evidentiary materials, on the other hand, were not sufficient to meet his reciprocal burden. Accordingly, the trial court did not err by granting OhioHealth‘s motion for summary judgment. Therefore, we overrule appellant‘s second assignment of error.
{¶40} In conclusion, we overrule appellant‘s first and second assignments of error. The judgments of the Franklin County Municipal Court are affirmed.
Judgments affirmed.
KLATT and SADLER, JJ., concur.
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