Roe v. Planned Parenthood Southwest Ohio Region

Appellants, al., Planned Parenthood Roe et Appellees. Region al., et Southwest Planned Southwest Ohio [Cite as Roe v. Parenthood 399, 2009-Ohio-2973.] Region, 2009.) (No. July 2008 Decided October 2007-1832 Submitted Lundberg J. Stratton, us is John and plaintiffs-appellants, issue before whether primary Roe, Roe, minor, as are entitled individually parents of Jane

June in a private records of reports nonparties confidential abuse medical discover is entitled plaintiff A issue is whether damages. predicate action related punitive damages seek for a breach of the to report suspected child abuse 2151.421, under former R.C. 2006 Sub.S.B. No. 238. The reports confidential abuse and medical records at issue privileged

{¶ 2} 2151.421(H)(1). per disclosure R.C. 2317.02 and former Redaction of personal, information not identifying privileged does remove the status of the Therefore, records. the reports subject and medical records are not to discovery 26(B)(1). pursuant to Civ.R. We hold that the balancing test Biddle v. Warren Hosp. Gen.

{¶ 3} applies only as a defense to the tort of unauthorized disclosure of confidential medical information and does not create a right discover confidential medical records of nonparties private in a lawsuit. addition, 2151.421(M) In we also hold that R.C. affects a right substantive application and its retroactive that, would violate due process and the absence statutory authority, there is no right punitive recover damages under former Therefore, R.C. 2151.421. reasons, albeit for different we affirm the judgment of the court of appeals. History

Facts and Procedural The Roes filed against this action Planned Parenthood Southwest Ohio Region Parenthood”) (collectively, others “Planned alleging that Planned Parenthood illegally performed an 14-year-old abortion on their daughter, Jane. The Roes that alleged Planned notify Parenthood failed to them or to secure their consent in advance of procedure and failed to obtain Jane’s informed consent procedure 2919.121, 2919.12, violation of R.C. and 2317.56. The Roes also alleged that Planned Parenthood breached its to report suspected child abuse of Jane in violation of former R.C. 2151.421. plaintiffs sought compensatory and punitive damages injunctive relief. In the fall of when Jane was 13 and in the eighth grade, she began

a sexual with relationship 21-year-old coach, her soccer John Haller. In March 2004, Jane discovered that she was pregnant and told Haller. Haller convinced Jane to have an abortion. He called Planned Parenthood and attempted to schedule an abortion for her. Planned Parenthood told Haller that he could not schedule procedure and that Jane would have make the appointment. conversation, After it, this Haller told Jane to schedule and he also instructed her that if provide number, asked to a parent’s telephone she should give Planned Parenthood his cell phone number in lieu of her phone father’s number. Jane called Planned Parenthood and told an employee that she was 14

years old and that parents her could her. accompany She asked whether her “stepbrother” could come with her. employee asked whether parents Jane’s knew about her pregnancy. lied employee Jane and told the that one both of fact, her parents knew. neither knew. gave employee Jane her father’s address, more, correct name and but she telling lied twice that her employee father did not have a home phone number and then giving phone Haller’s cell number as her phone father’s number. Planned Parenthood scheduled the abortion for March 2004. The

employee told Jane someone would have to stop Planned Parenthood to pick up but that packet Jane did not have to personally retrieve packet. Sometime procedure, before the Haller picked up the information packet for Jane. The Roes alleged they do not know whether Planned Parenthood

called or to call attempted or, did, the cell phone belonged to Haller if it whether Planned Parenthood, Parenthood ever spoke Haller. Planned on the hand, other presented evidence at a hearing Jane had admitted that Planned Parenthood had called Haller’s cell phone number and that pretended Haller had to be Jane’s father and had authorized procedure. the Planned produced Parenthood also the parental-notification form filled out by the doctor who performed procedure. the The form that indicated the doctor had telephonically parent notified John Roe Jane Roe was scheduled for an abortion at Planned Parenthood “no sooner than 24 hours from the time” the given. notice was Haller drove Jane to the clinic on the day procedure.

{¶ the they 11} When arrived, a Planned employee Parenthood requested identification. present- Jane card, ed her school-identification and Haller provided his Ohio driver’s license. They submitted the forms that Jane had filled out to an employee, who noted that Jane Roe’s “brother today.” here paid [was] Haller with a credit card. John — Before the procedure, Jane signed form that set forth the nature and of, purpose with, and the medical risks procedure. associated the One form she signed stated that Planned Parenthood had met its statutory obligation to obtain patient’s informed consent. The alleged Roes if even Jane had been informed, fully age her and emotional state precluded her from comprehending understanding risks associated with procedure. The Roes also alleged that Jane’s consent had not been in a given knowing, voluntary, or intelligent manner and that it had procured been under duress and coercion. Haller ended the relationship soon

{¶ afterward. After the breakup, 13} teacher overheard an argument sister, between Jane and Haller’s a classmate of Jane’s, about Jane, Haller and his with relationship including references to Jane’s sexual relationship with Haller. The reported teacher the suspected sexual abuse to the police. After a criminal investigation, Haller was convicted of seven counts battery. sexual A criminal investigation was also conducted into Planned prosecute did not County prosecutor Hamilton but the culpability, Parenthood’s any statutory violation. Parenthood for Planned from Planned lawsuit, they sought their the Roes filed After 2151.421 and made to R.C.

Parenthood, pursuant of abuse including any reports Planned patients minors who had been nonparty the medical records produced Parenthood Jane’s ten-year Planned during period. Parenthood on nonparties records of the confidential provide but refused to medical records privilege. physician-patient the basis Planned Parenthood moved discovery. to compel The moved plaintiffs trial court followed Richards v. The prevent order to disclosure. protective

for a 2005-Ohio-4414, 768, 5, which cited Kerlakian, App.3d 162 Ohio information be discoverable that confidential proposition Biddle for the interest outweighs nonparty patient’s countervailing further a interest confidentiality. that the Roes had a “tremendous interest” trial court concluded outweighed documents and that their need requested confidentiality of their records. maintaining interest

nonparty patients’ information redacted from the records patient-identifying The court ordered all and overruled the plaintiffs’ compel court motion to produced. granted specifically analyze The court did not protective motion for order. defendants’ damages. claims for punitive Roe v. Planned Parenthood Southwest appeals The court of reversed. 414, 2007-Ohio-4318, 878 N.E.2d 1061. The Region, App.3d 173 Ohio court, proposition “only and Richards for the citing both Biddle appellate a to further or countervail privileged necessary protect where the information is reports that the confidential abuse proper,” interest is disclosure concluded ing and, to the Roes’ case even nonparties necessary and medical records of were privacy rights invasion of the tenuously necessary, potential if ¶ 34, value the records to this case. Id. at outweighed probative nonparties 2151.421, imposes report 42^4. court concluded that R.C. which abuse, Thus, claim for damages. punitive the Roes’ provide punitive does not ¶at on this statute had no merit. Id. 37. damages based reconsideration, we initially jurisdiction, upon declined having After {¶ 18} II, of Law Nos. jurisdiction discretionary appeal Proposition of this on accepted V, 117 IV, Region, v. Planned Parenthood Southwest Ohio and VI. Roe 2008-Ohio-1279, 1443, N.E.2d 459. St.3d 883

Postargument Procedure counsel for in this matter on October Following argument oral i.e., 127 authority, recently enacted the Roes filed a citation to additional (“H.B. 280”), April No. 280 which amended R.C. 2151.421. On Am.Sub.H.B. following we to brief the issue: parties ordered (effective 2009) provisions April “Do the Am.Sub.H.B. 280 and, so, if to this case what effect do those have on the issues apply provisions Region, this case?” Roe Planned Parenthood Southwest Ohio Ohio St.3d 1434, 2009-Ohio-1619,903 N.E.2d 1218.

The Roes’ Claims The Roes have that Planned duties alleged Parenthood breached its notify under R.C. 2919.12 and 2919.121 them of by failing perform the intent an failing abortion on Jane and to obtain their consent to perform procedure. any R.C. 2919.12 from an prohibits person performing upon pregnant, abortion a age unmarried woman under 18 without at least 24 actual notice in giving hours’ or person telephone parents obtaining the woman’s a written parent’s consent. R.C. 2919.121 prohibits person performing upon abortion pregnant minor without the written consent of parent.1 the minor and one Both provide statutes that one who violates this statute may compensatory be liable for punitive damages. The Roes also alleged Planned Parenthood performed proce- dure on without obtaining Jane first her informed consent violation of R.C. 2317.56. The statute that at requires least hours prior procedure, physician meet with pregnant woman in and that person published materials about the procedure given to her. It also requires give that she written consent to the A procedure. person who to comply may fails be liable in compensatory punitive damages. alleged Roes further that Planned Parenthood had reason to

suspect adult, sexually Jane was involved with an but that it did not report relationship, violation of 2151.421. They alleged that as matter of policy pattern and practice, Planned Parenthood not report does known or and/or suspected child abuse with respect to the minors to whom it provides medical services. Laws, II, 3868, afterward,

1. R.C. 2919.121 was Shortly enacted 1998. 147 Ohio Part challenged constitutionality. lawsuit was filed federal court that its The court an issued order enjoined county enforcing the state and pending. the new statute while the case was (S.D.Ohio Serv., 2005), then, F.Supp.2d Cincinnati Women’s Inc. v. 937. Since Taft upheld provision required consent, Sixth Circuit has 24-hour informed but severed the provision filing petition judicial bypass parental per limited minor to one for a consent Serv., pregnancy. (C.A.6, 2006), Cincinnati Women’s Inc. v. 468 F.3d 361. Taft from further enjoin Planned Parenthood Roes asked the court law, have asked they it with the and require comply statutory violations and damages.2 compensatory punitive and Discovery Sought about the data from Planned Parenthood sought The Roes statistical or known suspected performed reports of abortions and the number number reports the abuse ten-year period. They sought over a also sexual abuse made of minors who 2151.421 and the redacted medical records pursuant made to R.C. action. parties who are not to the at Planned Parenthood but patients were confidential, they seeking privileged dispute The Roes do not that redaction removes the confidential information of third but claim parties, and available from other published admit that the statistics are They status. the Roes’ for the abuse solely upon request sources.3 This centers dispute former parties. records of third who are not See reports persons and medical 2317.02(B)(1) 2151.421(H)(1) (confidentiality reports) of child-abuse R.C. (“A a communication made to testify] concerning or dentist not physician [shall in that relation or the or dentist’s by patient physician’s or dentist physician * * * ”). patient, except provided advice to a as otherwise 26(B)(1) matter, any permits discovery “regarding privileged, Civ.R. subject pending (Empha- which is relevant to the matter involved action.” added.) appears information not be admissible at trial if it sought sis need reasonably discovery calculated to lead to the of admissible evidence. Id. The they necessary Roes contend that the documents seek are relevant and to their claims and are otherwise unavailable. clearly privileged general Civ.R. 26 excludes information from the rule Thus, discovery. even that the information the Roes seek is relevant assuming evidence, they lead to the of admissible must establish information;

exception relevancy order to discover this itself is purposes not sufficient for under Civ.R. 26 when matters are privileged. rely Hosp., The Roes on Biddle v. Warren Gen. if a authority nonparties as to discover the medical records of

plaintiffs outweighs nonparties’ protecting need for the records interest the confidential nature of the records. voluntarily conspiracy

2. The Roes dismissed their causes of action for and intentional infliction of emotional distress. Roes, According publishes Planned Parenthood statistical data on the number of abortions reports performed reports in annual disseminates and the number of abuse made Department of Health and Planned Parenthood Federation of America. the Ohio Because this case involves privileged confidential and

{¶ 29} information, Schlotterer, we review the matter de novo. Med. Mut. v. Ohio ¶ 181, 2009-Ohio-2496, 1237, Ohio St.3d 909 N.E.2d 13.

Application of H.B. 280 matter, As a preliminary we postargument address the briefs and {¶ 30} whether H.B. may apply retroactively this case. proposition Roes’ first of law plaintiff asserts that a entitled

seek punitive damages for a defendant’s systematic and intentional breach duty to report suspected abuse under R.C. 2151.421. The Roes requested have reports abuse from Planned Parenthood to establish their claim for punitive damages. R.C. 2151.421 places duty on persons special with relationships

minors to report suspected or known neglect. 2008, abuse or In December 280, General Assembly enacted H.B. which 2151.421, amended R.C. adding (M) division (H), and supplementing division both of which may affect the 2151.421(M) outcome of if applied this case retroactively. R.C. provides that a person may be liable for compensatory and exemplary damages for violating reporting requirements, and a person who brings civil action pursuant (M) division may use reports of other incidents of known or suspected abuse or neglect, with identifying redacted, in that civil action. R.C. 2151.421(H)(1) was supplemented to allow the use of confidential abuse reports made under that division in a (M). civil action brought pursuant to section 2151.421(H) (M) To determine whether R.C. be retroactively applied matter, in this we apply a two-part analysis. Ackison v. Anchor Packing Co., ¶ 228, 120 Ohio 2008-Ohio-5243, St.3d 1118, 12. The first part examines whether the General Assembly intended for the statute to apply so, retroactively. Id. If the second part requires that we determine whether the substantive, amendments are status would render them unconstitutionally retroactive, Id., or merely remedial. citing Bielat v. Bielat 87 Ohio 350, 353, St.3d 721 N.E.2d 28. case, In this the General Assembly expressly provided that the amend-

ments were intended to apply retroactively to civil actions on pending act, effective date of April Thus, 2009. H.B. 4. Section they meet the threshold inquiry of retroactivity. We next consider whether the amendments are substantive or remedial. We have held that substantive law “impairs vested rights, affects an accrued right, substantive or imposes new or additional bur- dens, duties, obligations, or Bielat, liabilities as to a past transaction.” 87 Ohio St.3d at 721 N.E.2d 28. Procedural or remedial law prescribes methods of (1984), 9 Dwiggins French obtaining redress. rights enforcement 32, 34, 9 OBR St.3d damages civil any no reference to 2151.421 made Former R.C. (M) provides: now the statute. Division

violating (A) for compensatory this section is liable division “Whoever violates subject of the have been the to the child who would damages exemplary and that was not made.” report (M) of that damages a measure newly punitive enacted division adds plaintiff confirm that a merely clarify It not and not exist. does previously

did for a common-law exemplary damages and compensatory available both had Instead, is akin to a change contend. such of statute as the Roes violation (1981), A D Furniture Co. 68 is Osai v. statutory which substantive. penalty, 328, Thus, that 99, 100, 22 N.E.2d 857. we hold R.C. O.O.3d 428 Ohio St.2d 2151.421(M) would right, application and its retroactive affects substantive process. violate due 2151.421(H)(1) in except limited situations provided Former R.C. here, 2151.421are pursuant of child abuse made R.C. apply reports

that do not the use exception by allowing H.B. created an to nondisclosure confidential. 280 2151.421(M), brought pursuant provided in a civil action R.C. reports of abuse subject report child who is the of the any identifying information about the (M) case, it may retroactively applied not be this redacted. Because division (H)(1), may rely discovery provisions that the Roes not on the because follows (M). Therefore, we only brought pursuant to civil actions to division they apply cause action the version of R.C. 2151.421 effect when the Roes’ apply must for a punitive damages whether a is entitled to seek plaintiff arose determine failure to abuse. report suspected defendant’s

Availability Damages of Punitive under Former R.C. 2151.421 any damages 2151.421 made no reference to civil for a Former R.C. any contend that the absence of mention of violation of the statute. Roes availability damages. They argue not damages preclude punitive does (2001), 92 “liability” Campbell court’s of the word v. Burton interpretation this 336, 341-342, 539, liability, civil criminal St.3d 750 N.E.2d to include and Ohio in Rice v. interpretation “damages” Corp. with the CertainTeed coupled 1217, 417, 419-420, as both including compensatory 84 Ohio St.3d legally recognized They entitles them to seek all relief. also punitive damages, compensatory have to seek both permitted plaintiffs contend courts U.S.Code, 1983, 42, although punitive under Section Title punitive damages in that statute. damages specified Burton, “liability” construed the word Campbell broadly In this court 2744.02(B)(5) 2744.03(A)(6)(c) that a subdivi- political and determined R.C. liability claim under the Political employee immunity

sion and its could not R.C. Liability perform duty imposed Tort Act for the failure to Subdivision two, Id., 336, 539, one, and three paragraphs 2151.421. Ohio St.3d that a and its syllabus. Campbell political employee held subdivision 2151.421, damages. for a but it did not discuss be held liable violation at we Corp., Rice v. CertainTeed N.E.2d in a civil punitive damages held that R.C. 4112.99 authorizes an award of 4112.99 action under R.C. 4112.02. R.C. employment-discrimination arising relief, injunctive any appropriate for “a civil action for other provides damages, Rice, punitive damages. relief.” concluded that this includes language We 704 N.E.2d 1217. St.3d has Campbell liability only, interpretation addressed and its since been liability only expressly imposed by limited to civil ivhen section of the Revised 2744.03, Laws, II, 3500, Code. See R.C. 2744.02 and 149 Ohio Part 9, a April interpreted damages. effective 2003. Rice statute authorized Here, former R.C. 2151.421 is silent as to We cannot insert words any damages. Rice, Instead, a give only into statute. we must effect to the words used. 419, Assembly Ohio St.3d 704 N.E.2d 1217. The did not include a General statute, for civil in the of the much less provision damages former version award, punitive damages. express authority Without for such an we are con- Denihan, 374, by strained the statutory language. O’Toole v. 118 Ohio St.3d 2008-Ohio-2574, 505, 889 N.E.2d 67. Furthermore, there can no punitive damages violating award for

statutory duty did not exist at common law unless the award is expressly 61, 66, Kleybolte authorized statute. v. 89 Ohio St. 105 N.E. Buffon duty There was no common-law child abuse. The statute that report Therefore, created the does not authorize for its any damages breach. we hold that in the absence of statutory authority, punitive damages are not available under former R.C. 2151.421.

Discovery Reports per Abuse Child R.C. 2151.421 2151.421(H)(1)provides reports R.C. for “the use of of other incidents of suspected neglect proceedings brought known or abuse or a civil action or (M) pursuant discovery to division of this section.” There is no for exception (M) civil types other actions. Because we have determined division retroactively applied, pursuant not be the Roes do not have civil action (H)(1) (M), they may rely division not on amended to discover and use reports of other incidents of abuse this action. 2151.421(H), no for Thus, exception which makes we look to former addition, kind of civil action. In to the extent

discovery of for this reports abuse physician-patient information obtained within the reports that the abuse contain disclosure. This case does not fit privileged that information is relationship, injuries, “a child’s privilege involving exception physician-patient within the * * * report from a abuse, any judicial proceeding resulting neglect 2151.421(G)(1)(b). this case to this section.” R.C. Because pursuant submitted 2151.421(G)(1)(b) Jane, R.C. does report does not arise from a submitted about are confidential reports pursuant these abuse apply. Consequently, 2151.421(H) in this former R.C. and are not discoverable case.

Discovery Third of Confidential Records of Parties In general, Roes also seek medical records of medical nonparties. subject to Hageman records are confidential and not disclosure. Southwest ¶9. Ctr., 153, 2008-Ohio-3343, Health 119 Ohio St.3d 893 N.E.2d The' Gen. Biddle, rely authority Roes on 86 Ohio St.3d as necessary nonparties of the confidential medical records of because “disclosure is protect countervailing outweighs patient’s or further interest syllabus. interest in Id. at two of the confidentiality.” paragraph liability Biddle was a tort case in which addressed for unauthorized we importance patient’s right disclosure and stressed the utmost to confiden- Id., tiality of medical communications. documents, syllabus. one of the Biddle did not involve

paragraph Nevertheless, improper but rather the release of documents. apparently litigants information, have used Biddle to seek confidential medical and courts in nonparty several of tort cases Biddle types interpreted creating right have as to obtain nonparty confidential medical information. See Fair v. St. Elizabeth Med. Ctr. 522, 527, Kerlakian, 106; 136 App.3d Ohio 737 N.E.2d Richards v. 162 ¶ 823, 2005-0hio-4414, 768, 5; App.3d Alcorn v. Franciscan C-060061, 2006-Ohio-5896, Hosp. Airy Campus, App. Mt. Hamilton No. 2006 WL ¶ 3231208, 17; Cepeda Hosp., Cuyahoga App. v. Lutheran No. 2008-Ohio- ¶ 2008 WL However, in paragraph syllabus two of the Biddle addressed the {¶ 48} to the tort of unauthorized disclosure of confidential medical informa- defenses i.e., the which a physician hospital may circumstances under or release tion— confidential medical records the absence of a waiver without tort incurring liability. litigant’s right Biddle did not create a to discover the confidential nonparties private Any exception medical records of in a lawsuit. such physician-patient privilege Assembly is matter for the General to address. See (“this 488, 2006-Ohio-4968, Greger, Jackson Ohio St.3d * * * waivers, judicially created consistently rejected adoption has court statutes”). limitations for testimonial exceptions, and patient-identifying trial ordered all argue that the court The Roes also {¶ 49} retained, and the will redacted, patients anonymity so information Redaction will be removed. nature of the documents privileged confidential of confi- however, status information, privileged not divest the does personal safeguard use merely a tool that court records. Redaction is dential that have become within confidential records identifying information personal, See by exception. subject by either waiver disclosure 2317.02(B)(1)(d). Here, parties information third the Roes seek confidential 2151.421(H)(1) Biddle and 2317.02. Because disclosure. R.C.

privileged from medical disclosures of confidential to the tort of unauthorized applies as defense discover the information, not authorize Roes to we hold that Biddle does Planned Parenthood. nonparties confidential medical records will further Ohio’s amici curiae assert that this The Roes and however, note, this case is about children. We public policy protecting Roes only. as to Roe alleged violation of duties Jane Planned Parenthood’s no victims. The case has alleged action on behalf of other have not filed class crimes, and the already Haller has convicted of the implications: criminal been charges against criminal pursue but declined to investigated has prosecutor Parenthood. Planned also public and various amici curiae advance To the extent the Roes records, of confidential medical whether support of disclosure

policy arguments nonparty patient’s right are to overcome a policy such issues sufficient public likewise be addressed confidentiality of medical should has judiciary. Assembly addressed Assembly, not the General General abuse; however, changes those reporting of child Roes’ concerns about the prospectively. law apply

Conclusion privi- at issue are reports and medical records The confidential abuse 2151.421(H)(1). and former Redaction R.C. 2317.02 leged per from disclosure privileged not remove the status of identifying information does personal, subject Therefore, reports and medical records records. 26(B)(1). pursuant Civ.R. 185, 2008-Ohio-3343, Biddle, by Hageman, followed prior authorization disclosure without improper

N.E.2d addressed ¶ 17. Id. at right of medical information. emphasized patient’s privacy information in the medical to disclose confidential Biddle addressed the of a context defense the tort of unauthorized disclosure. Biddle not does medical in a right nonparties create discover confidential records lawsuit. private

(¶ may pursue private The Roes still their for damages against claims 55} statutory per- Planned Parenthood for violations: Planned whether Parenthood 2919.121, formed unlawful on under and abortion Jane R.C. 2919.12 which authorize an punitive award of whether consent damages, proper Jane’s was 2317.56, under R.C. which authorizes an award of punitive damages, and whether it had report suspected abuse of Jane under former R.C. 2151.421. The Roes entitled to discover Jane’s own medical They may records. pursue matters, of other privileged, reasonably are relevant and Therefore, calculated to lead to the of admissible evidence. for the reasons, foregoing judgment we affirm the the court of appeals.

Judgment affirmed. Lanzinger Moyer, C.J., Cupp, JJ., and concur. J.,

Pfeifer, separately. concurs J., part concurs and dissents part. O’Donnell, Donovan, J., dissents.

Mary J., E. District, Appellate sitting Second Donovan, J. O’Connor, J., concurring. Pfeifer, I opinion, concur in the with exceptions, two in the judgment. I disagree majority’s with the to clarify decision Biddle v. Warren Gen. (1999),

Hosp. St.3d Ohio 715 N.E.2d 518. This case is not proper vehicle to revisit Biddle because is not doing so necessary resolve the issue before us. “[fjormer I concur in majority opinion’s conclusion that 58}

{¶ 2151.421 made no any statute,” reference to civil damages for a violation of the therefore, that punitive damages are unavailable to Roes. I disagree with majority’s decision to discuss Kleybolte 89 St. Buffon N.E. 192. That is not case to reach necessary holding majority reaches. exceptions, join With these I majority opinion.

Cupp, J., concurring. circum- troubling of circumstances. These out Plaintiffs’ claims arise 60}

{¶ his by abusing in criminal conduct engaging an adult soccer coach stances involve who 13-year-old, relationship a with a having and sexual authority of position this pregnant through minor a on his team. When the became player was soccer and He to have an abortion. directed relationship, coach convinced her illicit the to, knowledge the notice or in a to obtain the abortion without her scheme guided place The took of, majority details. abortion parents, opinion the minor’s as the Region. Southwest Ohio at the clinic of Planned Parenthood their lawsuit through now to parents The of the minor seek establish 61} {¶ breaching its unlawful abortion that Planned Parenthood facilitated the abuse, a and parent of suspected notifying of child statutory reporting duties consent, informed of the minor’s consent. obtaining and obtaining To the damages. gather punitive The seek and compensatory Roes claim, through the also seek establish their Roes needed facts information to reports the provide to abuse compel to Planned Parenthood this circumstances of case nonparties. underlying of medical records However, legal is to resolve the troubling. duty-bound a court of law deeply it apply would byit the law the same manner which applying issues before legal same issues. disturbing involving law cases with less facts but the the to claims underlying the of reviewing language statutory provisions the statutory and the relief, language to “look to the for courts are constrained ” (1999), Corp. Rice v. ‘purpose accomplished.’ to be CertainTeed State ex rel. Richard v. Bd. Trustees quoting of of (1994), 409, 411, Fund St.3d Disability Police & Firemen’s & Pension usual, normal in a statute must be taken in their “Words used * * * it is of the court customary meaning give effect [and] Richard, ex 69 Ohio to insert words not used.” rel. words used not State St.3d 632 N.E.2d 1292. 2151.421, 2006 opinion explains, former R.C. Sub.S.B. majority As damages for the permit private not to obtain civil plaintiff

No. does plainly for requirements person comply reporting failure with the statute’s not contest that the text of former suspected parties child abuse. also do Instead, damages. of civil explicitly provide recovery does not R.C. 2151.421 for violation remedy criminal as expressly provides penalties the statute 2151.99(A). not R.C. Because the statute does statutory reporting duties. remedy words to judicially permit civil we not insert damages, authorize provide. plainly the statute does analysis applicable is claims for access to the plaintiffs’ The same parties who to this reports persons

abuse and medical records other are not 2151.421(H), action. former effect when the conduct Under version occurred, such and medical are confiden- giving reports raise to this action abuse tial, states, majority provided and as no in the statute for opinion exception Moreover, nonparties abuse the civil reports action. Hosp. 86 Ohio balancing-of-interests test Biddle Warren Gen. St.3d 395, 518, two of to paragraph syllabus, unavailing plaintiffs. the is balancing only The Biddle test to applies damages claims unauthorized to release of confidential medical records and not the of restric- circumvention confidentiality tions on the of unreleased records. has, suit, legislature subsequent filing of plaintiffs to the amended

{¶ 66} the to most of that now controlling provide plaintiffs statutes the relief seek from However, this court. be applied those amendments cannot to this case. As the majority analyzes, amendment, opinion correctly the substantive R.C. 2151.421(M), cannot be without applied creating unconstitutional retroactive 2151.421(H), impact, provision, permit and the remedial R.C. which plain- would they seek, tiffs access to the of reports nonparties restrictively abuse is drafted. 2151.421(H) expressly R.C. linked to which provision, may the substantive not be constitutionally applied present to the case. then, In final analysis, plaintiffs the can granted they the results seek

in if only this court we amend judicially the and the child-abuse-reporting patient- physician-privilege statutes disregard or the constitutional on prohibition retroac- legislation. tive substantive so, however, To do would be to across the step line that marks the

boundary authority of that our constitutional system separation powers has allocated to judiciary. step That is we may properly take. I concur. J., concurs in foregoing opinion.

Lanzinger, J., O’Donnell, concurring part dissenting part. in and in I concur in majority’s While decision regarding punitive damages and confidentiality reports pursuant 2151.421, child-abuse former I respectfully dissent from holding its medical third-party records are never 26(B)(1). subject view, under my Civ.R. In this court’s decision in (1999), 395, 518, Biddle v. Warren Gen. Hosp. 86 Ohio St.3d N.E.2d sets forth an appropriate test for determining may when a claimant discover information that might subject physician-patient Moreover, otherwise be privilege. the privacy protect orders to enter authority trial courts have circumstances. Civ.R. disclosed these whose records are patients interests of (C). appeals court of 26(B)(6) Thus, judgment I reverse would Parenthood to Planned compelling the trial order reinstate court’s part and records, subject order protective third-party medical disclose patients. these identifies redaction of Biddle, privilege that the recognized physician-patient this court “ ‘[al- are not absolute. We reasoned confidentiality a physician’s information], is a confidentiality there [of favors the medical though public policy it must circum- yield appropriate interest which countervailing public ” Biddle, 518, v. quoting MacDonald 86 Ohio St.3d at N.E.2d stances.’ (1982), 482, 487, emphasized, As we further Clinger 84 A.D.2d 446 N.Y.S.2d 801. patient, interest of public, exist where the “special situations importance justify the creation of person a third are of sufficient physician, or any statutory qualified to disclose the absence conditional (1962), Id., Hague v. 37 N.J. duty.” citing common-law Williams mandate or 814; 345; (1958), 191, 197, 8 Utah 331 P.2d Berry 181 A.2d Moench 2d Johnston, 831; Breach Simonsen v. Swenson 104 Neb. N.W. 384-392; 373, (1986), Vickery, 19 Akron of Medical Ohio L.Rev. Confidence (1982), 1426, An Breach Tort 1462- Emerging of Confidence: 82 Colum.L.Rev. Thus, provider “disclose otherwise may we determined that medical special medical information in those situations where disclosure confidential duty, with a mandate or or where statutory made in accordance common-law interest necessary protect countervailing or which disclosure is further added.) Biddle, confidentiality.” (Emphasis outweighs patient’s interest in 402, 395, 86 715 N.E.2d 518. Ohio St.3d appellate language have since relied on this for the Ohio’s courts discovery of medical

proposition litigant may third-parties’ that a records compel 26(B). v. hospital to Civ.R. See Fair St. Elizabeth physician pursuant Kerlakian, (2000), 522, 106; v. Med. 136 Ohio 737 N.E.2d Richards App.3d Ctr. 823, 2005-Ohio-4414, 768; v. 162 Alcorn Franciscan App.3d 2006-Ohio-5896, C-060061, Hosp. Campus, No. 2006 WL Airy App. Mt. Hamilton 90031, 2008-Ohio-2348, 3231208; Cuyahoga v. No. Cepeda Hosp., App. Lutheran I am of majority, 2008 2058588. Unlike the view that these decisions WL Biddle. reasonably interpret Biddle, of syllabus permitting The test we crafted in the disclosure necessary “where or further counter- protect

medical records disclosure is outweighs confidentiality,” interest in authorizes vailing patient’s interest Litigants trial to balance the interests involved these circumstances. courts 414 right

have a to liberal under Civil Rules of (1994), 638, v. Mt. Med. Ctr. 661- Procedure. See Moskovitz Sinai 662, interest in maintain- undeniably 635 331. And while have an patients N.E.2d information, Rules ing confidentiality provide of their medical the Civil interest, consistently we have trial safeguard recognized means to and See, authority discovery. e.g., courts’ broad to enter orders State ex protective (1999), 11, 16, rel. Abner v. Elliott 85 Ohio 706 N.E.2d 765. St.3d In this Biddle is with the regard, consistent decisions numerous other states, similarly right which have of medical recognized compel records from As the court stated Bennett v. physicians hospitals. Fieser (D.Kan.1994), 641, majority 152 F.R.D. “The that have vast states addressed non-party this issue have medical are patient held records discoverable and do not physician-patient violate the where adequate there safe guards 642-643, to protect identity non-party patient.” Id. at citing Hosp. (Ind.1992), 1358, 1359; Terre Haute v. Regional Trueblood 14; Ventimiglia (Fla.App.1986), v. 502 So.2d v. Ziegler Superior Court in Moffitt (1982), 390, 394, 1251; Cty. Pima 134 Ariz. 656 P.2d and Community for Hosp. (1977), 98, 100, Assn. v. Dist. Court in Cty. Boulder 194 Colo. 570 Amisub, P.2d 243. Kemper 470; See also Inc. v. 543 (Fla.App.1989), So.2d (1974) Rudnick v. Court Superior Cty. Kem Cal.3d P.2d 603; Cal.Rptr. (1969), 123; Osterman Ehrenworth 106 N.J.Super. 256 A.2d see DuPage but Parkson v. Cent. Hosp. Ill.App.3d 61 Ill.Dec. 651, 435 N.E.2d 140. persuasive Particularly Supreme is the Court of Indiana’s decision in

Trueblood, held, safeguards which adequate protect “[W]here exist to the identity and confidentiality of the non-party patient, the trial court allow the discovery of non-party patient patient medical records even where the has not waived physician-patient privilege.” 600 N.E.2d at 1362. The court ex- plained that with a “[a]long patient’s care, individual in quality interest medical public the has an interest in being protected incompetent physicians” and is that a unlikely patient “[i]t would be inhibited from in confiding his physician embarrassment, where there no risk of humiliation and and no invasion of patient’s privacy.” the at citing Id. 656 P.2d at Ziegler, stated, And as the court relevant, “[i]n situations where the medical records are prohibition against ‘blanket examination and use against hospital the of such ” Id., injustice.’ records would in an result 656 quoting Ziegler, P.2d. at 1255. Biddle, Based on this I authority and on the would reverse decision of appellate the court to vacate entry the trial court’s the granting Roes’ motion to compel medical discovery by view, records held Planned In my Parenthood. requested 26(B)(1), the medical records by satisfy the Roes Civ.R. which provides

415 subject matter it is “relevant information is discoverable when that the objection for ground and that is not pending “[i]t in the action” involved sought trial if the information will the sought be inadmissible evidence.” discovery to of admissible calculated to lead appears reasonably absence of an regard ruling trial court’s this We should not disturb the (1973), St.2d Ohio Daggett ex rel. Gessaman of discretion. See State abuse Furthermore, trial court 55, 57, N.E.2d 659. because 63 O.O.2d redacted, them protective order ordered the medical records under placed by their Planned violated disclosure by will not be physician-patient Parenthood. majority’s I decision. part from this of the Accordingly, dissent 78}

{¶ J., Donovan, dissenting. of the court of judgment I respectfully I dissent. would reverse 79}

{¶ discovery. My focus compelling court’s order appeals, reinstating thus trial (“H.B. 280”), I find the No. 280 as in this will not be on 2008 Am.Sub.H.B. dissent remedial, view, Roes, in are entitled to my to since the merely amendments be well as trial court under as discovery initially pre-existing, ordered current, actionable pre-existing should be entitled to redress law. The Roes wrong. claims; they should be able to presented cognizable The Roes have 80}

{¶ known, discovery possible, truth must as far as pursue on their claims. “The (1964), justice law case.” v. Antill provide enable the each State 61, 64, majority’s approach 548. The St. 26 O.O.2d N.E.2d the Roes’ effectively rights the standard of review herein eviscerates applied every legal argument. recognize This court should the value possible examine provides. recogni that Civ.R. 26 Without this protective the numerous orders they fully are tion, plaintiffs legal arguments the Roes and other lose before agree majori I cannot with the narrow construction the developed. Accordingly, 395, 715 Hosp. v. Warren ty assigns now Biddle Gen. N.E.2d 518. initial objection discovery, the Roes have the Commensurate with establishing sought. Relevance should be

burden of relevance records started favoring discovery. correctly The trial court flexibility, with approached records need premise suspected reports with the that the child-abuse and medical permit during at trial to examination necessarily be admissible request making not a which the Roes process. clearly This is situation relationship the Roes’ totally tangential Even a between irrelevant records. sought and lead to evidence satisfies the claims admissible requirement. relevance enjoys discovery. A trial in the of regulation court broad discretion Lumber, 518, 2004-Ohio-1302, v. ERB App.3d

Whitt Ohio in The standard of matters is abuse of discovery normally review discretion. management While the of is reviewed under an abuse-of-discretion standard, the of questions privilege questions of existence of a law and are de sought privileged reviewed novo. Whether the information is confidential and is question disclosure is a of law that reviewed de novo. This is a correct in deciding pure question characterization of the standard of review a of law. In determining pure legal question, appellate may properly the court substitute However, case, of the trial judgment its court. the instant pure the fact, legal question it has been resolved. is the third- undisputed party/nonparty records are confidential. This case does turn upon miscon communication). Thus, struction or of misapplication (privileged R.C. 2317.02 view, my erroneously court appellate reviewed the trial court’s order review, utilizing very de novo and this court’s recent decision Med. Mut. of Schlotterer, 181, 2009-Ohio-2496, Ohio St.3d N.E.2d is not controlling. Ohio, In Med. Mut. the issue was patients’ whether consents

release their medical records to their insurer waived the physician-patient of a civil brought by context fraud action the insurer against the physician. correctly The court applied de novo standard of review to determine whether the information sought by the insurer was confidential and Ohio, privileged. 181, 2009-Ohio-2496, Med. Mut. 122 Ohio St.3d 1237, 13, has no application discovery request, Roes’ as the issue herein necessarily not confidentiality one of privilege, propriety but one “the the disclosure.” Given right the Roes’ their litigate claims and the third-party/nonpar-

ty interests in confidentiality, the trial court charged should be* with weighing competing This interests. weighing competing interests is balancing of facts judge’s interests best suited for the trial determination. From policy perspective, application of an abuse-of-discretion standard would be consis- tent with the trial widely court’s recognized accepted discretion to regulate It process. would also consistent with generally recognized trial proposition court is knowledgeable most informed and about the unique of a circumstances case is in and thus the best position evaluate and decide these Accordingly, issues. court the trial should be afforded proper in balancing deference interests at trial competing stake. The court could properly conclude that the Roes’ to seek right redress and need to protect

417 confidentiality by predators outweigh victimized adult sexual children who are court that there is an erroneous suggestion by appellate concerns. The is not true. simply of law de novo review on this record interpretation requiring determination, nor should it be legal interests is not a Weighing countervailing facts, Rather, lead to the balancing as such. it is a which characterized wit, injured by rights, is other outweighed conclusion party’s right to redress. view, in majority, my permit appellate creates new law will is, they their own what judgment opinions

courts to substitute their —that —for as managing discovery process by characterizing would have done in this case in court a order. appellate one which the conducts de novo review the of disclosure” of redacted medical records should be all about a “propriety Biddle, interest,” to a construction of 86 Ohio “countervailing pursuant proper 402, applicability St.3d at 715 N.E.2d 518. Biddle's should not be limited to the defense of a tort of unauthorized disclosure of medical information. Countervail- ing competing Curiously, interests are not different from considerations. this “ choice, of an explained court has the abuse-of-discretion standard as ‘the idea of ” will, competing exercise determination made between considerations.’ (1985), 123, 83, 87, Surgeon, v. Hair Inc. 19 Ohio St.3d 19 OBR 482 Huffman 1248, (1984), 164, 222, 311, N.E.2d v. 15 15 quoting State Jenkins Ohio St.3d OBR considerations, competing 473 N.E.2d 264. What we have here is and an abuse- apply. of-discretion standard should Biddle, in acknowledged special this court that there are situations

which necessary protect “disclosure is or further a interest that countervailing 395, outweighs patient’s confidentiality.” interest 715 N.E.2d I paragraph syllabus. two of the conclude that this is one of those “special Biddle, situations.” In this court acknowledged, physician’s report ‘is “[WJhen law, prescribed by made the manner he of course has committed no breach of ” * * his patient liability toward *and no could result.’ Id. at (1920), 224, 228, quoting N.E.2d Simonsen v. Swenson 104 Neb. 177 N.W. However, by liability the claims set forth the Roes are should simply i.e., fulfilled, statutory result when the duties are not opposite injury occurs— results. holds, absolutely nothing There is Biddle that much less suggests,

that the “propriety disclosure” should be decided as matter of law. Biddle only appellate was the case that the court relied for this other upon proposition, than Alcorn v. Franciscan Mt. Hamilton No. Hosp. Airy Campus, App. C- ¶ 060061, 2006-Ohio-5896, 3231208, 17, merely 2006 WL which cites Biddle. Biddle, Accordingly, any by my reliance court on appellate Alcorn view, misplaced. interpreted have Biddle as Although majority suggests “courts information,” medical the cases nonparty to obtain confidential

creating right that construction to Biddle: Fair v. St. majority cited do not attribute 522, 527, 106; Richards App.3d Elizabeth Med. 136 Ohio Ctr. ¶ 2005-Ohio-4414, 768, 5; Alcorn, Kerlakian, v. App.3d C-060061, 2006-Ohio-5896, 3231208, 17; Cepeda App. Hamilton No. WL 90031, 2008-Ohio-2348, No. 2008 WL Hosp., Cuyahoga App. Lutheran ¶ 15. Fair, by was assaulted in a ward example, psychiatric Robert for Fair, 523, injuries. App.3d

another serious 136 Ohio at patient, sustaining Fair of of brought negligence N.E.2d 106. and his wife claims and loss (“SEMC”). 524, against hospital consortium Id. at 737 N.E.2d 106. SEMC’s overruled, summary judgment motion for was and the Fairs filed motion to trial compel the records Robert’s attacker. The court overruled the motion to compel upon Valley Hosp. App.3d reliance Johnston v. Miami 61 Ohio 81, 169, 85, exception doctor-patient which refused to create an to the of a privilege prove “special relationship” hospital existence between the that patient injury patient. and caused to another SEMC filed a second motion 56(F) motion, summary judgment, response, and the Fairs filed a Civ.R. stating they oppose they could not SEMC’s motion because lacked sufficient Fair, discovery. 136 Ohio at 737 N.E.2d 106. App.3d Following hearing, Johnston, motion, the trial court overruled upon the Fairs’ based determining alleged attacker’s name and records were privileged information unless waived it patient, granted summary SEMC’s motion for judgment. 524-525, Id. at 737 N.E.2d 106. motion, On its own the trial court then vacated its decision “properly

frame the privilege appeal.” issues for Id. at 737 N.E.2d 106. The trial court granting then filed its decision motion for summary judgment, SEMC’s reiterating sought the information was deemed not discoverable. Id. Biddle, appeal, upon On the Fairs relied that an arguing appropriate “in confidentiality circumstance existed which must yield public interests.” Fair, App.3d 136 Ohio at 737 N.E.2d 106. The Fairs claimed that “their right to redress for injuries prevail Robert’s should over the confidentiality interests of the patient.” unidentified Id. noted, District Second the extent that the Ohio Supreme “[T]o

{¶ has an exception Court carved out in certain physician-patient privilege cases, Johnston, overruled,” has it supra, been determined that the facts of Fair, the Fairs’ case fell “within the articulated in Biddle.” exception 136 Ohio App.3d 737 N.E.2d 106. The court reached this because holding “SEMC duty reasonably had a protect battery by persons, Robert assault third Id. at 737 N.E.2d 106. patients,” pursuant other to R.C. 5122.29. including recourse for SEMC’s right The court further determined that the Fairs’ to a situation where disclosure must be alleged “special breach amounted was that no protect rights.” position made to Robert’s Id. Since SEMC’s occurred, it unfair” to limit the Fairs to “inherently offense of violence would be determination, In without access to the attacker’s medical records. Id. SEMC’s words, all rights. Finally, Robert’s necessary protect other disclosure was protect alleged was to be from the records to identifying information redacted identity. attacker’s Id. Richards, trial court’s practice group appealed a doctor and his involv approximately operative reports

order 30 redacted granting action. ing surgeries performed by wrongful-death the doctor the context of Richards, 823, 2005-Ohio-4414, 768, 1. 162 Ohio The trial App.3d court’s order that all information redacted and that the required identifying with court. It further not be shared nonwitnesses or filed with the ordered the returned at the end of the copies litigation. 2317.02, In his the doctor relied which appeal, upon provides privilege patient

testimonial communications. The First District physician statute, Court of noted that the Appeals operative reports protected by were it but further noted “the afforded under R.C. 2317.02 is not Supreme protected absolute. The Ohio Court has held that the of such circumstances, communications such to appropriate under certain as further a interest that interest in countervailing outweighs nonparty patient’s the Richards, 823, 2005-Ohio-4414, confidentiality.” App.3d Ohio ¶ 5. Regarding plaintiffs’ primary negligent credentialing, the claim of the

{¶ 95} noted, “It First District is difficult to how else the imagine negligent-eredential- claim ing investigated disputed could have been without the documents.” Id. at ¶ Further, 6. the to plaintiffs impeach deposition testimony intended the doctor’s significant with the documents. It was to the First District that the plaintiffs presented impeachment argument specificity. their with Id. The distinguished authority upon First District the which the doctor (Feb.

relied, 13, 1991), C-89053, Wozniak Kombrink 1st Dist. No. 1991 WL case, 17213. In that the the plaintiff sought nonparty impeach medical records court, of an witness. In of trial testimony expert reversing judgment the the the that disclosing patient’s identity First District determined the risk of the out weighed plaintiff impeaching expert, plaintiff the benefit to the the since the had “less means to obtain the information.” 162 App.3d intrusive same ¶ 2005-Ohio-4414, contrast, sought impeach at 7. In Richards that trial party develop primary and to claim. The First District noted the “specifically weighed nonparty patients of the identity court the protected R.C. 2317.02 protected by otherwise the risk disclosure this of ” added). (Emphasis need the plaintiff’s compelling against information. ¶ Id. at 8. Alcorn, another sexually was assaulted allegedly Teri Alcorn had been admitted due hospital ward of the where she

patient psychiatric ¶ Alcorn, 2006-Ohio-5896, 2006 WL 3. Gerald disorder. bipolar consortium, sought and the Alcorns the medical Alcorn asserted a claim of loss of ¶ attacker, at 3-4. The Alcorns they of the whom knew. Id. alleged records outweighed that interests in their claims Franciscan’s argued prosecuting “their ¶ an in Id. at 5. After preserving physician-patient privilege.” interest ¶ review, compel. trial court the Alcorns’ motion to Id. 5- granted camera 6. the Alcorns relied Biddle’s “common-law hospital’s appeal, upon On the ¶at The First District Biddle’s exception privilege.” quoted Id. “

holding hospital may privileged that a disclose otherwise records where ‘disclo- necessary protect countervailing outweighs sure is or further a interest that ” ¶ confidentiality.’ interest Id. at 9. The First District next patient’s law,” subject propriety question noted of disclosure is de novo “[t]he only authority proposition review. Id. The for this of law as noted above was Biddle, which not hold that the of disclosure is a of law. propriety question does “[ajbsent Fair, upon In reliance the First District determined that * * * patient, prevented medical records of the the Alcorns would have been patient’s dangerous from was aware of the proving hospital] proclivities [the a breach of on the prevented establishing part therefore ¶ Id. at 11. court trial court took hospital.” every practical noted beyond measure to ensure that the records would not be disclosed the require- discovery. ments for Id. at 13. hospital argued scope also was too broad.

Again, question the First District noted that while “the initial was a law, management discovery process solely matter of was within the ¶ Notably, discretion of the trial court.” Id. at 15. no abuse of discretion was ¶ in the of trial at granting discovery found the court’s order. Id. 2008-Ohio-2348, 2058588, In Cepeda, patient 2008 WL the filed a multi- alia, count complaint against, practice, inter doctor and his after the doctor allegedly inappropriately unnecessarily removed her uterus and ovaries. Id. ¶at 2. The trial court motion granted Cepedas’ compel discovery the the of billing nonparty patients statements sent Medicare and Medicaid and ¶ at regarding the doctor’s finances and income. Id. 3-4. Defen- by dants that records were appealed, arguing billing protected patient for the privilege sought unnecessary and that the financial information was ¶ Cepedas pursue their claims. Id. at 7. District that the review Eighth Appeals began by noting Court

of the management discovery process subject of the is to an abuse-of-discretion standard, questions subject Cepeda, while to de novo review. ¶ 2008-Ohio-2348, Biddle, 2008 WL at 9. on court noted Relying absolute,” that the privilege provided by noting R.C. 2317.02 is “not “disclosure is in permitted prior the absence of authorization of privileged pursuant matters where disclosure is made to a or common- statutory mandate ¶ Second, law duty.” “discovery Id. at 10. of such protected communications is appropriate to or further a protect countervailing outweighs interest non-party patient’s confidentiality.” interest Id. It was significant appellate “[s]hielding court that the identity preserves objective patient-physician privilege while still achieving public’s justice.” interest ¶at 11. Id. Richards, Analogizing Cepeda to the court Cepedas noted

sought billing defendants’ statements to establish alleged the doctor’s motive to supplement by his income performing unnecessary procedures patients on with ¶ 2008-Ohio-2348, Cepeda, Medicare or Medicaid. 2008 WL at 16. The court determined that “such information necessary to further a countervailing added.) interest that outweighs non-parties’ privilege.” (Emphasis Id. Finally, the court noted that the trial court provided protection against identity disclosure of the of the nonparty patients and limited dissemination ¶ the discovered material. Id. at 17. addition, the Eighth disagreed District that the questions regarding

the doctor’s finances were irrelevant and an privacy. invasion of The court reiterated, review the trial court’s “[W]e decisions on the management discov- * * * ery matters an under abuse of discretion standard. The complaining party must establish a clear and prejudicial abuse of discretion that materially preju- * * * party. discretion, dices the Absent abuse of an appellate court overturn the trial court’s ruling 2008-Ohio-2348, on Cepeda, matters.” ¶ 2008 WL at 23-24. The court “relevancy concluded test 26(B)(1) pursuant to Civ.R. ‘is much broader than the test to be at trial. utilized is only [Evidence] irrelevant the discovery test when the information sought ” will not reasonably lead to the of admissible evidence.’ Cepeda, 2008- Ohio-2348, 2008 WL quoting Tschantz v. Ferguson 693, 715, Ohio App.3d 647 N.E.2d 507. dissenting opinion Cepeda asserted that Richards and Fair

“seek to broaden Biddle’s holding apply any case where is sought disclosure to aid a private against lawsuit a doctor who has been malpractice.” accused of 422 ¶ (Black- added.) 2008-Ohio-2348, at 31 2008 WL Cepeda,

(Emphasis “balancing mon, J., notes that Biddle used dissenting). The dissent can whether a medical records patient’s interest’ test to determine ‘countervailing ¶ a trial dissent that “before argued to third Id. 32. The party.” be disclosed test, court must the trial court and this balancing court apply [Biddle’s] to the According interest is.” Id. specially plaintiff-patient’s define what the dissent, joined understanding has the more relaxed Majority Opinion “the right injured patients to obtain non- judicially Biddle and found a created punish wrong information to patients’ privileged confidential medical party added.) (Blackmon, J., Id. at 34 by patient’s (Emphasis inflicted doctor.” * * * “remedies which would not dissenting). dissenting judge prefers The over what was characterized as the destroy nonparty patients’ privacy” by majority Richards and Fair. “super attorney general” concept espoused Id. it of the dissent in that leads the Perhaps language Cepeda is the

majority interpreted by appellate to conclude that Biddle has been courts as information, creating right reading but a close of these cases privileged the trial courts conducted a proper weighing countervailing reveals right interests and did not find an absolute to confidential records. These courts circumstances, merely special the narrow as should be recognized exception permitted under Biddle. majority The herein overlooks the fact that the documents to redacting children, all patient-identifying (only

remove information of those who are as is Jane) preserves purpose privilege. privilege The should terminate public peril begins, plaintiff, where the whether uncovered individual class plaintiff, prosecuting attorney, attorney general. privilege should not yield reporting requirements be absolute and should to the of the child-abuse- reporting privilege statutes. The should be construed it is in narrowly because of the search for truth. derogation majority mistakenly also relies on Jackson v. 110 Greger, 488, 2006-Ohio-4968,

St.3d N.E.2d (rejecting three-part test for implied attorney-client waiver of articulated in Rhay Hearn v. (E.D.Wash.1975), 574), F.R.D. requiring to reverse the trial court’s order Planned produce majority Parenthood to the redacted medical records. The does in a conclusory suggesting any exceptions physician- so statement patient privilege Assembly are for the General to address. This statement ignores exception that what the Roes seek is not an to physician-patient privilege, privilege. any but redacted records that violate no Once personal records, identifying patients requested discovery is redacted from the will Jackson, physician-patient privilege. involving invade the case the attor- ney-client privilege, does not implicate production the of medical records under protective the order in this case. Jackson, In a client sued her criminal-defense attorney legal

{¶ 109} malpractice after a court concluded the client’s criminal guilty plea the charge precluded, based on estoppel, collateral her claim under Section Title against city Id., U.S.Code the and officers who arrested her. 110 Ohio ¶ 488, 2006-Ohio-4968, St.3d in During discovery the malprac- suit, tice the attorney sought all attorney-client privileged information from the Section 1983 action. Id. The trial court granted the attorney’s compel, motion to reversed, and the appellate court applying the Hearn test and determining the client had not impliedly waived Id. at privilege. 5. On appeal, this court affirmed, holding that R.C. 2317.02 was the exclusive means which by the client’s conduct could attorney-client waive the privilege. Id. at paragraph one of the syllabus. address, Jackson not did cite or much question, less validity the of the

previous holding in that special Biddle may situations occur in which the interests of a patient, physician, party, third public may the outweigh patient’s privilege protecting his or her fact, medical records. recently, this court analyzed favorably applied Biddle in Hageman v. Southwest Gen. Health Ctr., ¶13. 119 Ohio 2008-Ohio-3343, St.3d Thus, as by demonstrated Hageman, Jackson’s conclusion that judicially created excep- tions to statutory privileges disfavored should not affect the holding Indeed, Biddle. Jackson did suggest this court longer would no recognize public-policy exceptions designed protect other countervailing inter- ests. Further, Jackson is distinguishable from Biddle and its progeny

Jackson dealt with the manner in which the holder of privilege could waive the privilege through his or her own conduct. Biddle and its progeny have not hinged on whether the conduct of nonparty patients rather, waived privilege; these weighed cases the competing interests at stake to determine whether the privileged information should be disclosed. Although the majority concludes that a narrow construction of Biddle nondisclosure,

compels I disagree. by asserted Planned Parent- hood law, derogation of the common which must strictly be construed it. against The Roes have set forth claims that special constitute circumstances necessitating disclosure. The third-party/nonparty’s privacy rights are not invad- ed or imperiled with proper redactions. Redactions can be achieved using (Health the proper Act) HIPAA Insurance Portability and Accountability stan- dards to ensure patient confidentiality. The trial court ordered and can continue every take practical reasonable and measure to ensure that patients’ An additional discovery. requirement beyond will not be disclosed records upon confidentiality imposed order and a of the records sealing is the safeguard parties. confidentiality patient the fact that in all this debate is Lost (And case, in this physician. not the patient, protection is for records of who children, age under the those exclusively about talking arewe permitted not be defendants should exploitation.) victims of sexual thereof) (or lack conduct professional their questioning a civil suit frustrate privilege. asserting physician-patient justified compelling interest record, public private both On this child, Jane, right have the Roes, 14-year-old parents as

discovery. The An statutory duties. injury multiple and breach of claims for multiple pursue to discover opportunity permitted should be plaintiffs or plaintiff individual eye a blind turning a of pattern ignoring that demonstrate may records and/or issue a relation to the may indeed bear direct redacted records child abuse. Such warranting thus x-eprehensible, was Planned Parenthood’s conduct of whether a pattern, such expose the Roes’ lawsuit x-eveal damages. Should punitive of, demanding and accounta- simultaneously by learning a benefit public derives from sexual fail to vulnerable children for, protect who bility providers medical predators. a may present that this case expressed court concern appellate 115}

{¶ for harm Planned Parenthood jury may punish a decide to situation wherein 346, (2007), v. 549 U.S. Philip Morris USA Williams nonparties. caused to See 1057, clearly the cart before the places 166 L.Ed.2d 940. This concern 127 S.Ct. admissibility. not addressing only discovery, are now horse. We jurors for the Nevertheless, by harm to be considered nonparties a Planned Parenthood showed of them decide whether purpose helping limited great other that had a rights safety persons for the disregard conscious majority Philip recog- in Morris substantial harm. The probability causing can to show that the nonparties help of actual harm nized “[e]vidence * * * risk posed that harmed the also substantial plaintiff conduct * * Morris, Philip *.” 549 particularly reprehensible and so was general public, 355, 1057, recognized principal goal 940. A at 127 S.Ct. 166 L.Ed.2d U.S. conduct. reprehensible is to deter future damages punitive Stevens, by expressed overlooked Justice who This difference was not between majority Philip Moms befuddlement at the distinction drawn allowed) (not considering nonparties based on harm to punishing defendant Morris, Philip determining reprehensibility. scope wrongdoing (Stevens, J., 359, 1057, dissenting). Repeated 166 L.Ed.2d 940 U.S. S.Ct. abuse) (or report failure to sexual duty report complete of the breaches 404(B) to demon- under Ohio Evid.R. admissible 2151.421 would be under R.C. identi- intent, plan, knowledge, motive, preparation, opportunity, “proof of strate that “conduct recognition simple This is a or accident.” or absence of mistake ty, that risks than conduct reprehensible more many likely is that risks harm to Id. at 357. only harm to a few.” not recoverable damages punitive majority also concludes 118}

{¶ Campbell so, majority suggests doing 2151.421. under former R.C. just 539, damages, not discuss did Burton Laws, II, 3500, 2744.03, Part 2744.02 and and that R.C. liability, of the word interpretation expansive limit the court’s April effective by a section imposed liability only expressly when “liability” to civil conclusion, view, my is this difficulty with Revised Code. The obvious liability political of a 2744.03 address the 2744.02 and revisions of R.C. these brought against not been clearly This case has injury or death. subdivision a private individuals or private are either All defendants subdivision. political Parenthood. Planned corporation, com- there was no concludes that because majority Additionally, abuse, duty, having the statute that created child report

mon-law breach, damages. for punitive cannot allow damages for its authorized explicitly intent first, legislative overlooks the completely this conclusion I believe that vulnerable, amendments, protection to wit: its the statute and creating clearly prevent intent legislative and children. The victimized women crime, and injury, exploitation. further of and characteristics principles basic majority opinion overlooks relation of “liability upon is based It a of torts principle

tort law. is basic (5th Ed.1984) Keeton, 5. “Torts Law of Torts Prosser & with others.” persons law by upon parties and imposed of duties fixed consists of the breach * * * way in a acting for usually tort-feasor is held liable itself.” Id. “The of torts is at 6. law “[T]he standard of care.” Id. from a reasonable departs * * * harmful, unreasonable, from the socially or with acts which are concerned a violation at 7. The Roes assert community as a whole.” Id. of view of the point child, Jane, duty by and the arises both minor owed to them and their duty of to Jane. relationship the defendant’s of law and operation holds, that there is no majority and the argues, Planned Parenthood damages were punitive 2151.421 because damages under R.C. right punitive 2151.99, and the amended sections expressly provided 2151.421(A) of a misde- guilty is Yet whoever violates R.C. unconstitutional. a criminal partakes of wrong When the claimed degree. meanor of the fourth Punitive in a civil suit. nature, justice wrongdoer brought should be public sound justice, upon but concept on some abstract damages do not rest safety which in this instance seeks to and health of children policy, promote encourage reporting importance of abuse. We must take into account the by mandatory a failure to underlying public policy jeopardized reporter’s Morris, Philip As dissent in “There is little report. Justice Stevens noted his sanction, justification difference between the for a criminal such as a fine or and an award of imprisonment, punitive damages.” term Id. S.Ct. 1057,166 J., (Stevens, dissenting). L.Ed.2d 940 It cannot be overlooked that the Roes have also malice and alleged child, disregard rights

wanton for their and those of their minor Jane. In cases shown, in which malice is is a rule so right punitive damages deeply rooted in Ohio law that this court should not permitted exception carve out thereto claims governing brought under former R.C. 2151.421. Punitive damages coin, always criminal, have been two sides of the same which punitive, one of public, and the other of which is in substance civil. private and Criminal statutes should serve as guideposts imposition for the of civil tort duties. Further, 2151.421(G) (H) sections R.C. and the support former finding remedy sections, that a civil for punitive damages is available. These by i.e., a civil recognizing immunity for reporters under the “whistleblowers”— redress, statute —do implication recognize right to civil including punitive damages against mandatory reporters those who fail to known report suspect- reading ed abuse. This recognizes statute that each section should be construed connection with other every part promote or section to a harmonious whole. inquiry Here, The ultimate is to legislative ascertain the intent. intent is to encourage reporting, provide immunity civil for those who make a faith, report good false and also hold liable those who fail in their protect children such as view, Jane who are victims of sexual predators. my this intent was clear even before H.B. presume 280. We should that the General Assembly did not intend the absurd operation results from the of the statute reached by majority, which in effect nonreporters. shields certainly Jane is member the class that the statute is designed to protect. underlying purpose of the statute is to afford her the full panoply of damages civil when a breach is established. A provider, regardless medical the area in which the physician specializes, individual obviously fiduciary has a with relationship patient his or her warranting compliance with the standard of care of all required physicians the medical community large. Although majority abuse, concludes there was no common-law to duty report child always there has abuse, been common-law to report serious crime. Child sexual battery, rape and are serious crimes. majority opinion The rendered today protect does more to the adult Parenthood) (i.e.,

defendants Planned than sexually abused children. The opinion guide to their minor children and protect to parents’ rights undermines likewise and its discretion trial court exercised properly their medical treatment. their claims. Mandato- they might pursue to the Roes so granted discovery The Roes should and demanded. encouraged, expected, must be ry reporting them. the law affords to seek remedies effectively opportunity denied the * * * statute, just A 1.47(C) it that: presumed “In provides: enacting nor reason- just is neither today is intended.” The result and reasonable result able. L.L.P., Gehring; J.

Crabbe, James, Hurley, Brian E. and Robert Brown & Jr., A. P.L.L., L. William Creighton Richard Muething Klekamp, & Keating, L.P.A., White, Co., Miller; Meyer & Getgey M. Posey, and Charles Bunch, appellants. Nicholas E. Thomas, Pease, L.L.P., R. Sater, Buckley, Daniel J. Michael

Vorys, Seymour & Richards, P. Kulewicz, K. Maureen Langsam, K. Dorothea John J. Suzanne Shimmer, Jacobson, for Mahle, T. and Barbara Bison D. Alexandra Tracey, Jacob appellees. E. Deters, and William County Prosecuting Attorney, T. Hamilton

Joseph Hutzel, County Rachel A. Warren Prosecuting Attorney; Assistant Breyer, Chief White, County Prosecuting Donald W. Clermont Prosecuting Attorney; and Deters, County T. Hamilton Joseph for amici curiae Attorney, urging reversal Hutzel, County Prosecuting Attorney, Attorney, Rachel A. Warren Prosecuting White, Prosecuting Attorney. County and Donald W. Clermont Smith, Offices, P.C., K. Kirkpatrick; Law and Joel J. and Mañee Kirkpatrick Congress from the State reversal for amici curiae members U.S. urging Ohio. Law, L.L.C., R. Defense Fund and Langdon; and David and Alliance

Langdon Willke, Shafer, for amici curiae Dr. and Mrs. Jack Jeffrey urging A. reversal Reform, University, for Bioethics at Cedarville Center for Bioethical Center Values, Lawyers for Group, Citizens Media Cleveland Community Citizens for Life, Life, Life, Life, Dayton Right Right Columbus Right Cleveland First, Policy, Institute for Life Issues Family Healthy Beginnings, Principled Voters, Alliance, Institute, American, Christian Mission: NE Ohio Values Ohio East, Alliance, Life, Right Pregnancy Center Prayer Ohio Governmental West, to Life of County, Right to Life of Butler Greater Pregnancy Right Center Center, Cincinnati, Foundation, Touch Sanctity Pregnancy of Life The Reach Out Love, Ministries, Life, County Right Way the World Warren Influencing Women the Nation. Eckler, L.L.P., Sferra, Purdue,

Bricker & Anne Marie and Bridget urging Association, affirmance for amici curiae Medical the Ohio State the American Association, Medical and the American College Gynecolo- Obstetricians and gists. Teller,

Katz, L.P.A., Brant & Hild and Laura A. affir- Hinegardner, urging Psychological mance for amicus curiae the Ohio Association.

Collis, Collis, L.L.C., Smiles, Collis, Terri-Lynne Smiles & B. Y. Elizabeth affirmance for urging Psychiatric Physicians amicus curiae the Ohio Association. Foundation, Inc., Davis, American Civil Liberties Union of Ohio L. Carrie Gamso, Jeffrey M. affirmance for amici urging curiae Ohio Chapter Pediatrics, Academy American Academy Family Physicians, Society Medicine, Workers, Adolescent National Association of Social National Center for Law, Law, Youth Center for Adolescent Health & The Ohio Now Education and Fund, Legal Network, Ohio Domestic Violence, Violence Action Ohio Domestic Weave, Cycle, Break The Inc. Engine Corporation, Appellant, State ex rel. International Truck &

v. Industrial Appellees. al., Commission of Ohio et Engine Corp. ex State rel. Internatl. Truck & [Cite as Comm., Indus. Ohio St.3d 2009-Ohio-3502.] (No. 2009.) May 2008-1341 Submitted July 2009 Decided Per Curiam. Appellee Edward C. Moritz has alleged injured that he was as a result of (“VSSR”) a specific safety violation of requirement by appellant International (“ITE”).

Truck & Engine Corporation prevailed Moritz administratively and at the court appeals, and ITE appealed. has

Case Details

Case Name: Roe v. Planned Parenthood Southwest Ohio Region

Court Name: Ohio Supreme Court

Date Published: Jul 1, 2009

Citation: 912 N.E.2d 61

Docket Number: 2007-1832

Court Abbreviation: Ohio