762 N.E.2d 407 | Ohio Ct. App. | 2001
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Third party defendant John Sirca ("John") appeals from the decision of the Medina County Court of Common Pleas, which denied his motion for a protective order and ordered him to disclose confidential materials. This court reverses. *184
The Sircas allege that they advised DHS that they wanted to adopt a healthy baby. The Sircas allege that notwithstanding this fact, DHS fraudulently misrepresented to them John's biological and medical background at the time of the placement. The Sircas claim they acted in reliance on the misrepresentations, to their detriment. The Sircas allegedly suffered financial damages in paying for mental health treatment for John during the course of his minority. The Sircas contend that John's problems relate to his genetic background, which was known to DHS at the time of the adoption. The Sircas brought suit in their own capacity, and not on behalf of John. John was not a party to the initial complaint.
After discovery began, the Sircas allegedly produced a large amount of John's medical records to DHS, but upon review DHS discovered that clearly some of John's medical records were missing. DHS tried to compel discovery from the Sircas, but the parents did not comply. The Sircas stated that they could not obtain John's signed release for the remaining records. DHS obtained leave to join John as a necessary party and to name him as a third-party defendant. John moved the court to dismiss the complaint against him, pursuant to Civ.R. 12(B)(6). The court denied the motion to dismiss. DHS sought to depose John and several of the Sircas' fact witnesses, mental health professionals who had treated John. John filed a motion for a protective order pursuant to Civ.R. 26(C), but the court denied the motion. The court ordered John and several of his treatment providers to appear for depositions.
It is from this discovery order that John appeals. He assigns one error for our review.
The trial court's October 25, 2000 Judgment Entry denying Appellant's motion for a protective order and ordering Appellant John Sirca to involuntarily produce his medical records and providers for examination is an error and violation of the rights guaranteed Appellant under Ohio law.
Discovery orders such as that here were once deemed not to be final and appealable. See, e.g., Walters v. Enrichment Center of Wishing Well,Inc. *185
(1997),
The policy of the discovery rules is "to prevent an attorney from taking undue advantage of his adversary's industry or efforts." Civ.R. 26(A)(2). For good cause shown, a party is entitled to a protective order where "justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Civ.R. 26(C). However, the scope of the right to discovery only extends to relevant material that is not privileged. Civ.R. 26(B)(1).
John argues that the medical records and the medical testimony are not discoverable because they are privileged. John directs our attention to Evid.R. 501, which provides that issues of privilege are governed by statute and by principles of common law as interpreted by Ohio courts. Pursuant to R.C.
R.C.
In response, DHS claims that John must have consented to disclose his medical records because the Sircas had in their possession a large volume of documents related to John's treatment history. For this purpose, DHS points to a list of medical records that the Sircas allegedly disclosed to DHS during discovery. However, although DHS sought to supplement the trial court record with this unauthenticated list, this court denied the motion to supplement, as in derogation of App.R. 9. There is nothing in the trial court record to establish what medical records, if any, the Sircas disclosed to DHS. Furthermore, DHS has made no showing that the Sircas obtained any of John's medical records after John turned eighteen. Any materials obtained during John's minority would not require his signed consent. Finally, DHS has offered no evidence to rebut the *186 possibility that John consented to the release of certain medical records and not others. The right to such a limited consent cannot be disturbed under these circumstances.
DHS further claims that John's current attorney has stated in court that if the trial proceeds to the damages phase,1 John would then consent to disclose this confidential material. However, DHS offers no evidence to establish that such a promise was made. Assuming, arguendo, that John's counsel made such a conditional promise, this is insufficient to constitute waiver under the circumstances. DHS expresses concern that as the matter proceeds to trial, John will ultimately consent to the disclosure of the confidential material, "ambushing" DHS by the sudden disclosure of information potentially damaging to DHS. This argument is speculative at best.
Ultimately, the Sircas will bear the burden of proving their case by presenting the necessary medical evidence, which John may or may not consent to disclose. If John ultimately consents to its disclosure, DHS will have the opportunity to seek a continuance of the proceedings to engage in further discovery, if necessary. To compel a non-complaining2 third party to disclose highly confidential information based on such speculation would simply eviscerate the statutory guarantee.
Finally, DHS argues that even when a patient does not consent to disclose confidential information, the court may order disclosure under appropriate circumstances. In support of its argument, DHS points to the general proposition enunciated in Biddle v. Warren Genl. Hosp. (1999),
Because John did not file a lawsuit in which he put his medical history at issue, the trial court erred in compelling John to disclose his confidential medical information absent his voluntary consent.
We find that John's assignment of error is well-taken, and we sustain it.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E).
Costs taxed to Third Party Plaintiffs/Appellees.
Exceptions.
____________________________ WILLIAM R. BAIRD
SLABY, J., WHITMORE, J. CONCUR.