672 N.E.2d 1074 | Ohio Ct. App. | 1996
Lead Opinion
This is an appeal by the state from a judgment of the Court of Common Pleas of Logan County ruling on the admissibility of a physician's patient records seized during a search of the physician's office and used to support the indictment of the physician on criminal charges. The trial court ruled, on August 11, 1994, that the state was prohibited from using the patients' medical records as evidence in the case, absent express permission from the patients themselves.
On December 2, 1992, a forty-two-count indictment was filed in Cuyahoga County against Dr. James McGriff and his wife, Renee, charging them with various counts of theft and fraud against health care insurers, and with several counts of illegally prescribing stimulant drugs specifically named in Schedules III(A) and IV(D), R.C.
"The trial court erred in permitting the defendant-doctor to immunize himself from criminal prosecution by asserting the doctor-patient privilege."
Following our review of the record and the law, we sustain the assignment of error and reverse the judgment of the trial court, for the reasons which follow. *670
In Ohio, the patient is the holder of the physician-patient privilege. A person other than the patient cannot assert the privilege. Hunter v. Hawkes Hosp. of Mt. Carmel (1989),
"Courts have consistently rejected attempts by physicians or hospitals to assert a patient's privilege to hide their own `criminal' wrongdoing. See In re Grand Jury Proceedings (1982)
Moreover, in Ohio State Med. Bd. v. Miller (1989),
Pursuant to the cited authorities, properly censored medical records containing evidence of a physician's criminal activity may be utilized as evidence in a criminal prosecution against the doctor. Accordingly, the defendant doctor in this case should not be permitted to invoke his patients' privilege in order to shield himself from prosecution.
In support of its Crim.R. 12(J) appeal, the state has certified that it cannot prosecute this case in the absence of information contained in these patients' medical records. Since the defendant has been accused of prescribing controlled substances for improper and illegal purposes and of committing fraud against various health insurance companies, if there is evidence of wrongdoing it will be contained in notations to his patients' medical records. Without these records, the state will be unable to prosecute its case. The relevant and incriminating information, if any, contained in the patient records would be disclosed only to the extent needed to prosecute the defendant. Redaction of the records through erasure or concealment of the patients' names and addresses and other information inapplicable to the prosecution of the charged crimes would ensure that each patient's interest in confidentiality and privacy is protected without frustrating the state's interest in prosecuting illegal drug activity. See *671 Miller,
Therefore, having found error prejudicial to the appellant herein, in the particulars assigned and argued, we reverse the judgment of the trial court and remand the case to that court for further proceedings.
Judgment reversedand cause remanded.
HADLEY P.J., concurs.
BRYANT, J., dissents.
Dissenting Opinion
The majority holds that this court, by judicial fiat, is able to abrogate the physician-patient privilege contained in R.C.
James McGriff is a physician, and his wife Renee apparently works in his medical office. In September 1992, James and Renee McGriff were indicted by the Cuyahoga County Grand Jury on one count each of R.C.
On August 4, 1993, McGriff filed a motion in the Court of Common Pleas of Cuyahoga County for a change of venue to Logan County. On September 22, *672 1993, the Common Pleas Court of Cuyahoga County granted the motion, and the cause was removed to the Court of Common Pleas of Logan County. Thereafter, the state moved to amend the indictment, and on April 4, 1994, the trial court granted the motion in part and denied the motion in part.2
On April 20, 1994, the state filed a motion to rule on the admissibility of the patients' medical records. On August 11, 1994, the trial court entered its judgment denying the state's request to use McGriff's patients' medical records as evidence. The trial court held that the records were protected from disclosure pursuant to the physician-patient privilege, R.C.
First, I address the procedure employed here. Crim.R. 12 specifies the procedure to be used concerning pleadings and motions before trial.3 This rule allows a defendant to file a motion in limine or a motion to suppress evidence after the state has filed a notice to use certain specified evidence. If a trial court grants a defendant's motion to suppress evidence, the state has an opportunity to appeal that judgment pursuant to Crim.R. 12(J). See, also, R.C.
"Any motion, however labeled, which, if granted, restricts the state in the presentation of certain evidence and, thereby, renders the state's proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed, is, in effect, a motion to suppress. The granting of such a motion is a final order and may be appealed pursuant to R.C.
In Davidson, the court held that the state could appeal when a motion in limine is used as the equivalent of a motion to suppress because "it does not depend on what [the motion] is labeled" but, rather, "on the type of relief it seeks *673
to obtain." Id. at 135, 17 OBR at 280,
Here, the state filed its notice of appeal pursuant to Crim.R. 12(J). Hence, the state is certifying that this appeal is not taken for purposes of delay and that its case against McGriff is rendered "so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed." See Crim.R. 12(J). Because the trial court's judgment determined that the state could not use these records without waiver by the patients, most of whom have not waived their privilege, and because of the state's certification that it cannot reasonably proceed without using these patients' medical records as evidence, the effect of the judgment is to suppress evidence that the state would otherwise use. Therefore, I deem this a final appealable order and address the merits of this appeal. See Davidson, supra.
The state's assignment of error is:
"The trial court erred in permitting the defendant-doctor to immunize himself from criminal prosecution by asserting the doctor-patient privilege."
Essentially, the state argues that the trial court erred by holding that it could not use the medical records of thirty of McGriff's patients unless the patients in question waive their physician-patient privilege. The state seeks to use the patients' medical records to prove that McGriff's conduct of treating certain patients for obesity and prescribing for them certain medication was not in accordance with bona fide medical treatment pursuant to Revised Code Chapters 3719 and 4731. See R.C.
The question confronting this court is whether the trial court erred by holding that the state cannot use the medical records of certain patients of McGriff's unless the patients waive their physician-patient privilege. For the reasons that follow, I believe that the trial court did not err in this matter.
R.C.
"The following persons shall not testify in certain respects:
"* * *
"(B)(1) A physician * * * concerning a communication made to him by his patient in that relation or his advice to his patient, except as otherwise provided in this division and division (B)(2) of this section, and except that, if the patient is deemed by section
"The testimonial privilege under this division is waived, and a physician * may testify or may be compelled to testify in a civil action, in accordance with the discovery provisions of the Rules of Civil Procedure in connection with a civil action, or in connection with a claim under Chapter 4123. of the Revised Code, under the following circumstances:
"(a) If the patient or guardian or other legal representative of the patient gives express consent;
"(b) If the patient is deceased, the spouse of the patient or his executor or administrator of his estate gives express consent;
"(c) If a medical claim * * * as defined in section
"* * *
"(3) As used in divisions (B)(1) and (2) of this section, `communication' means acquiring, recording, or transmitting any information, in any manner, concerning any facts, opinions, or statements necessary to enable a physician * * * to diagnose, treat, prescribe, or act for a patient. A `communication' may include, but is not limited to, any medical * * *, office, or hospital communication such as a record, chart, letter, memorandum, laboratory test and results, x-ray, photograph, financial statement, diagnosis, or prognosis."
The purpose of the physician-patient privilege statute is to protect the privacy of patients in order to ensure open and full disclosure to the physician without fear that those communications will later become public. State v. Karcher
(1953),
The case sub judice is unique in Ohio. This court has been unable to locate a case where the issue was whether the state, in a criminal prosecution, could use a physician-defendant's patient medical records to show that the physician was not acting in accordance with the Revised Code. In short, the physician-patient privilege has not been raised in the context now before us. However, prior Ohio Supreme Court decisions have provided some guidance.
In State v. Smorgala (1990),
"1. Courts may not create a public policy limitation upon the physician-patient privilege in order to allow otherwise clearly inadmissible evidence to be received in drunk driving cases.
"2. Because the law of privilege is substantive in nature, the Supreme Court is not free to promulgate an amendment to the Rules of Evidence which would deny a statutory privilege in drunk driving cases."
Smorgala also stated,
"Where the words of a statute are free of ambiguity and express plainly and distinctly the sense of the lawmaking body, the courts should look no further in their efforts to interpret the intent of the General Assembly. Here it is clear that the legislature has stated that the privilege is to be given effect absent specific statutory exceptions, none of which applies to this case."
"If the admission of evidence, i.e., the hospital-ordered blood test, is a purely procedural matter, the court would arguably be free to pronounce an appropriate rule without usurping a legislative function. A review of Evid.R. 501 dispels any hope that such an approach will be helpful. Evid.R. 501 reads in its entirety:
"`The privilege of a witness, person, state or political subdivision thereof shall be governed by statute enacted by the General Assembly or by principles of common law as interpreted by the courts of this state in light of reason and experience.'
"The rule clearly states that the matter of privilege is controlled by statute or common law. This rule removes the matter of privileges from the operation of the Rules of Evidence. See Staff Note (1980), Evid.R. 501.
"* * * The Staff Note to Evid.R. 501 echoes a similar concern over the substantive nature of the law of privilege. The note states that by adopting by reference privilege statutes and common-law constructions, the direct confrontation of questions of what is procedural and what is substantive was avoided. *676
"Because the law of privilege has been determined to be substantive in nature, this court is not free to propose an amendment to the Rules of Evidence which would deny the privilege in drunk driving cases. Likewise, since the legislature has enacted a specific statutory provision in R.C.
Thus, in Smorgala, the Supreme Court of Ohio determined that the physician-patient privilege, R.C.
In In re Miller (1992),
"Since R.C.
Although In re Miller differs from Smorgala in that the former suggests that a case with compelling facts may allow for a judicially created waiver of the physician-patient privilege, I am not able to unequivocally state that an appellate court may create by judicial fiat an exception to the physician-patient privilege when the enacting of such an exception has historically been left within the province of the legislature. DespiteSmorgala having been decided prior to the October 29, 1993 amendment of R.C.
Another example of the legislature's control of the physician-patient privilege is found in Ohio State Med. Bd. v.Miller (1989),
State v. Antill, supra, is an early Supreme Court decision related to the issue here. In Antill, the defendant was on trial for battering his wife and the trial court permitted the treating physician to testify. Although the Supreme Court seemed willing to apply a balancing test between having a patient's condition remain confidential and society's interest in detecting crimes, the court expressly found that there was no violation of the physician-patient privilege. While the Antill decision may seem attractive for application to the case at bar, I do not find the court's simple willingness to apply a balancing test a definitive statement *678
on the substantive application of the law of privilege, especially in light of the recent Ohio Supreme Court decisions in Smorgala and In re Miller interpreting R.C.
Here, the state claims that it is not "requesting this court to make a public policy exception as to abrogate the privilege. What the State is requesting is a procedure by which the interest of the patient is protected as well as the interest of the State to prosecute." The state suggests that the purpose of the physician-patient privilege statute can be achieved by redacting the patients' medical records to delete information that might identify the patients.
I deem this suggestion unworkable and an invasion of the privilege as well as a blatant attempt to circumvent the application of the statute.
To allow the state to delete any identifying information contained in these patients' medical records would necessarily breach the physician-patient privilege without authority to do so. At least one person (the prosecutor) and more likely three persons (prosecutor, defense counsel and trial judge), if not more, would have to examine the contents of each patient's medical record to determine what is to be deleted and what is to be shown as evidence. Further, any information not deleted and subsequently used at trial by the state is still information protected by the privilege. Finally, to delete some items in the records does not guarantee that these patients will not be identified when the remainder of their medical records are used at trial.
I must note that I wholeheartedly agree with the majority when it states that the patient holds the privilege, and not the physician. This is the very reason why I agree with the trial court's judgment and believe that this court may not invade the privilege. Indeed, the state has acknowledged that the vast majority of the patients solicited for waiver have refused to waive the privilege. Thus, the patients themselves have asserted the privilege, not McGriff. Apparently, the state wishes to avoid further refusals to waive by a court order that waiver is unnecessary. However, I must reiterate that the patients themselves are the ones who decided that they did not wish their medical records revealed for use by the state. It is also instructive to note that the majority cites and quotes Johnstonv. Miami Valley Hosp. (1989),
While I am well aware that a physician should not be allowed to assert the physician-patient privilege to obstruct criminal proceedings against him, the authorities cited above lead me to conclude that this court is not able to create an exception to the physician-patient privilege. I am also mindful of the troublesome fact that patients that seek bona fide treatment from a physician who indeed is engaged in the illegal practice of medicine are themselves victims of that physician. However, there is no evidence that that is the case before this court.
In any event, it is my view that current Ohio law requires that if the state seeks to use the medical records of a nonparty patient in order to prosecute that patient's physician, the state must first obtain a waiver of the privilege by that patient. Any other solution must be crafted by the legislature or, possibly, by the Supreme Court. As aptly stated by the Supreme Court of Minnesota in State v. Staat (1971),
"* * * Despite persistent academic and judicial criticism of this evidentiary privilege [i.e., the physician-patient privilege] as an impediment to the ascertainment of truth, it is nevertheless our duty to enforce it to the full extent reasonably necessary for the attainment of the longstanding legislative policy for which it was created, namely, to provide a shield for safeguarding and promoting confidential communications between a patient and his attending physician." See, also, id. at fn. 2, citing State v. Karcher, supra,
Accordingly, I would find appellant's assignment of error not well taken and would affirm the trial court's judgment.
