791 N.E.2d 463 | Ohio Ct. App. | 2003
{¶ 2} Facts and procedural posture relevant to issues raised on appeal are as follows: James Orwick was arrested on a warrant issued by the Hancock County Grand Jury on November 20, 2001, alleging one count of gross sexual imposition, thirteen counts of rape, and fifteen counts of sexual battery of his stepdaughters. Orwick was arraigned on November 28, 2001, and subsequently released on $100,000 bond. A jury trial was scheduled for June 3, 2002. However, due to scheduling problems and other procedural issues, trial was continued until July 31, 2002.
{¶ 3} On July 26, 2002, the State subpoenaed Dr. Donald Evert, M.D., his records custodian, the records custodian of Blanchard Valley Regional Health Center ("BVRHC"), and Pat Weaver, a licensed social worker from the hospital, requesting all documents relating to counseling sessions with Orwick. The State alleged that on or about January 20, 2002, Orwick telephoned his wife and informed her that he was going to commit suicide. Orwick was admitted to BVRHC, where he was counseled by Weaver. After his release from the hospital, Orwick spoke with Dr. Evert and staff at his office. The matter came on for hearing on July 29, 2002.
{¶ 4} At the hearing, Orwick objected to the subpoena, arguing that the documents were privileged communications protected from disclosure by R.C.
{¶ 5} After an in camera inspection of the packets, the court ruled that no documents would be disclosed from Court's Exhibit 1. However, the court found that one document contained in Court's Exhibit 2, dated March 8, 2002, authored by Daniel King, a licensed independent social worker for Dr. Evert's office, was excepted from the counselor-patient privilege and was discoverable under R.C.
{¶ 6} Appellants initiated the instant appeal, and the State cross-appealed. Defendant Orwick perfected a separate appeal, in which the State also cross-appealed with an identical assignment of error.1
{¶ 7} Appellants present the following two assignments of error for our consideration:
Assignment of Error Number One
Assignment of Error Number TwoThe Trial Court erred in ordering a licensed social worker to disclose privileged communications between himself and his client in accordance with R.C.
2317.02 (G)(1)(a) to the Hancock County Prosecutor.
The Trial Court erred in its interpretation and application of R.C.
2317.02 (G)(1)(a) by ordering the disclosure of privileged communication between a licensed social worker and his client.
{¶ 8} As an initial matter, we address whether this is a final appealable order and whether Appellants have standing to bring this appeal. Although Appellants produced the documents upon agreement that they could maintain an appeal, neither the Appellants nor the trial court may confer jurisdiction upon this Court by agreement.2 "Our jurisdiction to hear an appeal originates from the law and thus is inherently the first burden all appellants bear."3
{¶ 9} In Ohio, it is well-established that the patient is the exclusive holder of the physician-patient privilege and third parties generally cannot assert the privilege on the patient's behalf.4 "[I]t is axiomatic, as a prudential standing limitation, that a party is limited to asserting his or her own legal rights and *92 interests, and not those of a third party."5 "To bring an action on behalf of a third-party, a litigant must satisfy three criteria: first, the litigant must have suffered an injury in fact, thus giving him or her a sufficiently concrete interest in the outcome of the issue in dispute; second, the litigant must have a close relation to the third party; and third, there must exist some hindrance to the third party's ability to protect his or her own interest."6 To demonstrate an injury in fact, a party must show that it has suffered or will suffer a specific injury traceable to the challenged action that is likely to be redressed if the court invalidates the action or inaction.7
{¶ 10} As mentioned above, Orwick is the exclusive holder of the privilege. Appellants cannot waive a statutory privilege intended for Orwick's benefit on his behalf or prevent him from waiving a privilege if it so applies.8 Although Appellants may have a duty of confidentiality with respect to privileged information and may be subject to liability for unauthorized out-of-court disclosure of nonpublic privileged information,9 they are not subject to liability if the information is disclosed pursuant to a valid court order.10 Because Appellants are not entitled to the privilege and are not subject to liability for disclosure pursuant to a valid court order, they have no injury that is able to be redressed if the court invalidates the action or inaction. Furthermore, Appellants have not demonstrated that there exists some hindrance to Orwick's ability to protect his interest, and in fact, Orwick did assert the privilege herein. While some states permit a physician or hospital to assert physician-patient or other related privileges on a patient's behalf, those decisions are based on the particular language of the statutory privilege in the state rather than traditional application of common-law privileges11 and are generally limited to situations wherein the patient is not a *93 party to the proceedings and is unable to assert the privilege on his or her own behalf.12 Clearly, this is not a situation in which the patient is a non-party unable to assert the defense on his own behalf.
{¶ 11} Therefore, because Appellants have not demonstrated that they have suffered an injury in fact or that there exists some hindrance to Orwick's ability to protect his rights, they lack standing to appeal a decision relating to rights that inure solely to the patient.13
{¶ 12} Accordingly, we dismiss Appellants' appeal.
State of Ohio-Cross Appellant's Assignment of Error.
The Trial Court erred in ordering the release of only one document rather than all the documents created and utilized in all the counseling sessions by the independent social workers and their client.
{¶ 13} For its assignment of error, the State contends that R.C.
2317.02 (G)(1)(a) compels disclosure of "all communications made to the two social workers, and any documentation thereof[.]" The State avers that that once the court found a specific statutory exception to be applicable to any of Orwick's communications, the privilege is waived as to entirety of the communications between Orwick and his counselor made during the same consultation and all other communications relating to the same subject.
{¶ 14} However, as discussed in Hancock appeal number 5-02-46, we are mindful that the Ohio Supreme Court "has repeatedly and consistently refused to engraft judicial waivers, exceptions, or limitations into the testimonial privilege statutes where the circumstances of the communication fall squarely within the reach of the statute."14
Through R.C.
{¶ 15} Accordingly, the State of Ohio's cross assignment of error is overruled.
{¶ 16} Having found no error prejudicial to the appellants herein, in the particulars assigned and argued, the judgment of the Hancock County Common Pleas Court is hereby affirmed.
Judgment affirmed. SHAW and CUPP, JJ., concur.