*1 212 al., Appellees, Health Summa et
Ward
Appellant.
System
Debski,
al.;
et
Sys., Health
Ward
Summa
[Cite as
212,
disease to to determine source ability obtain patient’s review concerns his exposure. Background I. Case replace his procedure to May In Donald Ward underwent appellee (“Summa”). later, System at Health Five months Summa heart valve Summa his at during B time exposed hepatitis he been to notified Ward that have virus, and his wife filed for the Ward positive After he tested Summa. claims, alleging various through Summa and John Does complaint against to of time requested also an extension malpractice. Wards including 10(D)(2), was required by arguing of merit Civ.R. file the affidavit of Donald identify had the source Ward’s needed because Summa refused granted The trial court the motion. exposure the virus. for deposition filed a notice of Donald In December the Wards Debski, M.D., not a named Robert F. who was surgeon, appellant
Ward’s Deb- response previous regarding deposition, discussions the action. stating counsel that the doctor would attorney ski’s sent letter the Wards’ testify about own medical information but would not discuss his scope to limit the performed. he The Wards refused surgery order, arguing and Debski filed motion for deposition, own his with his privacy regard physician-patient privilege they and detailed opposed why The Wards motion medical information. exposure. They contended that Debski could be the source believed wished apply, they explained did not (1) (2) ask and, so, Debski he has ever had B if whether when he contracted the how disease and when he became aware that he had the *2 order, granted disease. trial court the protective the doctor had finding to standing assert the physician-patient privilege testifying as to his own that there had no been waiver of the privilege.1 meantime, In the Summa filed a motion to dismiss because the {¶ 4} Wards 10(D)(2). had not yet filed an affidavit of merit required by Civ.R. The trial court granted the an Wards extension of time file granted to their affidavit further extension after their attempt to appeal order was dismissed for lack a final order. appealable 2, 2008, dismiss, On December Summa filed a to second motion arguing
that dismissal was appropriate because the Wards failed with comply trial court’s order to submit an affidavit of merit. The responded Wards their effort obtain an affidavit hampered by had been the trial court’s discovery rulings. They contended that their inability identify source B hepatitis exposure prevented prospective witnesses from determin- expert ing whether the standard of care had been met. The trial court dismissed the prejudice without based on the Wards’ a claim failure state pursuant 10(D)(2)(d) Civ.R. and their comply failure to with the court’s order under Civ.R. 41(B)(1). The court of appeals reversed.2 The appellate court examined R.C.
2317.02(B)(1) and determined that
Dr.
is a physician,
“[w]hile
Debski
the testimo-
ny
being
concerns his role as a patient:
the Wards do not
to ask
wish
Dr.
records;
Debski about his
or their
patients
want to
Wards
ask Dr. Debski
about
Nothing
himself.
plain language
prohibits
the statute
this inquiry.
prevent
Also,
statute does
patients
from testifying.
while Wards
seek what clearly could be
statute,
classified as a ‘communication’under the
do
seek
from the protected person, the physician;
they seek it from an
order,
part
1.
request
compel
As
the trial
production
denied
Wards’
reports
unusual-occurrence
from Summa.
matter,
final,
appellate
2.
appealable
As an initial
court addressed whether there was a
order.
final,
generally
prejudice
order,
appealable
noted that
a dismissal without
is not a
but if the order
right
prevents
judgment,
affects a substantial
and in effect determines the action and
it is a final
2505.02(B)(1);
Capital
Serv.,
City
Corp.
Natl.
order.
Commercial
v. AAAA Your
R.C.
see
At
also
Inc.,
appellate
could lead to Discovery A. in General under Rules of liberal of information have Parties Procedure. Mt. Sinai Med. Ctr. See Moskovitz Civil 661-662, “deposition upon Discovery through N.E.2d be obtained *3 of production written questions; interrogatories; examination written oral information, documents, to enter things permission electronically stored and purposes; physical for and other property, inspection land or other upon 26(A). examinations; though Civ.R. Even requests for admission.” mental any compelled give deposition, can as party, Dr. Debski is not he be See 30 and 31. may witness a civil be. Civ.R. may of discover is scope party governed the information 10}
{¶ 26(B)(1), provides: which Civ.R. matter, may any not discovery regarding privileged, “Parties obtain
{¶ 11} action, subject in the whether it pending is relevant to the matter involved which seeking discovery claim or or to the claim or relates defense existence, nature, custody, any party, description, other including defense information, books, documents, stored electronically condition and location of identity and the and location of knowl- tangible things persons having or other objection that ground matter. is not for edge any discoverable sought at trial if sought information will be inadmissible the information discovery calculated to to the of admissible evidence.” appears reasonably lead added.) (Emphasis case, and at deposition In this the Wards Dr. Debski for subpoenaed
{¶ 12} they him about his point some indicated that intended ask dispute relevancy information. Debski does that the Wards are not entitled to argues the Wards’ lawsuit. He nonetheless information, privi- physician-patient because it is discover the lege. compel appellate denying the motion also the trial court’s order Wards’
3. The reversed discretionary appeal. against accept Summa. did not Summa’s filed
215 Ordinarily, dispute reviewed under abuse-of-discretion 13} Pharmaceuticals, (1991), Tracy standard. Inc. Merrell Dow 58 Ohio St.3d 151-152, However, 569 N.E.2d if alleged 875. issue involves an case, as in it privilege, question this is a of law that must be novo. reviewed de Schlotterer, Med. Mut. Ohio 909 N.E.2d 1237, 13. We will now examine the scope the physician-patient privilege.
{¶ 14} 2817.02(B)
B. Physician-Patient Privilege —R.C. did not exist at common law. State Med. {¶ 15} (1989), 136, 140, 602; Bd. v. Miller v.Weis Weis 416, 428-429, Therefore, Ohio St. 34 O.O. being N.E.2d law, of the common derogation any statutory must strictly be construed party seeking to assert applied only to those specifically circumstances Id. named the statute. Assembly The General established the physician-patient privilege in
R.C. 2317.02. It states follows: persons “The shall following in certain respects: “ * * * “(B)(1)A physician or a concerning dentist communication made physician or aby dentist in that relation or physician’s or dentist’s advice to a patient, except as provided division, otherwise (B)(2), division (B)(3) section, and division that, of this if except deemed *4 section 2151.421 of the Revised Code to have any waived testimonial privilege division, under this physician the may compelled be on the testify same subject. “ * * * “(5)(a) (B)(1) As in used section, divisions of this ‘communication’ acquiring,
means recording, or transmitting any information, any manner, in concerning facts, any or opinions, statements necessary enable a physician or treat, to diagnose, prescribe, dentist or act for a A patient. may ‘communication’ include, to, dental, but office, or any limited medical or hospital communica- record, chart, letter, tion such memorandum, as a results, laboratory test and x- ray, statement, photograph, financial diagnosis, prognosis.” or however, The physician-patient privilege, is not
{¶ absolute. R.C. 2917.02(B) contains a instance, number of exceptions.4 For the privilege does not 4. R.C. 2317.02 {¶ a} provides: apply, physician and a or does not under this division “The testimonial established {¶ b} testify, any following may compelled of the circumstances: may testify in or be dentist “(B)(1)(a) action, discovery provisions of the Rules of any with the civil accordance In {1ie} Chapter action, a claim 4123. civil or in connection with under in connection with a Civil Procedure Code, any following the circumstances: of the Revised under of “(i) patient gives express legal representative the guardian of patient If the or or other the {¶ d} consent; “(ii)If deceased, patient or administrator of spouse the of the the executor or patient {¶ e} consent; express patient’s gives estate claim, claim, “(iii) claim, claim, chiropractic optometric as defined or If a dental {¶ f} death, action, Code, any type civil wrongful other of or an action for section of the Revised 2305.113 patient, personal representative by Chapter Revised a claim under 4123. of the Code filed deceased, legal representative. patient patient’s guardian other of or of the estate if or “(b) by any concerning a g} In civil court-ordered treatment or services received action journalized plan part a patient, or were ordered of if the court-ordered treatment services treatment or services are under of the Revised Code or court-ordered section 2151.412 custody dependency, temporary permanent or necessary neglect, or or or abuse relevant Chapter proceedings under of the Revised Code. “(c) any any test any concerning test of that determines In criminal action or results {¶ h} substance, abuse, them, alcohol, drug a a presence of a of combination of controlled or concentration blood, patient’s plasma, or a in the whole blood serum or metabolite of a controlled substance mine, question.
breath, bodily any time to the criminal offense or other substance at relevant “(d) action, against physician In an the testimonial criminal action a or dentist. such {¶ i} evidence, prohibit into accordance under this division does admission established Evidence, patient’s or communications a medical or dental records other with the Rules of by patient physician that action and obtained and the or dentist are related to the between warrant, permits compels physician subpoena, A or or search or other lawful means. permits patient an or evidence of records or in such action introduction into dentist require appropriate other in such action shall measures be taken ensure communications confidentiality any patient in the is maintained. named or otherwise identified records confidentiality by sealing taken the court include its records or Measures to ensure deleting specific its information from records. “(e)® j} patient If was who has since died and the deceased the communication between dentist, parties patient’s physician dispute to a who claim or the communication is relevant between regardless through patient, are testate or intestate that deceased whether claims transaction, dispute competency of the or vivos and the addresses the deceased succession inter patient patient dispute that is the or whether when deceased executed document basis fraud, influence, patient the deceased was victim of undue duress the deceased dispute. that is executed a document the basis “(ii) spouse patient’s If neither the nor the executor or administrator of {¶ k} (B)(l)(a)(ii) section, testimony gives of this disclosure of the consent under division estate dentist, patient’s physician, health under medical records other care division information, (B)(l)(e)(i) permitted health as defined section is use or disclosure of 160.103, opportunity required. in 45 and an authorization or to be heard shall not be C.F.R. “(in) (B)(1)(e)® require professional to of this section does not a mental health Division notes, psychotherapy in 45 C.F.R. disclose as defined 164.501. *5 “(iv) (B)(1)(e)® person objects testimony An who to or disclosure under division interested {¶ m} pursuant to Rule of seek a order Civil this section (B)(1)(e)® “(v) person protected of A to whom information is disclosed under division health {¶ n} protected any purpose the health information for other than the this section shall not use or disclose protected litigation requested the proceeding for the and shall return or which information was information, entity destroy including all health information to the covered or health made, litigation copies proceeding. at conclusion of the or apply patient gives when the of express consent to the release medical informa- patient places tion or when the his medical a by filing condition issue claim or wrongful-death action. have previously discussed the purpose behind the 23}
{¶ privilege: 2317.02(B) “A of the physician-patient privilege review found in R.C. 24}
{¶
indicates
specific
statute has a
to
purpose.
designed
is
create an
of
atmosphere
confidentiality, which theoretically
encourage
patient
will
to be
completely candid with his or her physician,
enabling
thus
more complete
treatment.
61, 64-65,
As this court stated
v.
State Antill
176 Ohio St.
‘ * * *
548, 551,
26 O.O.2d
privilege
of this
purpose
[t]he
to encourage patients to make a full disclosure of their
symptoms
conditions
to
physicians
their
without fear that such matters will later
public.
become
’
* * *
(N.D.Ohio
addition,
Huzjak
1987),
United States
118 F.R.D.
explains the
of the
purpose
physician-patient privilege:
“ ‘Under the physician/patient privilege, a treating physician
prohibit
ed
disclosing
from
matters disclosed
by
patient
physician
to the
during
consultations
or
regarding
diagnosis
treatment
of the patient. The rationale of
this privilege
promote
is to
health
encouraging
fully
freely
all
disclose
relevant information which may assist the
physician
treating
(1977).
patient.
Floyd Copas,
If
[O.O.3d] 298
feared
such
doctor,
could be revealed
the treating
patient might
refrain
from,
from,
or be inhibited
relevant
disclosing
information.
”
designed
provide
Miller,
of confidentiality.’
assurance
at
139-140,
found that the information the Wards is “communication” under R.C. “(B)(2)(a) any If o} law enforcement officer submits written statement to a health care provider investigation begun that states that an official regarding specified person criminal has proceeding
that a criminal action or specified person, requests has been commenced provider supply any provider copies possesses pertain any to the officer of records the any specified person test or the presence results test administered determine alcohol, abuse, them, drug substance, concentration of a combination of or a controlled blood, breath, person’s metabolite of a plasma, controlled substance in the whole blood serum or any at question, urine relevant time criminal offense and that conforms to section 2317.022 Code, provider, except specifically prohibited by any the Revised to the extent law this States, or of supply any requested state shall copy United to the officer a of the records the provider possesses. records, provider any If possess requested the health care does not provider give shall possess the officer written statement indicates that the does not requested records.” *6 218 not apply did
2317.02(B)(5)(a),
privilege
held that the physician-patient
the court
or dentist
only physician
statute
language
prohibits
plain
because
that it
recognize
important
those communications.
is
from
about
testifying
as a
that
physician,
applies
rather than his status
is
status as a patient,
Debski’s
gives patient
in the
nothing
determined that
statute
appellate
here.
information.
his or her own medical
to refuse
about
statutory
we conclude
strictly
privilege,
we must
construe
Because
{¶ 27}
2317.02(B)
his or her
protect
having
not
from
to disclose
person
that
does
R.C.
subject
relevant to the
matter
when that
is
own medical information
is
that the statute
appeals
in a
action. The court of
correct
involved
civil
pending
a patient
is discoverable from
not
whether medical information
does
address
into
not
read such
the statute. See State
permitted
language
We are
himself.
368,
118 Ohio St.3d
2008-Ohio-
Sapp
Cty.
Appeals,
ex
v. Franklin
Court
rel.
¶
(court
500,
2637,
plain language
cannot add
exception
N.E.2d
26
889
(1999),
exception);
Hughes
State v.
86 Ohio St.3d
statute does not contain
words”).
(“In
statute,
we
not add
delete
construing
C. Roe and Schlotterer
contrary
responds
appeals’ holding
the court of
our
Debski
122
Region,
in
Parenthood Southwest Ohio
Ohio St.3d
decisions Roe
Planned
Schlotterer,
and Med. Mut.
Ohio
181,
ing
that the
is
the exclusive holder of the physician-patient privilege
and thus the
a “protected
source.” 122 Ohio St.3d
Schlotterer, too,
D. May Patients Still Obtain Protective Order Although we have that determined the physician-patient does apply case, in this this does mean that Debski no potential has recourse. indicated, As the appellate court the trial court must still consider whether the doctor is protective entitled to a order.5 The trial granted protective court order because believed that the physician-patient privilege applied. Privilege, however, 26(C) is not only basis to grant protective order. As Civ.R. indicates, protective orders bemay granted justice “to requires protect a party or person embarrassment, from annoyance, oppression, or or undue burden remand, expense.” Upon the trial court weigh must these factors Wards’ discover the information. 26(C): Pursuant to Civ.R. {¶ a} “Upon by any party person discovery motion good {IFb} or sought, from whom and for shown, cause the court in which pending may the action justice requires make order that protect person annoyance, embarrassment, or from oppression, or undue burden or (1) expense, including (2) following: discovery had; one or more of the that not be that discovery may only conditions, specified be had on including designation terms of the time or (3) place; discovery may only by that discovery be method of other than that selected (4) party seeking discovery; inquired that certain scope matters not be into or matters; (5) be limited present to certain except with be conducted no one court; (6)
persons designated by deposition being opened only by that a after sealed order (7) court; research, development, a trade secret other confidential or commercial only information not be designated way; disclosed or be parties disclosed simultaneously specified file documents or information envelopes opened enclosed sealed to be directed court. court, “If the motion for a part, {¶ c} order is denied whole or in on terms and just, may any party conditions as are person provide discovery.” order permit
III. Conclusion case, R.C. circumstances of under the hold that therefore discovery medical not preclude does 2317.02(B), privilege, County Court of the Summit judgment from patient. is affirmed. Appeals affirmed.
Judgment Cupp, JJ., Lundberg C.J., Stratton, Pfeifer, O’Connor, Brown, concur. J., judgment of would reverse the dissents and
O’Donnell, appeals. *8 J., concurring.
Pfeifer, emphasize I write opinion. separately majority I concur in the 34} administrators, tortfeasor, attorneys and their hospital the failure of him to is shameful. Evidence exposed it was that tell who plaintiff the hepatitis exposure knew about hospital what the tortfeasor and indicating liability, including final determination knew is critical damages. potential punitive majority opinion. stating Instead go I further than would discovery begin I with instructions that precluded, would remand
discovery is that I would compelling for is so immediately. need hearings. more not countenance Elliott, Scanlon, for Elliott, appellees. Lawrence J. Michael
Scanlon & J. Best, Leak; M. for Andress, L.P.A., G. and David Douglas Roetzel & appellant.