Update: On July 18, 2013 the Supreme Court handed down a merit decision in this case. Read the analysis here.
On February 5, 2013, the Supreme Court heard oral argument in the case of Todd Leopold, et al. v. Ace Doran Hauling & Rigging Co., et al., 2012-0438. The issue in this case is whether medical records are privileged in a subsequent lawsuit if they have been previously produced in discovery in a separate, dismissed lawsuit.
This case arose out of a multi-vehicle accident in which Todd Leopold’s car was hit from behind by a semi-tractor trailer driven by defendant Stephen Stillwagon, acting in the course and scope of his employment with Ace Doran Hauling & Rigging Company, sending Leopold’s car spinning across several lanes of I-90, into a concrete wall. While the timing and sequence of the accident is disputed, Danielle Laurence’s car was hit in the rear by the semi, and her car plowed into the car in front of her. Leopold and his wife filed suit against Ace, and joined other defendants, including Laurence. Laurence filed a cross-claim against Ace, alleging that Stillwagon was negligent, and seeking contribution and indemnity.
Before the Leopolds filed this case, Laurence filed her own personal injury action regarding the same accident. As part of the discovery in her case, Laurence voluntarily produced her medical records at her deposition. Contained within those records were statements Laurence made to emergency room personnel suggesting that she may have caused the accident. Laurence then voluntarily dismissed her complaint, which was never re-filed, and no longer can be. Her medical records were never made part of the record in that case.
In deposition in Leopold’s case, Laurence was questioned about the information contained in her medical records, including her statements to emergency room personnel about her responsibility for the accident. Laurence sought a protective order, arguing that any waiver of her medical privilege in her dismissed case did not extend to this one. She asked the trial court to preclude counsel for any party from utilizing the medical records for any purpose, as they were subject to medical privilege that had not been waived. The motion was denied by the trial court without opinion.
Key Legal Principles
Hageman v. S.W. Gen. Health Ctr., 119 Ohio St.3d 185, 2008-Ohio-3343.
A patient who releases information in the context of one action is not deemed to have provided an expansive waiver of the privilege in subsequent litigation. Use of confidential medical information which was properly disclosed in one action in a subsequent action without the express consent of the patient is tortious.
At Oral Argument
The lower courts erred in failing to grant Laurence a protective order, forbidding Ace from using her medical records from a different lawsuit, improperly expanding a prior waiver of confidentiality contrary to the Court’s holding in Hageman. The statement at issue explained the mechanics of the accident and is part of medical diagnosis and treatment and it was a communication given to a health care provider, and thus is privileged. The statute waives confidentiality only for a patient who files a civil action about her own injuries. Laurence did not do that here—a cross claim for indemnity and contribution is not about her own injuries. It is improper for a party to whom records were originally properly disclosed in a different matter to attempt to use those records in a subsequent action against a party whose medical condition is not and can never be at issue.
Ace Doran’s Argument
This case involves two important competing interests—the privacy of medical records and the right of rigorous cross examination. The lower courts properly balanced these two interests in refusing to grant a protective order for statements in the emergency room record about how this accident happened.
Laurence waived any privilege when she filed her original suit and when she filed a cross-claim in this case alleging that Stillwagon was negligent, and seeking indemnity and contribution. And any privilege that might attach to these medical records is not worthy of protection under the facts and circumstances at issue here—Laurence gave a deposition in a lawsuit in which her medical records were produced and testified about them. Laurence never sought redaction of her medical records, or asked that they be returned or destroyed in the context of her own lawsuit. It’s not fair that she now be allowed to hide behind a privilege to suggest this accident only happened in one particular way.
In an unusual situation, Ace Doran had to share time with Todd Leopold, also an appellee in the case, but one supporting Laurence’s position. Ace Doran tried unsuccessfully to keep Leopold from doing this.
Leopold essentially argued that none of the exceptions to the privilege statute apply in this case, and that Laurence’s injuries are totally irrelevant to a cross claim for indemnity or contribution—those things deal with liability, not personal injury. Further her statement in the emergency room record as to how the accident occurred was relevant to her diagnosis and treatment.
What Was on Their Minds
Is Everything in a Medical Record Confidential?
Was the statement of responsibility here medical information, or did it just happen to be made to a medical provider, asked Chief Justice O’Connor? Must an emergency room doctor know if the patient caused the accident before she can be treated? Can’t a court ferret out the non-diagnostic statements?
In a key exchange of the day, Justice Lanzinger asked how the way the accident happened was relevant to diagnosis and treatment ? Was it Laurence’s position that anything said to a medical provider is relevant to diagnosis and treatment and should be protected? (answer—yes, that’s what the statute calls for.) By way of follow-up, Chief Justice O’Connor asked if Laurence was seeking a blanket rule that nothing a patient says to a health care provider can be used without the patient’s permission? (answer—if made for the purpose of diagnosis and treatment.)
Aren’t you asking the Court to extend the privilege to non-diagnostic statements, asked Justice O’Neill? The whole purpose of the privilege is to make sure the patient tells the doctor the truth so she can get the proper care. Indicating responsibility for an accident doesn’t seem probative of that issue, he commented. And Justice O’Donnell later commented that protective orders generally go to the substance of what medical records show, but the statement here didn’t seem to go to the medical record.
Was it Ace Doran’s position that once a person is in litigation that person has no rights of privacy with regard to his or her doctor/patient privileges, asked Justice O’Neill (answer from Ace: no).
Justice O’Neill asked if it mattered that the statement at issue had something to do with Laurence’s earlier lawsuit, and not this one?
Justice Lanzinger asked if the fact that the same accident was at issue in both cases, or the fact that there were two separate filings that is most important here? Does it make a difference that Laurence’s medical records were never filed in her now dismissed case?
Statutory Exceptions to the Privilege
Justice French took the lead in this aspect of the questioning, really dissecting the statute. She asked both counsel about the application of two of the statutory exceptions in R.C. 2317.02–(B)(1)(a)(3)(doctor allowed to testify in “any other civil action filed by the patient”) and (B)(3)(a)(testimonial privilege does not apply to communication made to the doctor that related causally or historically to physical or mental injuries that are relevant to issues in a civil action.) Is there a difference between the two exclusion provisions? Why wouldn’t the statements come in under one or the other of these, she asked. Ace argued both exceptions applied; Laurence that neither applied.
The Significance of the Cross-Claim in This Case
Justice French asked why Laurence’s filing of the cross-claim in Leopold’s case didn’t change the privilege analysis—wasn’t that a filing by the patient in an “other civil action” thus waiving the privilege? Is the fact that the cross-claim wasn’t compulsory legally significant?
If no cross-claim had been filed in this case, and there was only the previously dismissed case, would Ace Doran still be taking the same position, asked Justice Lanzinger? (answer—the analysis would be more difficult, but yes) But wouldn’t that be contrary to the Court’s holding in Hageman, asked Justice O’Neill by way of follow-up.
How it Looks from the Bleachers
This one is tricky. Hageman clearly held that a waiver of the medical privilege in one case does not automatically mean a waiver in another case. And the Court has been very protective of that privilege. It doesn’t seem as if the filing of a cross claim for indemnity and contribution puts Laurence’s injuries or medical records at issue. But on the other hand, her claim that Stillwagon was negligent in order to entitle her to contribution or indemnity could make her medical records relevant. A majority of the justices seemed skeptical that Laurence’s statement of responsibility had anything to do with medical diagnosis and treatment, and did not seem to be prepared to say that any statement made to a health care provider contained in the medical record is privileged. But in other areas of the law (like child sex abuse cases) the Court has been very generous in what it considers statements made for medical diagnosis and treatment. In addition, Justice French in particular seemed convinced that at least one, if not both of the statutory exceptions to privilege applied here. She may find at least three other takers for this position.