On July 18, 2013, the Supreme Court handed down a merit decision in Leopold v. Ace Doran Hauling & Rigging Co., 2013-Ohio-3107. By a 4-3 vote, the Court held that the physician-patient privilege, codified at R.C. 2317.02, does not protect medical records that a patient has previously disclosed in previous litigation from the same accident. Justice O’Donnell wrote the majority opinion for himself, Chief Justice O’Connor, and Justices French and Kennedy. Justice Lanzinger wrote the dissent for herself and Justices Pfeifer and O’Neill. The case was argued February 5, 2013. Read the oral argument preview here and the analysis of the oral argument here.
This case involves a multi-vehicle accident on I-90 in Cleveland. Among the vehicles involved were a tractor-trailer driven by Stephen Stillwagon, while in the scope of his employment for Ace Doran, a car driven by Danielle Laurence, and a car driven by Todd Leopold. The timing and sequence of the accident was disputed. At the time of the accident, Laurence was taken to a medical center where she told emergency room personnel that she had hit a car in front of her, and was then hit from behind by a semi and pushed into a concrete wall.
Danielle Laurence’s Lawsuit
Before the Leopolds filed this case, Laurence filed suit against Stillwagon and Ace Doran for injuries she sustained in the accident. She produced her medical records at discovery. Defense counsel used these records at her deposition. After she was deposed, Laurence voluntarily dismissed her case, which was never re-filed.
The Leopolds’ Lawsuit
A little less than a year after Laurence had dismissed her lawsuit, the Leopolds sued Stillwagon, Ace Doran, and a related company later dismissed. The Leopolds later amended their complaint to add Laurence as a party responsible for the accident. Laurence cross-claimed against Stillwagon and Ace Doran for contribution or indemnification, blaming Stillwagon for the accident; they counterclaimed; blaming her. During the course of the Leopolds’ 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. She sought a protective order to preclude counsel from using the medical records from her earlier suit, alleging the records were protected by the physician patient privilege. She argued that an earlier waiver applied only to her earlier lawsuit.
The trial court denied Laurence’s motion for a protective order. In a split decision, the Eighth District Court of Appeals affirmed the trial court.
Issue before the Supreme Court
Whether the physician-patient privilege protects medical records that a patient has previously disclosed in discovery to some of the same parties in previous litigation arising from the same accident.
Short answer: No
Not a matter of waiver
Ace Doran had argued this case as one of waiver—that Laurence had waived any privilege when she filed her original lawsuit and when she cross-claimed in this one for indemnification or contribution. But the majority did not accept that argument or decide the case on that basis. Instead, it viewed this as a statutory construction case in which Laurence’s statements simply weren’t privileged because they fell within exceptions to that privilege.
The default position under R.C. 2317.02, the physician-patient testimonial privilege statute, is that a doctor shall not testify about what a patient tells him or her. But the legislature has carved out a number of exceptions to this rule, and the Court found two pertinent exceptions applicable here.
R.C. 2317.02(B)(1)(a)(iii) provides that the testimonial privilege does not apply, and a doctor may testify in any civil action if a medical claim or any other type of civil action (emphasis added) is filed by the patient. The Court found that this provision is all inclusive, and contains no exclusions for contribution or indemnity. Because Laurence filed a cross-claim in this case, the elements of this exception are satisfied.
The case also implicates R.C. 2317.02(B)(3)(a). Under this section, if the testimonial privilege does not apply, a doctor may be compelled to testify only as to communications from the patient that “related causally or historically” to injuries relevant to issues in the other civil action. The Court found that this section applied here because the statement Laurence made to the emergency room personnel in her own lawsuit related causally and historically to how the accident happened, and thus to injuries and damages that could be awarded as a result. Thus, the privilege did not apply to her original statement to the ER personnel.
Relevance of Hageman v. S.W. Gen. Health Ctr., 119 Ohio St.3d 185, 2008-Ohio-3343.
In Hageman, the Court held that 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 and that 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.
Writing for the dissenters, Justice Lanzinger would apply Hageman and re-affirm its holding that “waiver of medical confidentiality for litigation purposes is limited to the specific case for which the records are sought.” In her view, Laurence’s filing of a cross claim did not put her medical condition at issue in this case. She pointed out that the majority took no position on the application to Hageman to this case (Laurence relied on it during oral argument). Although Hageman was a plurality opinion, Lanzinger quoted then-Chief Justice Moyer’s viewpoint reinforcing the fundamental value of the confidentiality of medical records and the right of the patient to control the disclosure of this private information. Finally, she does not agree that the filing of a cross-claim for indemnification is the type of other civil action that provides an exception to the physician-patient privilege. She would have allowed the protective order in this case.
1. R.C. 2317.02(B)(1) establishes the physician-patient testimonial privilege and prohibits a physician from testifying about a communication made to the physician by a patient.
2. The General Assembly has carved out exceptions to the physician-patient privilege in certain instances and a physician may testify or be compelled to do so in any civil action if any type of civil action or claim under R.C. Chapter 4123 is filed by the patient.
3. When the physician-patient privilege described in R.C. 2317.02(B)(1) does not apply as provided in R.C. 2317.02(B)(1)(a)(iii), a physician may testify or be compelled to do so only as to a communication that related causally or historically to physical or mental injuries relevant in the other civil action.
At oral argument it was Justice French who took the lead in questioning about the statutory exceptions to the physician patient privilege, specifically homing in on the two sections that the majority ultimately hung its hat on in this case. Ace Doran argued both exceptions applied; Laurence argued neither did. I predicted that Justice French might find at least three other takers for her apparent belief that both of these statutory exceptions applied, and so she did. But as a torts professor and privacy freak on the subject of medical records, I think the dissent has the better view of this case.
I also found it interesting that at the Supreme Court the Leopolds shared argument time with Ace Doran, but agreed with Laurence that her records were inadmissible because her medical condition was not at issue in their case, arguing that she maintained her privilege when she dismissed her own lawsuit.