Party’s Statement Non-Privileged in Suit Filed, Raised In Different Case
The Ohio Supreme Court held today that a statement made by a patient to emergency room personnel relating to the cause of an accident is not protected by the physician-patient privilege in a separate lawsuit if the patient files a claim for indemnity or contribution and it relates causally or historically to injuries relevant in that action.
The 4-3 decision, authored by Justice Terrence O’Donnell, affirms a decision by the Eighth District Court of Appeals.
In March 2008, a car driven by Danielle Laurence, a delivery van driven by Todd Leopold and a semi tractor-trailer owned by Ace Doran Hauling Co. were involved in a multi-vehicle crash on I-90 in Cleveland. Later that year, Laurence filed a personal injury lawsuit against Ace seeking recovery for injuries she allegedly suffered when her vehicle was struck from the rear by Leopold’s van, which had been rear-ended by Ace’s truck. Because she initiated a lawsuit alleging physical injuries, Laurence released her medical records, which included a statement she made to emergency room staff in the course of receiving medical treatment on the day of the accident that indicated she struck the vehicle in front of her before being hit from behind. In April 2009 she dismissed her suit against Ace.
In 2010, Leopold and his wife filed suit against multiple other parties involved in the crash. Their complaint named Laurence and Ace as defendants. During pretrial deposition of witnesses in that case, over objections by Laurence’s attorney, attorneys for Ace made repeated references to Laurence’s statement to emergency room personnel at the time they treated her, including the statement that she struck the car in front of her before her car was struck from the rear.
Laurence’s attorney filed a motion asking the trial court to issue a protective order that barred Ace and all other parties in the case from making any reference during depositions or at trial to the content of Laurence’s confidential medical records. The trial court denied the motion for a protective order, ruling that Laurence had waived the privilege of her communications with medical personnel when she provided documents to Ace and was deposed in connection with her now-dismissed suit against Ace, and holding that the waiver of confidentiality carried forward to Leopold’s lawsuit because his claims arose from the same events that were at issue in Laurence’s lawsuit.
Laurence appealed. On review, the Eighth District Court of Appeals affirmed the trial court’s denial of a protective order. Laurence sought and was granted Supreme Court review of the Eight District’s ruling.
The syllabus of the court states: “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.”
Justice O’Donnell discussed the exception to the physician-patient privilege in detail: “This exception is all-inclusive as to the type of civil action that may be filed by the patient and does not contain any exclusion for or limitation of indemnification or contribution claims.”
Justice O’Donnell also noted that the court does not need to resolve the waiver issue, because “pursuant to the statute establishing the physician-patient privilege, at least two separate provisions apply and specify that the statements made by Laurence are no longer privileged.”
Justice O’Donnell further stated: “The original statement made by Laurence to emergency room personnel in the case she filed and later voluntarily dismissed relates causally and historically to injuries that are relevant to issues in her cross-claim because that statement is her own version of how the accident occurred.”
It also relates to the damages that could be awarded, Justice O’Donnell wrote.
Joining Justice O’Donnell in the majority were Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy and Judith L. French.
Justice Judith Ann Lanzinger wrote in a dissent joined by Justices Paul E. Pfeifer and William M. O’Neill that the protective order should be granted. In her view, the waiver of physician-client confidentiality should be limited to the specific case for which the medical records were sought, the case that had been dismissed. Justice Lanzinger quoted the late Chief Justice Thomas J. Moyer who wrote in Hageman v. Southwest General Health Center (2008) “there is neither a legal justification for nor a practical benefit to the proposition that a waiver for a specific, limited purpose is a waiver for another purpose.”
Justice Lanzinger stated the phrase “any other type of civil action,” which excludes application of the privilege, was not meant to extend to a cross-claim that merely relates to indemnification or contribution.
“Laurence’s medical condition is not at issue,” Justice Lanzinger wrote. “Her medical records are protected by R.C. 2317.02(B)(1), and the privilege was not waived in this pending lawsuit. She is entitled to a protective order.”
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.
2012-0438. Leopold v. Ace Doran Hauling & Rigging Co., Slip Opinion No. 2013-Ohio-3107.
Cuyahoga App. No. 97277, 2012-Ohio-497. Judgment affirmed.
O’Connor, C.J., and O’Donnell, Kennedy, and French, JJ., concur.
Pfeifer, Lanzinger, and O’Neill, JJ., dissent.
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