580 N.E.2d 528
No. CV89 10 0671.Court of Common Pleas, Allen County.
Decided February 26, 1990.
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Joseph C. DaPore, for plaintiffs.
Kevin W. Dunham, for defendants.
MICHAEL A. RUMER, Judge.
This matter came on for hearing upon plaintiffs’ motion for a protective order filed January 26, 1990. Each party filed written arguments and the court entertained oral argument due to the possible implications of any decision as to other pending tort actions in this court. No reported case has been cited by either counsel which directly addresses the issues presented. A temporary protective order was issued on January 31, 1990 to maintain the status quo until the issues could be addressed fully by the court. The issues raised by plaintiffs’ motion transcend the discovery rules and application of R.C. 2317.02(B) as amended January 5, 1988. The facts which give rise to the instant issues are not contested.
Plaintiffs filed their complaint on October 6, 1989, alleging that certain personal injuries and damages were sustained as a result of the negligence of defendant’s truck driver on July 10, 1988. In paragraph 9 of the complaint plaintiff Lucille Baker alleges the following:
“As a direct and proximate result of the negligent acts of the defendant, plaintiff, Lucille Baker, sustained severe personal injuries; she has suffered pain and discomfort and will continue to incur medical expenses in the future; she has suffered from a loss of earning capacity.”
In paragraph 12 plaintiff Richard G. Baker alleges the following as his claim for damages:
“That as a direct and proximate result of the negligent acts of the defendants, plaintiff, Richard G. Baker, has suffered the loss of his wife’s services, conjugal society, companionship and consortium, and will continue to suffer those losses in the future.”
These two paragraphs formulate the issues pleaded as to injury.
Defendants filed their answers basically stating that they had want of knowledge of the material allegations in paragraphs 3, 4, 5 and 11 of the complaint, but made specific denial of the allegations in paragraphs 6, 7, 8, 9,
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10, and 12. Defendants additionally pleaded several affirmative defenses which have no bearing on the issues at bar.
After filing their answers, defendants served plaintiffs with a Civ.R. 34 demand for production of documents. Specifically, Request Nos. 3 and 4 are relevant to the matter sub judice and request production of:
“3. All medical records relating to injuries allegedly sustained by plaintiffs in the accident including, but not limited to, all hospital records, all emergency room records, outpatient care facility records, physicians’ office records and reports by physicians.
“4. Any and all medical bills incurred by plaintiffs including, but not limited to, bills for hospital care, physicians’ care, nurses’ care, prescriptions, x-rays and therapy.”
Simultaneously with the demand for production, defendants also served plaintiffs with a first set of interrogatories.
On December 15, 1989, plaintiffs filed their response to the request for production, as well as their interrogatory answers. In response to Request Nos. 3 and 4 the following statements were made:
“Request # 3 — Plaintiffs have supplied to defendants all medical records relating to the injuries sustained by plaintiff, Lucille Baker, in this collision. Plaintiff, Richard G. Baker, has no medical records.
“Request # 4 — Plaintiffs have supplied to defendants all medical bills relating to the injuries plaintiff, Lucille Baker, sustained in this collision. Plaintiff, Richard G. Baker, has no medical bills.”
Interrogatory Nos. 4 to 21 were directed to plaintiffs’ injuries and medical care. All interrogatories were either answered directly or by reference to other furnished discovery. Of specific interest to the matter sub judice is Interrogatory No. 12 and its answer.
“12. State whether or not at any time prior to the events alleged in the complaint you sustained any injury to the parts of your body alleged in the complaint to have been injured or if you experienced any difficulty in those areas, and if so, state:
“(a) When.
“(b) Where.
“(c) Under what circumstances.
“[Answer.] No.”
On January 19, 1990 the defendants filed and served upon plaintiffs’ counsel a “Notice of Taking of Records’ Deposition” of medical care providers identified by plaintiffs in the production responses and/or interrogatory
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answers. These notices were directed to the following persons or entities. R.D. Jenkins, M.D., Ottawa Chiropractic Center, St. Rita’s Medical Center, and Lima Memorial Hospital. The evidence indicates that each of the above was served with a subpoena duces tecum by a notary public for the deposition. In addition to those noticed, a subpoena duces tecum was also issued to James O’Neill, M.D. for a deposition.
On January 26, 1990 the plaintiffs filed the instant motion on the basis that the information sought through the depositions and records of the various medical service providers is privileged to the extent that the evidence is not related to the pending litigation. Defendants maintain that they are entitled to the entire medical record of each provider on two bases: (1) R.C. 2317.02(B)(1)(c) provides a waiver of any physician-patient privilege; and/or (2) pursuant to Civ.R. 16 and State, ex rel. Floyd, v. Court of Common Pleas of Montgomery Cty. (1978), 55 Ohio St.2d 27, 9 O.O.3d 16, 377 N.E.2d 794, defendants are entitled to discovery notwithstanding any privilege.
Before discussing the application of R.C. 2317.02(B) to the instant case, this court can succinctly dispose of defendants’ argument relative to Civ.R. 16 and Floyd, supra. Floyd is an action in prohibition seeking to deny implementation of the trial court’s decision rendered in Floyd v. Copas (C.P. 1977), 9 O.O.3d 298, which permitted disclosure of privileged matter. I Copas, which predates the amendment of R.C. 2317.02(B), Judge Walter H. Rice discusses discovery and its relationship to the physician-patient privilege; the holding of the Copas case is summarized in the headnote which states:
“Civil Rule 16(6) permits a court to require pretrial disclosure of privileged medical information and records, even though R.C. § 2317.02(B) prohibits use of such information at trial unless the privilege is waived. In a personal injury action, such disclosure will enable the defendant to be prepared if the plaintiff waives the privilege by voluntarily testifying on the subject at trial. The scope of such disclosure must be as broad as possible.”
The Ohio Supreme Court, in refusing prohibition in its per curiam opinion, accepted Judge Rice’s distinctions between court-ordered pretrial disclosure, its use at trial and discovery under Civ.R. 26 et seq.
Defendants argue that Floyd allows court-ordered disclosure and that, since a subpoena is a court order to appear, the same rationale should apply. Defendants are incorrect in their position. A subpoena issued by a notary public is not a court order, except to the extent of compelling a witness’ attendance at deposition. The notary’s authority is specifically provided in R.C. 147.07, which reads in pertinent part:
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“* * * In taking depositions, he shall have the power that is by law vested in judges of county courts to compel the attendance of witnesses and punish them for refusing to testify. * * *”
This section, when read with Civ.R. 45(D), leaves no question that the subpoena does not constitute a court order in the context of either Floyd or Copas.
The more difficult question presented is the application of R.C. 2317.02(B) in conjunction with Civ.R. 26(B) to the instant action. The incident giving rise to the claims occurred subsequent to January 5, 1988 and is a tort action. The issue at bar is: Does the filing of a tort action accruing subsequent to January 5, 1988 waive all testimonial privilege previously afforded a plaintiff-patient by virtue of R.C. 2317.02(B)(1) so as to extend beyond the specific treating physicians’ testimony and include other prior communications by the same and/or other physicians? This court answers, at this stage of the case, in the negative.
An analysis of the issue begins with the specific language adopted by the legislature in its recent amendment. R.C. 2317.02(B) creates the physician-patient privilege and simultaneously restricts its application. It reads in pertinent part:
“The following persons shall not testify in certain respects:
“* * *
“(B)(1) A physician concerning a communication made to him by his patient in that relation or his advice to his patient, except as otherwise provided in this division and division (B)(2) of this section * * *.
“The testimonial privilege under this division is waived, and a physician may testify or may be compelled to testify in a civil action, in accordance with the discovery provisions of the Rules of Civil Procedure in connection with a civil action, * * * under the following circumstances:
“* * *
“(c) If * * * any other type of civil action, * * * is filed by the patient * * *.
“(2) If the testimonial privilege described in division (B)(1) of this section is waived as provided in division (B)(1)(c) of this section, a physician may be compelled to testify or to submit to discovery under the Rules of Civil Procedure only as to a communication made to him by the patient in question in that relation, or his advice to the patient in question, that related causally or historically to physical or mental injuries that are relevant to issues in the * * * civil action * * *.
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“(3) As used in divisions (B)(1) and (2) of this section `communication’ means acquiring, recording, or transmitting any information, in any manner, concerning any facts, opinions, or statements necessary to enable a physician to diagnose, treat, prescribe, or act for a patient. A `communication’ may include, but is not limited to, any medical, office, or hospital communication such as a record, chart, letter, memorandum, laboratory test and results, x-ray, photograph, financial statement, diagnosis, or prognosis.
“(4) Divisions (B)(1), (2), and (3) of this section apply to doctors of medicine, doctors of osteopathic medicine, and doctors of podiatric medicine.”[1] (Emphasis added.)
There is no question, and plaintiffs acknowledge, that, pursuant to R.C. 2317.02(B)(1)(c), filing their claim is a waiver of any physician-patient privilege for communications made to any treating physician or his advice to plaintiff Lucille Baker that occurred subsequent to July 10, 1988, the date of the accident, as well as those communications which are causally or historically related to the injuries claimed. The controversy sub judice involves the phrase “related causally and historically to physical or mental injuries that are relevant to issues in the * * * civil action.” Defendants argue that since plaintiffs allege continual and permanent disabling injuries, including loss of consortium and future spousal services, they should be able to pursue discovery of what is related causally and historically by having open access to all medical service providers and their records.
While not specifically stated, it is implied that the legislature intended the physician-witness to be the initial determiner in the “causally and historically related” analysis. In other words, assuming there is no evidence in hand which indicates the plaintiff had a prior involvement with the same or similar injuries now claimed, may defense counsel compe testimony to discover from plaintiff’s physician whether the plaintiff-patient had any prior physical or mental involvement of those body parts now claimed to be injured or affected? If the inquiry evokes a negative answer then, without evidence to the contrary, the privilege remains intact for communications prior to the date of the incident. If the answer to the inquiry is in the affirmative, then the inquiry may proceed further to develop any historical perspective of the injuries now claimed. However, in either event, R.C. 2317.02(B)(2) contemplates actual testimony by the physician and not by a recordskeeper from his office or a hospital.
As indicated above, the statute appears to require a two-step analysis if the privilege is exercised by the plaintiff-patient. The second step of the analysis
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would involve the court if the treating physician testifies that there is no causal or historical relationship with any prior injury to the injury at issue. If defense counsel has evidence of a historically related injury, or in good faith has reason to believe the physician-witness has not testified candidly about the issue, defense counsel can recess the deposition and apply to the court for relief under Civ.R. 37(A). This relief could include a review of the physician’s entire office record to test the physician’s credibility, as well as substantive testimony. The court, with all parties present, can address the issues and make the appropriate pretrial orders that justice requires pursuant to Civ.R. 26, 37 or Floyd, supra.
A second subissue is raised in the case at bar relative to hospital records under R.C. 2317.02(B). The legislature has clearly excluded hospital records in R.C. 2317.02(B)(4) from the waiver provisions, except to the extent that the records are a “communication” as defined in R.C. 2317.02(B)(3). Again, the legislature impliedly required that the deposing party seeking to rely upon the waiver establish, through the physician’ testimony, that the “communications” were necessary to enable the physician to diagnose, treat, prescribe or act for the patient as to the injuries sustained in the instant tort claim. It does not mean any and all hospital records from birth of the patient to date of deposition are available if waiver has occurred, but only those hospital records that are a “communication made to him by the patient * * * or his advice to the patient * * * that related causally or historically to [the] * * * injuries that are relevant to issues in the * * * civil action.” This requires the physician’s deposition with the two-step approach discussed above before the hospital or other medical records fall within the waiver provisions of R.C. 2317.02(B)(1) and (2). See Pacheco v. Ortiz (1983), 11 Ohio Misc.2d 1, 11 OBR 43, 463 N.E.2d 670, for a further discussion of the hospital records privilege.
Based upon the foregoing analysis and applying it to the case at bar, the court finds that:
(1) Plaintiff Lucille Baker claims she has had no prior injury to her body as claimed in the instant suit.
(2) Plaintiffs have furnished defendants with all medical records and/or physician reports requested by defendants as related to plaintiffs’ claimed injuries.
(3) Defendants have knowledge of, and can depose the plaintiff’s treating physicians, Drs. Jenkins and O’Neill.
(4) A notary public subpoena is not a court order as discussed in Floyd, supra, as to medical records, but can only be used to compel a physician to appear and testify.
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(5) Plaintiff Lucille Baker has exercised her R.C. 2317.02(B) physician-patient privilege as to events occurring prior to July 10, 1988 by filing her motion for protective order and therefore Civ.R. 26(B)(1) prevents further discovery as to such issues at this time.
(6) Defendants must pursue further discovery of plaintiff’s medical providers as outlined herein and develop, if possible, the causal and historical relationships of any communications prior to July 10, 1988 to the injuries at issue herein before proceeding with further discovery of physician-patient communications prior to July 10, 1988.
Accordingly, the plaintiffs’ motion for a protective order seeking to deny the defendants further discovery concerning information found in privileged medical records that predate the cause of action alleged in this litigation is well taken.
It is therefore ordered that defendants are denied the right of further discovery of physician-patient communications, including medical records which predate July 10, 1988, unless (1) the plaintiffs waive the privileges afforded them by R.C. 2317.02(B), or (2) the defendants obtain an order from this court permitting the same upon a showing of a causal and/or historical relationship of the physician-patient communications to the injuries and damages claimed by plaintiffs herein.
Judgment accordingly.[2]