December 11, 2013
Physcian-Patient Privilege

by Justice Paul E. Pfeifer

On March 6, 2008, a multivehicle accident occurred on Interstate 90 in Cleveland. Among the vehicles involved were a tractor-trailer driven by Stephen Stillwagon transporting goods for Ace Doran Hauling and Rigging Company, and two cars – one driven by Danielle Laurence and one driven by Todd Leopold.

At the emergency room, Danielle told the ER personnel that she had hit a car in front of her and then was hit from behind by a semi and pushed into a concrete wall. Communication of this sort is usually protected by the physician-patient privilege, but that statement would eventually be at the center of a court case that would come before us – the Supreme Court of Ohio.

In November 2008, Danielle sued Stillwagon and Ace Doran, seeking recovery for personal injuries she suffered in the accident. During the discovery process – in which lawyers from both sides share evidence and information about the pending trial – Danielle produced her medical records. The attorneys for Stillwagon and Ace Doran used those records when they deposed Danielle. After that deposition, she voluntarily dismissed her case.

In October 2009, Todd Leopold and his wife, Linda, sued Stillwagon and Ace Doran, seeking recovery for injuries sustained in the same accident. They eventually amended their complaint to add Danielle, asserting that her negligence had caused the accident.

Danielle responded with a cross-claim against Stillwagon and Ace Doran claiming that Stillwagon had caused the collision. Stillwagon and Ace Doran then cross-claimed against Danielle, contending that she had caused the accident.

In the midst of all these claims and cross-claims, Danielle filed a motion for a protective order, seeking to preclude the attorneys from using the medical records that she had produced in her 2008 lawsuit. The court denied her motion and she filed an appeal.

The court of appeals affirmed the trial court’s ruling, concluding that Danielle’s “decision to file a claim of personal injury against Stillwagon and Ace Doran, which was based upon the same accident” in this case, “served to waive her physician-patient privilege with respect to that accident.”

The law that established the physician-patient privilege states, in part, that a physician shall not testify “concerning a communication made to the physician” by the patient, or about advice to the patient from the physician.

The privilege is designed to create an atmosphere of confidentiality, which theoretically encourages patients to be entirely candid with their physicians, thus enabling more complete treatment. But the privilege is not absolute; there are a number of exceptions. For instance, a physician may testify or be compelled to do so in any civil action of any type filed by the patient.

When Danielle’s case came before us for a final review, she claimed that a patient’s production of medical records in discovery in a civil action – such as the type that she had earlier filed against Stillwagon and Ace Doran – does not waive the physician-patient privilege for all subsequent litigation.

She also relied on a decision by our court from 2008 involving a patient named Hageman in which we concluded that, “when the cloak of confidentiality that applies to medical records is waived for the purposes of litigation, the waiver is limited to that case.”

On the other hand, Stillwagon and Ace Doran claimed that Danielle waived the physician-patient privilege because she voluntarily produced her medical records in related litigation she filed against them, and when she dismissed that lawsuit, she neither requested that her testimony be sealed nor insisted that the medical records be destroyed or returned to her.

So the issue before us was whether the physician-patient privilege protects records that a patient has previously disclosed in discovery to some of the same parties in previous litigation arising from the same accident.

By a four-to-three vote, our court affirmed the judgment of the court of appeals that Danielle had waived her physician-patient privilege by filing her earlier lawsuit. The majority based its decision on a subsection of the physician-patient privilege law that says a physician may testify to communications that relate causally or historically to physical or mental injuries relevant to issues in the other civil action.

According to the majority, the original statement made by Danielle 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 the how the accident occurred. Therefore, the majority concluded, her statement is not protected by the privilege.

I joined Justices Judith Ann Lanzinger and William M. O’Neill in casting dissenting votes. In her dissent, Justice Lanzinger wrote that she would apply the ruling from the Hageman case to reaffirm that “waiver of medical confidentiality for litigation purposes is limited to the specific case for which the records are sought.”

Justice Lanzinger argued that the medical records in this case “are protected by the physician-patient privilege, for although” Danielle filed a cross-claim, the cross-claim did not place Danielle’s medical condition at issue.

In the Hageman case, the majority opinion stated, “If the right to confidentiality is to mean anything, an individual must be able to direct the disclosure of his or her own private information.” In rejecting an expansive waiver for medical records, that opinion stated that “there is neither a legal justification for nor a practical benefit to the proposition that a waiver for a specific, limited purpose is a wavier for another purpose.”

In that case, we explained that “creating an expansive waiver would be inconsistent with the generally recognized confidentiality provisions in Ohio and federal law.”

In closing her dissenting opinion, Justice Lanzinger wrote that Danielle’s “medical condition is not at issue” in this case. Her medical records are protected by the physician-patient privilege and the privilege was not waived in this pending lawsuit. “She is entitled to a protective order.”

Nevertheless, by a four-to-three vote, our court affirmed the judgment of the court of appeals denying Danielle’s request to protect her medical records.

EDITOR'S NOTE: The case referred to is Leopold v. Ace Doran Hauling & Rigging Co., 136 Ohio St.3d 257, 2013-Ohio-3107. Case No. 2012-0438. Decided July 18, 2013. Majority opinion written by Justice Terrence O'Donnell.