<img alt="Brand" src="/images/eLaws/logo-elaws.png" class="img-responsive pull-left logo-head" />

835 N.E.2d 768

, ¶
5, which cited Biddle for the proposition that confidential information may be
discoverable to further a countervailing interest that outweighs the nonparty
patient’s interest in confidentiality.
{¶ 16} The trial court concluded that the Roes had a “tremendous interest”
in the requested documents and that their need for the information outweighed the
nonparty patients’ interest in maintaining the confidentiality of their records. The
court ordered all patient-identifying information redacted from the records
produced. The court granted the plaintiffs’ motion to compel and overruled the
defendants’ motion for a protective order. The court did not specifically analyze
the claims for punitive damages.
{¶ 17} The court of appeals reversed.         Roe v. Planned Parenthood
Southwest Ohio Region,

173 Ohio App.3d 414

2007-Ohio-4318

878 N.E.2d 1061

. The appellate court, citing both Biddle and Richards for the proposition
that “only where the privileged information is necessary to further or protect a
countervailing interest is disclosure proper,” concluded that the confidential abuse
reports and medical records of nonparties were not necessary to the Roes’ case
and, even if tenuously necessary, the potential invasion of the privacy rights of the
nonparties outweighed the probative value of the records to this case. Id. at ¶ 34,
42-44. The court concluded that R.C. 2151.421, which imposes the duty to report
5
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abuse, does not provide for punitive damages. Thus, the Roes’ claim for punitive
damages based on this statute had no merit. Id. at ¶ 37.
{¶ 18} After having initially declined jurisdiction, upon reconsideration,
we accepted jurisdiction of this discretionary appeal on Proposition of Law Nos.
II, IV, V, and VI. Roe v. Planned Parenthood Southwest Ohio Region,

117 Ohio St.3d 1443

2008-Ohio-1279

883 N.E.2d 459

.
Postargument Procedure
{¶ 19} Following oral argument in this matter on October 7, 2008, counsel
for the Roes filed a citation to additional authority, i.e., recently enacted 127
Am.Sub.H.B. No. 280 (“H.B. 280”), which amended R.C. 2151.421. On April 3,
2009, we ordered the parties to brief the following issue:
{¶ 20} “Do the provisions of 127 Am.Sub.H.B. 280 (effective April 7,
2009) apply to this case and, if so, what effect do those provisions have on the
issues in this case?” Roe v. Planned Parenthood Southwest Ohio Region,

121 Ohio St.3d 1434

2009-Ohio-1619

903 N.E.2d 1218

.
The Roes’ Claims
{¶ 21} The Roes have alleged that Planned Parenthood breached its duties
under R.C. 2919.12 and 2919.121 by failing to notify them of the intent to
perform an abortion on Jane and failing to obtain their consent to perform the
procedure. R.C. 2919.12 prohibits any person from performing an abortion upon
a pregnant, unmarried woman under age 18 without giving at least 24 hours’
actual notice in person or by telephone to the woman’s parents or obtaining a
parent’s written consent. R.C. 2919.121 prohibits a person from performing an
abortion upon a pregnant minor without the written consent of the minor and one
parent.1 Both statutes provide that one who violates this statute may be liable for
compensatory and punitive damages.
1. R.C. 2919.121 was enacted in 1998. 147 Ohio Laws, Part II, 3868, 3875. Shortly afterward, a
lawsuit was filed in federal court that challenged its constitutionality. The court issued an order
6
January Term, 2009
{¶ 22} The Roes also alleged that Planned Parenthood performed the
procedure on Jane without first obtaining her informed consent in violation of
R.C. 2317.56. The statute requires that at least 24 hours prior to the procedure, a
physician meet with the pregnant woman in person and that published materials
about the procedure be given to her. It also requires that she give written consent
to the procedure. A person who fails to comply may be liable in compensatory
and punitive damages.
{¶ 23} The Roes further alleged that Planned Parenthood had reason to
suspect that Jane was sexually involved with an adult, but that it did not report the
relationship, in violation of R.C. 2151.421. They alleged that as matter of policy
and/or pattern and practice, Planned Parenthood does not report known or
suspected child abuse with respect to the minors to whom it provides medical
services.
{¶ 24} The Roes asked the court to enjoin Planned Parenthood from
further statutory violations and to require it to comply with the law, and they have
asked for compensatory and punitive damages.2
Discovery Sought
{¶ 25} The Roes sought statistical data from Planned Parenthood about
the number of abortions performed and the number of reports of suspected or
known sexual abuse made over a ten-year period. They also sought the abuse
reports made pursuant to R.C. 2151.421 and the redacted medical records of
that enjoined the state and county from enforcing the new statute while the case was pending.
Cincinnati Women’s Serv., Inc. v. Taft (S.D.Ohio 2005),

466 F.Supp.2d 934

, 937. Since then, the
Sixth Circuit has upheld the provision that required 24-hour informed consent, but severed the
provision that limited a minor to filing one petition for a judicial bypass of parental consent per
pregnancy. Cincinnati Women’s Serv., Inc. v. Taft (C.A.6, 2006),

468 F.3d 361

.
2. The Roes voluntarily dismissed their causes of action for conspiracy and intentional infliction
of emotional distress.
7
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minors who were patients at Planned Parenthood but who are not parties to the
action.
{¶ 26} The Roes do not dispute that they are seeking confidential,
privileged information of third parties, but claim that redaction removes the
confidential status. They admit that the statistics are published and available from
other sources.3 This dispute centers solely upon the Roes’ request for the abuse
reports and medical records of third persons who are not parties. See former R.C.
2151.421(H)(1) (confidentiality of child-abuse reports) and R.C. 2317.02(B)(1)
(“A physician or a dentist [shall not testify] concerning a communication made to
the physician or dentist by a patient in that relation or the physician’s or dentist’s
advice to a patient, except as otherwise provided * * * ”).
{¶ 27} Civ.R. 26(B)(1) permits discovery “regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending action.”
(Emphasis added.) The information sought need not be admissible at trial if it
appears reasonably calculated to lead to the discovery of admissible evidence.

Id.

The Roes contend that the documents they seek are relevant and necessary to their
claims and are otherwise unavailable.
{¶ 28} Civ.R. 26 clearly excludes privileged information from the general
rule of discovery. Thus, even assuming that the information the Roes seek is
relevant and may lead to the discovery of admissible evidence, they must
establish an exception to the privilege in order to discover this information;
relevancy itself is not sufficient for purposes of discovery under Civ.R. 26 when
matters are privileged. The Roes rely on Biddle v. Warren Gen. Hosp.,

86 Ohio St.3d 395

715 N.E.2d 518

, as authority to discover the medical records of
3. According to the Roes, Planned Parenthood publishes statistical data on the number of
abortions performed and the number of abuse reports made in annual reports and disseminates the
information to the Ohio Department of Health and Planned Parenthood Federation of America.
8
January Term, 2009
nonparties if a plaintiff’s need for the records outweighs the nonparties’ interest in
protecting the confidential nature of the records.
{¶ 29} Because this case involves discovery of confidential and privileged
information, we review the matter de novo. Med. Mut. of Ohio v. Schlotterer,

122 Ohio St.3d 181

2009-Ohio-2496

909 N.E.2d 1237

, ¶ 13.
Application of H.B. 280
{¶ 30} As a preliminary matter, we address the postargument briefs and
whether H.B. 280 may apply retroactively in this case.
{¶ 31} The Roes’ first proposition of law asserts that a plaintiff is entitled
to seek punitive damages for a defendant’s systematic and intentional breach of
the duty to report suspected abuse under R.C. 2151.421. The Roes have requested
the abuse reports from Planned Parenthood to establish their claim for punitive
damages.
{¶ 32} R.C. 2151.421 places a duty on persons with special relationships
to minors to report suspected or known abuse or neglect. In December 2008, the
General Assembly enacted H.B. 280, which amended R.C. 2151.421, adding
division (M) and supplementing division (H), both of which may affect the
outcome of this case if applied retroactively. R.C. 2151.421(M) provides that a
person may be liable for compensatory and exemplary damages for violating the
reporting requirements, and a person who brings a civil action pursuant to
division (M) may use reports of other incidents of known or suspected abuse or
neglect, with identifying information redacted, in that civil action.            R.C.
2151.421(H)(1) was supplemented to allow the use of confidential abuse reports
made under that division in a civil action brought pursuant to section (M).
{¶ 33} To determine whether R.C. 2151.421(H) and (M) may be
retroactively applied in this matter, we apply a two-part analysis. Ackison v.
Anchor Packing Co.,

120 Ohio St.3d 228

2008-Ohio-5243

897 N.E.2d 1118

, ¶
12. The first part examines whether the General Assembly intended for the
9
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statute to apply retroactively.

Id.

 If so, the second part requires that we determine
whether the amendments are substantive, a status that would render them
unconstitutionally retroactive, or merely remedial. Id., ¶ 13, citing Bielat v. Bielat
(2000),

87 Ohio St.3d 350

, 353,

721 N.E.2d 28

.
{¶ 34} In this case, the General Assembly expressly provided that the
amendments were intended to apply retroactively to civil actions pending on the
effective date of the act, April 7, 2009. H.B. 280, Section 4. Thus, they meet the
threshold inquiry of retroactivity. We next consider whether the amendments are
substantive or remedial.     We have held that substantive law “impairs vested
rights, affects an accrued substantive right, or imposes new or additional burdens,
duties, obligations, or liabilities as to a past transaction.” Bielat,87 Ohio St.3d at
354,

721 N.E.2d 28

.        Procedural or remedial law prescribes methods of
enforcement of rights or obtaining redress. French v. Dwiggins (1984),

9 Ohio St.3d 32

, 34, 9 OBR 123,

458 N.E.2d 827

.
{¶ 35} Former R.C. 2151.421 made no reference to any civil damages for
violating the statute. Division (M) now provides:
{¶ 36} “Whoever violates division (A) of this section is liable for
compensatory and exemplary damages to the child who would have been the
subject of the report that was not made.”
{¶ 37} The newly enacted division (M) adds a punitive measure of
damages that did not previously exist. It does not merely clarify and confirm that
a plaintiff had available both compensatory and exemplary damages for a
common-law violation of the statute as the Roes contend. Instead, such a change
is akin to a statutory penalty, which is substantive. Osai v. A & D Furniture Co.
(1981),

68 Ohio St.2d 99

, 100,

22 O.O.3d 328

428 N.E.2d 857

. Thus, we hold
that R.C. 2151.421(M) affects a substantive right, and its retroactive application
would violate due process.
10
January Term, 2009
{¶ 38} Former R.C. 2151.421(H)(1) provided that except in limited
situations that do not apply here, reports of child abuse made pursuant to R.C.
2151.421 are confidential. H.B. 280 created an exception to nondisclosure by
allowing the use of abuse reports in a civil action brought pursuant to R.C.
2151.421(M), provided that any identifying information about the child who is the
subject of the report is redacted. Because division (M) may not be retroactively
applied in this case, it follows that the Roes may not rely on the discovery
provisions of (H)(1), because they apply only to civil actions brought pursuant to
division (M). Therefore, we must apply the version of R.C. 2151.421 in effect
when the Roes’ cause of action arose to determine whether a plaintiff is entitled to
seek punitive damages for a defendant’s failure to report suspected abuse.
Availability of Punitive Damages under Former R.C. 2151.421
{¶ 39} Former R.C. 2151.421 made no reference to any civil damages for
a violation of the statute. The Roes contend that the absence of any mention of
damages does not preclude the availability of punitive damages. They argue that
this court’s interpretation of the word “liability” in Campbell v. Burton (2001),

92 Ohio St.3d 336

, 341-342,

750 N.E.2d 539

, to include civil and criminal liability,
coupled with the interpretation of “damages” in Rice v. CertainTeed Corp. (1999),

84 Ohio St.3d 417

, 419-420,

704 N.E.2d 1217

, as including both compensatory
and punitive damages, entitles them to seek all legally recognized relief. They
also contend that courts have permitted plaintiffs to seek both compensatory and
punitive damages under Section 1983, Title 42, U.S.Code, although punitive
damages are not specified in that statute.
{¶ 40} In Campbell v. Burton, this court broadly construed the word
“liability” in R.C. 2744.02(B)(5) and 2744.03(A)(6)(c) and determined that a
political subdivision and its employee could not claim immunity from liability
under the Political Subdivision Tort Liability Act for the failure to perform a duty
imposed by R.C. 2151.421.

Id.,

92 Ohio St.3d 336

750 N.E.2d 539

, paragraphs
11
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one, two, and three of the syllabus. Campbell held that a political subdivision and
its employee may be held liable for a violation of R.C. 2151.421, but it did not
discuss damages.
{¶ 41} In Rice v. CertainTeed Corp., 84 Ohio St.3d at 421,

704 N.E.2d 1217

, we held that R.C. 4112.99 authorizes an award of punitive damages in a
civil employment-discrimination action arising under R.C. 4112.02. R.C. 4112.99
provides for “a civil action for damages, injunctive relief, or any other appropriate
relief.” We concluded that this language includes punitive damages. Rice, 84
Ohio St.3d at 421,

704 N.E.2d 1217

.
{¶ 42} Campbell addressed liability only, and its interpretation has since
been limited to civil liability only when expressly imposed by a section of the
Revised Code. See R.C. 2744.02 and 2744.03, 149 Ohio Laws, Part II, 3500,
3508, 3510, effective April 9, 2003. Rice interpreted a statute that authorized
damages. Here, former R.C. 2151.421 is silent as to any damages. We cannot
insert words into a statute. Instead, we must give effect only to the words used.
Rice, 84 Ohio St.3d at 419,

704 N.E.2d 1217

. The General Assembly did not
include a provision for civil damages in the former version of the statute, much
less punitive damages. Without express authority for such an award, we are
constrained by the statutory language. O’Toole v. Denihan,

118 Ohio St.3d 374

2008-Ohio-2574

889 N.E.2d 505

, ¶ 67.
{¶ 43} Furthermore, there can be no award of punitive damages for
violating a statutory duty that did not exist at common law unless the award is
expressly authorized by statute. Kleybolte v. Buffon (1913),

89 Ohio St. 61

, 66,

105 N.E. 192

. There was no common-law duty to report child abuse. The statute
that created the duty does not authorize any damages for its breach. Therefore,
we hold that in the absence of statutory authority, punitive damages are not
available under former R.C. 2151.421.
Discovery of Child Abuse Reports per R.C. 2151.421
12
January Term, 2009
{¶ 44} R.C. 2151.421(H)(1) provides for “the use of reports of other
incidents of known or suspected abuse or neglect in a civil action or proceedings
brought pursuant to division (M) of this section.” There is no exception for
discovery in other types of civil actions.      Because we have determined that
division (M) may not be retroactively applied, the Roes do not have a civil action
pursuant to division (M), and they may not rely on amended (H)(1) to discover
and use reports of other incidents of abuse in this action.
{¶ 45} Thus, we look to former R.C. 2151.421(H), which makes no
exception for discovery of abuse reports for this kind of civil action. In addition,
to the extent that the abuse reports contain information obtained within the
physician-patient relationship, that information is privileged from disclosure.
This case does not fit within the exception to the physician-patient privilege
involving “a child’s injuries, abuse, or neglect * * * in any judicial proceeding
resulting from a report submitted pursuant to this section.”                   R.C.
2151.421(G)(1)(b). Because this case does not arise from a report submitted
about Jane, R.C. 2151.421(G)(1)(b) does not apply. Consequently, these abuse
reports are confidential pursuant to former R.C. 2151.421(H) and are not
discoverable in this case.
Discovery of Confidential Records of Third Parties
{¶ 46} The Roes also seek medical records of nonparties. In general,
medical records are confidential and not subject to disclosure. Hageman v.
Southwest Gen. Health Ctr.,

119 Ohio St.3d 185

2008-Ohio-3343

893 N.E.2d 153

, ¶ 9. The Roes rely on Biddle,

86 Ohio St.3d 395

715 N.E.2d 518

, as
authority for discovery of the confidential medical records of nonparties because
“disclosure is necessary to protect or further a countervailing interest that
outweighs the patient’s interest in confidentiality.”

Id.

 at paragraph two of the
syllabus.
13
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{¶ 47} Biddle was a tort case in which we addressed liability for
unauthorized disclosure and stressed the utmost importance of the patient’s right
to confidentiality of medical communications.

Id.,

86 Ohio St.3d 395

715 N.E.2d 518

, paragraph one of the syllabus.           Biddle did not involve discovery of
documents, but rather the improper release of documents.               Nevertheless,
apparently litigants have used Biddle to seek nonparty confidential medical
information, and courts in several types of tort cases have interpreted Biddle as
creating a right to obtain nonparty confidential medical information. See Fair v.
St. Elizabeth Med. Ctr. (2000),

136 Ohio App.3d 522

, 527,

737 N.E.2d 106

;
Richards v. Kerlakian,

162 Ohio App.3d 823

835 N.E.2d 768

, ¶
5; Alcorn v. Franciscan Hosp. Mt. Airy Campus, Hamilton App. No. C-060061,

2006-Ohio-5896

, ¶ 17; Cepeda v. Lutheran Hosp., Cuyahoga App. No. 90031,

2008-Ohio-2348

, ¶ 15.
{¶ 48} However, paragraph two of the syllabus in Biddle addressed the
defenses to the tort of unauthorized disclosure of confidential medical information
— i.e., the circumstances under which a physician or hospital may release
confidential medical records in the absence of a waiver without incurring tort
liability.   Biddle did not create a litigant’s right to discover the confidential
medical records of nonparties in a private lawsuit. Any such exception to the
physician-patient privilege is a matter for the General Assembly to address. See
Jackson v. Greger,

110 Ohio St.3d 488

2006-Ohio-4968

854 N.E.2d 487

, ¶ 13
(“this court * * * has consistently rejected the adoption of judicially created
waivers, exceptions, and limitations for testimonial privilege statutes”).
{¶ 49} The Roes also argue that the trial court ordered all patient-
identifying information redacted, so the anonymity of the patients will be
retained, and the confidential and privileged nature of the documents will be
removed.      Redaction of personal information, however, does not divest the
privileged status of confidential records. Redaction is merely a tool that a court
14
January Term, 2009
may use to safeguard the personal, identifying information within confidential
records that have become subject to disclosure either by waiver or by an
exception. See R.C. 2317.02(B)(1)(d).
{¶ 50} Here, the Roes seek confidential information of third parties that is
privileged from disclosure. R.C. 2151.421(H)(1) and 2317.02. Because Biddle
applies as a defense to the tort of unauthorized disclosures of confidential medical
information, we hold that Biddle does not authorize the Roes to discover the
confidential medical records of nonparties from Planned Parenthood.
{¶ 51} The Roes and amici curiae assert that this discovery will further
Ohio’s public policy in protecting children. We note, however, that this case is
about Planned Parenthood’s alleged violation of duties as to Jane Roe only. The
Roes have not filed a class action on behalf of other alleged victims. The case has
no criminal implications: Haller has already been convicted of the crimes, and the
prosecutor has investigated but declined to pursue criminal charges against
Planned Parenthood.
{¶ 52} To the extent that the Roes and various amici curiae also advance
public policy arguments in support of disclosure of confidential medical records,
whether such public policy issues are sufficient to overcome a nonparty patient’s
right to the confidentiality of medical information should likewise be addressed
by the General Assembly, not the judiciary. The General Assembly has addressed
the Roes’ concerns about the reporting of child abuse; however, those changes in
the law apply prospectively.
Conclusion
{¶ 53} The confidential abuse reports and medical records at issue are
privileged from disclosure per R.C. 2317.02 and former 2151.421(H)(1).
Redaction of personal, identifying information does not remove the privileged
status of the records. Therefore, the reports and medical records are not subject to
discovery pursuant to Civ.R. 26(B)(1).
15
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{¶ 54} Biddle, followed by Hageman,

119 Ohio St.3d 185

, 2008-Ohio-
3343,

893 N.E.2d 153

, addressed improper disclosure without prior authorization
and emphasized a patient’s right to the privacy of medical information. Id. at ¶
17. Biddle addressed the privilege to disclose confidential medical information in
the context of a defense to the tort of unauthorized disclosure. Biddle does not
create the right to discover the confidential medical records of nonparties in a
private lawsuit.
{¶ 55} The Roes still may pursue their private claims for damages against
Planned Parenthood for statutory violations: whether Planned Parenthood
performed an unlawful abortion on Jane under R.C. 2919.12 and 2919.121, which
authorize an award of punitive damages, whether Jane’s consent was proper under
R.C. 2317.56, which authorizes an award of punitive damages, and whether it had
a duty to report suspected abuse of Jane under former R.C. 2151.421. The Roes
are entitled to discover Jane’s own medical records. They may pursue discovery
of other matters, not privileged, that are relevant and reasonably calculated to lead
to the discovery of admissible evidence. Therefore, for the foregoing reasons, we
affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., and LANZINGER and CUPP, JJ., concur.
PFEIFER, J., concurs separately.
O’DONNELL, J., concurs in part and dissents in part.
DONOVAN, J., dissents.
MARY E. DONOVAN, J., of the Second Appellate District, sitting for
O’CONNOR, J.
__________________
PFEIFER, J., concurring.
{¶ 56} I concur in the opinion, with two exceptions, and in the judgment.
16
January Term, 2009
{¶ 57} I disagree with the majority’s decision to clarify Biddle v. Warren
Gen. Hosp. (1999),

86 Ohio St.3d 395

715 N.E.2d 518

. This case is not the
proper vehicle to revisit Biddle because doing so is not necessary to resolve the
issue before us.
{¶ 58} I concur in the majority opinion’s conclusion that “[f]ormer R.C.
2151.421 made no reference to any civil damages for a violation of the statute,”
and therefore, that punitive damages are unavailable to the Roes. I disagree with
the majority’s decision to discuss Kleybolte v. Buffon (1913),

89 Ohio St. 61

105 N.E. 192

. That case is not necessary to reach the holding that the majority
reaches.
{¶ 59} With these exceptions, I join the majority opinion.
__________________
CUPP, J., concurring.
{¶ 60} Plaintiffs’ claims arise out of troubling circumstances.      These
circumstances involve an adult soccer coach engaging in criminal conduct by
abusing his position of authority and having a sexual relationship with a 13-year-
old, who was a player on his soccer team. When the minor became pregnant
through this illicit relationship, the coach convinced her to have an abortion. He
directed and guided her in a scheme to obtain the abortion without notice to, or
the knowledge of, the minor’s parents, as the majority opinion details. The
abortion took place at the clinic of Planned Parenthood Southwest Ohio Region.
{¶ 61} The parents of the minor now seek to establish through their
lawsuit that Planned Parenthood facilitated the unlawful abortion by breaching its
statutory duties of reporting suspected child abuse, of notifying a parent and
obtaining consent, and of obtaining the minor’s informed consent.
{¶ 62} The Roes seek compensatory and punitive damages. To gather the
needed facts and information to establish their claim, the Roes also seek through
discovery to compel Planned Parenthood to provide the abuse reports and medical
17
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records of nonparties. The underlying circumstances of this case are deeply
troubling. However, a court of law is duty-bound to resolve the legal issues
before it by applying the law in the same manner in which it would apply the law
to cases with less disturbing facts but involving the same legal issues.
{¶ 63} In reviewing the language of the statutory provisions underlying
claims for relief, courts are constrained to “look to the statutory language and the
‘purpose to be accomplished.’ ” Rice v. CertainTeed Corp. (1999),

84 Ohio St.3d 417

, 419,

704 N.E.2d 1217

, quoting State ex rel. Richard v. Bd. of Trustees of the
Police & Firemen’s Disability & Pension Fund (1994),

69 Ohio St.3d 409

, 411,

632 N.E.2d 1292

. “Words used in a statute must be taken in their usual, normal
or customary meaning * * * [and] it is the duty of the court to give effect to the
words used and not to insert words not used.” State ex rel. Richard, 69 Ohio
St.3d at 412.
{¶ 64} As the majority opinion explains, former R.C. 2151.421, 2006
Sub.S.B. No. 238, plainly does not permit a private plaintiff to obtain civil
damages for the failure of a person to comply with the statute’s reporting
requirements for suspected child abuse. The parties also do not contest that the
text of former R.C. 2151.421 does not explicitly provide for recovery of civil
damages. Instead, the statute expressly provides criminal penalties as the remedy
for a violation of the statutory reporting duties. R.C. 2151.99(A). Because the
statute does not authorize civil damages, we may not judicially insert words to
permit a remedy the statute plainly does not provide.
{¶ 65} The same analysis is applicable to plaintiffs’ claims for access to
the abuse reports and medical records of other persons who are not parties to this
action. Under former R.C. 2151.421(H), the version in effect when the conduct
giving raise to this action occurred, such abuse and medical reports are
confidential, and as the majority opinion states, no exception is provided in the
statute for the discovery of abuse reports of nonparties to the civil action.
18
January Term, 2009
Moreover, the balancing-of-interests test in Biddle v. Warren Gen. Hosp. (1999),

86 Ohio St.3d 395

715 N.E.2d 518

, paragraph two of the syllabus, is unavailing
to plaintiffs. The Biddle balancing test applies only to claims for damages from
unauthorized release of confidential medical records and not to the circumvention
of restrictions on the confidentiality of unreleased records.
{¶ 66} The legislature has, subsequent to the filing of plaintiff’s suit,
amended the controlling statutes to provide most of the relief that plaintiffs now
seek from this court. However, those amendments cannot be applied to this case.
As the majority opinion correctly analyzes, the substantive amendment, R.C.
2151.421(M), cannot be applied without creating an unconstitutional retroactive
impact, and the remedial provision, R.C. 2151.421(H), which would permit
plaintiffs access to the abuse reports of nonparties they seek, is restrictively
drafted. R.C. 2151.421(H) is expressly linked to the substantive provision, which
may not constitutionally be applied to the present case.
{¶ 67} In the final analysis, then, plaintiffs can be granted the results they
seek in this court only if we judicially amend the child-abuse-reporting and the
patient-physician-privilege statutes or disregard the constitutional prohibition on
retroactive substantive legislation.
{¶ 68} To do so, however, would be to step across the line that marks the
boundary of authority that our constitutional system of separation of powers has
allocated to the judiciary. That is a step we may not properly take.
{¶ 69} I concur.
LANZINGER, J., concurs in the foregoing opinion.
__________________
O’DONNELL, J., concurring in part and dissenting in part.
{¶ 70} While I concur in the majority’s decision regarding punitive
damages and the confidentiality of child-abuse reports pursuant to former R.C.
2151.421, I respectfully dissent from its holding that third-party medical records
19
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are never subject to discovery under Civ.R. 26(B)(1). In my view, this court’s
decision in Biddle v. Warren Gen. Hosp. (1999),

86 Ohio St.3d 395

715 N.E.2d 518

, sets forth an appropriate test for determining when a claimant may discover
information that might otherwise be subject to the physician-patient privilege.
Moreover, trial courts have the authority to enter discovery orders that protect the
privacy interests of patients whose records are disclosed in these circumstances.
Civ.R. 26(B)(6) and (C). Thus, I would reverse the judgment of the court of
appeals in part and reinstate the trial court’s order compelling Planned Parenthood
to disclose the third-party medical records, subject to a protective order and
redaction of information that identifies these patients.
{¶ 71} In Biddle, this court recognized that the physician-patient privilege
and a physician’s duty of confidentiality are not absolute. We reasoned that “
‘[a]lthough public policy favors the confidentiality [of medical information], there
is a countervailing public interest to which it must yield in appropriate
circumstances.’ ”    Biddle, 86 Ohio St.3d at 402,

715 N.E.2d 518

, quoting
MacDonald v. Clinger (1982),

84 A.D.2d 482

, 487,

446 N.Y.S.2d 801

. As we
further emphasized, “special situations may exist where the interest of the public,
the patient, the physician, or a third person are of sufficient importance to justify
the creation of a conditional or qualified privilege to disclose in the absence of
any statutory mandate or common-law duty.”

Id.,

 citing Hague v. Williams
(1962),

37 N.J. 328

, 336,

181 A.2d 345

; Berry v. Moench (1958),

8 Utah 2d 191

,
197,

331 P.2d 814

; Simonsen v Swenson (1920),

104 Neb. 224

, 228,

177 N.W. 831

; Johnston, Breach of Medical Confidence in Ohio (1986), 19 Akron L.Rev.
373, 384-392; Vickery, Breach of Confidence: An Emerging Tort (1982), 82
Colum.L.Rev. 1426, 1462-1468.
{¶ 72} Thus, we determined that a medical provider may “disclose
otherwise confidential medical information in those special situations where
disclosure is made in accordance with a statutory mandate or common-law duty,
20
January Term, 2009
or where disclosure is necessary to protect or further a countervailing interest
which outweighs the patient’s interest in confidentiality.” (Emphasis added.)

86 Ohio St.3d 395

, 402,

715 N.E.2d 518

.
{¶ 73} Ohio’s appellate courts have since relied on this language for the
proposition that a litigant may compel discovery of third-parties’ medical records
from a physician or hospital pursuant to Civ.R. 26(B). See Fair v. St. Elizabeth
Med. Ctr. (2000),

136 Ohio App.3d 522

737 N.E.2d 106

; Richards v. Kerlakian,

162 Ohio App.3d 823

835 N.E.2d 768

; Alcorn v. Franciscan
Hosp. Mt. Airy Campus, Hamilton App. No. C-060061,

2006-Ohio-5896

; Cepeda
v. Lutheran Hosp., Cuyahoga App. No. 90031,

2008-Ohio-2348

. Unlike the
majority, I am of the view that these decisions reasonably interpret Biddle.
{¶ 74} The test we crafted in the syllabus of Biddle, permitting disclosure
of medical records “where disclosure is necessary to protect or further a
countervailing interest that outweighs the patient’s interest in confidentiality,”
authorizes trial courts to balance the interests involved in these circumstances.
Litigants have a right to liberal discovery of information under the Civil Rules of
Procedure. See Moskovitz v. Mt. Sinai Med. Ctr. (1994),

69 Ohio St.3d 638

, 661-
662,

635 N.E.2d 331

.       And while patients undeniably have an interest in
maintaining the confidentiality of their medical information, the Civil Rules
provide the means to safeguard that interest, and we have consistently recognized
trial courts’ broad authority to enter protective orders in discovery. See, e.g.,
State ex rel. Abner v. Elliott (1999),

85 Ohio St.3d 11

, 16,

706 N.E.2d 765

.
{¶ 75} In this regard, Biddle is consistent with the decisions of numerous
other states, which have similarly recognized the right to compel discovery of
medical records from physicians and hospitals. As the court stated in Bennett v.
Fieser (D.Kan.1994),

152 F.R.D. 641

, “The vast majority of states that have
addressed this issue have held that non-party patient medical records are
discoverable and do not violate the physician-patient privilege where there are
21
SUPREME COURT OF OHIO
adequate safeguards to protect the identity of the non-party patient.”

Id.

 at 642-
643, citing Terre Haute Regional Hosp. v. Trueblood (Ind.1992),

600 N.E.2d 1358

, 1359; Ventimiglia v. Moffitt (Fla.App.1986),

502 So.2d 14

; Ziegler v.
Superior Court in and for Pima Cty. (1982),

134 Ariz. 390

, 394,

656 P.2d 1251

;
and Community Hosp. Assn. v. Dist. Court in and for Boulder Cty. (1977),

194 Colo. 98

, 100,

570 P.2d 243

. See also Amisub, Inc. v. Kemper (Fla.App.1989),

543 So.2d 470

; Rudnick v. Superior Court of Kern Cty. (1974)

11 Cal.3d 924

523 P.2d 643

114 Cal.Rptr. 603

; Osterman v. Ehrenworth (1969),

106 N.J.Super. 515

256 A.2d 123

; but see Parkson v. Cent. DuPage Hosp. (1982),

105 Ill.App.3d 850

61 Ill.Dec. 651

, 855,

435 N.E.2d 140

.
{¶ 76} Particularly persuasive is the Supreme Court of Indiana’s decision
in Trueblood, which held, “[W]here adequate safeguards exist to protect the
identity and confidentiality of the non-party patient, the trial court may allow the
discovery of the non-party patient medical records even where the patient has not
waived the physician-patient privilege.”       600 N.E.2d at 1362.        The court
explained that “[a]long with a patient’s individual interest in quality medical care,
the public has an interest in being protected from incompetent physicians” and
that “[i]t is unlikely that a patient would be inhibited from confiding in his
physician where there is no risk of humiliation and embarrassment, and no
invasion of the patient’s privacy.” Id. at 1361, citing Ziegler, 656 P.2d at 1255.
And as the court stated, “[i]n situations where the medical records are relevant, a
‘blanket prohibition against examination and use against the hospital of such
records would result in an injustice.’ ” Id., quoting Ziegler, 656 P.2d. at 1255.
{¶ 77} Based on this authority and on Biddle, I would reverse the decision
of the appellate court to vacate the trial court’s entry granting the Roes’ motion to
compel discovery of medical records held by Planned Parenthood. In my view,
the medical records requested by the Roes satisfy Civ.R. 26(B)(1), which provides
22
January Term, 2009
that information is discoverable when it is “relevant to the subject matter involved
in the pending action” and that “[i]t is not ground for objection that the
information sought will be inadmissible at the trial if the information sought
appears reasonably calculated to lead to the discovery of admissible evidence.”
We should not disturb the trial court’s ruling in this regard in the absence of an
abuse of discretion. See State ex rel. Daggett v. Gessaman (1973),

34 Ohio St.2d 55

, 57,

63 O.O.2d 88

295 N.E.2d 659

. Furthermore, because the trial court
placed the medical records under a protective order and ordered them redacted,
the physician-patient privilege will not be violated by their disclosure by Planned
Parenthood.
{¶ 78} Accordingly, I dissent from this part of the majority’s decision.
__________________
DONOVAN, J., dissenting.
{¶ 79} I respectfully dissent. I would reverse the judgment of the court of
appeals, thus reinstating the trial court’s order compelling discovery. My focus in
this dissent will not be on 2008 Am.Sub.H.B. No. 280 (“H.B. 280”) , as I find the
amendments to be merely remedial, since the Roes, in my view, are entitled to the
discovery initially ordered by the trial court under pre-existing, as well as current,
law. The Roes should be entitled to redress a pre-existing actionable wrong.
{¶ 80} The Roes have presented cognizable claims; they should be able to
pursue discovery on their claims. “The truth must be known, as far as possible, to
enable the law to provide justice in each case.” State v. Antill (1964),

176 Ohio St. 61

, 64,

26 O.O.2d 366

197 N.E.2d 548

. The majority’s approach to discovery
and the standard of review applied herein effectively eviscerates the Roes’ rights
to examine every possible legal argument. This court should recognize the value
of the numerous protective orders that Civ.R. 26 provides.              Without this
recognition, the Roes and other plaintiffs lose legal arguments before they are
fully developed. Accordingly, I cannot agree with the narrow construction the
23
SUPREME COURT OF OHIO
majority now assigns Biddle v. Warren Gen Hosp. (1999),

86 Ohio St.3d 395

715 N.E.2d 518

.
{¶ 81} Commensurate with the objection to discovery, the Roes have the
initial burden of establishing relevance of the records sought. Relevance should
be approached with flexibility, favoring discovery.      The trial court correctly
started with the premise that the suspected child-abuse reports and medical
records need not necessarily be admissible at trial to permit examination during
the discovery process. This is clearly not a situation in which the Roes are
making a request for totally irrelevant records. Even a tangential relationship
between the Roes’ claims and information sought that may lead to admissible
evidence satisfies the relevance requirement.
{¶ 82} A trial court enjoys broad discretion in the regulation of discovery.
Whitt v. ERB Lumber,

156 Ohio App.3d 518

2004-Ohio-1302

806 N.E.2d 1034

.
The standard of review in discovery matters is normally abuse of discretion.
While the management of discovery is reviewed under an abuse-of-discretion
standard, questions of the existence of a privilege are questions of law and are
reviewed de novo. Whether the information sought is confidential and privileged
from disclosure is a question of law that is reviewed de novo. This is a correct
characterization of the standard of review in deciding a pure question of law. In
determining the pure legal question, an appellate court may properly substitute its
judgment for that of the trial court. However, in the instant case, the pure legal
question has been resolved. In fact, it is undisputed that the third-party/nonparty
records are confidential. This case does not turn upon a misconstruction or
misapplication of R.C. 2317.02 (privileged communication). Thus, in my view,
the appellate court erroneously reviewed the trial court’s order by utilizing a de
novo review, and this court’s very recent decision in Med. Mut. of Ohio v.
Schlotterer,

122 Ohio St.3d 181

2009-Ohio-2496

909 N.E.2d 1237

, is not
controlling.
24
January Term, 2009
{¶ 83} In Med. Mut. of Ohio, the issue was whether patients’ consents to
release their medical records to their insurer waived the physician-patient
privilege in the context of a civil fraud action brought by the insurer against the
physician.   The court correctly applied the de novo standard of review to
determine whether the information sought by the insurer was confidential and
privileged. Med. Mut. of Ohio,

122 Ohio St.3d 181

2009-Ohio-2496

909 N.E.2d 1237

, ¶ 13, has no application to the Roes’ discovery request, as the issue herein
is necessarily not one of confidentiality and privilege, but one of “the propriety of
the disclosure.”
{¶ 84} Given the Roes’ right to litigate their claims and the third-
party/nonparty interests in confidentiality, the trial court should be charged with
weighing competing interests.          This weighing of competing interests is a
balancing of facts and interests best suited for the trial judge’s determination.
From a policy perspective, the application of an abuse-of-discretion standard
would be consistent with the trial court’s widely recognized and accepted
discretion to regulate the discovery process. It would also be consistent with the
generally recognized proposition that the trial court is most informed and
knowledgeable about the unique circumstances of a case and thus is in the best
position to evaluate and decide these issues. Accordingly, the trial court should
be afforded the proper deference in balancing the competing interests at stake.
The trial court could properly conclude that the Roes’ right to seek redress and the
need to protect children who are victimized by adult sexual predators outweigh
confidentiality concerns. The suggestion by the appellate court that there is an
erroneous interpretation of law requiring de novo review on this record is simply
not true. Weighing countervailing interests is not a legal determination, nor
should it be characterized as such. Rather, it is a balancing of facts, which may
lead to the conclusion that the privilege is outweighed by other rights, to wit, an
injured party’s right to redress.
25
SUPREME COURT OF OHIO
{¶ 85} The majority, in my view, creates new law that will permit
appellate courts to substitute their judgment — that is, their own opinions — for
what they would have done in managing the discovery process by characterizing
this case as one in which the appellate court conducts a de novo review of the
discovery order. The “propriety of disclosure” of redacted medical records should
be all about a “countervailing interest,” pursuant to a proper construction of
Biddle, 86 Ohio St.3d at 402,

715 N.E.2d 518

. Biddle’s applicability should not
be limited to the defense of a tort of unauthorized disclosure of medical
information.        Countervailing interests are not different from competing
considerations.      Curiously, this court has explained the abuse-of-discretion
standard as “ ‘the idea of choice, of an exercise of will, of a determination made
between competing considerations.’ ” Huffman v. Hair Surgeon, Inc. (1985),

19 Ohio St.3d 83

, 87, 19 OBR 123,

482 N.E.2d 1248

, quoting State v. Jenkins
(1984),

15 Ohio St.3d 164

, 222, 15 OBR 311,

473 N.E.2d 264

. What we have
here is competing considerations, and an abuse-of-discretion standard should
apply.
{¶ 86} In Biddle, this court acknowledged that there are special situations
in which “disclosure is necessary to protect or further a countervailing interest
that outweighs the patient’s interest in confidentiality.”

86 Ohio St.3d 395

715 N.E.2d 518

, paragraph two of the syllabus. I conclude that this is one of those
“special situations.” In Biddle, this court acknowledged, “[W]hen a physician’s
report ‘is made in the manner prescribed by law, he of course has committed no
breach of duty toward his patient * * *and no liability could result.’ ”

Id. at 402

,
quoting Simonsen v. Swenson (1920),

104 Neb. 224

, 228,

177 N.W. 831

.
However, the claims set forth by the Roes are simply that liability should result
when the opposite occurs — i.e., statutory duties are not fulfilled, and injury
results.
26
January Term, 2009
{¶ 87} There is absolutely nothing in Biddle that suggests, much less
holds, that the “propriety of disclosure” should be decided as a matter of law.
Biddle was the only case that the appellate court relied upon for this proposition,
other than Alcorn v. Franciscan Hosp. Mt. Airy Campus, Hamilton App. No. C-
060061,

2006-Ohio-5896

, ¶ 17, which merely cites Biddle. Accordingly, any
reliance by the appellate court on Alcorn and Biddle, in my view, is misplaced.
{¶ 88} Although the majority suggests that “courts have interpreted Biddle
as creating a right to obtain nonparty confidential medical information,” the cases
cited by the majority do not attribute that construction to Biddle: Fair v. St.
Elizabeth Med. Ctr. (2000),

136 Ohio App.3d 522

, 527,

737 N.E.2d 106

;
Richards v. Kerlakian,

162 Ohio App.3d 823

835 N.E.2d 768

, ¶
5; Alcorn, Hamilton App. No. C-060061,

2006-Ohio-5896

, ¶ 17; Cepeda v.
Lutheran Hosp., Cuyahoga App. No. 90031,

2008-Ohio-2348

, ¶ 15.
{¶ 89} Robert Fair, for example, was assaulted in a psychiatric ward by
another patient, sustaining serious injuries. Fair, 136 Ohio App.3d at 523,

737 N.E.2d 106

.    Fair and his wife brought claims of negligence and loss of
consortium against the hospital (“SEMC”).

Id. at 524

. SEMC’s motion for
summary judgment was overruled, and the Fairs filed a motion to compel the
records of Robert’s attacker. The trial court overruled the motion to compel in
reliance upon Johnston v. Miami Valley Hosp. (1989),

61 Ohio App.3d 81

, 85,

572 N.E.2d 169

, which refused to create an exception to the doctor-patient
privilege to prove the existence of a “special relationship” between the hospital
and a patient that caused injury to another patient. SEMC filed a second motion
for summary judgment, and in response, the Fairs filed a Civ.R. 56(F) motion,
stating that they could not oppose SEMC’s motion because they lacked sufficient
discovery. Fair, 136 Ohio App.3d at 524. Following a hearing, the trial court
overruled the Fairs’ motion, based upon Johnston, determining that the alleged
27
SUPREME COURT OF OHIO
attacker’s name and records were privileged information unless waived by the
patient, and it granted SEMC’s motion for summary judgment. Id. at 524-525.
{¶ 90} On its own motion, the trial court then vacated its decision to
“properly frame the privilege issues for appeal.” Id. at 525. The trial court then
filed its decision granting SEMC’s motion for summary judgment, reiterating that
the information sought was deemed not discoverable. Id.
{¶ 91} On appeal, the Fairs relied upon Biddle, arguing that an appropriate
circumstance existed “in which confidentiality must yield to the public interests.”
Fair, 136 Ohio App.3d at 526,

737 N.E.2d 106

. The Fairs claimed that “their
right to redress for Robert’s injuries should prevail over the confidentiality
interests of the unidentified patient.”

Id.

{¶ 92} The Second District noted, “[T]o the extent that the Ohio Supreme
Court has carved out an exception to the physician-patient privilege in certain
cases, Johnston, supra, has been overruled,” and it determined that the facts of the
Fairs’ case fell “within the exception articulated in Biddle.” Fair, 136 Ohio
App.3d at 526,

737 N.E.2d 106

. The court reached this holding because “SEMC
had a duty to reasonably protect Robert from assault or battery by third persons,
including other patients,” pursuant to R.C. 5122.29.

Id. at 527

. The court further
determined that the Fairs’ right of recourse for SEMC’s alleged breach of duty
amounted to a “special situation where disclosure must be made to protect
Robert’s rights.”

Id.

 Since SEMC’s position was that no offense of violence
occurred, it would be “inherently unfair” to limit the Fairs to SEMC’s
determination, without access to the attacker’s medical records.

Id.

 In other
words, disclosure was necessary to protect Robert’s rights. Finally, all identifying
information was to be redacted from the records to protect the alleged attacker’s
identity.

Id.

{¶ 93} In Richards, a doctor and his practice group appealed the trial
court’s order granting discovery of approximately 30 redacted operative reports
28
January Term, 2009
involving surgeries performed by the doctor in the context of a wrongful-death
action. Richards,

162 Ohio App.3d 823

835 N.E.2d 768

, ¶ 1.
The trial court’s order required that all identifying information be redacted and
that the information not be shared with nonwitnesses or filed with the court. It
further ordered the copies returned at the end of the litigation.
{¶ 94} In his appeal, the doctor relied upon R.C. 2317.02, which provides
the testimonial privilege of patient and physician communications. The First
District Court of Appeals noted that the operative reports were protected by the
statute, but it further noted that “the privilege afforded under R.C. 2317.02 is not
absolute. The Ohio Supreme Court has held that the discovery of such protected
communications may be appropriate under certain circumstances, such as to
further a countervailing interest that outweighs the nonparty patient’s interest in
confidentiality.” Richards,

162 Ohio App.3d 823

835 N.E.2d 768

, ¶ 5.
{¶ 95} Regarding the plaintiffs’ primary claim of negligent credentialing,
the First District noted, “It is difficult to imagine how else the negligent-
credentialing claim could have been investigated without the disputed
documents.” Id. at ¶ 6. Further, the plaintiffs intended to impeach the doctor’s
deposition testimony with the documents. It was significant to the First District
that the plaintiffs presented their impeachment argument with specificity. Id.
{¶ 96} The First District distinguished the authority upon which the
doctor relied, Wozniak v. Kombrink (Feb. 13, 1991), 1st Dist. No. C-89053,

1991 WL 17213

. In that case, the plaintiff sought nonparty medical records to impeach
the testimony of an expert witness. In reversing the judgment of the trial court,
the First District determined that the risk of disclosing the patient’s identity
outweighed the benefit to the plaintiff in impeaching the expert, since the plaintiff
had “less intrusive means to obtain the same information.”

162 Ohio App.3d 823

835 N.E.2d 768

, at ¶ 7. In contrast, Richards sought to impeach
29
SUPREME COURT OF OHIO
a party and to develop a primary claim. The First District noted that the trial court
protected the identity of the nonparty patients and “specifically weighed the risk
of disclosure of this information otherwise protected by R.C. 2317.02 against the
plaintiff’s compelling need for the information.” (Emphasis added). Id. at ¶ 8.
{¶ 97} In Alcorn, Teri Alcorn was allegedly sexually assaulted by another
patient in the psychiatric ward of the hospital where she had been admitted due to
bipolar disorder. Alcorn,

2006-Ohio-5896

, ¶ 3. Gerald Alcorn asserted a claim of
loss of consortium, and the Alcorns sought the medical records of the alleged
attacker, whom they knew. Id. at ¶ 3-4. The Alcorns argued that “their interests
in prosecuting their claims outweighed Franciscan’s interest in preserving the
physician-patient privilege.” Id. at ¶ 5. After an in camera review, the trial court
granted the Alcorns’ motion to compel. Id. at ¶ 5 -6.
{¶ 98} On the hospital’s appeal, the Alcorns relied upon Biddle’s
“common-law exception to the privilege.” Id. at ¶ 8. The First District quoted
Biddle’s holding that a hospital may disclose otherwise privileged records where “
‘disclosure is necessary to protect or further a countervailing interest that
outweighs the patient’s interest in confidentiality.’ ” Id. at ¶ 9. The First District
next noted that “[t]he propriety of disclosure is a question of law,” subject to de
novo review. Id. The only authority for this proposition of law as noted above
was Biddle, which does not hold that the propriety of disclosure is a question of
law.
{¶ 99} In reliance upon Fair, the First District determined that “[a]bsent
the medical records of the patient, the Alcorns would * * * have been prevented
from proving that [the hospital] was aware of the patient’s dangerous proclivities
and therefore prevented from establishing a breach of duty on the part of the
hospital.” Id. at ¶ 11. The court noted that the trial court took every practical
measure to ensure that the records would not be disclosed beyond the
requirements for discovery. Id. at ¶ 13.
30
January Term, 2009
{¶ 100} The hospital also argued that the scope of discovery was too
broad. Again, the First District noted that while “the initial question of privilege
was a matter of law, the management of the discovery process was solely within
the discretion of the trial court.” Id. at ¶15. Notably, no abuse of discretion was
found in the granting of the trial court’s discovery order. Id. at ¶ 17.
{¶ 101} In Cepeda,

2008-Ohio-2348

, the patient filed a multi-count
complaint against, inter alia, a doctor and his practice, after the doctor allegedly
inappropriately and unnecessarily removed her uterus and ovaries. Id. at ¶ 2. The
trial court granted the Cepedas’ motion to compel the discovery of billing
statements of nonparty patients sent to Medicare and Medicaid and information
regarding the doctor’s finances and income. Id. at ¶ 3-4. Defendants appealed,
arguing that the billing records were protected by patient privilege and that the
financial information sought was unnecessary for the Cepedas to pursue their
claims. Id. at ¶ 7.
{¶ 102} The Eighth District Court of Appeals began by noting that the
review of the management of the discovery process is subject to an abuse-of-
discretion standard, while questions of privilege are subject to de novo review.
Cepeda,

2008-Ohio-2348

, at ¶ 9. Relying on Biddle, the court noted that the
privilege provided by R.C. 2317.02 is “not absolute,” noting that “disclosure is
permitted in the absence of prior authorization of privileged matters where
disclosure is made pursuant to a statutory mandate or common-law duty.” Id. at ¶
10.   Second, “discovery of such protected communications is appropriate to
protect or further a countervailing interest that outweighs the non-party patient’s
interest in confidentiality.” Id.    It was significant to the appellate court that
“[s]hielding the identity preserves the objective of the patient-physician privilege
while still achieving the public’s interest in justice.” Id. at ¶ 11.
{¶ 103} Analogizing Cepeda to Richards, the court noted that the
Cepedas sought defendants’ billing statements to establish the doctor’s alleged
31
SUPREME COURT OF OHIO
motive to supplement his income by performing unnecessary procedures on
patients with Medicare or Medicaid. Cepeda,

2008-Ohio-2348

, at ¶ 16. The
court determined that “such information is necessary to further a countervailing
interest that outweighs the non-parties’ privilege.”      (Emphasis added.)

Id.

Finally, the court noted that the trial court provided protection against the
disclosure of the identity of the nonparty patients and limited dissemination of the
discovered material. Id. at ¶ 17.
{¶ 104} In addition, the Eighth District disagreed that the questions
regarding the doctor’s finances were irrelevant and an invasion of privacy. The
court reiterated, “[W]e review the trial court’s decisions on the management of
discovery matters under an abuse of discretion standard. * * * The complaining
party must establish a clear and prejudicial abuse of discretion that materially
prejudices the party. * * * Absent an abuse of discretion, an appellate court may
not overturn the trial court’s ruling on discovery matters.” Cepeda, 2008-Ohio-
2348, at ¶ 23-24. The court concluded that the “relevancy test pursuant to Civ.R.
26(B)(1) ‘is much broader than the test to be utilized at trial. [Evidence] is only
irrelevant by the discovery test when the information sought will not reasonably
lead to the discovery of admissible evidence.’ ” Cepeda,

2008-Ohio-2348

, at ¶
29, quoting Tschantz v. Ferguson (1994),

97 Ohio App.3d 693

, 715,

647 N.E.2d 507

.
{¶ 105} The dissenting opinion in Cepeda asserted that Richards and
Fair “seek to broaden Biddle’s holding to apply in any case where disclosure is
sought to aid a private lawsuit against a doctor who has been accused of
malpractice.” (Emphasis added.) Cepeda,

2008-Ohio-2348

, at ¶ 31 (Blackmon,
J., dissenting).    The dissent notes that Biddle used the “balancing of
‘countervailing interest’ test to determine whether a patient’s medical records can
be disclosed to third party.” Id. at ¶ 32. The dissent argued that “before a trial
court may apply [Biddle’s] balancing test, the trial court and this court must
32
January Term, 2009
define specially what the plaintiff-patient’s interest is.” Id. According to the
dissent, “the Majority Opinion has joined the more relaxed understanding of
Biddle and found a judicially created right of injured patients to obtain non-party
patients’ privileged confidential medical information to punish a wrong inflicted
by the patient’s doctor.”      (Emphasis added.)       Id. at ¶ 34   (Blackmon, J.,
dissenting). The dissenting judge prefers “remedies * * * which would not
destroy the nonparty patients’ privacy” over what was characterized as the “super
attorney general” concept espoused by the majority in Richards and Fair. Id.
{¶ 106} Perhaps it is the language of the dissent in Cepeda that leads the
majority to conclude that Biddle has been interpreted by appellate courts as
creating a right to privileged information, but a close reading of these cases
reveals that the trial courts conducted a proper weighing of countervailing
interests and did not find an absolute right to confidential records. These courts
merely recognized the narrow exception for special circumstances, as should be
permitted under Biddle.
{¶ 107} The majority herein overlooks the fact that redacting the
documents to remove all patient-identifying information (only of those who are
children, as is Jane) preserves the purpose of the privilege. The privilege should
terminate where the public peril begins, whether uncovered by an individual
plaintiff, class of plaintiff, prosecuting attorney, or attorney general.      The
privilege should not be absolute and should yield to the reporting requirements of
the child-abuse-reporting statutes. The privilege should be construed narrowly
because it is in derogation of the search for truth.
{¶ 108} The majority also mistakenly relies on Jackson v. Greger,

110 Ohio St.3d 488

2006-Ohio-4968

854 N.E.2d 487

 (rejecting the three-part test for
implied waiver of attorney-client privilege articulated in Hearn v. Rhay
(E.D.Wash.1975),

68 F.R.D. 574

), to reverse the trial court’s order requiring
Planned Parenthood to produce the redacted medical records. The majority does
33
SUPREME COURT OF OHIO
so in a conclusory statement suggesting that any exceptions to the physician-
patient privilege are for the General Assembly to address. This statement ignores
that what the Roes seek is not an exception to physician-patient privilege, but
redacted records that violate no privilege.       Once any personal information
identifying the patients is redacted from the records, the requested discovery will
not invade the physician-patient privilege. Jackson, a case involving the attorney-
client privilege, does not implicate the production of medical records under the
protective order in this case.
{¶ 109} In Jackson, a client sued her criminal-defense attorney for legal
malpractice after a court concluded that the client’s guilty plea to the criminal
charge precluded, based on collateral estoppel, her claim under Section 1983,
Title 42, U.S.Code against the city and officers who arrested her.

Id.,

110 Ohio St.3d 488

2006-Ohio-4968

854 N.E.2d 487

, ¶ 4.           During discovery in the
malpractice suit, the attorney sought all attorney-client privileged information
from the Section 1983 action.

Id.

 The trial court granted the attorney’s motion to
compel, and the appellate court reversed, applying the Hearn test and determining
that the client had not impliedly waived privilege. Id. at ¶ 5. On appeal, this
court affirmed, holding that R.C. 2317.02 was the exclusive means by which the
client’s conduct could waive the attorney-client privilege. Id. at paragraph one of
the syllabus.
{¶ 110} Jackson did not cite or address, much less question, the validity
of the previous holding in Biddle that special situations may occur in which the
interests of a patient, physician, third party, or the public may outweigh the
patient’s privilege in protecting his or her medical records. In fact, recently, this
court analyzed and favorably applied Biddle in Hageman v. Southwest Gen.
Health Ctr.,

119 Ohio St.3d 185

2008-Ohio-3343

893 N.E.2d 153

, ¶ 13. Thus,
as demonstrated by Hageman, Jackson’s conclusion that judicially created
exceptions to statutory privileges are disfavored should not affect the holding in
34
January Term, 2009
Biddle. Indeed, Jackson did not suggest that this court would no longer recognize
public-policy exceptions designed to protect other countervailing interests.
{¶ 111} Further, Jackson is distinguishable from Biddle and its progeny
in that Jackson dealt with the manner in which the holder of the privilege could
waive the privilege through his or her own conduct. Biddle and its progeny have
not hinged on whether the conduct of nonparty patients waived privilege; rather,
these cases weighed the competing interests at stake to determine whether the
privileged information should be disclosed.
{¶ 112} Although the majority concludes that a narrow construction of
Biddle compels nondisclosure, I disagree. The privilege asserted by Planned
Parenthood is in derogation of the common law, which must be strictly construed
against it. The Roes have set forth claims that constitute special circumstances
necessitating disclosure.    The third-party/nonparty’s privacy rights are not
invaded or imperiled with the proper redactions. Redactions can be achieved
using the proper HIPAA (Health Insurance Portability and Accountability Act)
standards to ensure patient confidentiality.     The trial court ordered and can
continue to take every reasonable and practical measure to ensure that the
patients’ records will not be disclosed beyond the requirement of discovery. An
additional safeguard is the sealing of the records and a confidentiality order
imposed upon the parties.
{¶ 113}     Lost in all this debate is the fact that the confidentiality of
patient records is for the protection of the patient, not the physician. (And in this
case, we are talking exclusively about children, those under the age of 18 who
may be the victims of sexual exploitation.)        The defendants should not be
permitted to frustrate a civil suit questioning their professional conduct (or lack
thereof) by asserting the physician-patient privilege.
{¶ 114} On this record, both a private and public interest justified
compelling discovery. The Roes, as parents of Jane, a 14-year-old child, have the
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SUPREME COURT OF OHIO
right to pursue multiple claims for injury and breach of multiple statutory duties.
An individual plaintiff or plaintiffs should be permitted the opportunity to
discover records that may demonstrate a pattern of ignoring and/or turning a blind
eye to child abuse. Such redacted records may indeed bear a direct relation to the
issue of whether Planned Parenthood’s conduct was reprehensible, thus
warranting punitive damages. Should the Roes’ lawsuit reveal or expose such a
pattern, the public derives a benefit simultaneously by learning of, and demanding
accountability for, medical providers who fail to protect vulnerable children from
sexual predators.
{¶ 115} The appellate court expressed concern that this case may present
a situation wherein a jury may decide to punish Planned Parenthood for harm
caused to nonparties. See Philip Morris USA v. Williams (2007),

549 U.S. 346

. This concern clearly places the cart before the
horse. We are now addressing only discovery, not admissibility.
{¶ 116} Nevertheless, harm to nonparties may be considered by jurors
for the limited purpose of helping them decide whether Planned Parenthood
showed a conscious disregard for the rights and safety of other persons that had a
great probability of causing substantial harm. The majority in Philip Morris
recognized that “[e]vidence of actual harm to nonparties can help to show that the
conduct that harmed the plaintiff also posed a substantial risk * * * to the general
public, and so was particularly reprehensible * * *.” Philip Morris,

549 U.S. at 355

. A recognized and principal goal of
punitive damages is to deter future reprehensible conduct.
{¶ 117} This difference was not overlooked by Justice Stevens, who
expressed befuddlement at the distinction drawn by the majority in Philip Morris
between punishing a defendant based on harm to nonparties (not allowed) and
considering the scope of wrongdoing in determining the reprehensibility. Philip
Morris,

549 U.S. at 359

 (Stevens, J.,
36
January Term, 2009
dissenting). Repeated breaches of the duty to report (or a complete failure to
report sexual abuse) under R.C. 2151.421 would be admissible under Ohio
Evid.R. 404(B) to demonstrate “proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” This is a simple
recognition that “conduct that risks harm to many is likely more reprehensible
than conduct that risks harm to only a few.”

Id. at 357

.
{¶ 118} The majority also concludes that punitive damages are not
recoverable under former R.C. 2151.421. In doing so, the majority suggests that
Campbell v. Burton (2001),

92 Ohio St.3d 336

750 N.E.2d 539

, did not discuss
damages, just liability, and that R.C. 2744.02 and 2744.03, 149 Ohio Laws, Part
II, 3500, 3508, 3510, effective April 9, 2003, limit the court’s expansive
interpretation of the word “liability” to civil liability only when expressly
imposed by a section of the Revised Code. The obvious difficulty with this
conclusion, in my view, is that these revisions of R.C. 2744.02 and 2744.03
address the liability of a political subdivision for injury or death. This case has
clearly not been brought against a political subdivision. All defendants are either
private individuals or a private corporation, Planned Parenthood.
{¶ 119} Additionally, the majority concludes that because there was no
common-law duty to report child abuse, the statute that created the duty, having
not explicitly authorized damages for its breach, cannot allow for punitive
damages. I believe that first, this conclusion completely overlooks the legislative
intent in creating the statute and its amendments, to wit: the protection of
vulnerable, victimized women and children. The legislative intent is clearly to
prevent further injury, crime, and exploitation.
{¶ 120} The       majority   opinion    overlooks    basic    principles   and
characteristics of tort law. It is a basic principle of torts that “liability is based
upon the relation of persons with others.” Prosser & Keeton, Law of Torts (5th
Ed.1984) 5. “Torts consists of the breach of duties fixed and imposed upon the
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SUPREME COURT OF OHIO
parties by the law itself.”

Id.

 “The tort-feasor usually is held liable for acting * *
* in a way that departs from a reasonable standard of care.” Id. at 6. “[T]he law
of torts is concerned * * * with acts which are unreasonable, or socially harmful,
from the point of view of the community as a whole.” Id. at 7. The Roes assert a
violation of duty owed to them and their minor child, Jane, and the duty arises by
both operation of law and the defendant’s relationship to Jane.
{¶ 121} Planned Parenthood argues, and the majority holds, that there is
no right to punitive damages under R.C. 2151.421 because punitive damages were
not expressly provided for in R.C. 2151.99, and the amended sections are
unconstitutional.    Yet whoever violates R.C. 2151.421(A) is guilty of a
misdemeanor of the fourth degree.        When the claimed wrong partakes of a
criminal nature, the wrongdoer should be brought to justice in a civil suit.
Punitive damages do not rest on some abstract concept of justice, but upon sound
public policy, which in this instance seeks to promote the safety and health of
children and encourage reporting of abuse.         We must take into account the
importance of the underlying public policy jeopardized by a mandatory reporter’s
failure to report. As Justice Stevens noted in his dissent in Philip Morris, “There
is little difference between the justification for a criminal sanction, such as a fine
or a term of imprisonment, and an award of punitive damages.” Id. at 359,