Medina v. Medina Gen. Hosp. , 2011 Ohio 3990 ( 2011 )

[Cite as Medina v. Medina Gen. Hosp., 2011-Ohio-3990.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96171
ARCELIA MEDINA
PLAINTIFF-APPELLEE
vs.
MEDINA GENERAL HOSPITAL, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-698231
BEFORE: Sweeney, J., Kilbane, A.J., and Jones, J.
RELEASED AND JOURNALIZED: August 11, 2011
ATTORNEYS FOR APPELLANTS
Jeffrey E. Schobert, Esq.
David T. Moss, Esq.
Hanna, Campbell & Powell, L.L.P.
3737 Embassy Parkway, Suite 100
P.O. Box 5521
Akron, Ohio 44334
ATTORNEYS FOR APPELLEE
FOR ARCELIA MEDINA
Mitchell A. Weisman, Esq.
Weisman, Kennedy & Berris Co.
1600 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115
Jerry Esrig, Esq.
Zaideman & Esrig, P.C.
10 S. Riverside Plaza, Suite 1020
Chicago, Illinois 60606
FOR MARIA GRIFFITHS, M.D.
Mark R. Jones, Esq.
Roetzel & Andress
1375 East Ninth Street
Ninth Floor
Cleveland, Ohio 44114
(Continued)
FOR MATTHEW C. MCDONNELL, M.D., ET AL.
Thomas B. Kilbane, Esq.
Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115-1093
FOR OHIO ANESTHESIOLOGY SERV., ET AL.
Anna M. Carulas, Esq.
Ingrid Kinkopf-Zajac, Esq.
Roetzel & Andress
1375 East Ninth Street
Ninth Floor
Cleveland, Ohio 44114
JAMES J. SWEENEY, J.:
{¶ 1} Defendant-appellant, Medina General Hospital (the “Hospital”) appeals
the trial court’s order that granted plaintiff-appellee’s, Arcelia Medina (“Medina”) motion
to compel the Hospital to answer certain discovery and denied the Hospital’s motion for
protective order. This matter is before us on appeal presenting the sole issue of whether
the trial court’s order involves the disclosure of privileged information contrary to the
law. For the reasons that follow, we affirm.
{¶ 2} This is a wrongful death action wherein Medina has asserted causes of
action against various defendants including allegations of medical malpractice and
negligence. During the course of discovery, Medina requested the Hospital to answer the
following interrogatories:
{¶ 3} “3. For the period January 1, 2007 through October 9, 2009, state the
number of times Lana Mitchell signed an Anesthesia Record for a surgical procedure for
which she was the sole anesthesia provider present during the surgery and for which
general anesthesia was given to the patient and list the date of each such procedure.”
{¶ 4} “4. For each procedure included in your answer to Interrogatory No. 3
above, state whether Lana Mitchell charted any numerical values for the patient’s end
tidal CO2.”
{¶ 5} The trial court ordered the Hospital to answer the interrogatories, however,
limited the time frame to the “period of nine months immediately preceding Victor
Medina’s surgery.” The trial court reasoned that the responsive discovery, i.e., “the
number of times defendant Lana Mitchell charted end-tidal CO2 and the intervals at
which she did so, does not involve the disclosure of confidential or privileged
information.” The Hospital has appealed asserting the following error for our review:
{¶ 6} “The trial court erred in granting Plaintiff-Appellee’s Motion to Compel
which required Defendant-Appellant Medina General Hospital to disclose medical
information which may only be derived from confidential patient medical records that are
statutorily protected pursuant to the statutory physician-patient privilege contained in R.C.
2317.02 and the Health Insurance Portability and Accountability Act (HIPAA).”
{¶ 7} The subject order constitutes a final, appealable order only to the extent that
the Hospital is asserting that it calls for the disclosure of a privileged matter. R.C.
2505.02. As to matters other than those concerning discovery of privileged matters, the
trial court’s order is deemed interlocutory, and not final and appealable.
{¶ 8} Civ.R. 26(B)(1) provides “[p]arties may obtain discovery regarding any
matter, not privileged, which is relevant to the subject matter involved in the pending
action, whether it relates to the claim or defense of the party seeking discovery or to the
claim or defense of any other party, including the existence, description, nature, custody,
condition and location of any books, documents, electronically stored information, or
other tangible things and the identity and location of persons having knowledge of any
discoverable matter. It 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.”
{¶ 9} The burden of showing that testimony or documents are confidential or
privileged rests upon the party seeking to exclude it. Lemley v. Kaiser (1983), 6 Ohio
St.3d 258, 263-264, 452 N.E.2d 1304. The decision whether to grant or deny the
protective order is within the trial court’s discretion, and will not be reversed absent an
abuse of that discretion. Ruwe v. Bd. of Springfield Twp. Trustees (1987), 29 Ohio St.3d
59, 61, 505 N.E.2d 957. However, we review matters involving the discovery of alleged
confidential and privileged information de novo. Roe v. Planned Parenthood S.W. Ohio
Region, 122 Ohio St.3d 399, 2009-Ohio-2973, 912 N.E.2d 61, ¶29.
{¶ 10} The Hospital contends that the trial court’s order violates the physician
patient privilege codified in R.C. 2317.02 and as it has been interpreted by the Ohio
Supreme Court in Roe. The Hospital also maintains the disclosure involves personal
health information and is contrary to the provisions of HIPAA. The Hospital premises
its arguments upon its contention that in order to respond to the interrogatories it will
have to refer to hospital records pertaining to non-parties.
{¶ 11} “The purpose of [the physician-patient] privilege is to encourage patients to
make a full disclosure of their symptoms and conditions to their physicians without fear
that such matters will later become public * * *.” State v. Antill (1964), 176 Ohio St. 61,
64-65, 197 N.E.2d 548. It is the Hospital’s position that deriving any information from
medical records pertaining to non-parties violates the physician-patient privilege and the
Hospital relies heavily upon the Ohio Supreme Court’s decision in Roe.
{¶ 12} The discovery sought in this case, however, is distinguishable from Roe.
There, the plaintiff was seeking the production of “any reports of abuse made pursuant to
R.C. 2151.421 and the medical records of nonparty minors who had been patients at
Planned Parenthood during a ten-year period.” Roe urged that disclosure would be
permissible if the nonparties personal identifiers were redacted from the records and the
balancing test established in Biddle v. Warren Gen. Hosp. (1999), 86 Ohio St.3d 395, 715
N.E.2d 518, was employed. In Roe, the Ohio Supreme Court held that its decision in
Biddle pertained only to the tort of unauthorized disclosure and did “not create a right to
discover confidential medical records of nonparties in a private lawsuit.” Roe, 122 Ohio
St.3d 399, paragraph one of the syllabus (emphasis added). The Ohio Supreme Court
instructed that medical records of nonparties are confidential and privileged and the
redaction of personal information does not alter that fact. Id. at 409, citing R.C.
2151.42(H)(1) and 2317.02. Unlike this case, there was no dispute in Roe that the
discovery involved the disclosure of confidential medical records of nonparties.
{¶ 13} In a later case that distinguished Roe, the Ohio Supreme Court stated, “[w]e
have never held that the physician-patient privilege provides an absolute protection
against the disclosure of medical information.” Ward v. Summa Health Sys., 128 Ohio
St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, ¶29 (emphasis added). The codified
privilege at issue protects “communications,” as defined in R.C. 2317.02(B)(1), between
the health care provider and the patient. For example, the identity of the health care
provider(s) that treated the patient is not protected information. See Turk v. Oiler, (N.D.
Ohio 2010), 732 F.Supp.2d 758, citing, Ingram v. Adena Health Sys. (2002), 149 Ohio
App.3d 447, 777 N.E.2d 901; Hudson v. United States Auto. Assoc. Ins. Co., 150 Ohio
Misc.2d 23, 34-35, 902 N.E.2d 101 (Ohio C.P. 2008). A request is not seeking
privileged information under the statute if it does not involve something that the patient
communicated to the physician or vice versa. Id.{¶ 14} In this case Medina seeks the identification of defendant Mitchell’s conduct
and does not seek the disclosure of nonparty patient’s confidential medical records. Roe
does not preclude discovery of Hospital procedures or its employee’s or contractor’s
practices simply because the non-privileged information is extracted from confidential
records. Medina is not seeking the disclosure of any nonparty medical records
themselves, which Medina agrees is privileged from disclosure. Medina instead
requested the Hospital to identify non-privileged information in the form of interrogatory
answers, which does not involve the disclosure of any nonparty information. The number
of times defendant Mitchell charted end-tidal CO2 and the intervals at which she did so is
not privileged information but is the equivalent of “time data” that other jurisdictions
have found non-privileged. See, e.g., Tomczak v. Ingalls Mem. Hosp., (1972) 359
Ill.App.3d 448, 453, 834 N.E.2d 549, citing, Gourdine v. Phelps Mem. Hosp., 40 A.D.2d
694, 336 N.Y.S.2d 316 (disclosure of time data contained in nonparty patients anesthesia
charts did not violate physician-patient privilege); and Holiday v. Harrows, Inc., (1983)
91 A.D.2d 1062, 458 N.Y.S.2d 669.
{¶ 15} Based on the foregoing, we find that the trial court’s order does not require
the disclosure of non-party patients confidential medical records and does not violate R.C.
2317.02.
{¶ 16} For the same reasons, we conclude that the discovery order does not involve
the disclosure of any PHI as defined by HIPAA. It is well-settled that Ohio law is more
restrictive in regards to the disclosure of privileged information than HIPAA. “The
HIPAA privacy regulation, found in Section 164.512, Title 45, C.F.R. allows disclosure
of protected health information in the course of any judicial or administrative proceeding
in response to a court order. HIPAA also allows for discovery of privileged health
information by subpoena, discovery request, or by other lawful processes if the covered
entity receives adequate assurances that the individual who is the subject of the health
information has been given notice of the request or that reasonable efforts have been
made to secure a protective order. Section 164.512(e), Title 45, C.F.R.” Grove v. N.E.
Ohio Nephrology Assoc., Inc., 164 Ohio App.3d 829, 2005-Ohio-6914, 844 N.E.2d 400,
¶22. Because the discovery order at issue does not involve the disclosure of the
identities of any non-party patients nor any reasonable basis from which their identities
could be determined, it does not violate HIPAA.
Judgment affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
MARY EILEEN KILBANE, A.J., and
LARRY A. JONES, J., CONCUR