Nester v. Lima Memorial Hospital , 139 Ohio App. 3d 883 ( 2000 )

OPINION The plaintiffs-appellants, Deborah and Kenneth Nester ("appellants"), appeal the judgment of the Allen County Court of Common Pleas granting the Defendant-Appellee Dr. Todd Hixenbaugh's motion to compel complete medical records. For the following reasons, we reverse the judgment of the trial court.

The pertinent facts and procedural history in this matter are as follows. In May of 1998 the appellant Deborah Nester filed a claim for medical negligence against Dr. Hixenbaugh, Lima Memorial Hospital, and Dr. McCluskey, alleging various physical and psychological damages. Appellant Kenneth Nester filed a loss of consortium claim against the same. The case sub judice involves a dispute over the medical records of Deborah Nester.

The appellees requested the medical records of Deborah Nester from Dr. Herman, her current physician. In March of 2000, they received only the records from 1990 to the present. The records pertaining to Deborah's treatment by Dr. Herman and/or her office prior to 1990 were withheld.¹ The appellants object to the disclosure of these records claiming they are privileged and have no bearing on the issues at hand.

On April 5, 2000, Dr. Hixenbaugh filed a motion to compel disclosure of all the medical records held by Dr. Herman. On April 8, 2000, the trial court granted the motion and ordered the appellants to produce the "complete medical records and history held by Dr. Parmie Herman relative to all treatment from 1973 to present, to all defense counsel no later than May 5, 2000." It is from this judgment that the appellants now appeal, asserting one assignment of error.

Before addressing the merits of this matter, we must contend with the appellees' allegations that the order appealed from is not a final appealable order. R.C. 2505.02(B) provides that an order is final and may be reviewed when (l) it concerns a provisional remedy and (2) the appealing party would not be afforded a meaningful remedy on appeal after final judgment. The discovery of privileged matter is specifically defined as a provisional remedy in R.C. 2505.02(A)(3). Furthermore, once privileged information is disclosed there would be no way for it to be made private once again. Finding information to be privileged and not subject to an exception allowing for its disclosure after the fact, clearly does not afford the appealing party a meaningful or effective remedy. Therefore, we find that the order of the trial court is indeed a final, appealable order and we will now address the appellants' sole assignment of error.

Assignment of Error The trial court erred in requiring the Plaintiffs-Appellants to produce medical records Plaintiffs-Appellants assert are privileged, i.e., are not causally or historically related to the injuries claimed in the underlying action.

The appellants contend that the trial court erred in granting the appellees' motion to compel and ordering them to disclose her complete medical history to the appellees. The appellants argue that these records are privileged and do not all fall under an exception allowing for their disclosure. For the following reasons, we agree.

R.C. 2317.02 sets forth the rules and requirements pertaining to privileged communication. R.C. 2317.02 states, in pertinent part:

The following persons shall not testify in certain respects:

(B)(1) A physician or a dentist concerning a communication made to him by his patient in that relation or his advise to his patient, except as otherwise provided in this division and division (B)(2), and division (B)(3) of this section, and except that, if the patient is deemed by section 2151.421 of the Revised Code to have waived any testimonial privilege under this division, the physician may be compelled to testify on the same subject.

The testimonial privilege under this division is waived, and a physician or dentist may testify or may be compelled to testify in any of the following circumstances:

(a) In any civil action, in accordance with the discovery provisions of the Rules of Civil Procedure in connection with a civil action, or in connection with a claim under Chapter 4123. of the Revised Code, under any of the following circumstances:

(iii) If a medical claim * * * is filed by the patient * * *.

(3)(a) If the testimonial privilege described in division (B)(1) of this section does not apply as provided in division (B)(1)(a)(iii) of this section, a physician or dentist may be compelled to testify or to submit to discovery under the Rules of Civil Procedure only as to a communication made to the physician or dentist by the patient in question in that relation, or the physician's or dentist's advice to the patient in question, that related causally or historically to physical or mental injuries that are relevant to issues in the medical claim * * *. See 145 Ohio Laws, Part III, 5451, 5459.

The order that is the subject of this assignment provides:

Defendant Todd J. Hixenbaugh's Motion to Compel is well taken. Plaintiff shall produce and deliver her complete medical records and history held by Dr. Parmie Herman relative to all treatment from 1973 to present, to all defense counsel no later than May 5, 2000.

The allegations that gave rise to this medical negligence case took place in May of 1997. The appellants contend that medical records from 1973 are not causally related to an injury that she suffered twenty-four years later. We are persuaded that the trial court's order was too broad in that it allowed for the unbridled disclosure of privileged communications made between the patient and her physician. An in camera inspection by the trial court of the medical records at issue is necessary to determine which documents are discoverable by the appellee.² Peyko v. Frederick (1986),25 Ohio St.3d 164; Weierman v. Mardis (1994), 101 Ohio App.3d 774. Only those deemed to be causally or historically related to physical or mental injuries that are relevant to the issues in the case are discoverable.

Having found error prejudicial to the appellants herein, in the particulars assigned and argued, we reverse the judgment of the trial court and remand the matter for further proceedings consistent with this opinion.

Judgment reversed and cause remanded.

BRYANT, J., concurs.

WALTERS, J., dissents.

¹ From 1973 to 1990, Deborah Nester was treated by Dr. Freitag. Dr. Herman joined Dr. Freitag's office in 1990 and has treated Nester from 1990 to the present. As Dr. Herman and Dr. Freitag shared the same office, Dr. Herman has access to the appellant's medical records from 1973 to the present.

² The trial court attempted to modify its previous order and directedthe appellants to produce and deliver the records for an in camerainspection. However, the notice of appeal was filed May 5, 2000 and thetrial court's modification was dated May 9, 2000. The filing of noticeof appeal deprives the trial court of jurisdiction to grant any reliefthat would deprive the appellate court of its jurisdiction to reverse,affirm, or modify the order from which the appeal was taken. Howard v.Catholic Soc. Serv. of Cuyahoga Cty., Inc. (1994), 70 Ohio St.3d 141. Therefore, the trial court lacked jurisdiction to modify its previous order.