Clark v. Boyd

[Cite as Clark v. Boyd, 2022-Ohio-58.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ELIZABETH D. CLARK, et al., : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiffs - Appellees : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
DARCY E. SCHOLL BOYD : Case No. 2021 CA 0063
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County
Court of Common Pleas, Case No.
19 CV 0605
JUDGMENT: Dismissed
DATE OF JUDGMENT: January 11, 2022
APPEARANCES:
For Plaintiffs-Appellees For Defendant-Appellant
JOHN K. RINEHARDT HEATHER R. ZILKA
MELANIE S. FAHEY NICHOLAS S. BOBB
RACHEL A. RINEHARDT Pelini, Campbell & Williams, LLC
2404 Park Avenue West 5880 Innovation Drive
Mansfield, Ohio 44906 Dublin, Ohio 43016
Richland County, Case No. 2021 CA 0063 2
Baldwin, P.J.
{¶1} Appellant, Darcy E. Scholl Boyd, appeals the decision of the Richland
County Court of Common Pleas denying her motion for relief from the court’s order to
produce her medical records for an in-camera inspection. Appellees are Elizabeth D.
Clark and James Clark.
STATEMENT OF FACTS AND THE CASE
{¶2} This case arises from an ongoing discovery dispute involving the medical
records of Boyd sought by the Clarks after Boyd asserted an affirmative defense in
response to the complaint filed by the Clarks.
{¶3} Elizabeth Clark and her minor son were involved in an automobile accident
allegedly due to the negligence of Boyd. The Clarks alleged in their complaint that Boyd
drove left of center, collided with their vehicle and caused damage to their vehicle and
serious injuries to Ms. Clark and her son. In her answer, Boyd included an affirmative
defense of medical emergency. The Clarks discovered that Boyd claimed that she
suffered from an incident of syncope while she was driving, lost consciousness and
control of the vehicle. Boyd allegedly contended that she had mentioned syncope to
some of her treating physicians, but was never told that it would recur and thus she could
not have foreseen this incident. Upon receiving that information, the Clarks began
requesting medical records to investigate Boyd’s history of syncope and Boyd has
objected to the breadth of those requests.
{¶4} The parties and the court struggled with the tension between broad
discovery permitted by the Ohio Rules of Civil Procedure and the statutorily protected
confidentiality of an individual’s medical history. On June 28, 2021, during a telephone
Richland County, Case No. 2021 CA 0063 3
conference, the Clark’s presented a claim for additional records. Boyd described the
conference in her brief:
During a telephone conference with the Court on June 28, 2021,
Plaintiffs argued for access to more records. Plaintiffs wanted not only
additional years from Ms. Scholl Boyd's primary care physician, but also
access to her OB/GYN records. The Court advised given the nature of
OB/GYN records they would be subject to an in-camera inspection, but
there was no discussion of any specific timeframe.
(Appellant’s Brief, p. 1-2).
{¶5} The Clarks described the events of the conference as follows:
On July 1, 20211, counsel for the parties attended a pre-trial
conference with the trial court. During the pre-trial conference, counsel for
Appellant claimed that the Appellant's ob/gyn records are not subject to
discovery, that they are protected by the patient-physician privilege, and
that they are not causally or historically relevant to her defense of sudden
medical emergency. Counsel for Appellees argued that the presence of
references to syncope or pre-syncope in the requested medical records is
relevant to the question of foreseeability of Ms. Scholl Boyd's claimed
medical event and that the absence of references to syncope or pre-
syncope undermines the veracity of Appellant's claim.
1
We believe that the Clarks’ reference to July 1, 2021 is a typographical error as the
docket does not show that a conference was held on that date and Clarks’ motion
seeking the records for an in-camera inspection refers to the June 28, 2021 pretrial
conference
Richland County, Case No. 2021 CA 0063 4
(Appellee’s Brief, p. 3).
{¶6} On July 1, 2021, the Clarks filed a motion requesting that Boyd produce
certain obstetric/gynecological record to the court for an in-camera review. Within that
motion, the Clarks reference a discussion regarding the records that occurred during a
recent pretrial conference. The trial court granted the motion the following day and on
July 22, 2021, Boyd filed a motion for relief from judgment captioned “Motion of
Defendant, Darcy E. Scholl Boyd, for Relief from Entry Granting Plaintiffs Access to
Certain Records” contending that she was not given the opportunity to respond to Clarks’
request and that she opposed the motion to produce those records.
{¶7} The trial court denied the motion for relief from judgment and ordered that:
1. Defendant Darcy Scholl Boyd's July 22, 2021 Motion for Relief from Entry
Granting Plaintiffs Access to Certain Records is not well-taken and is hereby
overruled.
2. This Court's July 2, 2021 judgment entry ordering the Defendant to submit
to the Court for in-camera inspection her medical records from any and all
obstetrical and gynecological ("ob/gyn") providers for the period beginning
September 27, 2007 to present remains in full force and effect. Such
records shall be produced to the Court no later than August 23, 2021.
3. No limitation on the scope of discovery as to the records specified in
paragraph 2, above, is ordered, nor should such limitation be inferred from
that Order.
(Judgment Entry, Aug.12, 2021).
Richland County, Case No. 2021 CA 0063 5
{¶8} Boyd filed a notice of appeal from this order and submitted one assignment
of error:
{¶9} “I. APPELLANT ASSERTS THAT THE TRIAL COURT ERRED IN FINDING
THAT ALL OF MS. SCHOLL BOYD'S MEDICAL RECORDS, INCLUDING THOSE THAT
DO NOT REFERENCE SYNCOPE, ARE RELEVANT TO HER DEFENSE OF SUDDEN
MEDICAL EMERGENCY WITHOUT A FINDING THE RECORDS ARE CAUSALLY OR
HISTORICALLY RELATED AND/OR WITHOUT PERFORMING AN IN-CAMERA
REVIEW.”
ANALYSIS
{¶10} As a preliminary matter, the instant case is before this court upon the
accelerated calendar pursuant to App.R. 11.1(E), which provides in pertinent part: “The
appeal will be determined as provided by App.R. 11.1. It shall be sufficient compliance
with App.R. 12(A) for the statement of the reason for the court's decision as to each error
to be in brief and conclusionary form.”
{¶11} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusory decision more quickly than in a case on
the regular calendar where the briefs, facts, and legal issues are more complicated. State
v. Montgomery, 5th Dist. No. 2017CA00035, 2017-Ohio-4397, 93 N.E.3d 185, ¶ 8, citing
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th
Dist. 1983).
{¶12} This appeal shall be considered in accordance with the aforementioned
rules.
Richland County, Case No. 2021 CA 0063 6
{¶13} Understanding the dispute before the trial court is complicated by the
language used by Boyd to describe the Clarks’ request and the findings in the trial court’s
August 12, 2021 entry. The Clarks’ motion did not ask for an order compelling Boyd to
produce the records to them, but only that they be presented to the trial court for an in-
camera review. The trial court granted the request and ordered that the records be
supplied to the trial court for an in-camera review. Boyd filed a motion seeking relief from
that order, but sought “Relief From Entry Granting Plaintiffs Access To Certain Records”
when the trial court had not yet issued an order that the records be provided to the Clarks.
{¶14} The trial court considered the motions filed by the parties and found that
“* * * the medical records requested by the Plaintiffs are relevant and discoverable. The
Court further finds that the time periods for the medical records requested are reasonable,
as limited by the Court, to obtain relevant and discoverable records. The Court further
finds that medical records that both reference Defendant's history of syncope and fail to
reference that history are relevant to the defense of sudden medical emergency.”
(Judgment Entry, Aug. 12, 2021, p. 1-2). While the trial court’s findings that the requested
records are relevant and discoverable provides insight into the trial court’s perception of
the dispute, its order does not require production of any record to the Clarks. Instead, the
trial court denied the motion for relief from judgment, affirmed its order that Boyd must
submit to the court for in-camera inspection her medical records from any and all
obstetrical and gynecological providers for the period beginning September 27, 2007 to
present, and that the order should not be interpreted to be limitation on the scope of
discovery as to the subject records.
Richland County, Case No. 2021 CA 0063 7
{¶15} Boyd concedes she is not appealing the order that she produce records for
an in-camera review, but instead appeals the trial court’s finding that "medical records
that both reference Defendant's history of syncope and fail to reference that history are
both relevant to the defense of sudden medical emergency." (Appellant’s Brief, p. vii).
Appellant also contends that the trial court finding that the time periods for the medical
records requested are reasonable was error.
{¶16} The proceedings in the trial court were stayed and the records have not yet
been produced for an in-camera review.
JURISDICTION
{¶17} The Clarks contend that the August 12, 2021 decision of the trial court is
not a final appealable order because the trial court has ordered that the records be
produced for an in-camera inspection and has not yet ordered that the records be
released to them.
{¶18} Boyd concedes that she is appealing from the August 12, 2021 order, but
her appeal focuses on a finding that the requested records are relevant and discoverable,
the time periods for the medical records requested are reasonable, as limited by the court,
and that records that reference or fail to reference Boyd’s history of syncope are relevant
to the defense of sudden medical emergency. Boyd does not address the issue of whether
these findings are a final appealable order.
{¶19} Appellate courts have jurisdiction to review the final orders or judgments of
lower courts within their appellate districts. Section 3(B)(2), Article IV, Ohio Constitution.
If a lower court's order is not final, then an appellate court does not have jurisdiction to
review the matter and the matter must be dismissed. General Acc. Ins. Co. v. Insurance
Richland County, Case No. 2021 CA 0063 8
of North America, 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989); Harris v. Conrad, 12th
Dist. Warren No. CA–2001–12–108, 2002-Ohio-3885, 2002 WL 1310633. For a judgment
to be final and appealable, it must satisfy the requirements of R.C. 2505.02 and if
applicable, Civ. R. 54(B). Denham v. New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d
184 (1999); Ferraro v. B.F. Goodrich Co., 149 Ohio App.3d 301, 2002-Ohio-4398, 777
N.E.2d 282 (9th Dist.).
{¶20} As a general rule, a judgment that leaves issues unresolved and
contemplates that further action must be taken is not a final appealable order. Moss v.
Marshall Builders, Inc., 5th Dist. Stark No. 2018 CA 00038, 2019-Ohio-97, ¶ 30, quoting
Moscarello v. Moscarello, 5th Dist. Stark No. 2014CA00181, 2015–Ohio–654, ¶ 11,
additional citations omitted. An exception to this general rule is an order which grants or
denies a provisional remedy and “in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the appealing party
with respect to the provisional remedy’ and “ [t]he appealing party would not be afforded
a meaningful or effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action.” (R.C. 2502(B)(4)(a), (b)).
{¶21} For the purposes of a final appealable order, a “provisional remedy” means
“a proceeding ancillary to an action, including, but not limited to, a proceeding for * * *
discovery of privileged matter * * *. R.C. 2502.02(A)(3). “A proceeding for ‘discovery of
privileged matter’ is a ‘provisional remedy’ within the meaning of R.C. 2505.02(A)(3).”
Brahm v. DHSC, LLC, 5th Dist. No. 2015CA00165, 2016-Ohio-1204, 61 N.E.3d 711, ¶ 19,
quoting Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633. An order
granting or denying a provisional remedy is final and appealable only if it determines the
Richland County, Case No. 2021 CA 0063 9
action with respect to the provisional remedy, prevents a judgment in the action in favor
of the appealing party with respect to the provisional remedy and the appealing party
would not be afforded a meaningful or effective remedy by an appeal following final
judgment as to all proceedings, issues, claims, and parties in the action. The burden “falls
on the party who knocks on the courthouse doors asking for interlocutory relief.” Id. As
specifically noted by the Ohio Supreme Court, “an order must meet the requirements in
both subsections of the provisional-remedy section of the definition of final, appealable
order in order to maintain an appeal.” Id.{¶22} In the matter before us, the trial court has ordered the production of medical
records, privileged matters under R.C. 2317.02(B)(1), for an in-camera review and has
not ordered that the records be disclosed to the Clarks. “An order for a trial court's in-
camera inspection * * * is not an order that grants a provisional remedy; an order
mandating production of the materials would be. Only in the event of the latter order will
there be a final order over which the court of appeals has jurisdiction.” (Emphasis sic.)
Daher v. Cuyahoga Community College Dist., 155 Ohio St.3d 271, 2018-Ohio-4462, 120
N.E.3d 830. “‘Ohio appellate courts will not review orders that fall short of ordering the
disclosure of privileged information’ ”, DMS Construction Enterprises, L.L.C. v. Homick,
8th Dist. Cuyahoga No. 109343, 2020-Ohio-4919, ¶ 55 quoting Paul R. Rice, et al., 1
*Attorney-Client Privilege: State Law Ohio*, Section 11:32 (June 2016 Update).
{¶23} The trial court’s order to produce the records for an in-camera review does
not grant or deny a provisional remedy as it does not address whether the records will be
disclosed to the Clarks. The Clarks did not seek disclosure, but only moved the court to
order the records to be submitted for an in-camera review. There is no risk that
Richland County, Case No. 2021 CA 0063 10
compliance with this order will result in an injury “from the dissemination of the information
itself, which cannot be remedied absent an immediate appeal.” Bennett v. Martin, 186
Ohio App.3d 412, 2009-Ohio-6195, 928 N.E.2d 763, at ¶ 33, as quoted in Northeast
Professional Home Care, Inc. v. Advantage Home Health Servs., Inc., 5th Dist. No. 2009-
CA-00180, 188 Ohio App.3d 704, 2010-Ohio-1640, 936 N.E.2d 964, ¶ 34.
{¶24} The trial court’s order is not a final appealable order pursuant to R.C
2505.02 and, therefore, we have no jurisdiction to consider the appeal.
{¶25} Boyd’s appeal of the decision of the Richland County Court of Common
Pleas is dismissed for lack of a final appealable order.
By: Baldwin, P.J.
Hoffman, J. and
Delaney, J. concur.