Belichick v. Belichick

• Court: Ohio Court of Appeals
• Writing for the Court: DONOFRIO; JOSEPH E. O'NEILL; JOSEPH E. O'NEILL
• Citation: Belichick v. Belichick, 37 Ohio App.2d 95, 307 N.E.2d 270 (Ohio App. 1973)
• Decision Date: 03 October 1973
• Parties: , 66 O.O.2d 166 BELICHICK, Appellee. v. BELICHICK, Appellant.

Page 95

37 Ohio App.2d 95

307 N.E.2d 270, 66 O.O.2d 166

BELICHICK, Appellee. v. BELICHICK, Appellant.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Oct. 3, 1973.

Syllabus by the Court

1. 'Physician,' as used in R.C. 2317.02(A), is one who has been duly authorized and licensed by the state medical board to engage in the general practice of medicine.

2. A dentist or a dental surgeon does not fall within R.C. 2317.02(A) and is not granted a privilege from testifying.

Pfau, Comstock & Springer, Youngstown, for appellee.

James L. Messenger, Youngstown, for appellant.

DONOFRIO, Judge.

This is an appeal from the Mahoning County Court of Common Pleas, division of domestic relations.

An order for temporary support and alimony was filed in the lower court, and during the course of the proceedings therein plaintiff, Mary Kate Belichick, appellee, made a number of requests for various personal books and records of defendant-appellant, Dr. Joseph Belichick, a dental surgeon.

The defendant has furnished plaintiff with such records as his income tax returns, record of appointments, cash journal and statement of accounts receivable, as well as all cancelled checks for the past three years.

Not satisfied with the records furnished, plaintiff filed a request for the production of certain documents, to-wit: 'All patient cards and records pertaining to the defendant-appellant's practice of dentistry from the inception of said practice to the present date * * *.'

Defendant filed a motion for a protective order to protect him from discovery of his patient cards and records as they pertained to the diagnosis and prognosis and the fee charged therefor, claiming a privilege pursuant to R.C. 2317.02-pertaining to privileged communications and acts. In support of his motion, defendant filed an affidavit stating that the records requested are kept on single cards with the patient's complete medical history, diagnosis, prognosis, and the fee charged therefor.

The records in question are the patient cards containing not only the patient's dental record, but also the original record as to the work done, the amount billed, and whether the bill has been paid. In other words, these cards are the original raw source for determining the accuracy of defendant's statement as to his income. Plaintiff maintains that it is necessary to disclose this information for a fair and just determination of the action below.

The lower court overruled defendant's motion for a protective order and ordered defendant to comply with plaintiff's request for the production of documents. Defendant refused to produce these records and was found in contempt of court, from which finding defendant filed his notice of appeal.

Defendant assigns two errors, the first of which states:

'The Lower Court erred in not finding defendant doctor's patient records to be privileged communications and, therefore, not subject to discovery.'

R.C. 2317.02(A) (G.C. 11494) provides:

'The following persons shall not testify in certain respects:

'(A) An attorney, concerning a communication made to him by his client in that relation or his advise to his client; or a physician, concerning a communication made to him by his patient in that relation, or his advice to his patient, but the attorney or physician may testify by express consent of the client or patient * * *.'

The question before this court is simply whether or not dental surgeons or dentists can claim the umbrella or protection as a physician referred to in R.C. 2317.02(A).

The traditional policy of the law is to require the disclosure of all information by those in possession of it, in order that the truth may be discovered and justice prevail. The granting of privileges against disclosure constitutes an exception to this general rule, and the tendency of the courts is to construe such privileges strictly and to narrow their scope since they obstruct the discovery of the truth.

McCormick on Evidence, Section 72, page 152, states:

'They (privileges) do not in any wise aid the ascertainment of truth, but rather they shut out the light. Their sole warrant is the protection of interests and relationships which, rightly or wrongly, are regarded as of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice.'

R.C. 2317.02(A) is in derogation of the common law and must be strictly construed and consequently, the aforementioned section affords protection only to those relationships which are specifically named therein.

In Weis v. Weis, 147 Ohio St. 416, 72 N.E.2d 245, the fourth paragraph of the syllabus states:

'Section 11494, General Code (now R.C. Section 2317.02(A)), making privileged communications between certain persons, being in derogation of the common law, must be strictly construed, and consequently such section affords protection only to those relationships which are specifically named therein. The relationship of nurse and patient not being named in the statute, no privilege is extended to communications between a patient and his nurse.'

There is no Ohio case directly in point that we can find or that has been brought to our attention. But there are many jurisdictions which have faced the question and have determined that a dentist is not a physician within the meaning of privilege statutes.

In People v. DeFrance, 104 Mich. 563, 62 N.W. 709, it was held that a dentist is not a physician or surgeon within the meaning of a statute providing that '* * * no person duly authorized to practice medicine or surgery, shall be allowed to disclose any information * * *.' This Michigan case has been followed by other states in determining the same question.

In Howe v. Regensburg, 75 Misc. 132, 132 N.Y.S. 837 at 838, it was claimed that a dentist was within the privilege, but in answer to that contention the court said:

'At common law communications between physician and patient were not legally privileged. * * * The legal privilege seems first to have been recognized in New York in 1828. * * * To the extent, therefore, to which the privilege can now be said to exist, it must find its support in some statutory enactment. Whatever may be urged for or against the existence of the privilege, we can see no good reason for extending it by implication or construction.'

Paragraph 2 of the headnotes in Gulf, Mobile & N. R. Co. v. Willis, 171 Miss. 732, 157 So. 899, states:

'Dentist is not a 'p...