Biddle v. Warren Gen. Hosp.

• Decision Date: 15 September 1999
• Docket Number: No. 98-952.,98-952.
• Citation: 86 Ohio St.3d 395,715 NE 2d 518
• Parties: BIDDLE ET AL., APPELLEES AND CROSS-APPELLANTS, v. WARREN GENERAL HOSPITAL ET AL., APPELLANTS AND CROSS-APPELLEES.
• Court: Ohio Supreme Court

86 Ohio St.3d 395

715 NE 2d 518

BIDDLE ET AL., APPELLEES AND CROSS-APPELLANTS, v. WARREN GENERAL HOSPITAL ET AL., APPELLANTS AND CROSS-APPELLEES.

No. 98-952.

Supreme Court of Ohio.

Submitted March 30, 1999.

Decided September 15, 1999.

Maguire & Schneider, L.L.P., Dennis P. Zapka and Emery J. Leuchtag, for appellees and cross-appellants.

Jones, Day, Reavis & Pogue, Richard B. Whitney, Kathleen B. Burke and Anne Owings Ford; Keating, Keating & Kuzman and W. Leo Keating, for appellants and cross-appellees Warren General Hospital and Kevin Andrews. Charles L. Richards, for appellants and cross-appellees Robert L. Heller and Elliott, Heller, Maas, Moro & Magill Co., L.P.A.

Bricker & Eckler, L.L.P., James H. Hughes, Jr., Catherine M. Ballard and Karen D. Smith, urging reversal for amici curiae OHA: The Association for Hospitals and Health Systems and the Ohio State Medical Association.

Eugene P. Whetzel, urging reversal for amicus curiae Ohio State Bar Association.

ALICE ROBIE RESNICK, J.

Aside from the procedural and evidentiary questions, these appeals present five general issues for our determination. The first issue is whether a physician or hospital can be held liable for the unauthorized, out-ofcourt disclosure of confidential information obtained in the course of the physician-patient relationship.

This issue is easily resolved. "In Ohio, a physician can be held liable for unauthorized disclosures of medical information. See Hammonds v. Aetna Cas. & Sur. Co. (N.D.Ohio 1965), 243 F.Supp. 793 [7 Ohio Misc. 25, 34 O.O.2d 138]; Nationwide Mut. Ins. Co. v. Jackson (1967), 10 Ohio App.2d 137, 39 O.O.2d 242, 226 N.E.2d 760; Prince v. St. Francis-St. George Hospitals, Inc. (1985), 20 Ohio App.3d 4, 20 OBR 4, 484 N.E.2d 265; Levias v. United Airlines (1985), 27 Ohio App.3d 222, 27 OBR 262, 500 N.E.2d 370; see, also, R.C. 4731.22(B)(4) (Willfully betraying a professional confidence' is a ground for physician discipline.); see, generally, Johnston, Breach of Medical Confidence in Ohio (1986), 19 Akron L.Rev. 273." Littleton v. Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio St.3d 86, 98, 529 N.E.2d 449, 459, fn. 19.

However, Littleton does not specify the basis or legal theory under which a physician can be held liable for unauthorized disclosures of medical information. As one legal writer has observed:

"Faced with situations involving a disclosure of personal information in breach of confidence, some courts have explicitly recognized a breach of confidence tort. Most courts, however, have resorted to a confused tangle of legal theories, including invasion of privacy, implied term of contract, implied private cause of action in statute, and tortious breach of confidence, to make out a cause of action in such situations." Vickery, Breach of Confidence: An Emerging Tort (1982), 82 Colum.L.Rev. 1426, 1437.

The second issue, therefore, is whether this court should recognize an independent common-law tort of breach of confidence in the physician-patient setting. Since appellants raise no serious argument against the recognition of such an action, this issue need not detain us long either.

Over eighty years ago, the Supreme Court of Washington stated "We shall not go into the question, suggested in respondents' brief, that the action is improperly designated as one for slander. If the facts set forth in the complaint entitle appellant to relief, it is wholly immaterial by what name the action is called. Neither is it necessary to pursue at length the inquiry of whether a cause of action lies in favor of a patient against a physician for wrongfully divulging confidential communications. For the purposes of what we shall say it will be assumed that, for so palpable a wrong, the law provides a remedy." Smith v. Driscoll (1917), 94 Wash. 441, 442, 162 P. 572, 572.

Since then, courts in Ohio and elsewhere have faced common metamorphic disturbances in attempting to provide a legal identity for an actionable breach of patient confidentiality. In their efforts to devise a civil remedy "for so palpable a wrong," many of these courts have endeavored to fit a breach of confidence into a number of traditional or accepted legal theories. In much the same `way as trying to fit a round peg into a square hole, courts have utilized theories of invasion of privacy, defamation, implied breach of contract, intentional and negligent infliction of emotional distress, implied private statutory cause of action, breach of trust, detrimental reliance, negligence, and medical malpractice. Invariably, these theories prove ill-suited for the purpose, and their application contrived, as they are designed to protect diverse interests that only coincidentally overlap that of preserving patient confidentiality. These courts, therefore, often find themselves forced to stretch the traditional theories beyond their reasonable bounds, or ignore or circumvent otherwise sound doctrinal limitations, in order to achieve justice within the parameters they have set for themselves. In so doing, they rely on various sources of public policy favoring the confidentiality of communications between a physician and a patient, including state licensing or testimonial privilege statutes, or the Principles of Medical Ethics of the American Medical Association (1957), Section 9, or the Oath of Hippocrates. Some note that while public policy considerations are a sound enough basis to support liability, a more appropriate basis can be found in the nature of the physician-patient relationship itself, either because of its fiduciary character or because it is customarily understood to carry an obligation of secrecy and confidence. Slowly and unevenly, through various gradations of evolution, courts have moved toward the inevitable realization that an action for breach of confidence should stand in its own right, and increasingly courts have begun to adopt it as an independent tort in their respective jurisdictions. Hobbs v. Lopez (1994), 96 Ohio App.3d 670, 645 N.E.2d 1261; Howes v. United States (C.A.6, 1989), 887 F.2d 729 (applying Ohio law); Neal v. Corning Glass Works Corp. (S.D.Ohio 1989), 745 F.Supp. 1294 (applying Ohio law); Levias, supra, 27 Ohio App.3d 222,27 OBR 262,500 N.E.2d 370; Prince, supra, 20 Ohio App.3d 4, 20 OBR 4, 484 N.E.2d 265; Knecht v. Vandalia Med. Ctr., Inc. (1984), 14 Ohio App.3d 129, 14 OBR 145, 470 N.E.2d 230; Hammonds, supra, 243 F.Supp. 793, 7 Ohio Misc. 25, 34 O.O.2d 138 (interpreting Ohio law); Lujan v. Mansmann (E.D.Pa.1997), 956 F.Supp. 1218, 1229-1230; Bullion v. Gadaleto (W.D.Va.1995), 872 F.Supp. 303; Morris v. Consolidation Coal Co. (1994), 191 W.Va. 426, 446 S.E.2d 648; Mrozinski v. Pogue (1992), 205 Ga.App. 731, 423 S.E.2d 405; Saur v. Probes (1991), 190 Mich.App. 636, 476 N.W.2d 496; Tighe v. Ginsberg (1989), 146 A.D.2d 268, 540 N.Y.S.2d 99; Crocker v. Synpol, Inc. (Tex.App.1987), 732 S.W.2d 429; Stempler v. Speidell (1985), 100 N.J. 368, 374-377, 495 A.2d 857, 860-861; Alberts v. Devine (1985), 395 Mass. 59, 479 N.E.2d 113; Vassiliades v. Garfinckel's (D.C.App.1985), 492 A.2d 580; Humphers v. First Interstate Bank of Oregon (1985), 298 Ore. 706, 696 P.2d 527; MacDonald v. dinger (1982), 84 A.D.2d 482, 446 N.Y.S.2d 801; Doe v. Roe (1977), 93 Misc.2d 201, 400 N.Y.S.2d 668; Home v. Patton (1973), 291 Ala. 701, 287 So.2d 824; Hague v. Williams (1962), 37 N.J. 328, 181 A.2d 345; Alexander v. Knight (1962), 197 Pa.Super. 79, 177 A.2d 142; Clark v. Geraci (1960), 29 Misc.2d 791, 208 N.Y.S.2d 564; Berry v. Moench (1958), 8 Utah 2d 191, 331 P.2d 814; Simonsen v. Swenson (1920), 104 Neb. 224, 177 N.W. 831; Johnston, supra, 19 Akron L.Rev. 373; Vickery, supra, 82 Colum.L.Rev. 1426; Annotation, Physician's Tort Liability for Unauthorized Disclosure of Confidential Information About a Patient (1986), 48 A.L.R.4th 668; 61 American Jurisprudence 2d (1981) 298-305, Physicians, Surgeons, and Other Healers, Sections 166-173; 24 American Jurisprudence POF 3d (1994) 123, Proof of Unauthorized Disclosure of Confidential Patient Information by a Psychotherapist; 32 American Jurisprudence Trials (1985) 105, Unauthorized Disclosure of Confidential Patient Information.

We hold that in Ohio, an independent tort exists for the unauthorized, unprivileged disclosure to a third party of nonpublic medical information that a physician or hospital has learned within a physician-patient relationship.

The third issue, as framed by the law firm, "is whether the duty to hold this patient information confidential is absolute, as the Court of Appeals has held, or, whether, and under what circumstances the hospital may disclose the confidential information to others and for what purpose." In particular, appellants and their amici argue that a privilege should attach in this case under which a hospital may disclose confidential medical information to its attorney without obtaining prior patient authorization to do so.

We do not interpret the court of appeals' decision to provide for an absolute duty of confidentiality, but it does contain some language suggesting that a disclosure may be privileged only if mandated by statute. Disclosures of otherwise confidential medical information made pursuant to statutory mandate are certainly privileged, such as occupational diseases (R.C. 3701.25 and 4123.71), diseases which are infectious, contagious, or dangerous to public health (R.C. 3701.24, 3701.52, 3707.06), medical conditions indicative of child abuse or neglect (R.C. 2151.421), and injuries indicative of criminal conduct (R.C. 2921.22). Otherwise, a physician would be forced into the dilemma of violating a statute for failing to report a medical condition to the appropriate state agency or incurring civil liability for disclosing it. Thus, when 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 has betrayed no confidence, and no liability could result." Simonsen, supra, 104...