Kutnick v. Fischer, 2004 Ohio 5378 (OH 10/7/2004)

Citation2004 Ohio 5378
Decision Date07 October 2004
Docket NumberCase No. 81851.
PartiesDiane Kutnick, Plaintiff-appellant, v. Philip J. Fischer, M.D., et al., Defendant-appellees.
CourtUnited States State Supreme Court of Ohio

John A. Hallbauer, Attorney at Law, Buckley, King & Bluso, 1400 Bank One Center, 600 Superior Avenue East, Cleveland, Ohio 44114-2652, for plaintiff-appellant.

Kenneth A. Torgerson, Phillip J. Fischer, M.D., Attorney at Law, Weston, Hurd, Fallon & Paisley 2500 Terminal Tower, 50 Public Square, Cleveland, Ohio 44113-2241, for defendant-appellee.

Abraham Cantor, Richard C. Klein, Attorney at Law, Johnnycake Commons, 9930 Johnnycake Ridge Road, Suite 4F, Concord, Ohio 44060, for defendant-appellee.

John M. Widder, John M. Widder and Peggy, Peggy Murphy Widder, Murphy Widder, Attorneys at Law, 18231 Sherrington Road, Shaker Heights, Ohio 44122, for defendants-appellees.

JOURNAL ENTRY and OPINION

KENNETH A. ROCCO, Presiding Judge.

{¶ 1} Plaintiff-appellant, the administrator of the estate of Diane Kutnick,1 appeals from court orders granting summary judgment for the defendants in these three consolidated actions, asserting that the court erred by granting each of the defendants' motions and by denying plaintiff's motion. We find no error in the court's decisions, so we affirm.

i. PROCEDURAL HISTORY

{¶ 2} Attorneys John and Peggy Widder filed the first of these three cases in Shaker Heights Municipal Court to recover their fees for the successful defense of Diane Kutnick in an involuntary commitment proceeding. Kutnick counterclaimed, asserting that the Widders disclosed confidences and breached their fiduciary duties to her in a guardianship proceeding which the Widders instituted against her. This action was eventually certified to the Cuyahoga County Common Pleas Court and became Case Number CV-319302.

{¶ 3} Kutnick filed the second action, Case Number CV-292712, in common pleas court against her psychiatrist, Dr. Philip J. Fischer, M.D., and attorney Richard C. Klein. Kutnick alleged that Fischer breached his fiduciary duty to Kutnick and violated the physician-patient privilege and thereby caused Kutnick to suffer emotional distress. Kutnick further claimed that Klein acted in concert with the Widders to institute guardianship proceedings against Kutnick, and disclosed confidential information to the probate court in violation of the Widders' fiduciary duties, the attorney-client privilege, and the physician-patient privilege. Klein sought indemnity and contribution from John Widder via a third-party complaint.

{¶ 4} Finally, Kutnick filed a separate action, Case No. CV-299085, against John and Peggy Widder, claiming that they, Fischer and Klein disclosed confidential information in violation of their fiduciary duties, the attorney-client privilege, and the physician-patient privilege. The Widders counterclaimed for their fees in representing Kutnick in the commitment proceeding.

{¶ 5} All three cases were consolidated before the common pleas court. All parties moved for summary judgment on Kutnick's claims. The court granted summary judgment for defendant Klein without opinion. It further granted judgment for the Widders and for Fischer; a separate opinion accompanied each of those judgments.

{¶ 6} The court concluded that the Widders did not breach any duty of confidentiality to Kutnick by applying to place her under guardianship. The court also determined that Kutnick was not prejudiced by Mr. Widder's request to be appointed as her guardian, because the court in the guardianship proceeding actually appointed someone else. Finally, the court held that Kutnick did not have a cause of action against her attorneys for violation of disciplinary rules.

{¶ 7} The court held that Dr. Fischer reasonably believed his actions complied with the terms of a release under which Kutnick authorized Fischer to discuss her health care and related matters with the Widders. The court also found that Kutnick did not take reasonable steps to protect the physician-patient privilege by objecting to Fischer's testimony in the guardianship proceeding.

{¶ 8} Kutnick attempted to appeal these rulings but her appeal was dismissed for lack of a final appealable order. She then moved the common pleas court for a judgment entry finding no just reason for delay in entering final judgment on these claims, pursuant to Civ.R. 54(B). While that motion was pending, Kutnick died, and her attorney moved the court to substitute the administrator of her estate as the plaintiff in this action. The court granted both of these motions on September 4, 2002. The administrator of Kutnick's estate then filed this appeal.

i. FACTUAL BACKGROUND

{¶ 9} The evidence presented with the parties' summary judgment motions discloses the following undisputed facts. Dr. Fischer began treating Kutnick for psychiatric illness in 1991. Throughout their relationship Dr. Fischer cooperated with attorneys at Kutnick's request to assist Kutnick with various legal matters.

{¶ 10} In 1994, Kutnick retained the Widders to represent her in her capacity as executor of her mother's estate. In May 1994, Kutnick provided Dr. Fischer with the following release:

v. I, Diane R. Kutnick, hereby give Philip Fischer, M.D. permission to discuss my health care and related matters with my attorneys, John M. Widder and Peggy M. Widder vi. I hereby release the said Dr. Fischer from any and all liability with regard to such discussions with the above-named attorneys.

vii. By signing the herein release, I specifically waive the doctor/patient confidentiality privilege as to my above-named attorneys, while specifically retaining such privilege with regard to all others unless specifically waived by me in a separate document.

{¶ 11} On July 14, 1994, Kutnick presented at the emergency room of Hillcrest Hospital seeking assistance for an alleged poisoning. She was transferred to Laurelwood Hospital that evening. Hillcrest Hospital officials initiated involuntary commitment proceedings. Kutnick retained the Widders to represent her in these proceedings. Dr. Fischer testified at the hearing. The court ultimately determined that the statutory test for involuntary commitment had not been met and ordered Kutnick discharged. The physician-patient relationship between Dr. Fischer and Kutnick was terminated at this time, although the attorney-client relationship between the Widders and Kutnick continued.

{¶ 12} On July 26, 1994, John Widder applied to the Cuyahoga County Probate Court for appointment as Kutnick's guardian. Attorney Richard Klein represented Widder in this proceeding. Kutnick retained new counsel to represent her in connection with both the guardianship proceedings and her mother's estate, and terminated the Widders' representation.

{¶ 13} At the Widders' request, Dr. Fischer prepared a physician's certificate for filing with the court which included his diagnosis and evaluation of Kutnick's mental condition. Dr. Fischer indicated that Kutnick suffered from a delusional disorder (paranoid type), severe obsessivecompulsive disorder, dissociative disorder, and borderline personality disorder; that her judgment was impaired; that she was unable to make relevant decisions because of her paranoia, anxiety, and depression; that she could not perform basic self-care; that she was "emotionally paralyzed from carrying out the most routine activities of daily living"; and that her living conditions were unhealthy because of her inability to organize her thoughts and affairs. An independent investigator for the probate court recommended that Kutnick be placed under guardianship.

{¶ 14} The court held a guardianship hearing on September 27, 1994. Dr. Fischer submitted an affidavit to the court in lieu of testifying. Another hearing was held on March 29, 1995, after which the court appointed attorney Nellie Johnson as Kutnick's guardian. The probate court vacated this judgment on June 20, 1995 on Kutnick's motion.

i. LAW AND ANALYSIS

{¶ 15} We review de novo the common pleas court's decisions to grant summary judgment for the defendants, applying the same test that the trial court applied. Summary judgment is appropriate only if (a) there is no genuine issue as to any material fact that remains to be litigated, (b) viewing the evidence in the light most favorable to the party opposing the motion, reasonable minds can come to but one conclusion, and that conclusion is adverse to the non-movant, and (c) the moving party is entitled to judgment as a matter of law. See, e.g., Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

{¶ 16} Kutnick supports her claims with several alternative theories. Some of these theories are based on legal principles which do not afford her with a cause of action. For example, Kutnick asserts the defendants should be held liable for breaches of the attorney-client privilege and the physician-patient privilege. These privileges allow the client (or patient) to preclude attorney (or physician) testimony about confidential matters. They are not rights, the violation of which might entitle the client to damages. Testimonial privileges are not the source of tort duties of care upon which Kutnick might base a cause of action.

{¶ 17} In addition, Kutnick claims the Widders should be liable to her because they violated the Code of Professional Responsibility. An attorney's professional obligations under the disciplinary rules do not necessarily translate into tort duties the attorney owes to his or her client which, if breached, may be the subject of a malpractice claim. The purpose of the disciplinary rules is to protect the public interest and ensure that members of the bar are competent to practice their profession. Fred Siegel Co., L.P.A. v. Arter & Hadden (1999), 85 Ohio St.3d 171. These...

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