Med. Mut. of Ohio v. Schlotterer

• Decision Date: 03 June 2009
• Docket Number: No. 2008-0598.,2008-0598.
• Citation: 2009 Ohio 2496,909 N.E.2d 1237,122 Ohio St.3d 181
• Parties: MEDICAL MUTUAL OF OHIO, Appellant, v. SCHLOTTERER, Appellee.
• Court: Ohio Supreme Court

909 N.E.2d 1237

122 Ohio St.3d 181

2009-Ohio-2496

MEDICAL MUTUAL OF OHIO, Appellant, v. SCHLOTTERER, Appellee.

No. 2008-0598.

Supreme Court of Ohio.

Submitted February 3, 2009.

Decided June 3, 2009.

Frantz Ward, L.L.P., Stephen F. Gladstone, Brian E. Roof, and Brendan M. Gallagher, Cleveland, for appellant.

Rengel Law Office, D. Jeffery Rengel, Sandusky, and Thomas R. Lucas, for appellee.

Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, Stephen P. Carney, Deputy Solicitor, and Scott Myers, Assistant Attorney General, urging reversal for amicus curiae state of Ohio.

Allen, Kuehnle, Stovall & Newman, L.L.P., and Lisa L. Norris, Columbus; and Wiley Rein, L.L.P., Kirk J. Nahra, and Howard Anglin, urging reversal for amici curiae National Health Care Anti-Fraud Association, National Insurance Crime Bureau, Coalition Against Insurance Fraud, and America's Health Insurance Plans.

Thompson Hine, L.L.P., Alan F. Berliner, Jennifer E. Short, and Philip B. Sineneng, Columbus, urging reversal for amici curiae Ohio Association of Health Plans and Ohio Insurance Institute.

Carrie L. Davis and Jeffrey M. Gamso, Cleveland, urging affirmance for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc.

Bricker & Eckler, L.L.P., Anne Marie Sferra, and Bridget A. Purdue, not expressly supporting the position of either party for amici curiae Ohio State Medical Association and American Medical Association.

MOYER, C.J.

I

{¶ 1} The physician-patient privilege generally protects medical records from disclosure, subject to certain limited exceptions. This case asks us to determine whether the privilege prevents discovery of medical records by an insurance company in a civil fraud action against a physician when the patients have given broad consent to release their records to their insurer. We hold that a patient's consent to the release of medical information is valid, and waives the physician-patient privilege, if the release is voluntary, express, and reasonably specific in identifying to whom the information is to be delivered.

II

{¶ 2} Defendant-appellee, Dr. William Schlotterer, is a practicing physician. Plaintiff-appellant, Medical Mutual of Ohio, provides insurance coverage to many of Schlotterer's patients. In 1990, Schlotterer and Blue Cross Blue Shield of Ohio, Medical Mutual's predecessor in interest, executed a participation agreement, which provides coverage for policyholders who receive treatment from Schlotterer. To document the services Schlotterer provides his patients, Schlotterer submits reports to Medical Mutual detailing the services rendered, and he is accordingly reimbursed by the insurance company.

{¶ 3} Medical Mutual's complaint in this action explains that as part of the reports Schlotterer provides to Medical Mutual, he assigns AMA-developed common-procedural-technology codes to each patient visit, based on Schlotterer's assessment of the patient's condition, including the extent of the examination, the comprehensiveness of the medical history taken, and the complexity of the diagnosis and treatment. Those codes are detailed in the provider manual, which is incorporated into the participation agreement. Schlotterer is correspondingly compensated by Medical Mutual based on the codes he assigns. Medical Mutual notes that the code warranting the highest reimbursement, to be used "rarely" and "only where the provider faces significant and complex medical decisions," is 99215.

{¶ 4} Medical Mutual's review of Schlotterer's billing reports in 2004 revealed a high percentage of 99215 code submissions. Medical Mutual then requested medical records for ten families, which Schlotterer provided. The insurer reviewed the records and determined that the 99215 billing code was not warranted in those cases. A subsequent investigation into Schlotterer's coding practices allegedly revealed that Schlotterer had been overpaid by $269,576 for 99215 code submissions.

{¶ 5} Medical Mutual filed this action against Schlotterer for fraud, breach of contract, and a demand for an accounting of the doctor's liabilities to it. Schlotterer denied the allegations in the complaint and filed a counterclaim, alleging that Medical Mutual had refused to honor any submissions for reimbursement since February 2005. To determine the extent of the alleged fraud, Medical Mutual filed a motion "for a Qualified Protective Order and order [directing Schlotterer] to respond to discovery" of patient records. These records were to have obscured the information that identified the patients. Medical Mutual argued that the records were discoverable according to Ohio law, the participation agreement, and the certificates of coverage issued to insureds. Schlotterer opposed the motion based on the physician-patient privilege.

{¶ 6} The certificates of coverage issued to each of Schlotterer's patients insured by Medical Mutual include the following language in the Claim Review section:

{¶ 7} "Consent to Release Medical Information—Denial of Coverage

{¶ 8} "You consent to the release of medical information to Medical Mutual when you enroll and/or sign an Application.

{¶ 9} "When you present your identification card for Covered Services, you are also giving your consent to release medical information to Medical Mutual. Medical Mutual has the right to refuse to reimburse for Covered Services if you refuse to consent to the release of any medical information."

{¶ 10} The participation agreement signed by Schlotterer similarly contains the following provision in the Record Review section:

{¶ 11} "Provider agrees to furnish, upon request, to [Medical Mutual] or its agents all requested Records relating to claims filed with [Medical Mutual], as defined in [Medical Mutual's] Professional Provider Manual."

{¶ 12} The trial court granted Medical Mutual's motion, ordering Schlotterer to respond to the discovery requests subject to the protective order. Schlotterer appealed pursuant to R.C. 2505.02(A)(3) and (B)(4), and the court of appeals vacated and remanded the trial court's decision. Med. Mut. of Ohio v. Schlotterer, Cuyahoga App. No. 89388, 2008-Ohio-49, 2008 WL 94508. The court of appeals held that the order to comply with the discovery requests for the medical records violated the physician-patient privilege, as codified in R.C. 2317.02(B)(1). Id. at ¶ 36. We accepted Medical Mutual's discretionary appeal. Med. Mut. of Ohio v. Schlotterer, 118 Ohio St.3d 1505, 2008-Ohio-3369, 889 N.E.2d 1024.

III

{¶ 13} We apply a de novo standard of review in this case. In general, discovery orders are reviewed under an abuse-of-discretion standard. State ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children & Family Servs., 110 Ohio St.3d 343, 2006-Ohio-4574, 853 N.E.2d 657, ¶ 9. But whether the information sought is confidential and privileged from disclosure is a question of law that is reviewed de novo. Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership (1992), 78 Ohio App.3d 340, 346, 604 N.E.2d 808. When a court's judgment is based on an erroneous interpretation of the law, an abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville Grace Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6; Huntsman v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL 2572598, ¶ 50.

{¶ 14} Medical records are generally privileged from disclosure under R.C. 2317.02(B)(1). See Hageman v. Southwest Gen. Health Ctr., 119 Ohio St.3d 185, 2008-Ohio-3343, 893 N.E.2d 153, ¶ 9 ("Numerous state and federal laws recognize and protect an individual's interest in ensuring that his or her medical information remains" confidential—R.C. 2317.02(B)(1), the physician-patient privilege; R.C. 149.43(A)(1)(a), which exempts medical records from the Public Records Act; and the federal Health Information Portability and Accountability Act of 1996). Civ.R. 26(B) accordingly states, "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * *." The physician-patient privilege does not apply, however where the patient has given express consent to disclosure. R.C. 2317.02(B)(1)(a)(i).

{¶ 15} The physician-patient privilege is designed to "`promote health by encouraging a patient to fully and freely disclose all relevant information which may assist the physician in treating the patient.'" State Med. Bd. of Ohio v. Miller (1989), 44 Ohio St.3d 136, 140, 541 N.E.2d 602, quoting Huzjak v. United States (N.D.Ohio 1987), 118 F.R.D. 61, 63, citing Floyd v. Copas (C.P.1977), 9 O.O.3d 298, 299-300.

{¶ 16} A consent to the release of medical information is valid, and waives the physician-patient privilege, if it is voluntary, express, and reasonably specific in identifying to whom the information is to be delivered. Generally "[p]ersons may either expressly or impliedly waive statutory provisions intended for their own benefit." State ex rel. Wallace v. State Med. Bd. of Ohio (2000), 89 Ohio St.3d 431, 435, 732 N.E.2d 960. But the physician-patient-privilege statute specifically requires a patient's express consent. R.C. 2317.02(B)(1)(a)(i). See State ex rel. Lambdin v. Brenton (1970), 21 Ohio St.2d 21, 24, 50 O.O.2d 44, 254 N.E.2d 681.

{¶ 17} In Biddle v. Warren Gen. Hosp. (1999), 86 Ohio St.3d 395, 407, 715 N.E.2d 518, we further recognized the importance of specificity in a release of medical records. The hospital in Biddle released medical records to a law firm it had hired to screen patients for Supplemental Security Disability Income eligibility to help those patients pay their past-due medical bills. Id. at 396, 715 N.E.2d 518. The hospital argued that its general-authorization-for-release-of-information form provided the patients' consent. Id. at 406, 715 N.E.2d 518. We noted, "By its express terms, this form authorizes the hospital to release medical information only `to [one's] insurance company...