State v. McGriff

• Decision Date: 07 March 1996
• Docket Number: No. 8-94-16,8-94-16
• Citation: 672 N.E.2d 1074,109 Ohio App.3d 668
• Parties: The STATE of Ohio, Appellant, v. McGRIFF et al., Appellees. *
• Court: Ohio Court of Appeals

Page 668

109 Ohio App.3d 668

672 N.E.2d 1074

The STATE of Ohio, Appellant, v. McGRIFF et al., Appellees. ^*

No. 8-94-16.

Court of Appeals of Ohio Third District, Logan County.

Decided March 7, 1996.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and James A. Gutierrez, Assistant Prosecuting Attorney, Cleveland, for appellant.

R. William Meeks and Samuel H. Shamansky, Columbus, for appellees.

Betty D. Montgomery, Attorney General, and Anne Berry Strait, Assistant Attorney General, Columbus, for amicus curiae Betty D. Montgomery.

EVANS, Judge.

This is an appeal by the state from a judgment of the Court of Common Pleas of Logan County ruling on the admissibility of a physician's patient records seized during a search of the physician's office and used to support the indictment of the physician on criminal charges. The trial court ruled, on August 11, 1994, that the state was prohibited from using the patients' medical records as evidence in the case, absent express permission from the patients themselves.

On December 2, 1992, a forty-two-count indictment was filed in Cuyahoga County against Dr. James McGriff and his wife, Renee, charging them with various counts of theft and fraud against health care insurers, and with several counts of illegally prescribing stimulant drugs specifically named in Schedules III(A) and IV(D), R.C. 3719.41. Since Dr. McGriff is a physician in his home county, the entire case was transferred to the Logan County Common Pleas Court, on September 29, 1993. After that court ruled that the state was prohibited from using Dr. McGriff's patient records as evidence of his wrongdoing, the state filed this appeal, asserting the following assignment of error:

"The trial court erred in permitting the defendant-doctor to immunize himself from criminal prosecution by asserting the doctor-patient privilege."

Following our review of the record and the law, we sustain the assignment of error and reverse the judgment of the trial court, for the reasons which follow.

In Ohio, the patient is the holder of the physician-patient privilege. A person other than the patient cannot assert the privilege. Hunter v. Hawkes Hosp. of Mt. Carmel (1989), 62 Ohio App.3d 155, 157, 574 N.E.2d 1147, 1147-1148. In Johnston v. Miami Valley Hosp. (1989), 61 Ohio App.3d 81, 85, 572 N.E.2d 169, 171-172, the Court of Appeals for Montgomery County observed that neither physicians nor hospitals may shield themselves from criminal investigation by asserting the physician-patient privilege, finding:

"Courts have consistently rejected attempts by physicians or hospitals to assert a patient's privilege to hide their own 'criminal' wrongdoing. See In re Grand Jury Proceedings (1982) 56 N.Y.2d 348, 452 N.Y.Supp.2d 361, 437 N.E.2d 1118 (rejecting hospital's claim of physician-patient privilege during grand jury investigation of possible crimes committed by hospital staff against patients); People v. Doe (Sup.Ct.1981), 107 Misc.2d 605, 435 N.Y.Supp.2d 656 (grand jury investigation of Medicaid fraud)."

Moreover, in Ohio State Med. Bd. v. Miller (1989), 44 Ohio St.3d 136, 541 N.E.2d 602, the Supreme Court of Ohio held that a physician could not invoke the physician-patient privilege to frustrate the State Medical Board's investigation into allegations that the doctor improperly prescribed controlled substances, noting the importance of the public's interest "in detecting crimes in order to protect society." Id. at 140, 541 N.E.2d 606, citing State v. Antill (1964), 176 Ohio St. 61, 65, 26 O.O.2d 366, 368, 197 N.E.2d 548, 551-552.

Pursuant to the cited authorities, properly censored medical records containing evidence of a physician's criminal activity may be utilized as evidence in a criminal prosecution against the doctor. Accordingly, the defendant doctor in this case should not be permitted to invoke his patients' privilege in order to shield himself from prosecution.

In support of its Crim.R. 12(J) appeal, the state has certified that it cannot prosecute this case in the absence of information contained in these patients' medical records. Since the defendant has been accused of prescribing controlled substances for improper and illegal purposes and of committing fraud against various health insurance companies, if there is evidence of wrongdoing it will be contained in notations to his patients' medical records. Without these records, the state will be unable to prosecute its case. The relevant and incriminating information, if any, contained in the patient records would be disclosed only to the extent needed to prosecute the defendant. Redaction of the records through erasure or concealment of the patients' names and addresses and other information inapplicable to the prosecution of the charged crimes would ensure that each patient's interest in confidentiality and privacy is protected without frustrating the state's interest in prosecuting illegal drug activity. See Miller, 44 Ohio St.3d at 140-141, 541 N.E.2d at 605-606. Accordingly, in this case the state should be permitted to use the medical records, so long as the trial court conceals the names and addresses of the patients in consideration of their privacy rights. See Humphry v. Riverside Methodist Hosp. (1986), 22 Ohio St.3d 94, 96, 22 OBR 129, 130-131, 488 N.E.2d 877, 878-879 (nonparty patients' right to privacy recognized).

Therefore, having found error prejudicial to the appellant herein, in the particulars assigned and argued, we reverse the judgment of the trial court and remand the case to that court for further proceedings.

Judgment reversed and cause remanded.

HADLEY P.J., concurs.

THOMAS F. BRYANT, J., dissents.

THOMAS F. BRYANT, Judge, dissenting.

The majority holds that this court, by judicial fiat, is able to abrogate the physician-patient privilege contained in R.C. 2317.02. In my view, an appellate court may not do so, and accordingly I dissent from the majority's decision.

James McGriff is a physician, and his wife Renee apparently works in his medical office. In September 1992, James and Renee McGriff were indicted by the Cuyahoga County Grand Jury on one count each of R.C. 2913.02, theft, thirteen counts each of health care fraud, R.C. 3999.22, and twenty-eight counts each of drug trafficking, R.C. 2925.03. ¹ The charges contained in the indictment fall largely into two groups: (1) McGriff is accused of health care fraud, R.C. 3999.22, by intentionally misrepresenting the actual condition of his patients and thus obtaining money illegally from Blue Cross/Blue Shield, and (2) McGriff is accused of trafficking in drugs by indiscriminately prescribing Schedule IV narcotic stimulants, otherwise commonly known as "speed," in violation of R.C. 2925.03. McGriff's conduct in question relates to his treatment of a large volume of patients for obesity. The state alleges that McGriff was not dispensing bona fide medical treatment for this condition but instead was seeking only to increase his personal wealth by increasing the number of patients in his medical practice and in doing so intentionally misrepresented the actual condition of the patients and prescribed drugs unlawfully.

On August 4, 1993, McGriff filed a motion in the Court of Common Pleas of Cuyahoga County for a change of venue to Logan County. On September 22 1993, the Common Pleas Court of Cuyahoga County granted the motion, and the cause was removed to the Court of Common Pleas of Logan County. Thereafter, the state moved to amend the indictment, and on April 4, 1994, the trial court granted the motion in part and denied the motion in part. ²

On April 20, 1994, the state filed a motion to rule on the admissibility of the patients' medical records. On August 11, 1994, the trial court entered its judgment denying the state's request to use McGriff's patients' medical records as evidence. The trial court held that the records were protected from disclosure pursuant to the physician-patient privilege, R.C. 2317.02, and therefore they were inadmissible as evidence unless the patients waived this privilege. On August 18, 1994, the state filed its notice of appeal pursuant to Crim.R. 12(J). On appeal, the state asserts that only four of the thirty patients in question have waived the privilege, which the state apparently considers to be an insufficient number to prosecute McGriff effectively.

First, I address the procedure employed here. Crim.R. 12 specifies the procedure to be used concerning pleadings and motions before trial. ³ This rule allows a defendant to file a motion in limine or a motion to suppress evidence after the state has filed a notice to use certain specified evidence. If a trial court grants a defendant's motion to suppress evidence, the state has an opportunity to appeal that judgment pursuant to Crim.R. 12(J). See, also, R.C. 2945.67. However, in the case at bar, the state, not the defendants, moved the trial court to "[r]ule on the admissibility of the [patients'] medical records" as evidence. In State v. Davidson (1985), 17 Ohio St.3d 132, 17 OBR 277, 477 N.E.2d 1141, syllabus, it is stated:

"Any motion, however labeled, which, if granted, restricts the state in the presentation of certain evidence and, thereby, renders the state's proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed, is, in effect, a motion to suppress. The granting of such a motion is a final order and may be appealed pursuant to R.C. 2945.67 and Crim.R. 12(J)."

In Davidson, the court held that the state could appeal when a motion in limine is used as the equivalent of a motion to suppress because "it does not depend on what [the motion] is labeled" but, rather, "on the type of relief it seeks to obtain." Id. at 135, 17 OBR at 280, 477 N.E.2d at 1144. See, also, State v. Malinovsky (1991), 60 Ohio St.3d 20, 573 N.E.2d 22.

Here, the state filed its notice of appeal pursuant to ...