State v. Smorgala, 89-44
| Court | United States State Supreme Court of Ohio |
| Writing for the Court | WILLIAM H. HARSHA; MOYER; WILLIAM H. HARSHA, J., of the Fourth Appellate District, sitting for RESNICK |
| Citation | 553 N.E.2d 672,50 Ohio St.3d 222 |
| Parties | The STATE of Ohio, Appellant, v. SMORGALA, Appellee. |
| Docket Number | No. 89-44,89-44 |
| Decision Date | 25 April 1990 |
Page 222
v.
SMORGALA, Appellee.
Decided April 25, 1990.
Syllabus by the Court
1. Courts may not create a public policy limitation upon the physician-patient privilege in order to allow otherwise clearly inadmissible evidence to be received in drunk driving cases.
2. Because the law of privilege is substantive in nature, the Supreme Court is not free to promulgate an amendment to the Rules of Evidence which would deny a statutory privilege in drunk driving cases. Evid.R. 501.
The record includes an agreed statement of facts which establishes that on March 19, 1987, appellee, Kathryn E. Smorgala, was involved in an automobile accident. She was taken to Elyria Memorial Hospital where, as part of her medical treatment, a blood sample was taken and a blood-alcohol test was performed. These procedures were not administered at the direction or request of the police officer responsible for investigating the accident. After completion of the medical treatment, appellee was charged with driving under the influence in violation of R.C. 4511.19(A)(1). She was also charged with failure to wear a seat belt and failure to maintain an assured clear distance, the latter charge ultimately being dismissed upon motion of the state.
The appellant, state of Ohio, subsequently filed a subpoena duces tecum requesting the results of appellee's blood test for use as evidence at trial. The treating hospital and the appellee filed motions for a protective order and to quash the subpoena, respectively, based upon the physician-patient privilege provided by R.C. 2317.02(B). The trial court denied both motions and ordered the hospital to comply with the state's subpoena.
Appellee then filed a motion to suppress the blood-alcohol tests based, in part, upon the physician-patient privilege and, in part, upon an alleged failure to comply with R.C. 4511.191. The court overruled the motion to suppress and, upon her no contest plea, found appellee guilty of driving under the influence and failure to wear a seat belt.
The court of appeals reversed her conviction on the grounds that the physician-patient privilege was applicable and not subject to limitation by a judicial policy preference. Finding its decision on this issue to be in conflict with the decisions of the Sixth District Court of Appeals in State v. Dress (1982), 10 Ohio App.3d 258, 10 OBR 372, 461 N.E.2d 1312, and State v. Tu (1984), 17 Ohio App.3d 159, 17 OBR
Page 223
291, 478 N.E.2d 830, the court certified the record of this case to this court for review and final determination.Jay B. Grunda, City Prosecutor, and Michael E. Szekely, Elyria, for appellant.
Rothgery & Associates, Kenneth P. Rothgery and Christopher R. Rothgery, Elyria, for appellee.
WILLIAM H. HARSHA, Judge, Court of Appeals.
The question presented for review by this certification is whether the courts of Ohio should judicially create a public policy limitation upon the statutorily created physician-patient privilege which would allow [553 N.E.2d 674] otherwise clearly inadmissible evidence to be received in "drunk driving" cases. In keeping with the constitutional principle of separation of powers, we cannot adopt such a position. Judicial policy preferences may not be used to override valid legislative enactments, for the General Assembly should be the final arbiter of public policy.
R.C. 2317.02(B) stated as follows:
"The following persons shall not testify in certain respects:
" * * *
"(B) A physician concerning a communication made to him by his patient in that relation or his advice to his patient, except that the physician may testify by express consent of the patient or, if the patient is deceased, by the express consent of the surviving spouse or the executor or administrator of the estate of the deceased patient and except that, if the patient voluntarily testifies or is deemed by section 2151.421 of the Revised Code to have waived any testimonial privilege under this division, the physician may be compelled to testify on the same subject * * *." (Am.Sub.H.B. No. 529, 141 Ohio Laws, Part II, 4865, 4871-4872.)
The waiver established by R.C. 2151.421 dealt with injuries, abuse, or neglect involving juveniles. R.C. 2317.02(B) further provided that the filing of a medical claim constituted a waiver of the privilege with regard to the care and treatment related to the claim.
Where the words of a statute are free of ambiguity and express plainly and distinctly the sense of the lawmaking body, the courts should look no further in their efforts to interpret the intent of the General Assembly. Here it is clear that the legislature has stated that the privilege is to be given effect absent specific statutory exceptions, none of which applies to this case. 1
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...our role as part of the judicial branch. See Article II, Section 1 and Article IV, Section 1, Ohio Constitution ; State v. Smorgala , 50 Ohio St.3d 222, 224, 553 N.E.2d 672 (1990).{¶ 134} Therefore, in order to avoid reading R.C. 313.10 in such a manner as to make parts of the statute super......
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