State v. Smorgala

• Decision Date: 25 April 1990
• Docket Number: No. 89-44,89-44
• Citation: 553 N.E.2d 672,50 Ohio St.3d 222
• Parties: The STATE of Ohio, Appellant, v. SMORGALA, Appellee.
• Court: Ohio Supreme Court

Page 222

50 Ohio St.3d 222

553 N.E.2d 672

The STATE of Ohio, Appellant, v. SMORGALA, Appellee.

No. 89-44.

Supreme Court of Ohio.

Submitted Jan. 17, 1990.

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 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 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

Appellant urges this court to append a judicial public policy limitation upon the statutorily created privilege. In doing so, appellant contends that the public interest in the effective prosecution of drunk driving cases outweighs any public considerations which support the uninhibited flow of information between doctor and patient. In support of this contention, appellant cites State v. Dress (1982), 10 Ohio App.3d 258, 10 OBR 372, 461 N.E.2d 1312; State v. Tu (1984), 17 Ohio App.3d 159, 17 OBR 291, 478 N.E.2d 830; State v. Kavlich (1986), 33 Ohio App.3d 240, 515 N.E.2d 652; and State v. Boysaw (1987), 40 Ohio App.3d 173, 532 N.E.2d 154, all of which rely on the balancing test set forth by this court in State v. Antill (1964), 176 Ohio St. 61, 26 O.O.2d 366, 197 N.E.2d 548.

As the court of appeals so aptly pointed out in its decision below, the rationale in Antill has been misapplied to an inapposite set of circumstances. In Antill, the court was faced with two conflicting legislatively created policies in the context of domestic violence. Homer Antill was involved in a violent argument with his wife, Ester Antill. During the argument, she suffered cuts, bruises and a puncture wound to the chest. Mr. Antill was indicted and the physician who treated Mrs. Antill was called to testify about her wounds at trial. At issue was the conflict between the physician-patient privilege set forth in R.C. 2317.02 and the statutory duty, then found in R.C. 2317.44 (see present R.C. 2921.22), of physicians to report to the police the treatment of victims suffering from wounds inflicted by a deadly weapon. Given those facts, this court held that the physician's testimony was admissible, notwithstanding the privilege, since the purpose of the privilege to avoid publicity was no longer attainable.

Where two legislative enactments are in apparent conflict, our constitutional role under Section 1, Article IV is to interpret the intent of the General Assembly. This judicial function differs from the judicial function urged for us by the appellant and which the appellate courts in State v. Dress, supra, and cases following Dress, have adopted. In Dress and the cases adopting its position, the appellate courts attempt to balance a legislative policy establishing the privilege with a judicial policy limiting its application. The concurring opinion by Judge Markus in State v. Kavlich, supra, at 246, 515 N.E.2d at 657-658, succinctly points out the impropriety and danger in that approach:

"Those decisions suggest that courts can decide which statutes must yield to judicially perceived public policy. However, the legislature is the final arbiter of public policy, unless its acts contravene the state or federal Constitutions. The Ohio Constitution vests the legislative power to resolve policy issues in the General Assembly. Section 1, Article II, Ohio Constitution. If courts could decide that the public policy...