Ward v. System

• Decision Date: 27 December 2010
• Docket Number: No. 2009–1998.,2009–1998.
• Citation: 943 N.E.2d 514,128 Ohio St.3d 212
• Parties: WARD et al., Appellees,v.SUMMA HEALTH SYSTEM et al.; Debski, Appellant.
• Court: Ohio Supreme Court

128 Ohio St.3d 212

943 N.E.2d 514

2010 -Ohio- 6275

WARD et al., Appellees,

v.SUMMA HEALTH SYSTEM et al.; Debski, Appellant.

No. 2009–1998.

Supreme Court of Ohio.

Submitted Sept. 28, 2010.Decided Dec. 27, 2010.

Scanlon & Elliott, Michael J. Elliott, and Lawrence J. Scanlon, Akron, for appellees.Roetzel & Andress, L.P.A., and Douglas G. Leak, Cleveland; and David M. Best, for appellant.

LANZINGER, J.

[Ohio St.3d 212] {¶ 1} This case involves a patient who may have contracted a blood-borne disease from a health-care provider during a hospital stay. The issue for our review concerns the patient's ability to obtain discovery to determine the source of his exposure.

I. Case Background

{¶ 2} In May 2006, appellee Donald Ward underwent a procedure to replace his heart valve at Summa Health System (“Summa”). Five months later, Summa notified Ward that he may have been exposed to hepatitis B during his time at Summa. After he tested positive for the virus, Ward and his wife filed a complaint against Summa and John Does 1 through 6, alleging various claims, including medical malpractice. The Wards also requested an extension of time to file the affidavit of merit required by Civ.R. 10(D)(2), arguing that discovery was needed because Summa had refused to identify the source of Donald Ward's exposure to the virus. The trial court granted the motion.

{¶ 3} In December 2007, the Wards filed a notice of deposition for Donald Ward's surgeon, appellant Robert F. Debski, M.D., who was not a named party to the action. In response to previous discussions regarding the deposition, Debski's attorney sent a letter to the Wards' counsel stating that the doctor would not discuss his own personal medical information but would testify about the surgery he had performed. The Wards refused to limit the scope of the deposition, and Debski filed a motion for a protective order, arguing that the physician-patient privilege protected his right to privacy with regard to his own medical information. The Wards opposed the motion and detailed why they believed that Debski could be the source of exposure. They contended that the physician-patient privilege did not apply, and they explained that they wished to [Ohio St.3d 213] ask Debski (1) whether he has ever had hepatitis B and, if so, (2) when he contracted the disease and (3) how and when he became aware that he had the disease. The trial court granted the protective order, finding that the doctor had standing to assert the physician-patient privilege in testifying as to his own medical information and that there had been no waiver of the privilege.¹

{¶ 4} In the meantime, Summa filed a motion to dismiss because the Wards had not yet filed an affidavit of merit as required by Civ.R. 10(D)(2). The trial court granted the Wards an extension of time to file their affidavit and granted a further extension after their attempt to appeal the protective order was dismissed for lack of a final appealable order.

{¶ 5} On December 2, 2008, Summa filed a second motion to dismiss, arguing that dismissal was appropriate because the Wards had failed to comply with the trial court's order to submit an affidavit of merit. The Wards responded that their effort to obtain an affidavit had been hampered by the trial court's discovery rulings. They contended that their inability to identify the source of the hepatitis B exposure prevented prospective expert witnesses from determining whether the standard of care had been met. The trial court dismissed the case without prejudice based on the Wards' failure to state a claim pursuant to Civ.R. 10(D)(2)(d) and their failure to comply with the court's order under Civ.R. 41(B)(1).

{¶ 6} The court of appeals reversed.² The appellate court examined R.C. 2317.02(B)(1) and determined that “[w]hile Dr. Debski is a physician, the testimony being sought concerns his role as a patient: the Wards do not wish to ask Dr. Debski about his patients or their records; the Wards want to ask Dr. Debski about himself. Nothing in the plain language of the statute prohibits this inquiry. The statute does not prevent patients from testifying. Also, while the Wards seek what clearly could be classified as a ‘communication’ under the statute, they do not seek it from the protected person, the physician; they seek it from an [Ohio St.3d 214] unprotected source, the patient.” Ward v. Summa Health Sys., 184 Ohio App.3d 254, 2009-Ohio-4859, 920 N.E.2d 421, ¶ 25.

{¶ 7} We accepted jurisdiction of Robert Debski's discretionary appeal. ³

II. Legal Analysis

{¶ 8} This case concerns the ability of the Wards to discover information that could lead to the source of Donald Ward's hepatitis B exposure.

A. Discovery in General

{¶ 9} Parties have a right to liberal discovery of information under the Rules of Civil Procedure. See Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 661–662, 635 N.E.2d 331. Discovery may be obtained through “deposition upon oral examination or written questions; written interrogatories; production of documents, electronically stored information, or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.” Civ.R. 26(A). Even though Dr. Debski is not a party, he can be compelled to give a deposition, as any witness in a civil case may be. See Civ.R. 30 and 31.

{¶ 10} The scope of the information that a party may discover is governed by Civ.R. 26(B)(1), which provides:

{¶ 11} “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, electronically stored information, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” (Emphasis added.)

{¶ 12} In this case, the Wards subpoenaed Dr. Debski for deposition and at some point indicated that they intended to ask him about his personal medical information. Debski does not dispute the relevancy of the information sought to the Wards' lawsuit. He nonetheless argues that the Wards are not entitled to discover the information, because it is protected by the physician-patient privilege.

[Ohio St.3d 215] {¶ 13} Ordinarily, a discovery dispute is reviewed under an abuse-of-discretion standard. Tracy v. Merrell Dow Pharmaceuticals, Inc. (1991), 58 Ohio St.3d 147, 151–152, 569 N.E.2d 875. However, if the discovery issue involves an alleged privilege, as in this case, it is a question of law that must be reviewed de novo. Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13.

{¶ 14} We will now examine the scope of the physician-patient privilege.

B. Physician–Patient Privilege—R.C. 2317.02(B)

{¶ 15} The physician-patient privilege did not exist at common law. State Med. Bd. v. Miller (1989), 44 Ohio St.3d 136, 140, 541 N.E.2d 602; Weis v. Weis (1947), 147 Ohio St. 416, 428–429, 34 O.O. 350, 72 N.E.2d 245. Therefore, being in derogation of the common law, any statutory privilege must be strictly construed against the party seeking to assert it and may be applied only to those circumstances specifically named in the statute. Id.

{¶ 16} The General Assembly established the physician-patient privilege in R.C. 2317.02. It states as follows:

{¶ 17} “The following persons shall not testify in certain respects:

{¶ 18} “ * * *

{¶ 19} “(B)(1) A physician or a dentist concerning a communication made to the physician or dentist by a patient in that relation or the physician's or dentist's advice to a patient, except as otherwise provided in this division, division (B)(2), and division (B)(3) of this section, and except that, if the patient 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.

{¶ 20} “ * * *

{¶ 21} “(5)(a) As used in divisions (B)(1) to (4) of this section, ‘communication’ means acquiring, recording, or transmitting any information, in any manner, concerning any facts, opinions, or statements necessary to enable a physician or dentist to diagnose, treat, prescribe, or act for a patient. A ‘communication’ may include, but is not limited to, any medical or dental, office, or hospital communication such as a record, chart, letter, memorandum, laboratory test and results, x-ray, photograph, financial statement, diagnosis, or prognosis.”

{¶ 22} The physician-patient privilege, however, is not absolute. R.C. 2917.02(B) contains a number of exceptions.⁴ For instance, the privilege does not [Ohio St.3d 217] apply when the patient gives express consent to the release of medical information or when the patient places his medical condition in issue by filing a medical claim or wrongful-death action.

{¶ 23} We have previously discussed the purpose behind the physician-patient privilege:

{¶ 24} “A review of the physician-patient privilege found in R.C. 2317.02(B) indicates that the statute has a specific purpose. It is designed to create an atmosphere of confidentiality, which theoretically will encourage the patient to be completely candid with his or her physician, thus enabling more complete treatment. As this court stated in State v. Antill (1964), 176 Ohio St. 61, 64–65, 26 O.O.2d 366, 368, 197 N.E.2d 548, 551, ‘ * * * [t]he purpose of this privilege is to encourage patients to make a full disclosure of their symptoms and conditions to their physicians without fear that such matters will later become public. * * *...