[Cite as Moore v. Ferguson,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

MARY MOORE : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellant : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : Case No. 12CA58 BRENDA FERGUSON, et al. : : : Defendants-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 12CV182

JUDGMENT: REVERSED AND REMANDED

DATE OF JUDGMENT ENTRY: December 10, 2012

APPEARANCES:

For Appellant: For Appellee:

GORDON M. EYSTER MATTHEW P. MULLEN 10 Mansfield Ave. 158 North Broadway Street Shelby, OH 44875 New Philadelphia, OH 44663 [Cite as Moore v. Ferguson,

.]

Delaney, J.

{¶1} Plaintiff-appellant Mary Moore appeals from the June 27, 2012 judgment

entry of the Richland County Court of Common Pleas granting the Motion to Compel

of defendant-appellee Brenda Ferguson.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose on or about February 19, 2010, when appellant crossed

Lind Avenue at the corner of Lind and Glessner Avenues, Mansfield, and was struck

by a vehicle driven by appellee. The vehicle is owned by defendant Richard Ames,

who is not a party to this appeal.

{¶3} Appellant filed a complaint alleging she was injured by the negligence of

appellee; she also asserted claims for negligent entrustment against Ames and

uninsured/underinsured motorists’ benefits against Merchants Insurance Group, a

claim which was later dismissed.

{¶4} Appellant’s cause of action against appellee asserts she has incurred

and expects to incur in the future: medical expenses, medical care and treatment, loss

of wages and other economic loss, severe and permanent pain and suffering, mental

anguish, loss of her capacity to enjoy life and loss of the ability to perform usual daily

functions and activities.

{¶5} Appellee served appellant with Interrogatories and Requests for

Production of Documents. Responses were provided. Appellant’s responses to

relevant interrogatories regarding her medical condition are as follows: Richland County, Case No. 12CA58 3

Q-11. Identify all areas of your body which you claim were injured

as a result of the motor vehicle accident and state whether you

have fully recovered from those injuries.

ANSWER: See medical records which include, right arm; ribs

right side; right leg; right side of neck; left leg and foot; lower back

muscle spasms—still being treated.

Q-15. If you sustained any personal injuries during the ten (10)

years prior to the date of the incident described in the Complaint,

please state the date of the occurrence, the injuries sustained,

and the name and addresses of the doctors treating and/or

examining you for said injuries.

ANSWER: Objection. Without waiving said objection, none.

{¶6} On April 17, 2012, appellee’s counsel acknowledged receipt of

appellant’s discovery responses and requested additional information by letter:

Complete medical records and post accident itemized billing

statements from:

MedCentral Health System

Mustafa Garbadawala, M.C.

Scot Wilging, D.C.

Mansfield Fire Department

Orthopaedic Spine and Sports Medicine Institute/Michael Viau,

M.C.

Post accident itemized billing statements from: Richland County, Case No. 12CA58 4

Mansfield Neurology, Inc.

Complete medical records from:

Meijer Pharmacy

MedCentral Wellness Complex

{¶7} The April 17, 2012 letter noted it was to be considered a Civ.R. 34

request for production of documents in the event appellant did not agree to provide

signed authorizations. The letter was accompanied by an “Authorization for Release

of Protected Health Information,” made out to each provider noted above, to be signed

by appellant. The pertinent portions of the form note:

PROTECTED HEALTH INFORMATION TO BE DISCLOSED:

1. I authorize all information in my medical record from first date

of treatment/evaluation to present and an itemized billing

statement (showing all charges, payments, and/or

writeoffs/adjustments) for any services rendered from February

19, 2010 to the present to be disclosed according to the terms of

this authorization. (Emphasis in original.)

INITIAL ONE OF THE FOLLOWING:

I consent to the disclosure of any information pertaining to alcohol

abuse, drug abuse, psychiatric condition, any condition related to

sexually transmitted disease and/or HIV (Human

Immunodeficiency Virus) and AIDS (Acquired Immune Deficiency

Syndrome). Richland County, Case No. 12CA58 5

{¶8} The above paragraph was already initialed on the form provided to

appellant.

{¶9} On May 11, 2012, appellant’s counsel responded:

I am in receipt of your correspondence dated April 17, 2012 in

regard to your request for additional medical records and itemized

billing statements. I believe I previously provided you with a

complete copy of all medical records and billing statements from

all the providers that you listed. Please advise what documents

and billing statements that you believe to be missing and I will be

more than happy to retrieve the same.

{¶10} On May 17, 2012, appellee’s counsel sent a second request for the

signed authorizations or complete medical records as described above. On May 25,

2012, appellee’s counsel sent a third request.

{¶11} On June 14, 2012, appellee filed a Motion to Compel, requesting

appellant to provide the signed authorizations or complete medical records as

described above within 7 days.

{¶12} On June 22, 2012, appellant filed a “Memorandum in Opposition to

Defendant’s, Brenda Ferguson, Motion to Compel, with Request for Protective Order

and Legal Fees and Costs (With Request for Hearing, if Necessary),” arguing

“[Appellant] supplied [appellee] with all of the requested records and billing statements

as requested in [appellee’s] correspondence and is at a loss as to what documents

[appellee] is seeking.” Further, Richland County, Case No. 12CA58 6

[Appellant] has not waived any privileged communication relating

to her medical history which is not related to this accident. Should

[appellee] wish to obtain medical records for unrelated items, they

must meet certain burdens which they have completely failed to

meet. These items requested are not reasonably calculated to

lead to admissible evidence. [Appellee] has not attempted to

show how these requests are admissible. Requiring [appellant] to

execute a blank medical authorization is overbroad and would

clearly reveal privileged communications in violation of R.C.

2317.02, because it is beyond the scope of the injuries sought to

be compensated for in this action. Accordingly, [appellant]

requests the [trial court] to deny [appellee’s] motion to compel and

further issue a protective order pursuant to Civ.R. 26(C),

protecting [appellant] from the need to produce all other medical

records and bills not associated with the injuries and similar body

parts injured in the accident which is the subject matter of this

lawsuit.

{¶13} Appellant also filed a “Notice of Filing Records Under Seal” containing

copies of appellant’s response to appellee’s first set of interrogatories and request for

production of documents.

{¶14} On June 27, 2012, the trial court issued its Judgment Entry granting

appellee’s motion to compel and ordering appellant to provide the signed

authorizations or complete records and bills within 7 days of the entry. Richland County, Case No. 12CA58 7

{¶15} Appellant now appeals from the decision of the trial court granting

appellee’s motion to compel.

{¶16} Appellant raises four Assignments of Error:

{¶17} “I. THE TRIAL COURT ERRED BY GRANTING THE MOTION OF

DEFENDANT, BRENDA FERGUSON, TO COMPEL DISCOVERY OF PLAINTIFF’S

COMPLETE MEDICAL RECORDS FROM FIRST DATE OF

TREATMENT/EVALUATION TO PRESENT (NO TIME LIMITATION), INCLUDING

PRIVILEGED MEDICAL RECORDS. (ORDER GRANTING MOTION TO COMPEL).”

{¶18} “II. THE TRIAL COURT ERRED BY ORDERING PLAINTIFF TO SIGN

MEDICAL RELEASES PERMITTING DEFENDANT, BRENDA FERGUSON, TO

OBTAIN ALL OF HER MEDICAL RECORDS FIRST DATE OF

TREATMENT/EVALUATION TO PRESENT (NO TIME LIMITATION) INLCUDING

RECORDS THAT ARE PRIVILEGED BECAUSE THEY ARE NOT CAUSALLY AND

HISTORICALLY RELATED TO INJURIES THAT ARE RELEVANT TO ISSUES IN

THIS CASE OR REASONABLY CALCULATED TO LEAD TO ADMISSIBLE

EVIDENCE. (ORDER GRANTING MOTION TO COMPEL).”

{¶19} “III. THE TRIAL COURT ERRED IN ORDERING RELEASE OF ALL OF

PLAINTIFF’S MEDICAL RECORDS DIRECTLY TO COUNSEL FOR DEFENDANT,

BRENDA FERGUSON, WITH NO MECHANISM FOR DETERMINING WHICH

RECORDS WERE PRIVILEGED. (ORDER GRANTING MOTION TO COMPEL).”

{¶20} “IV. THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION

FOR PROTECTIVE ORDER. (ORDER GRANTING MOTION TO COMPEL).” Richland County, Case No. 12CA58 8

{¶21} This case comes to us on the accelerated calendar. App.R. 11.1

governs accelerated-calendar cases and states in pertinent part:

(E) Determination and judgment on appeal.

The appeal will be determined as provided by App.R. 11.1. It shall be

sufficient compliance with App.R. 12(A) for the statement of the reason

for the court’s decision as to each error to be in brief and conclusionary

form.

The decision may be by judgment entry in which case it will not be

published in any form.

{¶22} One of the most important purposes of the accelerated calendar is to

enable an appellate court to render a brief and conclusory decision more quickly than

in a case on the regular calendar where the briefs, facts, and legal issues are more

complicated. Crawford v. Eastland Shopping Mall Assn.,

,

(10th Dist. 1983).

{¶23} This appeal shall be considered with the foregoing rules in mind.

I., II., III., IV.

{¶24} Appellant’s four assignments of error are related and will be considered

together. Appellant asserts the trial court erred by granting the motion to compel and

ordering release of the contested records, and objects to the mechanism by which the

records must be produced.

{¶25} Generally, our standard of review for decisions on motions to compel is

an abuse of discretion standard. Folmar v. Griffin,

, 2006-Ohio-

1849,

(5th Dist. 2006), ¶ 14, citing State ex rel. The V Cos. v. Marshall, Richland County, Case No. 12CA58 9

,

(1998); see also, Thompson v. Chapman,

,

,

(5th Dist. 2008); Binkley v.

Allen, 5th Dist. No. 2000CA00160,

; Bogart v. Blakely, 2nd Dist. No.

2010 CA 13,

; but see, Wagner v. Dennis, 5th Dist. No. 11-COA-050,

[“The issue of whether the information sought

is…privileged…should be reviewed de novo.”] Because this case turns on the

physician-patient privilege, our review is de novo. See also, Wooten v. Westfield Ins.

Co.,

-Ohio-494.

{¶26} Parties may obtain discovery regarding any matter, not privileged, which

is relevant to the subject matter involved in the pending action. Civ.R. 26(B)(1). It is

not ground for objection that the information sought will be inadmissible at trial as long

as the information appears reasonably calculated to lead to the discovery of

admissible evidence.

Communications between a physician and patient, however,

are generally privileged. See R.C. 2317.02(B)(1). If a patient files a civil action, the

testimonial privilege is lifted to a certain extent. See R.C. 2317.02(B)(1)(a)(iii). A

physician may be compelled to testify or submit to discovery only as to

communications that are “related causally or historically to physical or mental injuries

that are relevant to issues” in the civil action. R.C. 2317.02(B)(3)(a).

{¶27} Because the physician-patient privilege is statutory and in derogation of

the common law, it must be strictly construed against the party seeking to assert it.

Wargo v. Buck,

,

(7th Dist. 1997), citing

Ohio State Med. Bd. v. Miller,

,

(1989). The

purpose of the privilege is to encourage patients to be completely candid with their Richland County, Case No. 12CA58 10

doctors, resulting in better treatment and permitting patients to be free of the worry

that information told to their doctors in private may someday be made public.

{¶28} The waiver of the physician-patient privilege was introduced by the Ohio

Tort Reform Act of 1987, and its rationale is “to prevent patients from filing personal

injury actions and then using the privilege to avoid responding to discovery requests.”

, citing Robert A. Wade, Note, The Ohio

Physician-Patient Privilege: Modified, Revised, and Defined, 49 Ohio St.L.J. 1147,

1157 (1989) [“If the physical condition of the patient is at issue in a case, it would be a

burlesque upon logic to allow the patient to claim the privilege.”].

{¶29} If the records are covered by R.C. 2317.02(B) and waiver of the privilege

applies, the trial court must determine whether the records are related causally or

historically to physical or mental injuries relevant to the issues in this case.

.

{¶30} Appellant argues the medical records requested by appellee are

privileged to the extent appellee seeks “an authorization for release of all of

[appellant’s] medical records for her entire lifetime (including records of sexually

transmitted diseases, AIDS, and 11W (sic), mental health services, and alcohol and

drug abuse treatment.” Appellant further argues such records are not related causally

or historically to physical or mental injuries appellant complains of.

{¶31} Evidence in the limited record before us does not demonstrate appellant

has waived the privilege, certainly as it relates to any records of sexually-transmitted

diseases and the like. The record does not appear to put such conditions at issue, nor Richland County, Case No. 12CA58 11

does it “contain sufficient facts from which we could conclude that a judicially created

waiver might be appropriate.”

.

{¶32} Upon further development and discovery, appellant’s mental health

records may or may not be relevant. Pursuant to our decisions in Folmar and

we find the trial court erred in not conducting an in camera

inspection of the records before ordering them to be disclosed.

. If the trial court finds a record is a medical document, the court must determine

whether it is related causally or historically to physical or mental injuries relevant to the

instant case. Only those records which meet the definition under R.C. 2317.02(B)

should be released.

{¶33} Appellee points out that appellant makes her claim of privilege before

she has even obtained the requested records, and we agree it is premature to seek a

declaration of privilege on records that have yet to be produced. Pursuant to Civ.R.

26(B)(6)(a), “[w]hen information subject to discovery is withheld on a claim that it is

privileged, the claim shall be made expressly and shall be supported by a description

of the nature of the documents, communications, or things not produced that is

sufficient to enable the demanding party to contest the claim.”

{¶34} We note we have reviewed the CD in the record of the documents

submitted under seal to the trial court; the records are voluminous and in general

terms appear contain at least some of the records requested by appellee, including,

e.g., reports of MedCentral Health System, Mustafa Garbadawala, M.D., Scot Wilging,

D.C., Orthopaedic Spine and Sports Medicine Institute, and MedCentral Wellness Richland County, Case No. 12CA58 12

Complex. It also appears that at least some of the records requested by appellee are

not contained in the documents provided, if in fact such records exist.

{¶35} In light of the early stage of this case, we find the advisable practice is

for appellant to submit the requested records along with a privilege log to the trial

court for in camera review. See, Wooten, supra, ¶17 (a trial court has the inherent

authority to regulate discovery and can order an in camera inspection of hospital

records without a request to do so to protect privileged medical records).

{¶36} We are mindful of the fact that the in camera review may be burdensome

for the trial court, and it is impractical to an extent to expect the court to parse through

the records and speculate as to their potential relevance when the issues in the case

are not yet fully developed. Bogart, supra,

at ¶ 70 (“Prior to trial, it is

unreasonable and impractical to require a trial judge to attempt to determine whether a

plaintiff’s extensive medical history is relevant to the underlying action….”). The

preparation of a privilege log, therefore, places the onus back upon appellant, as is

her burden, to demonstrate which of the records, once produced, are not causally or

historically related. See, Hartzell v. Breneman, 7th Dist. No. 10 MA 67, 2011-Ohio-

2472; Patterson v. Zdanski, 7th Dist. No. 03BE1,

. Richland County, Case No. 12CA58 13

{¶37} For the foregoing reasons, the judgment of the Richland County Court of

Common Pleas is reversed and remanded for further proceedings consistent with this

opinion.

By: Delaney, P.J.

Farmer, J. and

Wise, J. concur.

HON. PATRICIA A. DELANEY

HON. SHEILA G. FARMER

HON. JOHN W. WISE

PAD:kgb [Cite as Moore v. Ferguson,

.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

MARY MOORE : : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : BRENDA FERGUSON, et al. : : : Case No. 12CA58 Defendants-Appellee :

For the reasons stated in our accompanying Opinion on file, the judgment of the

Richland County Court of Common Pleas is reversed and remanded. Costs assessed

to Appellee.

HON. PATRICIA A. DELANEY

HON. SHEILA G. FARMER

HON. JOHN W. WISE