[Cite as Harvey v. Cincinnati Ins. Co., 2017-Ohio-9226.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
CAROLYN HARVEY, et al. : : Plaintiffs-Appellees : Appellate Case No. 27470 : v. : Trial Court Case No. 15-CV-5655 : 15-CV-5712 THE CINCINNATI INSURANCE : COMPANY, et al. : (Civil Appeal from : Common Pleas Court) Defendants-Appellant :
...........
OPINION
Rendered on the 22nd day of December, 2017.
JEFFREY SNEAD, Atty. Reg. No. 0063416, 8997 Springboro Pike, Miamisburg, Ohio 45342 Attorney for Plaintiff-Appellee Carolyn Harvey
PAUL RODERER, Atty. Reg. No. 0019707, 4 E. Schantz Avenue, Dayton, Ohio 45409 Attorney for Plaintiff-Appellee Barbara Petersen
NICHOLAS SUBASHI, Atty. Reg. No. 0033953 and ANNE KEETON, Atty. Reg. 0076811, The Greene Towne Center, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440 Attorney for Defendant-Appellant Donald Hartman
.............
HALL, P.J. -2-
{¶ 1} Defendant Donald Hartman appeals a discovery order requiring him to sign
medical authorizations for release of medical records relating to his eyesight to counsel
for one of the plaintiffs and allowing counsel to inquire further about his eyesight. We
conclude that the release order is overbroad. And we conclude that there is not enough
information in the record to decide whether allowing further inquiry about Hartman’s
eyesight is justified. Consequently we vacate the discovery order.
I. Background
{¶ 2} In June 2014, around 7:40 p.m., Donald Hartman was driving south on Main
Street, in downtown Dayton. He stopped for a red light at the mid-block crosswalk
between First and Second Streets, near the Schuster Performing Arts Center. It was
raining, and the wind was blowing. When the light turned green, Hartman entered the
crosswalk. Suddenly, he saw two pedestrians on his left. Hartman hit the brakes, but it
was too late. His car had hit Carolyn Harvey and Barbara Petersen. Each woman filed a
personal-injury suit against Hartman, claiming negligence. The cases were later
consolidated.
{¶ 3} Hartman was deposed by counsel for Harvey in September 2016. A couple
of months before the deposition, Hartman had had eye surgery to remove cataracts.
During the deposition, counsel asked Hartman about his eyesight and medical history.
Hartman’s attorney instructed him not to answer some of the questions. Later, at an in-
chambers conference in February 2017, Harvey’s counsel raised the issue of Hartman’s
eyesight and orally moved for an order requiring Hartman to sign authorizations allowing
counsel to obtain his medical records related to his vision. The trial court sustained the
motion and ordered Hartman to sign medical-release authorizations allowing Harvey’s -3-
counsel to acquire his medical records related to the diagnosis and treatment of his
eyesight from July 18, 2013, to the present. The court also ordered that “if necessary,
Plaintiff’s counsel is allowed to inquire further regarding Defendant’s eyesight after receipt
of the subject records.”
{¶ 4} Hartman appealed.
II. Analysis
{¶ 5} The sole assignment of error alleges that the trial court erred by ordering
Hartman to sign the medical-release authorizations and erred by permitting further inquiry
into his eyesight.
{¶ 6} While as a general matter discovery orders are not final and appealable, a
proceeding for “discovery of privileged matter” is a “provisional remedy,” R.C.
2505.02(A)(3), the granting or denying of which is final and appealable if the order “in
effect determines the action with respect to the provisional remedy and prevents a
judgment in the action in favor of the appealing party with respect to the provisional
remedy,” R.C. 2505.02(B)(4), and “[t]he appealing party would not be afforded a
meaningful or effective remedy by an appeal following final judgment,” id. An order
requiring the release of privileged information in discovery determines the action with
respect to a provisional remedy and, because the privileged information has already been
released, prevents the appealing party from obtaining an effective remedy following final
judgment. “In this situation, the proverbial bell cannot be unrung.” Randall v. Cantwell
Mach. Co., 10th Dist. Franklin No. 12AP-786, 2013-Ohio-2744, ¶ 7. So to the extent that
the discovery order here requires Hartman to grant a release of his medical records that
is, or could lead to the production of privileged information, it is a final and appealable -4-
order. See id. at ¶ 8 (concluding that an order granting the appellee’s motion to compel
the appellant to sign a medical release and denying a protective order constituted a final
and appealable order).
{¶ 7} “Ordinarily, a discovery dispute is reviewed under an abuse-of-discretion
standard.” (Citation omitted.) Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-
Ohio-6275, 943 N.E.2d 514, ¶ 13. But “if the discovery issue involves an alleged privilege,
as in this case, it is a question of law that must be reviewed de novo.” (Citation omitted.)
Ward at ¶ 13.
{¶ 8} Civ.R. 26(B) states that “[p]arties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved in the pending action.”
“Medical records are generally privileged from disclosure under R.C. 2317.02(B)(1),”
known as the physician-patient privilege. (Citation omitted.) Med. Mut. of Ohio v.
Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 14. The statute
states that a “physician, advanced practice registered nurse, or dentist” cannot “testify”
about a “communication” made to one of those people. R.C. 2317.02(B)(1). The definition
of “communication” includes medical records. R.C. 2317.02(B)(5)(a).
{¶ 9} The disputed discovery order here (Doc. 65, 15-CV-5712) states, in full:
On September 8, 2016, Plaintiff’s Counsel took the deposition of
Defendant Donald Hartman. During the deposition, Plaintiff’s counsel
certified three questions regarding Defendant Hartman’s medical history as
it pertains to his eyesight. Defendant’s counsel instructed the witness not to
answer those questions or any other questions regarding his medical
history. -5-
In chambers on February 3, 2017, Plaintiff’s counsel made an oral
motion for a ruling on the certified questions and further requested access
to Defendant Hartman’s medical records concerning his eyesight.
Upon due consideration and after arguments of counsel, the Court
hereby ORDERS the following:
1) Defendant Hartman sign medical release authorizations allowing
Plaintiff’s counsel to acquire his medical records for diagnosis and
treatment of his eyesight for the period encompassing July 18, 2013 to
present.
2) If necessary, Plaintiff’s counsel is allowed to inquire further regarding
Defendant’s eyesight after receipt of the subject records.
{¶ 10} We conclude that the release order is overbroad. The medical-release
authorization referred to in the order is not in the record. But it seems likely that at least
some of the medical records covered by the order are protected under R.C. 2317.02. For
example, if an ophthalmologist performed Hartman’s cataract surgery, the
ophthalmologist’s records are protected, because an ophthalmologist is a “physician.” But
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[Cite as Harvey v. Cincinnati Ins. Co., 2017-Ohio-9226.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
CAROLYN HARVEY, et al. : : Plaintiffs-Appellees : Appellate Case No. 27470 : v. : Trial Court Case No. 15-CV-5655 : 15-CV-5712 THE CINCINNATI INSURANCE : COMPANY, et al. : (Civil Appeal from : Common Pleas Court) Defendants-Appellant :
...........
OPINION
Rendered on the 22nd day of December, 2017.
JEFFREY SNEAD, Atty. Reg. No. 0063416, 8997 Springboro Pike, Miamisburg, Ohio 45342 Attorney for Plaintiff-Appellee Carolyn Harvey
PAUL RODERER, Atty. Reg. No. 0019707, 4 E. Schantz Avenue, Dayton, Ohio 45409 Attorney for Plaintiff-Appellee Barbara Petersen
NICHOLAS SUBASHI, Atty. Reg. No. 0033953 and ANNE KEETON, Atty. Reg. 0076811, The Greene Towne Center, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440 Attorney for Defendant-Appellant Donald Hartman
.............
HALL, P.J. -2-
{¶ 1} Defendant Donald Hartman appeals a discovery order requiring him to sign
medical authorizations for release of medical records relating to his eyesight to counsel
for one of the plaintiffs and allowing counsel to inquire further about his eyesight. We
conclude that the release order is overbroad. And we conclude that there is not enough
information in the record to decide whether allowing further inquiry about Hartman’s
eyesight is justified. Consequently we vacate the discovery order.
I. Background
{¶ 2} In June 2014, around 7:40 p.m., Donald Hartman was driving south on Main
Street, in downtown Dayton. He stopped for a red light at the mid-block crosswalk
between First and Second Streets, near the Schuster Performing Arts Center. It was
raining, and the wind was blowing. When the light turned green, Hartman entered the
crosswalk. Suddenly, he saw two pedestrians on his left. Hartman hit the brakes, but it
was too late. His car had hit Carolyn Harvey and Barbara Petersen. Each woman filed a
personal-injury suit against Hartman, claiming negligence. The cases were later
consolidated.
{¶ 3} Hartman was deposed by counsel for Harvey in September 2016. A couple
of months before the deposition, Hartman had had eye surgery to remove cataracts.
During the deposition, counsel asked Hartman about his eyesight and medical history.
Hartman’s attorney instructed him not to answer some of the questions. Later, at an in-
chambers conference in February 2017, Harvey’s counsel raised the issue of Hartman’s
eyesight and orally moved for an order requiring Hartman to sign authorizations allowing
counsel to obtain his medical records related to his vision. The trial court sustained the
motion and ordered Hartman to sign medical-release authorizations allowing Harvey’s -3-
counsel to acquire his medical records related to the diagnosis and treatment of his
eyesight from July 18, 2013, to the present. The court also ordered that “if necessary,
Plaintiff’s counsel is allowed to inquire further regarding Defendant’s eyesight after receipt
of the subject records.”
{¶ 4} Hartman appealed.
II. Analysis
{¶ 5} The sole assignment of error alleges that the trial court erred by ordering
Hartman to sign the medical-release authorizations and erred by permitting further inquiry
into his eyesight.
{¶ 6} While as a general matter discovery orders are not final and appealable, a
proceeding for “discovery of privileged matter” is a “provisional remedy,” R.C.
2505.02(A)(3), the granting or denying of which is final and appealable if the order “in
effect determines the action with respect to the provisional remedy and prevents a
judgment in the action in favor of the appealing party with respect to the provisional
remedy,” R.C. 2505.02(B)(4), and “[t]he appealing party would not be afforded a
meaningful or effective remedy by an appeal following final judgment,” id. An order
requiring the release of privileged information in discovery determines the action with
respect to a provisional remedy and, because the privileged information has already been
released, prevents the appealing party from obtaining an effective remedy following final
judgment. “In this situation, the proverbial bell cannot be unrung.” Randall v. Cantwell
Mach. Co., 10th Dist. Franklin No. 12AP-786, 2013-Ohio-2744, ¶ 7. So to the extent that
the discovery order here requires Hartman to grant a release of his medical records that
is, or could lead to the production of privileged information, it is a final and appealable -4-
order. See id. at ¶ 8 (concluding that an order granting the appellee’s motion to compel
the appellant to sign a medical release and denying a protective order constituted a final
and appealable order).
{¶ 7} “Ordinarily, a discovery dispute is reviewed under an abuse-of-discretion
standard.” (Citation omitted.) Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-
Ohio-6275, 943 N.E.2d 514, ¶ 13. But “if the discovery issue involves an alleged privilege,
as in this case, it is a question of law that must be reviewed de novo.” (Citation omitted.)
Ward at ¶ 13.
{¶ 8} Civ.R. 26(B) states that “[p]arties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved in the pending action.”
“Medical records are generally privileged from disclosure under R.C. 2317.02(B)(1),”
known as the physician-patient privilege. (Citation omitted.) Med. Mut. of Ohio v.
Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 14. The statute
states that a “physician, advanced practice registered nurse, or dentist” cannot “testify”
about a “communication” made to one of those people. R.C. 2317.02(B)(1). The definition
of “communication” includes medical records. R.C. 2317.02(B)(5)(a).
{¶ 9} The disputed discovery order here (Doc. 65, 15-CV-5712) states, in full:
On September 8, 2016, Plaintiff’s Counsel took the deposition of
Defendant Donald Hartman. During the deposition, Plaintiff’s counsel
certified three questions regarding Defendant Hartman’s medical history as
it pertains to his eyesight. Defendant’s counsel instructed the witness not to
answer those questions or any other questions regarding his medical
history. -5-
In chambers on February 3, 2017, Plaintiff’s counsel made an oral
motion for a ruling on the certified questions and further requested access
to Defendant Hartman’s medical records concerning his eyesight.
Upon due consideration and after arguments of counsel, the Court
hereby ORDERS the following:
1) Defendant Hartman sign medical release authorizations allowing
Plaintiff’s counsel to acquire his medical records for diagnosis and
treatment of his eyesight for the period encompassing July 18, 2013 to
present.
2) If necessary, Plaintiff’s counsel is allowed to inquire further regarding
Defendant’s eyesight after receipt of the subject records.
{¶ 10} We conclude that the release order is overbroad. The medical-release
authorization referred to in the order is not in the record. But it seems likely that at least
some of the medical records covered by the order are protected under R.C. 2317.02. For
example, if an ophthalmologist performed Hartman’s cataract surgery, the
ophthalmologist’s records are protected, because an ophthalmologist is a “physician.” But
it does not appear that the records of a separate optometrist or optician are protected.1
The statute expressly states that the physician-patient privilege applies only to “doctors
of medicine, doctors of osteopathic medicine, doctors of podiatry, advanced practice
registered nurses, and dentists.” R.C. 2317.02(B)(6). See State v. Whitaker, 3d Dist.
1 The privilege accorded to a physician’s records would likely extend to the records generated by the care providers who are employees or contractors of the physician’s office. -6-
Auglaize No. 2-79-16, 1980 WL 351960, *7 (May 8, 1980) (concluding that the physician-
patient privilege statute in effect at that time did not apply to optometrists).
{¶ 11} As to the order allowing further questioning about Hartman’s eyesight, the
Ohio Supreme Court held in Ward v. Summa Health System that “R.C. 2317.02(B) does
not protect a person from having to disclose his or her own medical information when that
information is relevant to the subject matter involved in a pending civil action.” Ward, 128
Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, at ¶ 27. “[N]othing in the statute,” said
the Court, “gives a patient the right to refuse to testify about his or her own medical
information.” (Emphasis sic.) Id. at ¶ 26. Here, the record before us does not allow proper
review of the order allowing Plaintiffs to question Hartman about his eyesight. Neither
Hartman’s deposition nor a transcript from the in-chambers conference is in the record.
Copies of the deposition attached to a brief are not properly before us and we know not
whether it was presented to, or considered by, the trial court. Nor can we discern the trial
court’s rationale for its discovery-order decisions. Consequently, we cannot tell what
information about Hartman’s eyesight the plaintiffs seek or whether it is protected
communications from, or records of, a provider to whom the privilege applies.
{¶ 12} The sole assignment of error is sustained.
III. Conclusion
{¶ 13} The trial court’s order is vacated, and this case is remanded for further
proceedings. On remand, the trial court may compel Hartman to authorize the release
only of non-privileged information or records. And if the court permits further questioning
about Hartman’s eyesight, it should be limited so that it does not allow inquiry into
communications from, or records of, a provider to whom the privilege applies. -7-
DONOVAN, J. and TUCKER, J., concur.
Copies mailed to:
Jeffrey Snead Paul Roderer Nicholas Subashi Anne Keeton Lance Oliver Brian McHenry Hon. Timothy N. O’Connell