Renne v. Summa Health Sys.

2024 Ohio 5590, 258 N.E.3d 705

• Court: Ohio Court of Appeals
• Decided: November 27, 2024
• Docket: 31046
• Status: Published

Opinion

[Cite as Renne v. Summa Health Sys., 2024-Ohio-5590.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

MICHAEL A. RENNE, as Guardian of the C.A. No. 31046 Estate of L.P., a minor

Appellee APPEAL FROM JUDGMENT v. ENTERED IN THE COURT OF COMMON PLEAS SUMMA HEALTH SYSTEM, et al. COUNTY OF SUMMIT, OHIO CASE No. CV-2020-02-0578 Appellants

DECISION AND JOURNAL ENTRY

Dated: November 27, 2024

CARR, Judge.

{¶1} Defendants-Appellants Summa Health System, Summa Health, and Summa

Physicians, Inc. (collectively “Summa”) appeal the decision of the Summit County Court of

Common Pleas granting a motion to compel. This Court affirms.

I.

{¶2} In the early morning hours of February 12, 2019, O.P., who was pregnant with

L.P., arrived at Summa Health complaining of abdominal pain. An emergent cesarean section was

ordered around 6:00 a.m. and L.P. was born at 6:33 a.m. L.P. was alleged to suffer severe and

permanent injuries related to his delivery and birth.

{¶3} In February 2020, O.P. filed a complaint against Summa and other named

physicians, who have not filed a notice of appeal in this matter. The complaint was subsequently

amended to name Plaintiff-Appellee Michael A. Renne as the Guardian of the Estate of L.P. Later,

O.P. filed a notice of voluntary dismissal of her claims. 2

{¶4} During the course of discovery, Mr. Renne learned that the attending physician

charted that she was not in O.P.’s room when the decision to perform a cesarean section was made,

that the attending physician was dividing her time between two operating rooms, and that the

attending physician was present for the time out and entire procedure performed on O.P. Because

of this, Mr. Renne propounded an interrogatory, which reads:

Identify each instance [the attending physician], on February 12, 2019, signed and/or charted an operative note or progress note indicating she was present for an entire procedure. For each such instance, identify means the time the note was signed, the time the procedure started, the time the incision(s) was made, and the time the procedure ended.

{¶5} Summa Health objected to the interrogatory asserting it was vague, ambiguous,

unclear, overly broad and burdensome, sought irrelevant information, and sought privileged non-

party health information protected by Ohio’s physician-patient privilege and HIPAA. When the

issue could not be resolved between the parties, Mr. Renne filed a motion to compel Summa Health

to respond to the interrogatory. Summa Health and Summa Health System responded in opposition

arguing, inter alia, that the information sought was privileged under the physician-patient privilege

(R.C. 2317.02) and HIPAA. Mr. Renne filed a reply. In February 2024, the trial court issued an

entry granting the motion to compel as follows:

Within fourteen days from the date this order is filed, Defendant shall identify each instance [the attending physician], on February 12, 2019, between 6:00 a.m. and 6:33 a.m., signed and/or charted an operative note or progress note indicating she was present for an entire procedure. For each such instance, identify means the time the note was signed (the contents of the note shall not be disclosed), the time the procedure started (the procedure shall not be identified), the time the first incision(s) was/were made, and the time the procedure ended (the procedure shall not be identified). Defendant shall identify [the attending physician’s] location relevant to the signing/charting and shall not disclose identifying information of the nonparty.

{¶6} Summa has appealed raising a single assignment of error for our review. 3

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY GRANTING PLAINTIFF’S MOTION TO COMPEL DEFENDANTS TO ANSWER INTERROGATORY NO. 33 WHICH REQUIRES THE PRODUCTION OF PERSONAL MEDICAL INFORMATION OF NON-PARTY PATIENTS IN VIOLATION OF [R.C.] 2317.02(B)(1), OHIO’S PHYSICIAN-PATIENT PRIVILEGE, AND THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA)[.]

{¶7} Summa argues in its sole assignment of error that the trial court erred in granting

Mr. Renne’s motion to compel. Summa maintains that the operative or progress note mentioned

in the interrogatory is part of a non-party’s medical record and the information therein is therefore

protected from disclosure by R.C. 2317.02(B)(1) and HIPAA.

Review of Discovery Orders

{¶8} “Parties have a right to liberal discovery of information under the Rules of Civil

Procedure.” Ward v. Summa Health Sys., 2010-Ohio-6275, ¶ 9. The scope of which is governed

by Civ.R. 26(B)(1), which states:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

{¶9} “Ordinarily, a discovery dispute is reviewed under an abuse-of-discretion standard.

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.” (Internal quotations and citations omitted.) Ward at ¶ 13. “The

party claiming the privilege has the burden of proving that the privilege applies to the requested

information.” Giusti v. Akron Gen. Med. Ctr., 2008-Ohio-4333, ¶ 17 (9th Dist.) (involving the 4

peer-review privilege); see also Loparo v. Univ. Hosps. Health Sys., Inc., 2024-Ohio-663, ¶ 9 (8th

Dist.).

Physician-Patient Privilege

{¶10} Because the physician-patient privilege did not exist at common law, it must be

strictly construed against the party seeking to assert it and must only be applied in those situations

set forth in the statute. Ward at ¶ 15.

{¶11} R.C. 2307.02 provides that certain persons shall not testify in certain respects. R.C.

2307.02(B)(1) states, in part, as follows:

A physician, advanced practice registered nurse, or dentist concerning a communication made to the physician, advanced practice registered nurse, or dentist by a patient in that relation or the advice of a physician, advanced practice registered nurse, or dentist given 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 or advanced practice registered nurse may be compelled to testify on the same subject.

Under the statute, “communication” means “acquiring, recording, or transmitting any information,

in any manner, concerning any facts, opinions, or statements necessary to enable a physician,

advanced practice registered nurse, 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.” R.C. 2317.02(B)(5)(a). “Medical

records are generally privileged from disclosure under R.C. 2317.02(B)(1).” (Emphasis added.)

Med. Mut. of Ohio v. Schlotterer, 2009-Ohio-2496, ¶ 14. Nonetheless, the Supreme Court has

“never held that the physician-patient privilege provides absolute protection against the disclosure

of medical information.” Ward, 2010-Ohio-6275, at ¶ 29. “A trial court does not err in granting

a motion to compel discovery when a party claiming privilege fails to demonstrate that the 5

requested health information is a communication between a provider and patient for diagnosis or

treatment or otherwise protected from disclosure.” Loparo at ¶ 22.

{¶12} The interrogatory states:

Identify each instance [the attending physician], on February 12, 2019, signed and/or charted an operative note or progress note indicating she was present for an entire procedure. For each such instance, identify means the time the note was signed, the time the procedure started, the time the incision(s) was made, and the time the procedure ended.

{¶13} This Court does not disagree that the language used is somewhat confusing and

unclear. However, what Mr. Renne sought was further explained in the motion to the compel. Mr.

Renne essentially sought to clarify the attending physician’s whereabouts on the day of L.P.’s birth

by learning the precise times certain events happened during procedures the attending physician

was present for. This was even further narrowed by the trial court’s order which limited the

disclosure to

each instance [the attending physician], on February 12, 2019, between 6:00 a.m. and 6:33 a.m., signed and/or charted an operative note or progress note indicating she was present for an entire procedure. For each such instance, identify means the time the note was signed (the contents of the note shall not be disclosed), the time the procedure started (the procedure shall not be identified), the time the first incision(s) was/were made, and the time the procedure ended (the procedure shall not be identified). Defendant shall identify [the attending physician’s] location relevant to the signing/charting and shall not disclose identifying information of the nonparty.

{¶14} Given the specific facts before us, we cannot say that Summa has met its burden

either in the trial court or on appeal to demonstrate that the information sought to be produced was

privileged. See Giusti, 2008-Ohio-4333, at ¶ 17 (9th Dist.). Specifically, Summa has not explained

how the information constitutes a communication as defined in the statute. While it is true that a

communication “may include” a medical record, R.C. 2317.02(B)(5)(a), first and foremost, a

communication concerns “facts, opinions, or statements necessary to enable a physician, advanced 6

practice registered nurse, or dentist to diagnose, treat, prescribe, or act for a patient.” (Emphasis

added.) Id. Summa has offered no explanation as to how this precise information Summa has

been ordered to provide is or was “necessary to enable a physician, advanced practice registered

nurse, or dentist to diagnose, treat, prescribe, or act for a patient.” Id. Instead, in its response in

opposition in the trial court and on appeal, it merely states that this information is necessary to

treat or act for the non-party patient without offering any explanation as to why that would be the

case. Essentially, it seems Summa would have this Court conclude that if information is contained

in a medical record, the information is privileged. However, that is not what the statute provides.

While there is undoubtedly privileged information contained in medical records, we are unwilling

to summarily conclude that all information in all medical records is privileged given the language

of the statute at issue. Summa is required to demonstrate that the information at issue is privileged,

Giusti at ¶ 17, and in this instance that means demonstrating that the information constitutes a

communication. R.C. 2307.02(B)(5)(a). Notably, “[c]ourts have consistently held that health

information, such as provider names, triage priority data, and time data (ex., triage times, discharge

times, and treatment times), are not privileged because they do not involve communications as

defined in R.C. 2317.02.” Loparo, 2024-Ohio-663, at ¶ 30 (8th Dist.).

HIPAA

{¶15} “The HIPAA Privacy Rule provides to patients certain rights regarding their

protected health information.” Menorah Park Ctr. For Senior Living v. Rolston, 2020-Ohio-6658,

¶ 20; see also Barberton Hosp. v. Hughes, 2013-Ohio-5800, ¶ 12 (9th Dist.) (“The Health

Insurance Portability and Accountability Act of 1996 (HIPAA) governs the confidentiality of

medical records and regulates how covered entities can use or disclose individually identifiable 7

health (medical) information (in whatever form) concerning an individual.”) (Internal quotations

omitted.).

Protected health information means individually identifiable health information:

(1) Except as provided in paragraph (2) of this definition, that is:

(i) Transmitted by electronic media;

(ii) Maintained in electronic media; or

(iii) Transmitted or maintained in any other form or medium.

(2) Protected health information excludes individually identifiable health information:

(i) In education records covered by the Family Educational Rights and Privacy Act, as amended, 20 U.S.C. 1232g;

(ii) In records described at 20 U.S.C. 1232g(a)(4)(B)(iv);

(iii) In employment records held by a covered entity in its role as employer; and

(iv) Regarding a person who has been deceased for more than 50 years.

45 C.F.R. 160.103. Individually identifiable health information

is information that is a subset of health information, including demographic information collected from an individual, and:

(1) Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and

(2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and

(i) That identifies the individual; or

(ii) With respect to which there is a reasonable basis to believe the information can be used to identify the individual.

Id.

{¶16} Summa has offered no explanation as to how the information it is required to

disclose constitutes protected health information, as there is nothing that suggests the information 8

is individually identifiable health information; Summa has not shown that the information will

identify any patient or could be used to identify any patient. Id.; see also Loparo, 2024-Ohio-663,

at ¶ 20 (8th Dist.) Accordingly, Summa has also failed to meet its burden to demonstrate the

material is protected by HIPAA.

{¶17} Summa’s assignment of error is overruled.

III.

{¶18} Summa’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellants.

DONNA J. CARR FOR THE COURT 9

STEVENSON, P. J. HENSAL, J. CONCUR.

APPEARANCES:

GREGORY T. ROSSI, ROCCO D. POTENZA, and EMILY R. YODER, Attorneys at Law, for Appellants.

LISA B. WEINSTEIN, EDWARD J. AUCOIN and JAMES B. PURITZ, Attorneys at Law, for Appellee.

PAMELA PANTAGES, Attorney at Law, for Appellee.