State ex rel. Floyd v. Court of Common Pleas

377 N.E.2d 794, 55 Ohio St. 2d 27, 9 Ohio Op. 3d 16, 1978 Ohio LEXIS 609

• Court: Ohio Supreme Court
• Decided: July 5, 1978
• Docket: No. 77-1049
• Status: Published

Opinion

Per Curiam.

The conditions which must exist to support the issuance of a writ of prohibition are: (1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) it must appear that the refusal of the writ would result in injury for which there is no other adequate remedy. State, ex rel. Glass, v. Brown (1977), 52 Ohio St. 2d 7.

Eelators’ position is that a party bringing suit for personal injuries may not be compelled to disclose privileged medical information by giving opposing counsel authority to investigate medical information prior to a waiver of the physician-patient privilege.

It is clear that such privilege has not been waived. A party does not waive the physician-patient privilege accorded to him by R. C. 2317.02(B) merely by filing suit and claiming personal injuries arising from an accident.

Eelators are seemingly confusing waiver with disclosure of privileged information. Until a waiver occurs, defense counsel may not use the information at trial.

Eespondent judge issued his order pursuant to Civ. E. 16, which states in part:

“A court may adopt rules concerning pretrial procedure to accomplish the following objectives:

“(6) The exchange of medical reports and hospital records;

u# ft *

“The producing by any party of medical reports or hospital records does not constitute a waiver of the privilege granted under Section 2317.02, Bevisde Code.” (Emphasis added.)

Local Eule 2.21(C) reflects this grant of authority by providing that in a pre-trial order the court may order the “exchange [of] medical reports and hospital records.”

The above-emphasized portion of Civ. E. 16 creates a distinction between a court-ordered disclosure and the use at trial or discovery

* of that information.

Eelators have not demonstrated that respondent’s order was unauthorized by law. Therefore, a writ of prohibition will not lie, and it is hereby denied.

Writ denied.

O’Neill, C. J., Herbert, Celebrezze, W. Brown, P. Brown, Saveeney and Locher, JJ., concur.

Civ. R. 26(B)(1), relating to discovery, states that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant * * *.” (Emphasis added.)