State ex rel. Wallace v. State Medical Board

732 N.E.2d 960, 89 Ohio St. 3d 431
CourtOhio Supreme Court
DecidedAugust 16, 2000
DocketNo. 99-1385
StatusPublished
Cited by68 cases

This text of 732 N.E.2d 960 (State ex rel. Wallace v. State Medical Board) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Wallace v. State Medical Board, 732 N.E.2d 960, 89 Ohio St. 3d 431 (Ohio 2000).

Opinions

Alice Robie Resnick, J.

This case, which the court of appeals characterized as a “complex case involving the interplay of the Public Records Act, the confidentiality provisions of the State Medical Board of Ohio, and similar, but not identical provisions governing the State Department of Insurance” (footnote omitted), raises two separate yet interrelated issues for our consideration. First, we must determine whether the records in question are “public records” within the meaning of R.C. 149.43. If these records are not public records but rather are confidential investigatory materials, then we must determine whether the presence of a nonagent, third party during witness interviews constitutes a waiver of confidentiality in the otherwise privileged material.

I. Confidentiality of Investigatory Records

Ohio’s Public Records Act is codified in R.C. 149.43 et seq. The statute defines “[pjublic record” as “any record that is kept by any public office.” R.C. 149.43(A)(1). The term “public office” includes “any state agency * * * established by the laws of this state for the exercise of any function of government.” R.C. 149.011(A). R.C. 149.43 must be construed liberally in favor of broad access to records kept by public offices, and any doubt is to be resolved in favor of disclosure of the records. State ex rel. Gannett Satellite Info. Network, Inc. v. [434]*434Petro (1997), 80 Ohio St.3d 261, 264, 685 N.E.2d 1223, 1227, citing State ex rel. Gannett Satellite Info. Network, Inc. v. Shirey (1997), 78 Ohio St.3d 400, 401, 678 N.E.2d 557, 559. Additionally, mandamus is the appropriate remedy to compel compliance with R.C. 149.43. R.C. 149.43(C); see, also, State ex rel. Multimedia, Inc. v. Snowden (1995), 72 Ohio St.3d 141, 142, 647 N.E.2d 1374, 1377, citing State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 426, 639 N.E.2d 83, 88-89. With these standards in mind, we now proceed.

A. Medical Board Records

The Medical Board is a “public office” for the purposes of R.C. 149.43. Former R.C. 4731.22(C)(1), the applicable provision governing Medical Board investigations, stated, “Information received by the board pursuant to an investigation shall be confidential and not subject to discovery in any civil action.” 146 Ohio Laws, Part V, 8765. (The current version is codified at R.C. 4731.22[F][5] and is virtually the same.)

In State Med. Bd. of Ohio v. Murray (1993), 66 Ohio St.3d 527, 536, 613 N.E.2d 636, 642-643, we held that information contained in the Medical Board’s records “is to be kept confidential at all times and is not, under any circumstances, * * * discoverable in a civil action.” Based on the plain language employed in R.C. 4731.22, language that we previously deemed a “clear legislative directive,” we hold that the Medical Board’s investigative records are not public records. Id. at 536, 613 N.E.2d at 642.

R.C. 149.43(A)(1) defines “public record” and enumerates exceptions from the definition of “public record” for purposes of the Public Records Act. “Records the release of which is prohibited by state or federal law” are not public records. R.C. 149.43(A)(l)(q), formerly R.C. 149.43(A)(l)(p), 146 Ohio Laws, Part I, 134. In enacting former R.C. 4731.22(C)(1), the General Assembly specifically exempted the Medical Board’s investigative records from disclosure under R.C. 149.43.

Having determined that the Medical Board’s investigative records are not public records within the meaning of R.C. 149.43, we must now determine whether the Medical Board waived its right to confidentiality by allowing Wilson, a third party, to attend witness interviews.

Former R.C. 4731.22(C)(1) mandated that the board “conduct all investigations and proceedings in such a manner as to protect patient confidentiality. The board shall not make public names or other identifying information about patients unless proper consent is given or a waiver of the patient privilege exists” under R.C. 2317.02(B). 146 Ohio Laws, Part V, 8766. (This mandate remains unchanged in the current version of R.C. 4731.22. See R.C. 4731.22[F][5]. Moreover, this current version requires the board to protect confidentiality not only of patients but also of persons who file complaints with the board.) This provision [435]*435contains safeguards designed to protect patient confidentiality in the same manner that the physician-patient privilege protects patient confidences. State Med. Bd. of Ohio v. Miller (1989), 44 Ohio St.3d 136, 138, 541 N.E.2d 602, 604. The court of appeals correctly recognized that by allowing Wilson to attend witness interviews, the Medical Board violated its duty to maintain the confidentiality in the information it gathered. We agree that it was improper for the Medical Board to give a private third party access to this information. Thus, the issue remains whether the Medical Board’s breach of confidentiality constitutes a waiver.

One physician, Dr. Semertzides, authorized the release of information gathered at an interview attended by Wilson. The court of appeals determined that by signing the release Semertzides waived his privilege of confidentiality with regard to information gathered at his interview. Consequently, the court of appeals directed the trial court to release the records pertaining to Semertzides and to withhold any information concerning anyone else whose privacy rights were implicated. The court ordered that all other records should remain confidential because “[wjithout a valid waiver from all persons whose privacy rights are implicated, these records may not be disclosed under, the Public Records Act.”

‘Waiver” is defined as a voluntary relinquishment of a known right. See Chubb v. Ohio Bur. of Workers’ Comp. (1998), 81 Ohio St.3d 275, 278, 690 N.E.2d 1267, 1269, citing State ex rel. Athens Cty. Bd. of Commrs. v. Gallia, Jackson, Meigs, Vinton Joint Solid Waste Mgt. Dist. Bd. of Directors (1996), 75 Ohio St.3d 611, 616, 665 N.E.2d 202, 207. Persons may either expressly or impliedly waive statutory provisions intended for their own benefit, but statutory provisions cannot be waived when they are intended for the benefit of others. See Brannock v. Brannock (1986), 104 N.M. 385, 386, 722 P.2d 636, 637; see, also, State v. Ventura (1999), 101 Ohio Misc.2d 15, 19, 720 N.E.2d 1024, 1027. Moreover, it is a well-settled general principle that no party has the power to waive matters that affect third parties, because the holder of the privilege is the only one who has the power to relinquish it. Id.

Several groups have a privilege of confidentiality in the Medical Board’s investigative files. In re Kralik

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Cite This Page — Counsel Stack

Bluebook (online)
732 N.E.2d 960, 89 Ohio St. 3d 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-wallace-v-state-medical-board-ohio-2000.