Update: On July 18, 2013 the Supreme Court handed down a merit decision in this case. Read the analysis here.

Read the anlalysis of the oral argument here. 

On February 5, 2013, the Supreme Court of Ohio will hear oral argument in the case of Todd Leopold, et al. v. Ace Doran Hauling & Rigging Co., et al., 2012-0438. The issue in this case is whether medical records are privileged in a subsequent lawsuit if they have been previously produced in discovery in a separate, dismissed lawsuit.

Background

This case arises out of a multi-vehicle accident in which Todd Leopold’s vehicle was hit from behind by a semi-tractor trailer driven by Stephen Stillwagon, acting in the course and scope of his employment with Defendant Ace Doran Hauling & Rigging Co. (collectively, Ace). After Leopold’s vehicle was hit, the Ace vehicle struck the rear of Danielle Laurence’s car. Leopold and his wife filed suit against Ace, and joined numerous defendants, including Laurence. Various cross-claims were also filed for indemnity and contribution.

After the accident, Laurence made statements to emergency room medical personnel, contained in her medical records, that suggested she may have caused the accident. Before the Leopolds filed this case, Laurence filed a personal injury action regarding the same accident. As part of the discovery in her own case, Laurence voluntarily produced her medical records, which contained the statements made to emergency personnel. But Laurence then voluntarily dismissed her complaint, which was never re-filed.  And her medical records were never filed in that case before she dismissed it.

In deposition in Leopold’s case, Laurence was questioned about the information contained in her medical records and from the emergency room where she was treated following the accident. Laurence sought a protective order, arguing that any waiver of her medical privilege in her dismissed case did not extend to this one.  She asked the trial court to preclude counsel for any party from utilizing the medical records for any purpose, as they were subject to medical privilege that had not been waived. The motion was denied by the trial court without opinion.

Appellate Decision

In a split decision, the Eighth District Court of Appeals affirmed the trial court, noting that Laurence’s decision to file a personal injury claim against Ace, based upon the same underlying accident, served to waive her physician-patient privilege with respect to that accident.

The dissenting judge would hold that the trial court erred in refusing to grant the protective order.  He noted that because Laurence had not filed the present lawsuit, her medical condition is not at issue in it, and her records cannot be used to impeach her credibility in this case.

Laurence’s Argument

The sole issue on appeal is whether Laurence’s medical records should have been subject to a protective order. Laurence argues that medical records produced in one case cannot be used in a subsequent lawsuit without the express consent of the party who provided records in the initial case. Maintaining confidentiality with respect to medical treatment is a significant interest; an individual must be able to direct the disclosure of her own private information.

Additionally, any claim against Ace Doran by Laurence is one for contribution or indemnity and does not place her medical condition at issue. While the appellate court suggested that redaction might be a proper remedy in such a case, Laurence argues that redaction of personal, identifying information does not remove the privileged status of the records.

Laurence urges the court to uphold the constitutional and statutory right of Ohio residents to have their medical privilege upheld.

In an unusual twist on appeal, the Leopolds submitted a brief in support of Laurence’s position, urging the Court to find that a waiver of patient-physician privilege does not apply to subsequent litigation where the personal injury claimant is a party whose medical condition is not at issue and who did not make her medical records public.  Ace moved to strike this merit brief, arguing that as appellees, the Leopolds are not proper parties to the appeal, did not have standing to argue the issues presented, and cannot assert the physician/patient privilege on Laurence’s behalf.  Since Leopold’s position is adverse to Ace’s, and in support of Laurence’s argument, they should have filed their brief as amicus curiae in support of Laurence.  The Court denied the motion to strike.

Ace’s Argument

Ace argues that Laurence waived any privilege associated with her injuries by filing a civil action against Ace arising out of the crash. Ace posits that because Laurence voluntarily produced her medical record through discovery and by maintaining a cross-claim against Ace Doran in a separate lawsuit, any patient/physician privilege that existed was not worthy of protection under the facts and circumstances of the case. Furthermore, because Laurence did not request or require that her deposition testimony be sealed or designated as confidential after she dismissed her lawsuit against Ace Doran, the document became public.

For these reasons, Ace Doran urges the court to affirm the finding of the Eighth District that Laurence waived any existing privilege.

Laurence’s Proposed Propositions of Law

1.   A party to a lawsuit does not waive the medical privilege with respect to the discovery or use of privileged medical records even when those records were previously produced in a separate lawsuit.

2. Ohio residents have a constitutional and statutory right to have their medical privilege maintained by courts in Ohio.

3. Appellate Districts should not treat a litigant’s medical privilege in the face of this Court’s pronouncement in Hageman v. S. W. Gen. Health Ctr., 2008-Ohio-3343.

 Key Precedent

Hageman v. S.W. Gen. Health Ctr., 119 Ohio St.3d 185, 2008-Ohio-3343.

A patient who releases information in the context of one action is not deemed to have provided an expansive waiver of the privilege in subsequent litigation. Use of confidential medical information which was properly disclosed in one action in a subsequent action without the express consent of the patient is tortious.

Student Contributor: Elizabeth Chesnut