Update: On June 18,2020 the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On February 11, 2020, the Supreme Court of Ohio will hear oral argument in Belinda J. Torres Friedenberg v. Keith A. Friedenberg et al., 2019-0416. At issue in this case is whether a party’s request for custody and spousal support in the context of divorce proceedings constitutes a waiver of the physician-patient privilege as to relevant medical and mental health records.

Case Background

Belinda J. Torres Friedenberg (“Belinda”) and Keith A. Friedenberg (“Keith”) were married in June 1991 and had four children during their marriage. On March 7, 2016, Belinda filed for divorce and requested custody of the parties’ minor children and spousal support. Keith issued numerous subpoenas to Belinda’s doctors and mental health providers, seeking medical records and documents relating to their treatment of Belinda. Belinda filed a motion to quash these subpoenas and a motion for a protective order, claiming that her medical records were protected by the physician-patient privilege. Keith sought to compel the records, arguing that Belinda’s claims for custody and spousal support constituted exceptions to the physician-patient privilege. Lake County Domestic Relations Magistrate Dorothy H. Lee denied Belinda’s motions and ordered that the disputed records be presented to the court. Judge Colleen A. Falkowski of the Lake County Domestic Relations Court upheld the magistrate’s recommendation over Belinda’s objection.

On May 10, 2017, Keith filed a motion to compel discovery, claiming that Dr. Anna Janicki of the Cleveland Psychoanalytic Center had not responded to the prior subpoena. Magistrate Lee concluded that Dr. Janicki’s records were relevant to the proceedings and ordered that Keith draft a protective order limiting the dissemination of Belinda’s records to counsel, the parties, and experts in the case. On November 1, 2017, Judge Falkowski held that Belinda had waived the physician-patient privilege because she had placed her physical and mental condition at issue by requesting custody and spousal support. Judge Falkowski granted Keith’s motion to adopt the protective order and ordered that Dr. Janicki’s records be released to counsel.

Belinda appealed, arguing that the trial court erred as a matter of law and abused its discretion in ordering the release of her personal and confidential medical records.

The Appeal

In a split decision, authored by Judge Diane V. Grendell, and joined by Judge Cynthia W. Rice, the Eleventh District Court of Appeals affirmed the trial court’s judgment.

The majority found that the trial court did not err in ordering the release of Belinda’s medical records because Belinda waived the physician-patient privilege by seeking custody and spousal support.

Judge Colleen M. O’Toole dissented. She would find that the trial court abused its discretion in ordering the release of Belinda’s medical records because Belinda’s medical records were not relevant to Belinda’s ability to parent the parties’ children or Belinda’s request for spousal support.

Votes to Accept the Case

Yes: Justices French, DeWine, Donnelly, and Stewart

No: Chief Justice O’ Connor and Justices Kennedy and Fischer

Belinda’s Propositions of Law Accepted for Review

Proposition of Law 1

A party’s request for allocation of parental rights and responsibilities  does not constitute a complete evisceration of the physician-patient privilege under R.C. 3217.02(B) [sic.] (Belinda appears to be referring to R.C. 2317.02(B)).

Proposition of Law 2

A party’s request for spousal support does not constitute a complete abrogation of the physician-patient privilege under R.C. 3217.02(B) [sic.]  (Belinda appears to be referring to R.C. 2317.02(B)).

Key Statutes and Precedent

R.C. 2317.02(B)(1) (A physician is permitted to testify against a patient and/or provide medical records under certain exceptions.)

R.C. 3105.18(C)(1)(c) (A court shall consider the ages and the physical, mental, and emotional conditions of the parties in determining whether spousal support is appropriate and reasonable.)

R.C. 3109.04(C) (Prior to a trial regarding the allocation of parental rights and responsibilities in a child custody dispute, a court may cause an investigation to be made as to the character, family relations, past conduct, earning ability, and financial worth of each parent and may order the parents and their minor children to submit to medical, psychological, and psychiatric examinations.)

R.C. 3109.04(F)(1)(e) (A court shall consider the mental and physical health of all persons involved in the situation when determining the best interest of the child for the purposes of allocating parental rights and responsibilities in a child custody dispute.)

R.C. 4732.19 (The confidential relations and communications between a licensed psychologist and client are placed upon the same basis as those between physician and patient under R.C. 2317.02 (B).)

Gill v. Gill, 2003-Ohio-180 (8th Dist.) (Under R.C. 2317.02, the filing of any civil action by a patient waives the physician-patient privilege as to any communication that relates causally or historically to the physical or mental conditions put at issue by such civil action.)

Schill v. Schill, 2004-Ohio-5114 (11th Dist.) (A party seeking child custody agrees to submit to an investigation of all relevant factors, including mental health.)

Sweet v. Sweet, 2005-Ohio-7060 (11th Dist.) (In general, a person’s medical records are privileged and, thus, undiscoverable.)

Hageman v. Southwest General Health Center, 2008-Ohio-3343 (A parent puts his health at issue in a divorce action by seeking custody of his minor children and, thereby, waives his physician-patient privilege for the purposes of that case.)

In re Kelleher, 2009-Ohio-2960 (7th Dist.) (When a parent files an action seeking child custody, she places her mental and physical condition at issue for the trial court to consider.)

Cireddu v. Clough, 2014-Ohio-2454 (11th Dist.) (A trial court has broad discretion in regulating the discovery process and, thus, a trial court’s decision on discovery matters will only be reversed for an abuse of discretion.)

Higbee v. Higbee, 2014-Ohio-954 (2nd Dist.) (When a party moves for spousal support, a trial court does not abuse its discretion by finding that health information is relevant to spousal-support issues and that the information is not protected by the physician-patient privilege.)

Belinda’s Argument

This Court should reverse the Eleventh District’s complete abolishment of the physician-patient privilege in divorce proceedings involving child custody and spousal support. The potential disclosure of mental health records will dissuade individuals from seeking mental health treatment and will prevent the development of the open and honest physician-patient relationship that is essential to proper treatment. Courts in this state have a vested interest in preserving the psychologist-patient privilege and promoting mental health treatment for individuals who have mental health problems or who are experiencing traumatic events.

The U.S. Supreme Court has determined that the protection of mental health records is of the utmost importance and that the public policy reasons for preserving the psychologist-patient privilege outweigh the public policy reasons for waiver of the privilege in civil actions. Further, suicide rates in the United States have increased substantially and studies regarding the psychological effects of divorce have revealed that divorced men and women exhibit more symptoms of depression and anxiety, increased substance abuse, and a greater risk of mortality.

A party’s request for custody does not constitute a complete waiver of the physician-patient privilege under R.C. 2317.02(B) where the party’s medical records do not relate to the party’s ability to parent. Belinda did not waive the physician-patient privilege by seeking custody because Belinda’s mental and physical condition has not been called into question as it relates to Belinda’s ability to parent the parties’ children. Keith has never asserted that Belinda has a physical or mental condition that prevents her from properly caring for the children. Additionally, Keith voluntarily entered into a Shared Parenting Plan with Belinda, further indicating that Belinda’s physical and mental ability to parent the children has not been called into question.

Although R.C. 3109.04 requires a trial court to consider the mental and physical health of the parties when determining the best interest of the child in a custody dispute, a complete and absolute waiver of the physician-patient privilege is not necessary for the trial court to engage in this inquiry. In fact, R.C. 2317.02 limits the waiver of the physician-patient privilege only to those communications which are causally or historically related to a mental or physical condition relevant to the custody dispute.

The trial court abused its discretion by ordering the release of all of Belinda’s medical records after determining through an in camera inspection that only some of Belinda’s medical records were relevant to the custody dispute. Belinda has never been treated for a mental health problem that affects her ability to parent her children.  Rather, her mental health records are the product of a psychoanalysis Belinda must undergo as part of her own training to become a psychoanalyst.

A party’s request for spousal support also does not constitute a complete waiver of the physician-patient privilege under R.C. 2317.02(B) where the party’s medical records do not relate to the party’s earning ability. Neither Belinda nor Keith have raised any health claims concerning Belinda’s ability to work. Rather, Belinda seeks spousal support due to the substantial difference in the parties’ incomes and the length of the parties’ marriage. Because neither party has claimed that Belinda’s mental or physical health affects her earning ability, Belinda’s medical records are not relevant and, thus, are not subject to discovery.

A party does not waive the physician-patient privilege by asserting mental stability or defending against an allegation of mental instability. A party cannot control the claims made by an opposing party. Thus, allowing a litigant to place the other party’s mental and physical health at issue simply by alleging that the opposing party is mentally unstable would permit a litigant to control the other party’s waiver of the physician-patient privilege and encourage the use of discovery to harass and humiliate opposing parties.

When considering the mental health of the parties in a child custody dispute, a trial court should appoint an independent examiner pursuant to R.C. 3109.04(C) and order the disclosure of mental health records only when the information provided by the independent examiner is inadequate and there is independent evidence of potential harm to the child. Several less intrusive methods of examining the mental health of parties involved in a child custody proceeding, recognized by other states, are available to Ohio trial courts, including ordering a party to submit to a physical or mental examination or appointing a guardian ad litem in order to ensure the best interest of the child. These alternative methods would allow a trial court to ascertain the effect of a party’s mental health on the best interest of the child without breaching the psychologist-patient privilege.

A party’s general testimony regarding diagnosis, treatment, or personal symptoms does not constitute a waiver of the physician-patient privilege because such testimony does not disclose the privileged communications between the mental health professional and the patient that R.C. 2317.02 and R.C. 4732.19 are intended to protect. Further, this Court should adopt the position that the physician-patient privilege can only be waived in spousal support proceedings where the privilege holder has committed to a course of action that requires the disclosure of privileged communications. This approach would prevent litigants, such as Keith, from requesting privileged and confidential medical records solely to intimidate, harass, and embarrass the opposing party. Belinda has not committed to a course of action that requires the disclosure of her mental or physical health records because her request for spousal support is not based on her mental or physical health. Additionally, Keith has failed to identify a specific mental or physical condition that impacts Belinda’s request for spousal support. Rather, Keith’s request for Belinda’s medical records is solely intended to harass and embarrass Belinda.

Keith’s Argument

Belinda waived the physician-patient privilege with respect to her relevant medical records when she sought custody of the parties’ minor children. Ohio courts have consistently held that parents waive the physician-patient privilege with respect to physical and mental health records when seeking custody of their children. In a custody dispute, R.C. 3109.04 places the mental conditions of all family members at issue.

The Eleventh District has twice specifically held that a parent waives the physician-patient privilege by seeking custody. Other Ohio appellate courts have also consistently found that parties waive the physician-patient privilege by seeking custody of minor children and have required the production of relevant medical records in the context of a custody dispute. Other courts around the country have done so as well.

The lower courts’ holdings are also consistent with the Ohio Revised Code. The Ohio General Assembly has concluded that the mental health of the parties to a divorce proceeding is relevant in determining both custody and spousal support. R.C. 3109.04(F)(1)(3) requires a trial court to consider the mental health of the parents in determining the best interests of a child for the purposes of custody. Further, under R.C. 2317.02(B)(1)(iii), parties that file a civil action that puts their mental health at issue waive the physician-patient privilege. Therefore, by seeking custody and spousal support, Belinda placed her mental health at issue and, thus, waived the physician-patient privilege as to her physical and mental health records.

Consistent with well-established Ohio law, the trial court conducted an in camera review of Belinda’s medical records, identified the relevant documents, and ordered the production of the relevant documents subject to a protective order. Belinda has not established that Ohio law requires more. Further, the trial court was statutorily required under R.C. 3109.04(F)(1)(e) to consider Belinda’s mental health. Belinda’s claim that her medical records were not relevant to the custody determination because Keith never asserted that Belinda has a physical or mental condition which prevents her from properly caring for the children is inaccurate. Keith also sought custody of the parties’ minor children and, thus, raised all the statutorily relevant factors, including his concern for Belinda’s mental health. However, even if Keith had not sought custody, Belinda raised the issue of her mental health by seeking custody and had the burden of showing that she was capable of caring for the children. Thus, Belinda’s mental health was at issue in this case regardless of whether Keith specifically raised concerns about Belinda’s mental health.

Belinda’s health continued to be at issue even though the trial court adopted a shared parenting plan. Keith entered into the shared parenting plan only after the trial court ordered the release of Belinda’s medical records. Further, the trial court retained the ability to modify the shared parenting plan if it later determined that the plan was not in the best interests of the parties’ children.

The Eleventh District’s conclusion that Belinda waived the physician-patient privilege by seeking spousal support is dicta and is not a proper subject for review by this Court. The Eleventh District’s holding that Keith was entitled to Belinda’s medical records because Belinda was seeking custody of the parties’ children determined the issue of whether Keith was entitled to Belinda’s relevant medical records. Therefore, any subsequent statements that Keith was also entitled to Belinda’s relevant medical records because she was seeking spousal support were not necessary to resolve the issue and were merely dicta. However, if this Court chooses to address the lower court’s dicta, it should find that the Eleventh District did not err in affirming the trial court’s holding that Belinda waived the physician-patient privilege by seeking spousal support. Belinda placed her mental and physical health at issue by filing for spousal support regardless of whether she actually raised a health claim in a pleading or motion because R.C. 3105.18(C)(1) requires the trial court to consider Belinda’s mental and physical condition in determining whether to award spousal support. Belinda provides no evidence that this mandatory statutory requirement is waived if the parties do not expressly raise the issue of mental or physical health in their pleadings. Further, there has been no stipulation or agreed order in the record stating that Belinda’s health was not a basis for her request for spousal support, leaving open the possibility that Belinda could raise her health as a basis for spousal support.

Belinda’s third, fourth, and fifth propositions of law are not properly before this Court and cannot serve as a basis for reversing the Eleventh District’s decision, because the trial court never addressed them nor did the Eleventh District. Further, Belinda did not set forth these propositions of law in her memorandum in support of jurisdiction.

This Court should not reverse the Eleventh District’s decision based on Belinda’s sixth proposition of law. The Eleventh District’s conclusion that Belinda waived the physician-patient privilege by filing for spousal support is merely dicta and, thus, is not a proper subject for review by this Court. Additionally, Belinda placed her health at issue by seeking spousal support because a trial court is required to consider a party’s physical and mental condition in determining whether to grant spousal support. Further, Belinda continued to reserve the right to raise her health as a basis for receiving spousal support by choosing not to seek an agreed order or stipulation waiving any claim for spousal support based on her health.

Belinda has failed to identify any specific documents that the court released solely based on her request for spousal support or that were irrelevant to her ability to work. In addition, Belinda admitted that her mental health records were relevant to her earning power and right to spousal support by claiming that her mental health treatment was designed to increase her earning potential.

Student Contributor: Madeline Pinto