“The General Assembly has made consideration of the parties’ physical and mental health not only relevant but mandatory in determining both child custody and spousal support.”

Justice French, lead opinion

“Contrary to the lead opinion’s contention, then, parties to a divorce do not subject themselves to a fishing expedition through all of their physical- and mental-health records simply by seeking custody of their children or financial support from their spouse.”

Justice DeWine, dissenting opinion

On June 18, 2020, the Supreme Court of Ohio handed down a merit decision in Torres Friedenberg v. Friedenberg, 2020-Ohio-3345. In an opinion written by Justice French, joined by Chief Justice O’Connor and Justice Fischer, the Court held that Belinda Torres Friendenberg’s mental health records were properly ordered released subject to a protective order because Belinda’s claims for child custody and spousal support in this divorce action put her mental and physical conditions at issue. Justice Kennedy concurred in judgment only. Justice DeWine wrote a dissent joined by Justices Stewart and Donnelly.  The case was argued February 11, 2020.

Case Background

Belinda Torres Friedenberg (“Belinda”) filed for divorce from Keith Friedenberg (“Keith”) in March of 2016. Belinda sought custody of the couple’s four minor children and spousal support. Keith counterclaimed for custody of the children.

During discovery, Keith subpoenaed Belinda’s mental health records from various doctors and mental-health professionals. Belinda filed a motion to quash these subpoenas on the grounds of physician-patient privilege.  Keith then filed a motion to compel, arguing that Belinda had put her physical and mental health at issue by seeking custody and spousal support.

The magistrate granted Keith’s motion to compel, agreeing that Belinda had placed her physical and mental conditions at issue by seeking custody of the children and spousal support. The magistrate ordered that the subpoenaed records be submitted under seal for an in camera review of their relevance. Ultimately, after this review, the magistrate ordered the release of the records deemed relevant to the proceedings, including those from the Cleveland Psychoanalytic Center, subject to a protective order limiting dissemination of the records to counsel, the parties and their experts.   The trial court upheld the magistrate’s order over Belinda’s objection, agreeing with the magistrate that Belinda’s request for child custody and spousal support put her physical and mental health conditions at issue, and waived the physician-patient privilege.  Belinda appealed.

*The Appeal

In a split decision, the Eleventh District Court of Appeals affirmed the trial court’s order. The majority found that the trial court did not err in ordering the release of Belinda’s medical records because a trial court is statutorily required to consider the mental and physical conditions of a parent seeking child custody and in determining whether spousal support is necessary and reasonable.

The dissenting judge would find that Belinda’s mental and physical conditions were not at issue because Keith did not challenge Belinda’s mental or physical ability to parent and neither raised health concerns about Belinda’s ability to work. The dissenting judge also concluded that the trial court had abused its discretion in ordering the release of all the records because the magistrate had indicated not all the records were relevant.

*According to paragraph 11 of the merit decision in this case, the parties reported that the trial court adopted their agreed shared parenting plan while Belinda’s appeal was pending in the Eleventh District.

Read the oral argument preview of the case here and the analysis here

Key Statutes and Precedent

Civ. R. 26(B)(1) (Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.)

1970 Staff Note, Civ. R. 75 (A divorce proceeding is a civil action.)

R.C. 2317.02(B)(1) (A physician may not testify about physician-patient communications or provide a patient’s medical records except in limited circumstances.)

R.C. 2317.02(B)(1)(a) (The statutory privilege does not apply, and a physician may be compelled to testify if the patient files any type of civil action.)

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

R.C. 3109.04(B)(1) (When allocating parental rights and responsibilities, a trial court must consider the best interests of the children.)

R.C. 3109.04(F)(1)(e) (In determining the best interest of a child, a trial court must consider all relevant factors, including the mental and physical health of all persons involved.)

R.C. 4732.19 (The communications between a licensed psychologist and a client are subject to the same protections as communications between a physician and a patient under R.C. 2317.02(B).)

State Med. Bd. v. Miller, 44 Ohio St.3d 136 (1989) (The physician-patient privilege did not exist at common law.)

State v. Smorgala, 50 Ohio St.3d 222 (1990) (The General Assembly is the final arbiter of public policy in Ohio and the Court’s policy preferences may not override valid legislative enactments.)

In re Miller, 63 Ohio St.3d 99 (1992) (The statutory privilege is of heightened importance in the context of mental health.)

Jaffee v. Redmond, 116 S.Ct. 1923 (1996) (A psychiatrist’s ability to help a patient depends completely upon “an atmosphere of confidence and trust in which the patient” is willing to talk freely.)

Gill v. Gill, 2003-Ohio-180 (8th Dist.) (A parent’s request for custody of his or her children puts the parent’s health at issue, so as to except the parent’s medical information from the physician-patient privilege.)

Schill v. Schill, 2004-Ohio-5114 (11th Dist.) (A party seeking child custody “subjects him or herself to extensive investigation of all factors relevant to the permanent custody award.”)

Sweet v. Sweet, 2005-Ohio-7060 (11th Dist.) (When there is a dispute over whether a physician’s testimony or records are causally or historically related to issues in the pending action, the trial court should conduct an in camera inspection or review to resolve the dispute.)

Hageman v. Southwest Gen. Health Ctr., 2008-Ohio-3343 (A patient waives the physician-patient privilege, for purposes of an underlying divorce action, by filing a counterclaim for child custody.)

Ward v. Summa Health Sys., 2010-Ohio-6275 (The statutory privilege should be construed strictly against the party asserting it and applied only to those circumstances the statute specifically prescribes; a discovery dispute involving an alleged privilege is a question of law, subject to de novo review.)

McGregor v. McGregor, 2012-Ohio-3389 (2nd Dist.) (The filing of a domestic-relations claim triggers the R.C. 2317.02(B)(1)(a)(iii) exception to the physician-patient privilege.)

Leopold v. Ace Doran Hauling & Rigging Co., 2013-Ohio-3107 (If a patient files “any type of civil action,” the patient’s physician “may testify or be compelled to do so only as to a communication that related causally or historically to physical or mental injuries relevant” in the civil action filed by the patient.)

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)).

*In her merit brief, Belinda listed six propositions of law, but the Court only accepted these two.

 Does the Court Adopt Belinda’s Propositions of Law?

Both are already generally accepted statements of the law, but the Court disagrees that the physician-patient privilege protected the disclosure of the records in this case.

Merit Decision

Executive Summary

In short, the lead opinion agrees with the majority decision from the appeals court while the dissenters agree with the dissent from the appeals court.

Analysis

The Physician-Patient Privilege

The physician-patient privilege in Ohio did not exist at common law. It is codified at R.C. 2317.02(B)(1). The statutory privilege will be strictly construed against the party asserting it and will be applied only as specifically set forth in the statute.  The question here is whether that privilege shields Belinda’s mental health records from discovery.

The Court has already acknowledged the importance of this privilege.  It is crucial that patients be completely honest with their doctors without fearing what they say will become public. This is especially so in the mental health context.  But the Court cannot make decisions in this area based on its own policy preferences or override legislative enactments in this field.

The physician-patient privilege is not absolute. R.C. 2317.02(B)(1)(a)(iii)(i) states the privilege does not apply in various specifically named tort claims, and in “any other type of civil action.” This includes actions for divorce, the Court now makes explicitly clear. But there are two key limitations on this discovery of physician-patient communications. One is compliance with the discovery provisions of the Rules of Civil Procedure, including relevance. The other is that any compelled communications must relate causally or historically to the physical or mental injuries involved. There is another protection where these records are involved, namely an in camera inspection of the records by the trial court when there is a dispute over whether a doctor’s testimony or records are causally or historically related to issues in the pending civil action.

Records Relevant to Child Custody and Spousal Support

Belinda argues that in this case her mental-health records are not causally or historically related to the issues of child custody or spousal support.  The dissent agrees; the lead opinion does not.

Belinda filed a civil action for divorce seeking custody of the couple’s minor children, and spousal support. The lead opinion finds that R.C.3109.04(F)(1) makes consideration of the mental and physical health of the parties mandatory in a custody determination and  R.C.3105.18(C)(1)(c) does the same in determining spousal support. Because of that statutory language the Court rejects Belinda’s argument that the records weren’t relevant because Keith never asserted that she had any physical or mental condition that would interfere with her ability to work or to parent. The lead opinion agrees with the appeals court majority that nothing in either of those statutes limits a court’s consideration only to those factors challenged by the parties.  Additionally, unlike in other cases Belinda relied on, the magistrate in this case did exactly what was required—she conducted an in camera inspection to determine whether the disputed information was causally or historically related to the issues in this case. The lead opinion goes on to distinguish a number of other appellate decisions Belinda relies on.

“Because the General Assembly has required trial courts to consider the mental and physical health of the parties when determining claims for child custody and spousal support, communications between those parties and their physicians regarding their mental and physical health will often be causally or historically related to the issues in domestic-relations cases in which those claims are raised. That relationship does not depend on whether the party seeking the release of medical information has specifically challenged the patient’s parenting ability or earning potential based on health considerations,” French wrote. When the parties dispute this, that is what the in camera review is for.

What The Record Here Shows

What is in the record is a statement by the appeals court that the trial court found that the magistrate had determined the documents were relevant before ordering their release to Keith’s lawyer, and that Belinda had not shown otherwise.  Belinda continues to press the argument that the magistrate found that only some of the records were relevant, and that the trial court’s order was therefore contrary to the magistrate’s finding. But the high court observes that while Belinda may have raised this argument superficially in the appeals court, she has never identified with particularity which specific subset of her psychiatrist’s records were not relevant to the issues in the case. Rather, Belinda continues to argue that the physician-patient privilege shields all her submitted records from discovery and that none are relevant to the contested issues in the divorce case. The lead opinion concedes that while the magistrate’s order that “there are documents that are relevant to these proceedings” left it unclear whether there were other documents that were not, there is nothing in the record to suggest that any of the documents the magistrate may have found were not causally or historically related to the issues in the case were in fact released.

Bottom Line

By filing for divorce, and seeking child custody and spousal support, Belinda put her mental and physical health at issue and the trial court was statutorily required to consider them. The trial court did the appropriate in camera review of those records for relevance before ordering their release, subject to a protective order.

Chief Justice O’Connor and Justice Fischer joined the lead opinion. Justice Kennedy concurred in judgment only.

Justice DeWine’s dissent

It is Justice DeWine’s position that the trial court’s order turning over Belinda’s mental health records to Keith simply because she sought child custody and spousal support is contrary to the physician-patient privilege statute. He reads any exceptions to the privilege more narrowly than the lead opinion does.

The statutory protection against disclosure of physician-patient communications is only removed to the extent that the advice or communication is causally or historically related to a physical or mental injury which is relevant to the issues in the case. The information must meet both the causally-related and the relevancy requirements.

DeWine disagrees with the lead opinion that all records must be turned over that are related to the issues in the case. He sees the issue as whether the records are related to the physical or mental injuries that are relevant to the case. As an example, he suggests that a patient’s conversations with a psychologist about problems in the marriage are not causally or historically related to a physical or mental injury and are not subject to disclosure.

DeWine disagrees with the lead opinion that the physical and mental health of the parties are inevitably at issue in every child custody or spousal support case. He emphasizes that the trial court is only to consider all relevant factors in such cases, and that not all of the listed examples will be at play in every case.  The trial court must not just make a blanket order of disclosure of all documents related to any of the statutory factors, but must make a specific determination that the requested discovery is directed to an “injury” that is actually an issue in the case.  If the communication or document at issue is not causally or historically related to a physical or mental injury that is relevant to an issue in the case, then it is not discoverable.

DeWine believes the magistrate used the proper procedure by conducting an in camera review of the records, but failed to evaluate whether the communications were causally or historically related to mental or physical injuries at issue in the case. Instead, both the magistrate and then the trial court concluded, erroneously to DeWine,  that both parties were entitled to each other’s medical records because child custody and spousal support were at issue in the case, and health issues are always relevant in those proceedings.

Justice DeWine’s Proposed Outcome

DeWine would reverse the judgment of the court of appeals, and remand the case the trial court to inspect the records in camera and release only those records in which the communication or advice is causally or historically related to a physical or mental injury that is relevant to the issues in this case.  He would further direct the trial court to order the return and destruction of any previously released records that do not fit those criteria.

Case Disposition

The judgment of the court of appeals affirming the trial court’s order of disclosure of the records is affirmed

Magistrate (Affirmed)

Lake County Domestic Relations Magistrate Dorothy H. Lee 

Trial Court (Affirmed)

Lake County Domestic Relations Judge Colleen A. Falkowski

Eleventh District Panel (Majority Affirmed)

Majority Opinion by Judge Diane Grendell, and joined by Judge Cynthia Wescott Rice

Dissent by Judge Colleen O’Toole

Concluding Observations

It was apparent from the oral argument that Justice DeWine did not think the records were appropriately released. He specifically asked whether the trial court ever found all these records related “causally or historically to physical or mental injuries,” or just ordered them all released because this was a divorce proceeding. He commented he was having a hard time with Belinda’s lawyer’s argument because the argument didn’t seem tethered to the privilege statut. He asked why they weren’t just arguing the statutory requirements for waiver of the privilege weren’t met. Justice Donnelly seemed to agree with Justice DeWine’s view, asking why Keith’s lawyer believed the records would be relevant when they were initially requested, adding that discovery is not supposed to be a fishing expedition.

It was equally clear from the argument that Justice French thought that the statutory language put a parent’s mental and physical health at issue, and that by statute, the court was required to look at mental health records. The Chief also seemed to adhere to this position.

After the argument, I wrote that “the statutes regarding allocation of parental rights and responsibilities and spousal support both require the court to consider mental health issues. It was impossible to tell from the argument exactly which records were ordered released in this case. Belinda’s lawyer made it sound like an indiscriminate records dump without enough oversight as to protection and relevance. Keith’s lawyer passionately insisted that wasn’t so. Justices DeWine and Donnelly seemed least persuaded by that insistence.” That is the problem I am still having with this decision, and it was the concern expressed by Justice Fischer at argument when he asked which records the magistrate actually found relevant. This was never clear to me, and I fault Belinda’s lawyer for that. He didn’t seem to sort this all out after the ruling by the magistrate and in front of the trial judge, despite their generalized findings of relevancy.  I thought the Court would send this back to make that determination, but since it didn’t, I’m with the dissenters on this one. It’s too bad that Justice Kennedy simply concurred in judgment in this 4-3 decision without explaining her reasoning, since this used to be her field.