[Cite as Kodger v. Ducatman, 2012-Ohio-2517.]



                Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 97842




                         SUZAN E. KODGER, ET AL.
                                                      PLAINTIFFS-APPELLANTS

                                                vs.


                       ROBERT DUCATMAN, ET AL.

                                                      DEFENDANTS-APPELLEES



                                         JUDGMENT:
                                          AFFIRMED


                                    Civil Appeal from the
                              Cuyahoga County Common Pleas Court
                                    Case No. CV-750685

        BEFORE:           Boyle, P.J., S. Gallagher, J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                     June 7, 2012
ATTORNEY FOR APPELLANTS

Donald O. Kodger
Great Lakes Law LLC
1562 Devonshire Drive
Brunswick, Ohio 44212

ATTORNEY FOR APPELLEES

David A. Kutik
Jones Day
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114-1190
MARY J. BOYLE, P.J.:

       {¶1} Plaintiffs-appellants, Suzan, Donald, and Christopher Kodger, appeal from

a trial court’s order granting summary judgment to defendants-appellees, Robert

Ducatman, John Newman, Jones Day Limited Partnership (“Jones Day”), the Catholic

Diocese of Cleveland, Patrick Shea, and Edward Palumbos.            The Kodgers raise six

assignments of error for our review:

       “[1.] The trial court erred when it determined that Dr. McPherson’s report was not

a medical record.

       “[2.] The trial court erred when it determined that by filing the McPherson reports

the plaintiffs removed the obligation of the defendants to protect the plaintiffs’ medical

information.

       “[3.] The trial court erred when it granted, without comment, summary judgment

to the defendants on the plaintiffs’ cause of action of intentional or reckless infliction of

severe emotional distress.

       “[4.] The trial court erred when it granted summary judgment to the defendants on

the plaintiffs’ cause of action of intentional or reckless infliction of emotional distress

since none of the court’s stated holdings addressed any of the elements of plaintiffs’

claims.
       “[5.] The trial court erred when it granted, without comment, summary judgment

to the defendants on the plaintiffs’ cause of action of negligent infliction of severe

emotional distress.

       “[6.] The trial court erred when it granted summary judgment to the defendants on

the plaintiffs’ cause of action of negligent infliction of emotional distress since none of

the court’s stated holdings addressed any of the elements of plaintiffs’ claims.”

       {¶2} Finding no merit to the appeal, we affirm the judgment of the trial court.

                        Procedural History and Factual Background

       {¶3} The facts in this case are not in dispute. In 2003, plaintiffs brought suit

against the Catholic Diocese of Cleveland, Bishop Anthony Pilla, and Father Edward

Weist. See Kodger v. Catholic Diocese of Cleveland, Cuyahoga C.P. No. CV-497769

(“2003 case”). As part of that case, plaintiffs submitted psychological reports to the

court and served them upon Ducatman, a Jones Day partner representing the defendants

in the 2003 case.     Ducatman distributed the reports to Newman, a partner at Jones Day

“who is the relationship partner for the diocese,” and Shea, who is “general counsel for

the diocese.”   Shea distributed the reports to “Fr. Condon of the Diocese of Rochester,

N.Y.” The 2003 case was settled on April 24, 2006.

       {¶4} According to plaintiffs’ complaint in the present case, in June 2010, they

discovered that the psychological reports they had submitted to Ducatman in the 2003

case had been forwarded to other partners at Jones Day and the diocese.             When

plaintiffs discovered this, they brought suit against defendants for unauthorized
disclosure of medical records, and intentional and negligent infliction of severe

emotional distress.

       {¶5} Defendants moved for summary judgment, which the trial court granted.

It is from this judgment that plaintiffs appeal. We will combine plaintiffs’ assignments

of error where necessary for ease of discussion.

                                   Summary Judgment

       {¶6} We review an appeal from summary judgment under a de novo standard.
Baiko v. Mays, 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000). Accordingly,
we afford no deference to the trial court’s decision and independently review the record
to determine whether summary judgment is appropriate. N.E. Ohio Apt. Assn. v.
Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th
Dist.1997). Civ.R. 56(C) provides that before summary judgment may be granted, a
court must determine that

       (1) no genuine issue as to any material fact remains to be litigated, (2) the
       moving party is entitled to judgment as a matter of law, and (3) it appears
       from the evidence that reasonable minds can come to but one conclusion,
       and viewing the evidence most strongly in favor of the nonmoving party,
       that conclusion is adverse to the nonmoving party. State ex rel. Duganitz
       v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191, 672 N.E.2d 654
       (1996).

                      Hageman v. Southwest General Health Center:
                       Unauthorized Disclosure of Medical Records

       {¶7} In their first two assignments of error, the Kodgers argue that the trial court

erred when it granted defendants’ summary judgment on their claim for unauthorized

disclosure of medical records.      They contend that the trial court erred when it

determined that because they filed the psychological reports with the court in the 2003

case, their claim failed.    They further contend that the trial court erred when it
determined that the psychological reports they submitted in the 2003 case were not

medical records.

       {¶8} The Kodgers rely on Hageman v. S.W. Gen. Health Ctr., 119 Ohio St.3d

185, 2008-Ohio-3343, 893 N.E.2d 153, a plurality opinion of the Ohio Supreme Court,

in support of their arguments. In Hageman, the plurality recognized a new cause of

action against an attorney for the unauthorized disclosure of an opposing party’s

“medical information that was obtained through litigation.”          Id. at the syllabus.

Because Hageman recognized a new cause of action, we will extensively review its

facts, analysis, and holding.

A.     Hageman Facts

       {¶9} In January 2003, Kenneth Hageman began meeting with a psychiatrist for

treatment. In his first treatment session, he admitted to having homicidal thoughts about

his wife. The psychiatrist treated him through July 2003.

       {¶10} In February 2003, Hageman’s wife filed for divorce. Barbara Belovich

served as her divorce attorney. Hageman filed a counterclaim, seeking legal custody of

the parties’ minor child.

       {¶11} While both the divorce case and Hageman’s psychiatric treatment were

ongoing, Hageman allegedly assaulted his wife at their home, and criminal charges were

brought against him. Shortly thereafter, his wife sought and received a civil protection

order (“CPO”). The temporary order gave her custody of their child and suspended

Hageman’s contact and visitation rights until a full hearing could be held.
       {¶12} In preparation for the full CPO hearing, Belovich issued subpoenas to

Hageman’s psychiatrist, seeking the production of Hageman’s medical records.

Belovich believed that Hageman had waived his privilege to those records by filing the

counterclaim for custody in the divorce action. Although Hageman did not sign a

release for this information, the psychiatrist faxed Hageman’s records to Belovich.

       {¶13} On the date of the full CPO hearing, Belovich met with the prosecutor in

the criminal case against Hageman. The prosecutor was attending the hearing as an

observer and was not scheduled to testify or otherwise participate in the hearing.

Nonetheless, Belovich gave the prosecutor a copy of Hageman’s medical records that she

had received from the psychiatrist.

       {¶14} Hageman sued Belovich, among others, for improperly disclosing his

medical records without his authorization.

B.     Hageman Analysis

       {¶15} The Ohio Supreme Court explained that “[i]n general, a person’s medical

records are confidential.” Id. at ¶ 9. It went on to state:

       Numerous state and federal laws recognize and protect an individual’s

       interest in ensuring that his or her medical information remains so. For

       example, the Ohio Public Records Act prohibits medical records

       maintained by public institutions from being released pursuant to a

       public-records request: “Public record” means records kept by any public

       office * * * [but] does not mean any of the following: (a) Medical
           records.[   1 ]
                             R.C. 149.43(A)(1)(a).        Likewise, the federal Health

           Information Portability and Accountability Act of 1996 (“HIPAA”)

           prevents health-care providers from disclosing health information except in

           certain specific circumstances.         See generally 45 C.F.R. 164.502.

           Physician-patient and psychologist-patient privileges have been codified in

           Ohio to deny the use of such information in litigation except in certain

           limited circumstances.     See R.C. 2317.02(B)(1) and 4732.19. Physical

           and mental-health examinations of a litigating party may be ordered only

           when relevant and “for good cause shown.” See Civ.R. 35(A). Id. at ¶ 9.

           {¶16} The Supreme Court explained how it “explicitly recognized and applied

 this basic policy of confidentiality in Biddle v. Warren Gen. Hosp., 86 Ohio St.3d 395,

 715 N.E.2d 518 (1999).” Id. at ¶ 10. In Biddle, the Supreme Court “confronted issues

 arising from the disclosure of health-care information obtained through a

 physician-patient relationship.” Hageman at ¶ 10. After surveying cases in Ohio and

 beyond in Biddle, the Supreme Court “recognized a separate tort for breach of

 confidentiality related to medical information.” Hageman at ¶ 11, citing Biddle at

 400-401.




         For the purposes of the Public Records Act, a “medical record” is defined as “any document
       1


or combination of documents, except births, deaths, and the fact of admission to or discharge from a
hospital, that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient
and that is generated and maintained in the process of medical treatment.” R.C. 149.43(A)(3).
      {¶17} In this new cause of action set forth in Biddle, the Supreme Court held that

one could sue “physicians and hospitals that disclose confidential medical information to

a third party without authorization or privilege to do so, and * * * third parties who

induce physicians or hospitals to disclose such information.” Hageman at ¶ 11, citing

Biddle at paragraphs one and three of the syllabus. Hageman relied on Biddle as one of

his underlying justifications for suing Belovich. Belovich argued that Biddle did not

apply to attorneys who lawfully obtained the healthcare information in the course of

litigation. Hageman at ¶ 12.

      {¶18} The Supreme Court reasoned that the rationale for Biddle applied to the

facts in Hageman. It explained:

      Biddle stressed the importance of upholding an individual’s right to

      medical confidentiality beyond just the facts of that case. “[I]t is for the

      patient — not some medical practitioner, lawyer, or court — to determine

      what the patient’s interests are with regard to personal confidential medical

      information.”    As the Supreme Court of California has observed in

      discussing the related concept of a right to privacy, such a right “is not so

      much one of total secrecy as it is of the right to define one’s circle of

      intimacy — to choose who shall see beneath the quotidian mask.”

      (Emphasis sic.) If the right to confidentiality is to mean anything, an

      individual must be able to direct the disclosure of his or her own private

      information. (Internal citations omitted.) Hageman at ¶ 13.
C.    Hageman Holding

      {¶19} The Supreme Court held that “when the cloak of confidentiality that applies

to medical records is waived for the purposes of litigation, the waiver is limited to that

case.” Id. at ¶ 17. It went on to explain that an attorney can use “the medical records

obtained lawfully through the discovery process for the purposes of the case at hand —

e.g., submitting them to expert witnesses for analysis or introducing them at trial.” Id.

But an attorney “may be liable to an opposing party for the unauthorized disclosure of

that party’s medical information that was obtained through litigation.” Id. Thus, as its

decision in Biddle created a new cause of action, it also created a new, independent tort

in Hageman against an attorney “to provide an injured individual with a remedy for such

an action.” Id. The Supreme Court concluded:

             By giving the psychological records she obtained in the divorce case

      to the prosecutor in the criminal case against Hageman, Belovich violated

      Hageman’s rights to keep that information confidential.            Allowing

      attorneys with such information obtained through discovery to treat the

      information as public would violate the policy of maintaining the

      confidentiality of individual medical records. We therefore recognize that

      waiver of medical confidentiality for litigation purposes is limited to the

      specific case for which the records are sought and that an attorney who

      violates this limited waiver by disclosing the records to a third party
       unconnected to the litigation may be held liable for these actions. Id. at ¶

       20.

                                   Applying Hageman

       {¶20} After reviewing the facts of the case here, we conclude that the trial court

did not err when it granted summary judgment to defendants on plaintiffs’ Hageman

claim. We agree with defendants that a Hageman claim cannot survive in this case.

The plaintiffs, after refusing to enter into a protective order in the 2003 case regarding

the sensitive allegations against the Cleveland Diocese, filed their psychological reports

with the court in that case. Accordingly, the psychological reports became available for

anyone to view. Without determining if the psychological reports here are indeed

medical records (because as defendants argue, the plaintiffs referred to the reports as

“expert witness reports” in the 2003 case when they filed them with the court), we

conclude that the plaintiffs waived any right to assert privilege or bring an action against

defendants for disclosing them.

       {¶21} Plaintiffs raise several arguments against finding a waiver. First, they

claim that in Hageman, the Ohio Supreme Court specifically stated that “waivers are not

expansive but are limited.” But we find that the facts in Hageman are distinguishable.

In Hageman, the wife’s attorney subpoened Hageman’s pyschological records.

Hageman’s treating psychologist gave them to the attorney without Hageman’s

knowledge or consent.      The wife’s attorney then gave them to the prosecutor in

Hageman’s criminal case. Because the parties settled, the psychological records were
never used or entered into evidence or otherwise made public. The Supreme Court

concluded that although Hageman had waived his right to assert privilege over the

psychological reports in the divorce case (because he sought legal custody of his child),

he did not waive them for other purposes.

       {¶22} But here, the Kodgers, after refusing to enter into a protective order, filed

their “expert witness reports” with the court in the 2003 case. Thus, the reports were

made public to anyone who wanted to see them. Indeed, the psychological reports are

still public for anyone to see in the 2003 case. As defendants state in their appellate

brief, “[p]ut another way, would appellees be liable if, rather than sending the reports to

another diocese, they simply told the officials in that diocese to go look in the Common

Pleas Court public record? Of course not.” We agree.

       {¶23} Plaintiffs also argue that their Hageman claim can survive against

defendants despite the fact that they did not agree to a protective order in the 2003 case.

They assert that the tort against attorneys for unauthorized disclosure survives — “even

if the information may be available to the public.” In support of this argument, they cite

to paragraphs 18 and 19 of Hageman. But after reviewing these paragraphs, it is our

view that they strongly support defendants’ position — not plaintiffs’.

       {¶24} First, in paragraph 18, the Supreme Court explained that the

defendant-attorney in that case “suggested at oral argument that if we were to recognize

such a cause of action, it could be waived if the disclosing party failed to take steps to

keep the medical records private, such as by requesting a protective order.” Id. at ¶ 18.
But the Supreme Court declined to consider that argument — “given the facts” before it.

 Id. at ¶ 19. The Supreme Court explained that while it was undisputed that Hageman

had never requested a protective order, it was as equally clear that he did not have a

chance to object to the production of the records or request a protective order “given [his

ex-wife’s attorney’s] conduct.” Id. The Supreme Court concluded by stating, “[i]t may

be appropriate to discuss the failure to take protective measures if the issue actually

arises.”

       {¶25} In this case, unlike in Hageman, not only did the plaintiffs have the

opportunity to enter into a protective order in the 2003 case, they actually refused to do

so. Then, they filed the psychological reports with the court, making them public for all

to see. Thus, plaintiffs’ assertion that Hageman supports their claim against the Jones

Day attorneys — despite the fact that the records were public — is unpersuasive.

       {¶26} Finally, the plaintiffs argue that their psychological reports were not

“public records” even though they were filed with the common pleas court because they

are medical records exempt from the Public Records Act. And plaintiffs further contend

that if they are not exempt from the Public Records Act as medical records, they are

exempt as “trial preparation records.” The Ohio Public Records Act, however, is wholly

inapplicable to the facts of this case. “[T]he purpose of Ohio’s Public Records Act,

R.C. 149.43, is to expose government activity to public scrutiny, which is absolutely

essential to the proper working of a democracy.” State ex rel. WHIO-TV-7 v. Lowe, 77
Ohio St.3d 350, 355, 673 N.E.2d 1360 (1997), citing White v. Clinton Cty. Bd. of

Commrs., 76 Ohio St.3d 416, 420, 667 N.E.2d 1223 (1996).

         {¶27} Accordingly, we overrule the Kodgers’ first and second assignments of

error.

                        Intentional, Reckless, and Negligent Infliction
                                 of Severe Emotional Distress

         {¶28} In their remaining assignments of error, the Kodgers argue that the trial

court erred when it granted summary judgment to defendants on their claims of

intentional, reckless, and negligent infliction of severe emotional distress. We disagree.

 The Kodgers’ claims of intentional, reckless, and negligent infliction of severe

emotional distress are grounded in the defendants’ alleged unauthorized disclosure of

medical records. Because there was no unauthorized disclosure of medical records, the

Kodgers’ claims fail as a matter of law.

         {¶29} Therefore, the Kodgers’ third, fourth, fifth, and sixth assignments of error

are overruled.

         Judgment affirmed.

         It is ordered that appellees recover from appellants costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

         A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR
