[Cite as Bircher v. Durosko, 2013-Ohio-5873.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


DONALD BIRCHER                                  :   JUDGES:
                                                :
                                                :   Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellant                   :   Hon. John W. Wise, J.
                                                :   Hon. Craig R. Baldwin, J.
                                                :
-vs-                                            :
                                                :
ROBERT DUROSKO                                  :   Case No. 13-CA-62
                                                :
                                                :
        Defendant - Appellee                    :   OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Fairfield County
                                                    Court of Common Pleas, Case No.
                                                    2013 CV 00026



JUDGMENT:                                           Reversed and Remanded



DATE OF JUDGMENT:                                   December 19, 2013



APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

MICHAEL K. GEISER                                   BENJAMIN W. WRIGHT
Cecil & Geiser, LLP                                 Gallagher, Gams, Pryor,
495 South High Street                               Tallan & Littrell, LLP
Suite 400                                           471 East Broad Street, 19th Floor
Columbus, OH 43215                                  Columbus, OH 43215
Fairfield County, Case No. 13-CA-62                                                      2

Baldwin, J.

      {¶1}    Appellant Donald Bircher appeals a judgment of the Fairfield County

Common Pleas Court granting appellee Robert Durosko’s motion to compel the

discovery of medical records.

                             STATEMENT OF FACTS AND CASE

      {¶2}    Appellant brought the instant action seeking damages for injuries received

in an automobile accident with appellee on February 8, 2011.             Appellee sought

production of “any and all medical reports and/or records in your possession by a

treating and/or examining physician for the ten (10) years prior to the injury that is the

basis of this lawsuit.” Appellant objected on the basis that the request sought medically

privileged information.

      {¶3}    When the parties were unable to resolve the discovery dispute, appellee

filed a motion to compel. In response, appellant argued that the records were not

relevant as they were not causally or historically related to the accident in question, and

in the alternative argued that the court should conduct an in camera inspection of the

records to determine which records were causally or historically related to the lawsuit

before disclosing them to appellee.

      {¶4}    The court granted the motion to compel, ordering appellant to respond to

all outstanding discovery requests from appellee, specifically the production of the

requested medical records, on or before October 4, 2013. Appellant assigns four errors

on appeal:

      {¶5}    “I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT’S MOTION

TO COMPEL.
Fairfield County, Case No. 13-CA-62                                                   3


      {¶6}    “II.    THE TRIAL COURT ERRED BY REQURIING PLAINTIFF TO

PRODUCE CONFIDENTIAL MEDICAL RECORDS IN CONTRAVENTION OF R.C.

2317.02.

      {¶7}    “III.   THE TRIAL COURT ERRED IN FAILING TO ORDER AN IN

CAMERA INSPECTION OF PLAINTIFF’S MEDICAL RECORDS WHICH ARE

PRIVILEGED AND ARE NOT CAUSALLY OR HISTORICALLY RELATED TO THE

INJURIES SUSTAINED BY THE PLAINTIFF.

      {¶8}    “IV.    THE TRIAL COURT ERRED IN NOT CLARIFYING WHETHER

PLAINTIFF WAS REQUIRED TO PRODUCE UNRELATED CONFIDENTIAL MEDICAL

RECORDS REQUESTED DURING DISCOVERY OR UNRELATED CONFIDENTIAL

MEDICAL RECORDS REQUESTED IN DEFENDANT’S MOTION TO COMPEL

PRODUCTION.”

      {¶9}    The instant case comes to us on the accelerated calendar. App.R. 11.1

governs accelerated-calendar cases and states in pertinent part:

      {¶10}   “(E) Determination and judgment on appeal.

      {¶11}   “The appeal will be determined as provided by App.R. 11.1. It shall be

sufficient compliance with App.R. 12(A) for the statement of the reason for the court's

decision as to each error to be in brief and conclusionary form.”

      {¶12}   One of the most important purposes of the accelerated calendar is to

enable an appellate court to render a brief and conclusory decision more quickly than in

a case on the regular calendar where the briefs, facts, and legal issues are more

complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463

N.E.2d 655 (1983).
Fairfield County, Case No. 13-CA-62                                                        4


      {¶13}   This appeal will be considered with the above in mind.

      {¶14}   At the outset, appellee has argued that the judgment appealed from is not

a final, appealable order because there has not yet been a determination of privilege.

This Court has previously held that a discovery order compelling the production of

medical documents is a final, appealable order. Banks v. Ohio Physical & Medical

Rehabilitation, Inc., 5th Dist. Fairfield No. 07CA68, 2008-Ohio-2165, ¶16. Implicit in the

court’s order compelling appellant to turn over all medical records from the last ten

years is a finding that appellee has waived the privilege provided by R.C. 2317.02(B) by

filing the instant action. Therefore, the order appealed from is a final, appealable order.

                                                 III.

      {¶15}   We address appellant’s third assignment of error first, as it is dispositive of

the appeal. Appellant argues that the court erred in failing to conduct an in camera

inspection of the medical records to determine which records were causally or

historically related to the lawsuit. We agree.

      {¶16}   This court may not reverse a trial court's decision on a motion to compel

discovery absent an abuse of discretion. State ex rel. The V Cos. v. Marshall, 81 Ohio

St.3d 467, 469, 692 N.E.2d 198 (1998). The Supreme Court has frequently defined the

abuse of discretion standard as implying that the court's attitude was unreasonable,

arbitrary, or unconscionable. Id.

      {¶17}   R.C. 2317.02(B) provides that physicians’ records are generally privileged;

however, the statute sets forth situations in which the patient has been deemed to have

waived that privilege. Appellee claims appellant has waived that privilege pursuant to

R.C. 2317.02(B)(3)(a):
Fairfield County, Case No. 13-CA-62                                                        5


      {¶18}   “If the testimonial privilege described in division (B)(1) of this section does

not apply as provided in division (B)(1)(a)(iii) of this section, a physician or dentist may

be compelled to testify or to submit to discovery under the Rules of Civil Procedure only

as to a communication made to the physician or dentist by the patient in question in that

relation, or the physician's or dentist's advice to the patient in question, that related

causally or historically to physical or mental injuries that are relevant to issues in the

medical claim, dental claim, chiropractic claim, or optometric claim, action for wrongful

death, other civil action, or claim under Chapter 4123. of the Revised Code.”

      {¶19}   In Folmar v. Griffin, 166 Ohio App. 3d 154, 549 N.E.2d, 324, 2006-Ohio-

1849, we found that a trial court abuses its discretion when it compels the discovery of

medical records without first determining by in camera inspection whether the records

are causally or historically related to the action:

      {¶20}   “We hold that the trial court erred in not conducting an in camera

inspection of the records before ordering them disclosed. The trial court should have

issued an order for the records to be transmitted under seal for the court's review in

camera. After receiving records under seal, a court then examines each record to

determine whether it is a medical or psychiatric document to which R.C. 2317.02(B)

applies. If the court finds that a record is a medical document, the court must further

determine whether it is related causally or historically to physical or mental injuries

relevant to the issues in the civil action. Only those medical and psychiatric records that

meet this definition under R.C. 2317.02(B) should be released.
Fairfield County, Case No. 13-CA-62                                                     6


      {¶21}   “After the court has reviewed the documents in camera, it should place

any documents that it finds privileged in the record under seal so that in the event of an

appeal, this court may review the information.” Id. at ¶25, 27.

      {¶22}   Likewise, in Thompson v. Chapman, 176 Ohio App. 3d 334, 891 N.E.2d

1247, 2008-Ohio-2282, we found that the trial court abused its discretion in compelling

the production of psychological and psychiatric treatment records without first

conducting an in camera inspection to determine whether the records were subject to

disclosure pursuant to R.C. 2317.02(B). Id. at ¶24.

      {¶23}   In the instant case, the trial court abused its discretion in granting

appellee’s motion to compel discovery of medical records without first conducting an in

camera inspection to determine which records were causally or historically related to the

action. The third assignment of error is sustained.

      {¶24}   The remaining assignments of error are rendered moot by our disposition

of assignment of error three.
Fairfield County, Case No. 13-CA-62                                             7


      {¶25}   The judgment of the Fairfield County Common Pleas Court is reversed.

This cause is remanded to that court for further proceedings according to law,

consistent with this opinion. Costs are assessed to appellee.


By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.




                                        HON. CRAIG R. BALDWIN



                                        HON. W. SCOTT GWIN



                                        HON. JOHN W. WISE




CRB/rad
[Cite as Bircher v. Durosko, 2013-Ohio-5873.]


                  IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


DONALD BIRCHER                                     :
                                                   :
        Plaintiff -Appellant                       :
                                                   :
-vs-                                               :      JUDGMENT ENTRY
                                                   :
ROBERT DUROSKO                                     :
                                                   :
        Defendant - Appellee                       :      CASE NO. 13-CA-62


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Fairfield County, Ohio is reversed and

remanded. Costs assessed to appellee.




                                                HON. CRAIG R. BALDWIN



                                                HON. W. SCOTT GWIN



                                                HON. JOHN W. WISE
