[Cite as Croston v. Massillon Chiropractic Clinic, 2015-Ohio-25.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


DANIEL L. CROSTON                     :                         JUDGES:
                                      :
     Plaintiff - Appellant            :                         Hon. Sheila G. Farmer, P. J.
                                      :                         Hon. Patrica A. Delaney, J.
                                      :                         Hon. Craig R. Baldwin, J.
-vs-                                  :
                                      :
MASSILLON CHIROPRACTIC CLINIC, ET AL. :                         Case No. 2014CA00108
                                      :
     Defendants - Appellees           :                         OPINION



CHARACTER OF PROCEEDING:                                        Appeal from the Stark County Court
of                                                              Common Pleas, Case No.
                                                                2014-CV-00154


JUDGMENT:                                                       Affirmed


DATE OF JUDGMENT:                                               January 5, 2015


APPEARANCES:

For Plaintiff-Appellant                                         For Defendant-Appellee
                                                                Kenneth R. Haycock, D.C.
GRANT A. GOODMAN
Goodman Law Firm                                                JOSEPH J. FELTES
1360 West 9th Street, Suite 410                                 JUSTIN S. GREENFELDER
Cleveland, OH 44113                                             Buckingham, Doolittle & Burroughs,
LLC
                                                                4518 Fulton Drive NW, Suite 200
                                                                P.O. Box 35548
                                                                Canton, OH 44735
Stark County, Case No. 2014CA00108                                       2




                                     For Defendants- Appellees
                                     Massillon Chiropractic Clinic and
                                     Lynn A. Olszewski, D.C.

                                     VICTORIA L. VANCE
                                     MICHAEL J. RUTTINGER
                                     Tucker Ellis LLP
                                     950 Main Ave, Suite 1100
                                     Cleveland, OH 44113
Stark County, Case No. 2014CA00108                                                       3

Baldwin, J.

      {¶1}    Appellant Daniel L. Croston appeals a judgment of the Stark County

Common Pleas Court granting a motion to compel discovery of medical records in favor

of appellees Massillon Chiropractic Clinic, Kenneth R. Haycock, D.C. and Lynn A.

Olszewski, D.C.

                             STATEMENT OF FACTS AND CASE

      {¶2}    Appellant filed the instant action against appellees seeking damages for

chiropractic negligence/malpractice, assault and battery, lack of informed consent, and

negligent supervision.   During discovery, appellees asked for the production of “all

hospital records, monitor strips of any type, x-rays, radiology films, MRIs, CT scans,

pathology slides and blocks relating to the care and treatment of Plaintiff, Daniel L.

Croston, from 2002 to the present.” Appellees also asked for the production of “all

records regarding Plaintiff, Daniel L. Croston, from any physician, chiropractor,

psychiatrist, psychologist or other health-care provider relating to the care and treatment

of Plaintiff, Daniel L. Croston, from 2002 to the present.” In the alternative, appellees

asked appellant to sign a medical release authorization form to allow them to obtain the

requested medical records.

      {¶3}    Appellant objected on the grounds that producing his entire medical record

would lead to the release of records outside the parameters of what is discoverable

under Ohio law. Appellant proposed a “pseudo in camera inspection” in which a court

reporting firm would obtain appellant’s medical records, Bates stamp them, and provide

them to counsel for appellant, who would then review them and determine which

records were privileged and which were discoverable. Counsel proposed that he would
Stark County, Case No. 2014CA00108                                                     4


then turn over the unprivileged records to appellees, and give the records he believed to

be privileged to the court for in camera inspection.

       {¶4}   Appellees further requested any documents relating to collateral benefits

paid or expected to be paid, which appellant refused to provide on the basis that

collateral benefits are not admissible or discoverable.

       {¶5}   The parties were unable to resolve the discovery dispute, and appellee

Haycock filed a motion to compel discovery.        The court granted the motion, giving

appellant seven days to provide full and complete responses to all interrogatories and

requests for documents.      The court rejected appellant’s proposal for a pseudo in

camera inspection of medical records, and ordered appellant to execute an appropriate

medical authorization within seven days. The court stated that should appellant fail to

provide such authorizations, the court would order the release of appellant’s medical

records pursuant to Loc. R. 11. The court also found that an award of attorney fees

against appellant was appropriate pursuant to Civ. R. 37(A)(4).

       {¶6}   Appellant assigns nine errors on appeal:

       {¶7}   “I.     THE TRIAL COURT ERRED BY GRANTING DEFENDANT

HAYCOCK’S MOTION TO COMPEL DISCOVERY OF PLAINTIFF’S COMPLETE

MEDICAL RECORDS, INCLUDING PRIVILEGED MEDICAL RECORDS.

       {¶8}   “II.   THE TRIAL COURT ERRED IN COMPELLING THE PLAINTIFF TO

EXECUTE BLANK TICKET MEDICAL AUTHORIZATIONS ALLOWING DEFENDANT’S

ATTORNEY TO OBTAIN PLAINTIFF’S MEDICAL RECORDS ON HIS OWN WITH NO

MECHANISM FOR DETERMINING WHICH RECORDS ARE PRIVILEGED.
Stark County, Case No. 2014CA00108                                                 5


       {¶9}    “III.   THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION

FOR A PROTECTIVE ORDER TO ENSURE PRIVILEGED MEDICAL RECORDS

WERE NOT DIVULGED.

       {¶10} “IV. LOC. R. 11, TO THE EXTENT IT IS USED AS A SUBSTITUTE FOR

IN CAMERA INSPECTIONS, VIOLATES OHIO LAW.

       {¶11} “V.       BECAUSE    THERE     ARE        INSUFFICIENT   SAFEGUARDS

PROTECTING AGAINST THE RELEASE OF A PLAINTIFF’S PRIVILEGED MEDICAL

RECORDS, LOC. R. 11 CANNOT BE USED IN CIVIL CASES.

       {¶12} “VI.      DEFENDANT’S USE OF LOC. R. 11, IN AN EFFORT TO OBTAIN

PRIVILEGED MEDICAL RECORDS, VIOLATES OHIO LAW.

       {¶13} “VII. DEFENDANT’S USE OF LOC. R. 11, IN AN EFFORT TO OBTAIN

NON-HOSPITAL RECORDS, VIOLATES THE RULES.

       {¶14} “VIII. IN ORDER TO DETERMINE THE AMOUNT ACCEPTED AS FULL

PAYMENT BY A MEDICAL PROVIDER, DEFENDANTS ARE NOT ALLOWED TO

VIOLATE THE COLLATERAL SOURCE RULE BY DISCOVERING EOBs AND OTHER

EVIDENCE IN THE POSSESSION OF HEALTH INSURERS.

       {¶15} “IX. THE TRIAL COURT ERRED IN AWARDING DEFENDANT

HAYCOCK ATTORNEY’S FEES.”



                                          I, II, III

       {¶16} We address appellant’s first three assignments of error together, as the

parties did in their briefs.
Stark County, Case No. 2014CA00108                                                    6


       {¶17} Appellant argues that the court erred in granting the motion to compel

discovery because the request for medical records from all providers spanning a time

period from 2002 up to the present is overbroad, and encompasses matters protected

by physician-patient privilege.

       {¶18} 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.

       {¶19} 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:

                     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,
Stark County, Case No. 2014CA00108                                                    7


              action for wrongful death, other civil action, or claim under

              Chapter 4123. of the Revised Code.

       {¶20} 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:

                      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.

                      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.
Stark County, Case No. 2014CA00108                                                        8

       {¶21} Id. at ¶ 25, 27.

       {¶22} We likewise held that a trial court could not order the discovery of arguably

privileged medical records without first conducting an in camera inspection to determine

whether the records are causally or historically related to physical or mental injuries

relevant to the issues in the civil action in Bircher v. Durosko, 5th Dist. Fairfield 13-CA-

62, 2013-Ohio-5873, Collins v. Interim Healthcare of Columbus, 5th Dist. Perry No. 13–

CA–00003, 2014–Ohio–40, In the Matter of the Guardianship of Ellen Jane Powelson

Sharp, 5th Dist. Muskingum No. CT2014–0003, 2014-Ohio-3613, and Moore v.

Ferguson, 5th Dist. Richland No. 12CA58, 2012-Ohio-6087.

       {¶23} However, in the instant case, appellant is not seeking an in camera review

of records he has specifically identified as privileged pursuant to Civ. R. 26(B)(6)(a),

which provides:

                     When information subject to discovery is withheld on

              a claim that it is privileged or subject to protection as trial

              preparation materials, the claim shall be made expressly and

              shall be supported by a description of the nature of the

              documents, communications, or things not produced that is

              sufficient to enable the demanding party to contest the claim.

       {¶24} Rather, he is asking this Court to require the trial court to hire a court

reporting firm at appellee’s expense to collect all of the requested medical records, both

privileged and discoverable pursuant to R.C. 2317.02(B), or in the alternative for all of

the medical records to be released directly to the court for an in camera review. We
Stark County, Case No. 2014CA00108                                                      9


decline to require the trial court to assume appellant’s burden pursuant to Civ. R.

26(B)(6)(a).

       {¶25} Appellant has not made a supported claim of privilege to the trial court

pursuant to Civ. R. 26(B)(6)(a). Appellant has not collected the medical records and

reviewed them to determine which he believes are discoverable and which are

privileged. Therefore, there have not been any records produced for the court to

conduct an in camera inspection. The trial court did not err in granting the motion to

compel under the facts and circumstances of the instant case.

       {¶26} Appellant’s first, second, and third assignments of error are overruled.

                                             IV, V, VI, VII

       {¶27} We address appellant’s fourth, fifth, sixth and seventh assignments of

error together, as the parties did in their briefs.

       {¶28} Appellant argues that the court erred in using Loc. R. 11 to obtain medical

records. Appellant argues that this rule allows the court to order discovery of medical

records that are privileged.

       {¶29} Stark County Common Pleas Court R. 11.01 provides:

                      Upon motion of any party showing good cause

               therefore and upon notice to all other parties, the Judge may

               order any hospital in the county, by any agent thereof

               competent to act in its behalf, to reproduce by Photostatting

               or other recognized method of facsimile reproduction, all or

               any portion of designated hospital records or X-rays, not

               privileged, which constitute or contain evidence pertinent to
Stark County, Case No. 2014CA00108                                                      10


             an action pending in this Court. Such order shall direct the

             hospital to describe by cover-letter, the portion or portions of

             the records reproduced and any omissions therefrom, and to

             specify the usual and reasonable charges therefore, and

             such order shall designate the person or persons to whom

             such reproductions shall be delivered or made available.

      {¶30} The trial court stated in the June 5, 2014 Judgment Entry that should

appellant fail to provide medical authorizations as ordered, “the Court hereby orders the

release of Plaintiff’s medical records pursuant to Local Rule 11.”

      {¶31} We note that the court’s use of Local Rule 11 was conditional on

appellant’s failure to execute the authorizations. Further, while appellant argues the

court improperly used the rule to obtain all medical records and not specifically hospital

records, the record does not support appellant’s claim at this stage of the proceedings.

The rule specifically applies only to hospital records, and we presume that a trial judge

knows the law and applies it accordingly. See Smith v. Jewett, 5th Dist. Richland No.

04 CA 96, 2005-Ohio-3982, ¶33.

      {¶32} Appellant also argues that the rule may be used to obtain privileged

records. The rule specifically states that the judge may order a hospital to produce

records that are not privileged. Therefore, the rule preserves the right of the litigant to

protect medical records which are privileged, and appellant’s right to make a specific

claim of privilege is not circumvented by Rule 11.01.

      {¶33} The fourth, fifth, sixth and seventh assignments of error are overruled.
Stark County, Case No. 2014CA00108                                                         11




                                                VIII

       {¶34} In his eighth assignment of error, appellant argues that the court erred in

compelling discovery of collateral benefits. Appellees requested the identification of

every “health or disability insurance company, medical plan, employer, state

compensation board, federal agency, welfare department, life insurance company

and/or other entity or individual” who had paid medical expenses, losses, or expenses,

including their names and addresses, and the specific bill and amount paid by each.

Appellant responded that “collateral benefits are not admissible and nondiscoverable.”

       {¶35} Appellant cites no authority for his proposition that because evidence of

collateral benefits may not be admissible at trial, such evidence is therefore not

available to appellees in discovery. Civ. R. 26(B)(1) specifically states, “It is not ground

for objection that the information sought will be inadmissible at the trial if the information

sought appears reasonably calculated to lead to the discovery of admissible evidence.”

The Ohio Supreme Court has specifically held that it is not grounds for objection under

Civ.R. 26(B)(1) that evidence of collateral benefits will be inadmissible at trial. Buchman

v. Wayne Trace Local School Dist. Bd. of Edn., 73 Ohio St.3d 260, 272, 652 N.E.2d

952, 1995-Ohio-136, citing Hughes v. Groves, 47 F.R.D. 52, 56 (W.D.Mo.1969).

       {¶36} The eighth assignment of error is overruled.

                                               IX

       {¶37} In his final assignment of error, appellant argues that the court erred in

awarding attorney fees to appellee Haycock.
Stark County, Case No. 2014CA00108                                                     12


      {¶38} The trial court found that an award of attorney fees was appropriate, and

ordered appellee Haycock to present his fee statements to the court for review within

seven days of the order.     Appellant filed his notice of appeal on June 12, 2014.

Appellee Haycock submitted a fee statement later the same day. The court did not

enter judgment in accordance with the fee statement, but stayed all proceedings

pending appeal. Because the court did not make an award of fees, the issue of attorney

fees is not a final, appealable order. Folmar v. Griffin, supra, at ¶34; TCF Natl. Bank v.

Estate of Oliver, 5th Dist. Stark No. 2009CA00124, 2010-Ohio-1306, ¶8.

      {¶39} The ninth assignment of error is overruled.

By: Baldwin, J.

Farmer, P.J. and

Delaney, J. concur.
