[Cite as Leopold v. Ace Doran Hauling & Rigging Co., 136 Ohio St.3d 257, 2013-Ohio-3107.]




 LEOPOLD ET AL., APPELLEES, v. ACE DORAN HAULING & RIGGING COMPANY
                   ET AL., APPELLEES; LAURENCE, APPELLANT.

  [Cite as Leopold v. Ace Doran Hauling & Rigging Co., 136 Ohio St.3d 257,
                                   2013-Ohio-3107.]
Evidence—Physician-patient         privilege—R.C.       2317.02(B)(1)—Exception         to
        privilege in R.C. 2317.02(B)(1)(a)(iii)—Statement to hospital personnel in
        previous case involving same accident admissible in subsequent case filed
        by different party—Physician may testify or be compelled to testify only as
        to communication that related causally or historically to physical or
        mental injuries relevant in the other civil action.
     (No. 2012-0438—Submitted February 5, 2013—Decided July 18, 2013.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 97277,
                                    2012-Ohio-497.
                               ____________________
                              SYLLABUS OF THE COURT
1. R.C. 2317.02(B)(1) establishes the physician-patient testimonial privilege and
        prohibits a physician from testifying about a communication made to the
        physician by a patient.
2. The General Assembly has carved out exceptions to the physician-patient
        privilege in certain instances and a physician may testify or be compelled
        to do so in any civil action if any type of civil action or claim under R.C.
        Chapter 4123 is filed by the patient.
3. When the physician-patient privilege described in R.C. 2317.02(B)(1) does not
        apply as provided in R.C. 2317.02(B)(1)(a)(iii), a 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 other civil action.
                            SUPREME COURT OF OHIO




                             ____________________
       O’DONNELL, J.
       {¶ 1} Danielle Laurence appeals from a judgment of the Eighth District
Court of Appeals affirming a decision of the trial court denying her request for a
protective order seeking to prohibit Stephen Stillwagon and Ace Doran Hauling &
Rigging Company from using statements she made to emergency room personnel
that she had produced in a prior lawsuit she filed against Stillwagon and Ace
Doran arising out of the same accident. The appellate court held that Laurence
waived the physician-patient privilege by filing a personal injury action seeking
recovery for her injuries and therefore the trial court correctly denied her request
for a protective order.
       {¶ 2} In this circumstance, we need not reach the waiver issue to resolve
this case. Pursuant to the statute establishing the physician-patient privilege, at
least two separate provisions apply and specify that the statements made by
Laurence are no longer privileged. For these reasons, we affirm the judgment of
the appellate court.
                          Facts and Procedural History
       {¶ 3} On March 6, 2008, a multivehicle accident occurred on Interstate
90 in Cleveland, Ohio. Among the vehicles involved were a tractor-trailer driven
by Stephen Stillwagon transporting goods for Ace Doran and two cars, one driven
by Laurence and one driven by Todd Leopold. Emergency medical personnel
transported Laurence to MetroHealth Medical Center for treatment as a result of
the accident. At that time, she told emergency room personnel that she had hit a
car in front of her and then was hit from behind by a semi and pushed into a
concrete wall.
       {¶ 4} In November 2008, Laurence sued Stillwagon and Ace Doran,
seeking recovery for personal injuries she suffered in the accident. In discovery,




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she produced her medical records, which defense counsel used when they deposed
her; after that deposition, she voluntarily dismissed her case.
       {¶ 5} In October 2009, Todd Leopold and his wife, Linda, sued
Stillwagon, Ace Doran, and Ace Doran Brokerage Company, seeking recovery
for injuries sustained in the same accident.        They dismissed the brokerage
company and amended their complaint to add Laurence, asserting that her
negligence had caused the accident.           Laurence then cross-claimed against
Stillwagon and Ace Doran for contribution or indemnification, claiming that
Stillwagon had caused the collision. Stillwagon and Ace Doran thereafter cross-
claimed against her for indemnification or contribution, contending that she had
caused the accident.
       {¶ 6} On April 29, 2011, Laurence moved for a protective order, seeking
to preclude counsel from using the medical records she produced in her 2008
lawsuit. She claimed that the physician-patient privilege protected her medical
records from disclosure and that her prior waiver of the privilege applied only to
her 2008 lawsuit. The court denied her motion, and she appealed. The appellate
court affirmed the denial, concluding that “Laurence’s decision to file a claim of
personal injury against [Stillwagon and Ace Doran], which was based upon the
same accident that underlies the basis for the claims and defenses posed by the
parties herein, served to waive her physician-patient privilege with respect to that
accident pursuant to R.C. 2371.02(B).” 2012-Ohio-497 at ¶ 15.
       {¶ 7} We accepted Laurence’s discretionary appeal, in which she claims
that a patient’s production of medical records in discovery in a civil action does
not waive the physician-patient privilege for all subsequent litigation. She asserts
that the trial and appellate courts have created a judicial waiver of the statutory
physician-patient privilege and maintains that Ohio citizens have a constitutional
and statutory right to have Ohio courts enforce the physician-patient privilege.
She further relies on Hageman v. Southwest Gen. Health Ctr., 119 Ohio St.3d



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185, 2008-Ohio-3343, 893 N.E.2d 153, ¶ 17, for the proposition 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.”
        {¶ 8} The Leopolds concur. They contend that Laurence’s emergency
room records are inadmissible because her medical condition is not at issue in this
case, and they maintain that she preserved the privilege by voluntarily dismissing
her 2008 lawsuit, thereby preventing disclosure of her records to the public. They
urge us to follow Hageman and hold that the privilege is not waived when a
medical condition is not at issue in a subsequent civil action, the medical records
have not been made public, and a timely objection has been raised.
        {¶ 9} Stillwagon and Ace Doran claim that Laurence waived the
physician-patient privilege because she voluntarily produced her medical records
in related litigation she filed against them, and upon dismissal, she neither
requested that her testimony be sealed nor insisted that the medical records be
destroyed or returned to her.         They acknowledge that the purpose of the
physician-patient privilege is to protect the privacy of the patient, but that purpose
is not served when a litigant has previously disclosed medical information
protected by the privilege in separate litigation involving the same defendants.
They distinguish Hageman because it concerned the liability of an attorney for the
unauthorized disclosure to a third party of medical information obtained through
litigation that arose from a different and unrelated set of circumstances, while this
case concerns the same accident and involves the same parties originally sued by
Laurence.
        {¶ 10} Accordingly, the issue presented in this appeal is whether the
physician-patient privilege protects medical records that a patient has previously
disclosed in discovery to some of the same parties in previous litigation arising
from the same accident.




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                                Law and Analysis
       {¶ 11} R.C. 2317.02 provides:


              The following persons shall not testify in certain respects:
              ***
              (B)(1) A physician * * * concerning a communication
       made to the physician * * * by a patient in that relation or the
       physician’s * * * advice to a patient, except as otherwise provided
       in this division, division (B)(2), and division (B)(3) of this section,
       and except that, if the patient is deemed by section 2151.421 of the
       Revised Code to have waived any testimonial privilege under this
       division, the physician may be compelled to testify on the same
       subject.


(Emphasis added.)
       {¶ 12} At issue in this case is a legislatively created exception to this
privilege contained in R.C. 2317.02(B)(1)(a)(iii), which is further restricted by
R.C. 2317.02(B)(3)(a).
       {¶ 13} R.C. 2317.02(B)(1)(a)(iii) provides:


              The testimonial privilege established under this division
       does not apply, and a physician * * * may testify or may be
       compelled to testify, in any of the following circumstances:
              (a) In any civil action, * * * or in connection with a claim
       under Chapter 4123. of the Revised Code, under any of the
       following circumstances:
              ***




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                 (iii) If a medical claim [or] * * * any other type of civil
       action, or a claim under Chapter 4123. of the Revised Code is filed
       by the patient * * *.


(Emphasis added.)
       {¶ 14} This exception is all-inclusive as to the type of civil action that
may be filed by the patient and does not contain any exclusion for or limitation of
indemnification or contribution claims. Laurence filed a type of civil action in the
instant litigation—one for indemnification or contribution—against Stillwagon
and Ace Doran. Hence, because Laurence filed a cross-claim, the elements of the
exception contained in R.C. 2317.02(B)(1)(a)(iii) are satisfied, with the result that
the testimonial privilege does not apply and a physician may testify or may be
compelled to testify to the communications.
       {¶ 15} The limitation at issue is contained in R.C. 2317.02(B)(3)(a):


                 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 * * * 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 * * * by the patient in
       question in that relation, or the physician’s * * * advice to the
       patient in question, that related causally or historically to physical
       or mental injuries that are relevant to issues in the * * * other civil
       action.


(Emphasis added.)
       {¶ 16} This subsection applies because the elements are satisfied by the
facts as demonstrated in this case. The original statement made by Laurence to




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emergency room personnel in the case she filed and later voluntarily dismissed
relates causally and historically to injuries that are relevant to issues in her cross-
claim because that statement is her own version of how the accident occurred.
Since the statute provides that a physician may testify or be compelled to testify to
communications that relate causally or historically to physical or mental injuries
relevant to issues in the other civil action, her statement is not protected by the
privilege.
        {¶ 17} Thus, pursuant to R.C. 2317.02(B)(3)(a) a physician may be
compelled to testify or submit to discovery only as to a communication made by
the patient that related causally or historically to physical or mental injuries
relevant to issues in the other civil action. Laurence’s statement related both
causally and historically to how the accident occurred and consequently to the
injuries and damages that could be awarded as a result of it. Thus, the privilege
does not apply.
                                     Conclusion
        {¶ 18} R.C. 2317.02(B)(1) establishes the physician-patient testimonial
privilege and prohibits a physician from testifying about a communication made
to the physician by a patient. The General Assembly has carved out exceptions to
this privilege in certain instances, and a physician may testify or be compelled to
do so in any civil action if any type of civil action or claim under R.C. Chapter
4123 is filed by the patient. When the physician-patient privilege described in
R.C. 2317.02(B)(1) does not apply as provided in R.C. 2317.02(B)(1)(a)(iii), a
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 other
civil action.
        {¶ 19} Accordingly, we affirm the judgment of the court of appeals.
                                                                  Judgment affirmed.
        O’CONNOR, C.J., and KENNEDY and FRENCH, JJ., concur.



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        PFEIFER, LANZINGER, and O’NEILL, JJ., dissent.
                            __________________
        LANZINGER, J., dissenting.
        {¶ 20} I respectfully dissent and would reverse the judgment of the court
of appeals. I would apply Hageman v. Southwest Gen. Health Ctr., 119 Ohio
St.3d 185, 2008-Ohio-3343, 893 N.E.2d 153, to reaffirm that “waiver of medical
confidentiality for litigation purposes is limited to the specific case for which the
records are sought.” Id. at ¶ 20. The medical records in this case are protected by
the physician-patient privilege, for although Laurence filed a cross-claim in this
case, the cross-claim did not place Laurence’s medical condition at issue.
                       Hageman v. Southwest Gen. Health Ctr.
        {¶ 21} In Hageman, we affirmed the judgment of the court of appeals that
reversed the trial court's entry of summary judgment in favor of an attorney who
had disclosed an opposing party’s medical records without authorization. We
held that “[a]n attorney may be liable to an opposing party for the unauthorized
disclosure of that party's medical information that was obtained through
litigation.” Id. at syllabus.
        {¶ 22} The attorney, who represented the wife in a divorce and custody
proceeding, obtained the husband’s medical records from his psychiatrist pursuant
to a waiver. Later, the attorney gave a copy of those records to the prosecutor for
use in a criminal proceeding against the husband. Writing for a plurality of the
court, Chief Justice Moyer first set forth the basic policy of confidentiality
established in Biddle v. Warren Gen. Hosp., 86 Ohio St.3d 395, 715 N.E.2d 518
(1999). He observed, “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.” Hageman at ¶ 13. In rejecting the same expansive waiver for
medical records that the appellees now urge in this case, Chief Justice Moyer
stated that “there is neither a legal justification for nor a practical benefit to the




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proposition that a waiver for a specific, limited purpose is a waiver for another
purpose.” Id. at ¶ 14. He explained that “[c]reating an expansive waiver would be
inconsistent with the generally recognized confidentiality provisions in Ohio and
federal law.” Id. at ¶ 15. Although the husband admitted that he had made his
health an issue in the divorce action by filing a cross-claim seeking custody of his
minor child, the waiver of the medical privilege was limited to that case and was
not effective in the second.
        {¶ 23} The majority opinion in the instant case does not take a position on
the application of Hageman, although it sets forth the parties’ arguments with
respect to this earlier case. I believe that the reasoning expressed in Hageman
should apply here as well for the protection of the confidentiality of medical
records. Laurence originally waived her privilege in a separate action that was
eventually dismissed. She did not file this second case. She filed only a cross-
claim for indemnification.
        {¶ 24} The filing of a cross-claim in an indemnification action is not “any
other type of civil action” that provides an exception to the physician-patient
privilege within the meaning of R.C. 2317.02(B)(1)(a)(iii). When read in context,
that section relates to claims in which the patient has placed her medical condition
at issue and states that the testimonial privilege will not apply if:


        a medical claim, dental claim, chiropractic claim, or optometric
        claim, as defined in section 2305.113 of the Revised Code, an
        action for wrongful death, any other type of civil action, or a claim
        under Chapter 4123. of the Revised Code is filed by the patient, the
        personal representative of the estate of the patient if deceased, or
        the patient's guardian or other legal representative.




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       {¶ 25} In Hageman, although the vote on the ultimate issue was split, all
justices agreed that the husband had waived his physician-patient privilege when
he filed a counterclaim that placed his medical condition at issue. See id. at ¶ 14
(Moyer, C.J., joined by Pfeifer and Lanzinger, JJ.); ¶ 23 (Cupp, J., concurring in
syllabus and judgment only, joined by O’Connor, J.); and ¶ 32 (O’Donnell, J.,
dissenting, joined by Lundberg Stratton, J.). That counterclaim is properly seen
as an “other type of civil action” within the meaning of the statute. But I now
respectfully disagree that the phrase “any other type of civil action” was meant to
extend to every type of claim, particularly a claim such as the cross-claim in this
case, which does not relate to a personal injury or other health issue but merely to
indemnification or contribution.
       {¶ 26} Laurence’s medical condition is not at issue. Her medical records
are protected by R.C. 2317.02(B)(1), and the privilege was not waived in this
pending lawsuit. She is entitled to a protective order, and on these grounds, I
dissent.
       PFEIFER and O’NEILL, JJ., concur in the foregoing opinion.
                             ____________________
       Smith Marshall, L.L.P., and Philip J. Weaver, for appellees Todd L.
Leopold and Linda Leopold.
       Ritter, Robinson, McCready & James, Ltd., and Shannon J. George; and
Bruce S. Goldstein Co., L.P.A., and Bruce S. Goldstein, for appellant.
       Reminger Co., L.P.A., and Brian D. Sullivan, Kenneth P. Abbarno, and
Martin T. Galvin, for appellees Stephen L. Stillwagon, Ace Doran Rigging &
Hauling Company, and Ace Doran Brokerage Company.
                          ________________________




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