[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Griffith v. Aultman Hosp., Slip Opinion No. 2016-Ohio-1138.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.


                         SLIP OPINION NO. 2016-OHIO-1138
        GRIFFITH, EXR., APPELLANT, v. AULTMAN HOSPITAL, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Griffith v. Aultman Hosp., Slip Opinion No. 2016-Ohio-1138.]
Medical records—R.C. 3701.74—Data generated in the process of a patient’s
        healthcare treatment that pertains to the patient’s medical history,
        diagnosis, prognosis, or medical condition qualifies as a medical record—
        The physical location of the data is not relevant to the determination
        whether than data qualifies as a medical record.
   (No. 2014-1055—Submitted September 2, 2015—Decided March 23, 2016.)
                APPEAL from the Court of Appeals for Stark County,
                        No. 2013CA00142, 2014-Ohio-1218.
                                 _________________
        KENNEDY, J.
        {¶ 1} In this appeal from the Fifth District Court of Appeals, we consider
the definition of “medical record” as it is used in R.C. 3701.74. Appellant, Gene’a
Griffith (“Griffith”), advances the following proposition of law: “A hospital should
not be permitted to withhold portions of a patient’s medical record by unilaterally
                             SUPREME COURT OF OHIO




selecting and storing those medical records in a department other than its medical
records department.”
        {¶ 2} For the reasons that follow, we conclude that because the Ohio
General Assembly did not limit the definition of “medical record” in R.C.
3701.74(A)(8) to data in the medical-records department, the physical location of
the data is not relevant to the determination whether that data qualifies as a medical
record. Instead, the focus is whether a healthcare provider made a decision to keep
data that was generated in the process of the patient’s healthcare treatment and
pertains to the patient’s medical history, diagnosis, prognosis, or medical condition.
We hold that for purposes of R.C. 3701.74(A)(8), “maintain” means that the
healthcare provider has made a decision to keep or preserve the data.
        {¶ 3} We reverse the judgment of the court of appeals and remand the
matter to the trial court.
                       I.     Facts and Procedural History
A.      Howard’s Surgery and Death
        {¶ 4} On May 2, 2012, Howard Griffith (“Howard”), Gene’a Griffith’s
father, was admitted by appellee, Aultman Hospital, for surgery. After being
transferred out of intensive care to a step-down unit, Howard developed intermittent
atrial fibrillation and was placed on continuous cardiac monitoring.
        {¶ 5} Around 4 a.m. on May 6, 2012, a nurse in the step-down unit assessed
Howard and found that he was doing well. About 45 minutes later, an x-ray
technician found Howard in his bed with his gown ripped off, the cardiac monitor
no longer attached to his body, his central line lying on the floor, and his chest tube
disconnected. Howard was unresponsive and did not have a heartbeat. Medical
personnel resuscitated him and moved him to the intensive-care unit. However,
Howard had suffered severe brain damage and after he made no neurological
improvement, his family decided to remove him from life support on May 7, 2012.
Howard died approximately nine hours later on May 8, 2012.




                                          2
                                  January Term, 2016




B.      Requests for Howard’s Medical Record
        {¶ 6} On July 24, 2012, Griffith requested a copy of Howard’s complete
medical record. The hospital provided some documents in response to this request.
Another written request was made on October 17, 2012. On October 22, 2012, the
hospital produced the medical record for the period May 2 through 8, 2012, that
existed in the medical-records department. On December 12, 2012, Griffith’s
representative made an in-person request and was permitted to review what was
represented to her as the complete medical record. On December 14, 2012, another
written request was made for the medical record. On December 31, 2012, the
hospital again produced the medical record that existed in the medical-records
department for the period May 2 through 8, 2012.
        {¶ 7} Griffith then filed this action pursuant to R.C. 3701.74 and 2317.48
to compel the production of Howard’s complete medical record. The complaint
alleged that the hospital had failed to produce any monitoring strips or nursing
records from Howard’s hospital stay.
        {¶ 8} After filing the complaint, Griffith served the hospital with requests
for admissions and interrogatories. In response, the hospital admitted that prior to
filing the action, it had failed to produce Howard’s “entire and complete medical
record in response” to each of Griffith’s medical-record requests. In the answer to
interrogatories, Jennifer Reagan-Nichols, the director of medical records and
transcription at the hospital, verified that after Griffith filed the action, the hospital
produced Howard’s entire medical record. Contemporaneously with the answer,
the hospital produced hard copies of cardiac-monitoring data from May 6, 2012,
“as responsive documents from the visit that are not part of the medical record.”
Thereafter, Reagan-Nichols was deposed.
        {¶ 9} In the initial deposition on March 11, 2013, Reagan-Nichols testified
that the hospital had produced Howard’s cardiac-rhythm strips from 4:00 a.m. to
4:51 a.m. on May 6 in response to the request for documents. While monitoring




                                            3
                            SUPREME COURT OF OHIO




strips for a patient that are received by her department would be made part of the
medical record, she explained that Howard’s printouts were not part of his medical
record because the nursing staff had not provided them to the medical-records
department. She did not know who directed the nurses not to print Howard’s data.
Reagan-Nichols did not know whether the strips met the legal definition of medical
record, but she did not have any reason to believe they did not meet the definition.
       {¶ 10} On March 14, 2013, the hospital filed a motion for summary
judgment, arguing that a complete copy of Howard’s medical record had been
produced. In support, the hospital provided the sworn interrogatory answers of
Reagan-Nichols.
       {¶ 11} On March 27, 2013, Reagan-Nichols submitted an errata sheet to
correct some of her deposition testimony. In that sheet, she stated that the May 6
rhythm strips did not meet the legal definition of medical records. She also stated
that the rhythm strips “were printed from electronic monitoring equipment after the
discharge of the patient at the direction of hospital Risk Management. The data in
this equipment is not part of the medical record.”
       {¶ 12} Subsequently, the trial court ordered a second deposition to address
the issues presented by the errata sheet. In that deposition, Reagan-Nichols stated
that to make sure her answers in her first deposition were correct, she asked
questions of the hospital’s director of risk management and a registered nurse with
the cardiac unit. Reagan-Nichols testified, based on information she had received
from the hospital’s director of risk management, that the May 6 rhythm strips
provided to Griffith were printed from Howard’s cardiac monitor by a registered
nurse after Howard’s death at the direction of the hospital’s risk-management
department. She did not know when risk management ordered the nurse to print
Howard’s data or whether the nurse printed all the data on the monitor relevant to
Howard.




                                         4
                                January Term, 2016




       {¶ 13} Reagan-Nichols stated that the cardiac monitor electronically stored
a patient’s data for 24 hours after that patient’s discharge. After 24 hours, however,
the information was deleted from the monitor unless a physician ordered that the
data be saved. Reagan-Nichols did not know for how long the data would be saved.
She believed that all of Howard’s monitoring data was saved. With respect to
Howard, Reagan-Nichols did not know if “discharge” meant his transfer from the
step-down unit to the intensive-care unit or after his death.
       {¶ 14} After the second deposition, the hospital produced a cardiac-rhythm
strip for Howard from May 3, 2012, at 2:51 a.m. without qualification.
C.     Lower Court Proceedings
       {¶ 15} The trial court granted summary judgment in favor of the hospital.
It concluded that the hospital had produced Howard’s medical record, as defined
by R.C. 3701.74(A)(8).
       {¶ 16} On appeal, the Fifth District affirmed the trial court’s judgment in a
two-to-one decision.     The majority agreed with the hospital that the word
“maintained” in R.C. 3701.74(A)(8) pertains only to records that “ ‘a hospital
determines needs to be maintained by a health care provider in the process of a
patient’s health care’ ”: “ ‘not everything having to do with the patient’ ” and “ ‘not
that which a Plaintiff in a * * * medical malpractice case thinks should be
maintained.’ ” 2014-Ohio-1218, ¶ 22, quoting the argument made by the hospital
attorney on the motion for summary judgment. Therefore, the court held that “the
medical record consists of what was maintained by the medical records department
and information that the provider decides not to maintain is not part of the medical
record.” Id. Documents kept by any other department, including risk management,
“do not meet the definition of a medical record because they were not ‘maintained’
by the medical records department.” Id. at ¶ 30. Because the hospital had certified
that it produced Howard’s medical records, as that term was defined by the statute,




                                          5
                              SUPREME COURT OF OHIO




 the court of appeals found that the trial court did not err in granting summary
 judgment for the hospital. Id. at ¶ 22.
                              II.    Law and Analysis
        {¶ 17} This appeal requires us to determine what constitutes a “medical
 record” as that term is used in R.C. 3701.74(A)(8). We agree with the Fifth District
 that the term “medical record” in R.C. 3701.74(B) does not include all patient data
 but includes only that data that a healthcare provider has decided to keep or preserve
 in the process of treatment. However, the Fifth District erred in holding that the
 medical record consists only of information maintained by the medical-records
 department.    The statute defines “medical record” to mean any patient data
 “generated and maintained by a health care provider,” without any limitation as to
 the physical location or department where it is kept. R.C. 3701.74(A)(8). We
 therefore remand this cause to the trial court to determine whether the hospital met
 its burden on a motion for summary judgment to show that it had produced
 Howard’s entire “medical record” in accordance with our decision.
A.    Definition of “medical record” in R.C. 3701.74(A)(8)
        {¶ 18} When interpreting a statute, this court’s paramount concern is
 legislative intent. State ex rel. United States Steel Corp. v. Zaleski, 98 Ohio St.3d
 395, 2003-Ohio-1630, 786 N.E.2d 39, ¶ 12. “[T]he intent of the lawmakers is to
 be sought first of all in the language employed, and if the words be free from
 ambiguity and doubt, and express plainly, clearly, and distinctly the sense of the
 lawmaking body, there is no occasion to resort to other means of interpretation.”
 Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the
 syllabus. We apply the statute as written, Boley v. Goodyear Tire & Rubber Co.,
 125 Ohio St.3d 510, 2010-Ohio-2550, 929 N.E.2d 448, ¶ 20, and we refrain from
 adding or deleting words when the statute’s meaning is clear and unambiguous,
 Armstrong v. John R. Jurgensen Co., 136 Ohio St.3d 58, 2013-Ohio-2237, 990
 N.E.2d 568, ¶ 12.




                                           6
                                January Term, 2016




       {¶ 19} R.C. 3701.74(B) sets forth the procedure by which a “patient, a
patient’s personal representative, or an authorized person” may “examine or obtain
a copy of part or all of a medical record.” “Medical record” is defined as “data in
any form that pertains to a patient’s medical history, diagnosis, prognosis, or
medical condition and that is generated and maintained by a health care provider in
the process of the patient’s health care treatment.” R.C. 3701.74(A)(8).
       {¶ 20} The meaning of the word “maintain” lies at the heart of this dispute.
The hospital argues that “maintain” connotes an exercise of discretion and a level
of management that brings the data into a discrete set of records. Therefore, the
medical record, according to the hospital, consists of the information that the
healthcare provider deems appropriate to maintain in a discrete location for the care
of the patient. Griffith argues, consistent with the view of the Fifth District’s
dissenting judge, that the statute does not authorize the hospital to limit the medical
record to include only those records it sends to its medical-records department.
       {¶ 21} The legislature did not define “maintain” in R.C. 3701.74.
Moreover, the word has not “acquired a technical or particular meaning, whether
by legislative definition or otherwise,” that we are required to apply here. R.C.
1.42. Therefore, to resolve the question, we look to the ordinary, common meaning
of the word “maintain.” See Weaver v. Edwin Shaw Hosp., 104 Ohio St.3d 390,
2004-Ohio-6549, 819 N.E.2d 1079, ¶ 12.
       {¶ 22} “Maintain” is defined as “[t]o continue in possession of.” Black’s
Law Dictionary 1097 (10th Ed.2014). Contrary to the hospital’s assertion, the
definition of “maintain” does not depend on a managerial decision to keep or
preserve the data in a discrete location or file. Instead, the ordinary and common
meaning conveys that the healthcare provider has made a decision to keep or
preserve the data.
       {¶ 23} R.C. 3701.74(A)(8) does not state that a medical record must be kept
in a specific physical location. To interpret R.C. 3701.74(A)(8) as limiting a




                                          7
                              SUPREME COURT OF OHIO




 medical record to data, generally or in a discrete set, in the medical-records
 department would require us to insert words not used by the General Assembly.
 “In matters of construction, it is the duty of this court to give effect to the words
 used, not to delete words used or to insert words not used.” Cleveland Elec. Illum.
 Co. v. Cleveland, 37 Ohio St.3d 50, 524 N.E.2d 441 (1988), paragraph three of the
 syllabus.
        {¶ 24} By comparison, Ark.Code Ann. 16-46-402 defines “medical
 records” as “health care records * * * maintained by the medical records department
 of a * * * medical facility.” The Arkansas General Assembly expressed the intent
 that the record must be in the physical location of the medical-records department.
 The Ohio General Assembly did not.
        {¶ 25} We therefore disagree with the reasoning of the Fifth District and
 conclude that the physical location of patient data is not relevant to the
 determination whether that data qualifies as a medical record under R.C.
 3701.74(A)(8). Rather, the definition focuses on whether a healthcare provider
 made a decision to keep data that was generated in the process of the patient’s
 healthcare treatment and pertains to the patient’s medical history, diagnosis,
 prognosis, or medical condition.
B.    The hospital’s evidentiary burden
        {¶ 26} We now consider whether the hospital met its burden on a motion
 for summary judgment to show that there was no genuine issue of material fact that
 it produced Howard’s entire medical record. See Civ.R. 56(C). A party seeking
 summary judgment “bears the initial responsibility of informing the trial court of
 the basis for the motion, and identifying those portions of the record before the trial
 court which demonstrate the absence of a genuine issue of fact on a material
 element of the nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 292,
 662 N.E.2d 264 (1996). The hospital argued in its motion for summary judgment
 that it had met its initial burden by producing a certified copy of Howard’s medical




                                           8
                                January Term, 2016




record as it existed in the medical-records department. According to the hospital,
the May 6 cardiac-monitoring strips, which were printed after discharge at the
direction of the risk-management department, did not meet the definition of
“medical record” because they were not kept in the medical-records department.
       {¶ 27} Reagan-Nichols testified that the data on the cardiac monitor is
deleted 24 hours after discharge unless it is saved at the direction of a physician. If
indeed saved at the direction of a physician before discharge, the cardiac-
monitoring information—and other patient data saved by a healthcare provider but
not kept in the medical-records department—would fall under the definition of
“medical record.” However, because the proceedings below focused only on
medical records kept in the hospital’s medical-records department, the record
before us is insufficient to determine whether the hospital produced the entirety of
Howard’s medical record. Therefore, we remand to the trial court to apply the
definition of medical record as set forth in this decision, to order further
proceedings if needed to develop the evidentiary record, and to make a
determination whether the hospital has met its burden.
C.     No requirement in R.C. 3701.74 to state a reason when requesting
       medical records
       {¶ 28} Finally, we conclude that the plain language of R.C. 3701.74 does
not require that a patient seeking a medical record state a reason for doing so. The
Fifth District found that the purpose of R.C. 3701.74 is to “enable the patient to
obtain his or her file in order, for example, to obtain a second opinion or transfer to
another medical provider.” 2014-Ohio-1218, ¶ 23. Justice Lanzinger’s dissenting
opinion suggests that settlement of Griffith’s medical-malpractice action moots any
further inquiry into the production of the medical record. In establishing a patient’s
right of access to medical records, however, the General Assembly has not imposed
upon the patient or the patient’s representative any burden of demonstrating a
reason for accessing the medical record. All that is required of a patient or a




                                          9
                             SUPREME COURT OF OHIO




patient’s representative is to “submit to the health care provider a written request
signed by the patient * * * dated not more than one year before the date on which
it is submitted.” R.C. 3701.74(B).
                                 III. Conclusion
       {¶ 29} Because the Ohio General Assembly did not limit the definition of
“medical record” in R.C. 3701.74(A)(8) to data in the medical-records department,
the physical location of the data is not relevant to the determination whether that
data qualifies as a medical record. Instead, the definition focuses on whether a
healthcare provider made a decision to keep data that was generated in the process
of the patient’s healthcare treatment and that pertained to the patient’s medical
history, diagnosis, prognosis, or medical condition. We hold that for purposes of
R.C. 3701.74(A)(8), “maintain” means that the healthcare provider has made a
decision to keep or preserve the data.
       {¶ 30} The judgment of the court of appeals is reversed, and the cause is
remanded to the trial court for proceedings consistent with this opinion.
                                                                Judgment reversed
                                                              and cause remanded.
       PFEIFER, FRENCH, and O’NEILL, JJ., concur.
       O’CONNOR, C.J., concurs in judgment only.
       O’DONNELL, J., dissents with an opinion.
       LANZINGER, J., dissents with an opinion.
                               _________________
       O’DONNELL, J., dissenting.
       {¶ 31} Respectfully, I dissent.
       {¶ 32} Records generated and maintained by a hospital’s risk management
department for risk-management purposes following the death of a patient are not
records “used in the process of a patient’s health care treatment,” and therefore,
they are not “medical records” as defined by R.C. 3701.74(A)(8). Accordingly,




                                         10
                                January Term, 2016




because Aultman Hospital produced the entire medical record of Howard Griffith
and is entitled to judgment as a matter of law in connection with the request for the
production of documents, I would affirm the judgment of the Fifth District Court
of Appeals.
                          Facts and Procedural History
       {¶ 33} On May 2, 2012, Aultman Hospital admitted Howard Griffith for
surgery to remove a portion of his left lung. Following that surgery, he developed
intermittent atrial fibrillation, and the hospital placed him on continuous cardiac
monitoring. On May 6 around 4:00 a.m., a nurse assessed him, but approximately
45 minutes later, an x-ray technician found him unresponsive with the leads to his
cardiac monitor detached from his chest and without a heartbeat.            Medical
personnel resuscitated him and placed him on life support, but his family decided
to remove him from life support, and he died on May 8. The discharge summary
dated May 12, 2012, stated that “a retrospective review of his monitor at the nurse’s
station showed that the EKG leads did not show any kind of rhythm,” starting
around 4:00 in the morning, until the x-ray tech found him.
       {¶ 34} Gene’a Griffith, executor for the estate of Howard E. Griffith,
subsequently attempted to obtain a complete copy of her father’s medical record.
Aultman Hospital provided her with the medical record maintained by its medical
records department, but after reviewing the documents provided by the hospital,
Griffith believed she had not received the complete medical record. As a result, she
filed this action to compel the production of the complete medical record in
accordance with R.C. 3701.74 and 2317.48.
       {¶ 35} The complaint alleged that the hospital failed to produce any
monitoring strips from the cardiac monitor or any nursing records from her father’s
stay in the hospital. The hospital denied that it had withheld the complete medical
record, but it nonetheless produced monitor strip printouts “as responsive
documents from the visit that are not part of the medical record.” The printed strips




                                         11
                              SUPREME COURT OF OHIO




from the cardiac monitor reflected the activity from 4:00 a.m. to 4:51 a.m. on May
6, 2012.
       {¶ 36} Griffith then deposed Jennifer Reagan-Nichols, Aultman Hospital’s
medical records director, who explained that the medical records department does
not maintain all medical data generated during a patient’s stay at the hospital—
printing out all of the data from the equipment monitoring patients 24 hours a day
would result in “loads of paper in your chart.” She noted that a doctor or a nurse
had discretion to make printouts from the monitoring strips part of the medical
record by sending them to the medical records department, but she also testified
that “the nursing staff does not provide them to us” and that the electronic data on
the monitoring machines is not accessible to or maintained by the medical records
department as part of a patient’s medical record.
       {¶ 37} According to Reagan-Nichols, the monitoring data is retained only
for 24 hours after a patient’s discharge; after that time, the machine automatically
deletes the data unless a doctor ordered it saved. Thus, she explained, if medical
data is not documented by a doctor or a nurse, it is not maintained as part of the
patient’s medical record by the hospital.
       {¶ 38} When asked whether Griffith’s electronic monitoring data had been
retained on the monitoring equipment after his death, Reagan-Nichols testified, “I
don’t know.” However, she explained that the monitoring strips provided in
discovery “were printed from electronic monitoring equipment after the discharge
of the patient at the direction of hospital Risk Management” and stored there and
that “[t]he data in this equipment is not part of the medical record.” She clarified
that Cathy Rainieri, the director of the risk management department, had ordered
the charge nurse on the cardiac floor to print out the electronic monitoring data after
Howard Griffith’s death and subsequent discharge from the hospital. Reagan-
Nichols could not say whether the charge nurse printed out all of the data from the
equipment or just a part of it.




                                            12
                                January Term, 2016




       {¶ 39} The trial court granted summary judgment to Aultman Hospital,
finding that it had produced the complete medical record. The Fifth District
affirmed that judgment, concluding that “the medical record consists of what was
maintained by the medical records department and information that the provider
decides not to maintain is not part of the medical record.” 2014-Ohio-1218, ¶ 22.
The appellate court also noted that R.C. 3701.74 is a miscellaneous provision to
enable a patient to obtain his or her file, not a broad discovery device.
                                 Law and Analysis
       {¶ 40} On appeal to this court, Griffith presents one proposition of law: “A
hospital should not be permitted to withhold portions of a patient’s medical record
by unilaterally selecting and storing those medical records in a department other
than its medical records department.” This proposition of law implies that a health
care provider could conceal a medical record by storing it in a location other than
the provider’s medical records department. This focus on concealment and location
is misleading.
       {¶ 41} R.C. 3701.74(A)(8) defines “medical record” to mean “data in any
form that pertains to a patient’s medical history, diagnosis, prognosis, or medical
condition and that is generated and maintained by a health care provider in the
process of the patient’s health care treatment.” A careful reading of this statute
reveals that a health care provider is required to produce only those records it has
generated and maintained in the process of the patient’s health care treatment.
       {¶ 42} Thus, a demonstration that medical data exists or has been generated
and maintained by a hospital does not automatically require that it be produced as
a medical record. Rather, the General Assembly has directed health care providers
to give access to medical records as defined in the statute—data that pertains to
medical history, diagnosis, prognosis, or medical condition and that is generated
and maintained by a health care provider in the process of the patient’s health care
treatment. The legislature could have mandated that health care providers maintain




                                          13
                             SUPREME COURT OF OHIO




and produce all patient data generated for any purpose, but it did not do so. Rather,
it particularly specified that medical records are those generated and maintained by
a medical provider in the process of the patient’s health care treatment. Thus, to
resolve this appeal, we only need to apply R.C. 3701.74 as written.
       {¶ 43} Although Aultman Hospital electronically monitored Howard
Griffith on a cardiac monitor during the course of his stay, no provider maintained
that data in the process of Griffith’s treatment. Here, the facts show that Aultman
Hospital’s risk management department generated and maintained the cardiac
monitoring strips at issue here following his discharge from the hospital. At that
point, the hospital was no longer providing any medical care to him, and therefore,
the risk management department could not have generated and maintained that data
“in the process of the patient’s health care treatment.” The department’s purpose
for maintaining this data is not immediately apparent from this record, but it is
manifest that it was not in furtherance of providing health care treatment. It is also
apparent that a health care provider did not generate or maintain this data in the
process of the patient’s treatment.
       {¶ 44} For these reasons, these documents are not medical records that R.C.
3701.74 required Aultman Hospital to produce.
                                      Conclusion
       {¶ 45} The evidence shows that Aultman Hospital produced the complete
medical record from its medical records office in conformity with Griffin’s request.
The disputed cardiac monitor strips are not medical records as defined by R.C.
3701.74(A)(8) because they were not generated and maintained by a health care
provider in the process of Howard’s health care treatment. Rather, the risk
management department of Aultman Hospital generated them for its own purposes
after Howard Griffin’s death. Accordingly, although Aultman Hospital produced
this data in discovery, it had no obligation to do so.




                                          14
                                January Term, 2016




       {¶ 46} For these reasons, I would affirm the judgment of the Fifth District
Court of Appeals.
                                _________________
       LANZINGER, J., dissenting.
       {¶ 47} I respectfully dissent. In reversing the court of appeals’ judgment
and remanding to the trial court, the majority continues an action in which
appellant, Gene’a Griffith, seeks records for a wrongful-death claim that has
already been settled. There is no real controversy between the parties, and res
judicata bars the action since both the claim for production of documents and the
underlying claim for malpractice are founded on the medical care provided to the
decedent, Howard Griffith. I would dismiss this appeal on that basis, and I
respectfully dissent from the majority’s decision to reverse the judgment of the
court of appeals and remand to the trial court.
       {¶ 48} Although the majority reads the word “maintain” within the statute
defining “medical records” to mean “keep or preserve,” by reversing the judgment
in this case, the majority sidesteps the crucial argument made by appellee, Aultman
Hospital, that the healthcare provider should have discretion to decide when data
should be considered part of the patient’s medical record. I do agree that R.C.
3701.74(A)(8) does not require that data be stored in a particular place to qualify
as medical records, but I do not agree that the Fifth District permitted the healthcare
provider to define a medical record based solely on the place where the data is
stored. The appellate court affirmed the grant of summary judgment by adopting
appellee’s understanding of the word “maintain”:


       “[T]he only meaning that can [be] attached to it, is that the hospital
       record is to be that which the hospital maintains, not that which a
       Plaintiff in a legal        malpractice case—or in a medical
       malpractice case thinks should be maintained, not everything having




                                          15
                                SUPREME COURT OF OHIO




        to do with the patient, but that which a hospital determines needs to
        be maintained by a health care provider in the process of a patient’s
        health care.”


2014-Ohio-1218, ¶ 22.
        {¶ 49} The court of appeals then simply determined that the trial court had
not erred in granting summary judgment on the facts presented, namely that “the
medical record consists of what was maintained by the medical records department
and information that the provider decides not to maintain is not part of the medical
record.” Id.
        {¶ 50} The definition of “medical record” within R.C. 3701.74(A)(8) may
be broken down into four components: 1) any data, regardless of its form 2)
pertaining to a patient’s history, diagnosis, prognosis, or medical condition 3)
generated and maintained by a healthcare provider 4) in the process of the patient’s
health care treatment. A “health care provider” is defined in R.C. 3701.74(A)(5)
as “a hospital, ambulatory care facility, long-term care facility, pharmacy,
emergency care facility or health care practitioner.”                 And a “health care
practitioner” is broadly defined in 3701.74(A)(4)(a) through (r) to cover all types
of medical professionals.
        {¶ 51} Appellee and amici curiae1 detailed the current status of
recordkeeping and explained that a hospital must handle its data pursuant to all laws
and regulations, including R.C. 3701.74, to which it is subject. They also have
raised serious practical concerns over appellant’s interpretation of the statute and
the unintended consequences that would follow.                 The judgment of treating
healthcare providers must be relied upon to determine what is (or is not) part of a

1
  The Academy of Medicine of Cleveland and Northern Ohio and the Ohio Hospital Association,
the Ohio State Medical Association, the Ohio Osteopathic Association, and the Ohio Alliance for
Civil Justice filed briefs in support of appellee.




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                                 January Term, 2016




patient’s medical record, those providers being best able to determine what
information is relevant to a patient’s treatment. Hospitals and other providers have
teams of employees dedicated to collecting and maintaining this information, and,
as the amici curiae have noted, many hospitals have multidisciplinary committees
that determine what information should be included in a medical record. The
information in the medical record presents the relevant and necessary information
that is always subject to being supplemented in the clinical judgment of the treating
providers.
        {¶ 52} In the highly regulated area of health care, appellant’s concerns over
the routine “sanitization” of medical records are overblown. The purpose of R.C.
3701.74 is to deliver medical records to patients upon request both efficiently and
cost-effectively, but nothing in the statute suggests it is to be a broad discovery tool.
While a medical record may include data in any form, R.C. 3701.74(A)(8) specifies
that in order for data to be a part of the medical record, that data must be generated
and maintained by the healthcare provider “in the process of the patient’s health
care treatment.” (Emphasis added.) This language implies that it is within a
hospital’s discretion, through its employees, to select, preserve, and store records
relevant to the health care of a particular patient in the manner it sees fit.
        {¶ 53} In my view, there are no material issues of fact in this case, even if
it were appropriately before us. R.C. 3701.74(A)(8) permits a healthcare provider
to exercise discretion in generating and retaining a specific set of records for a
patient’s healthcare treatment. Those records were, in fact, provided to appellant.
The record and subsequent filings show that appellant obtained the additional
information she requested through interrogatories and that the parties have already
settled their case. It is difficult to know what the trial court should do upon remand,
because any order for the further production of records would have no effect.
Because I do not believe there is a case or controversy before us, I would dismiss
this appeal, and I therefore respectfully dissent.




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                            SUPREME COURT OF OHIO




                              _________________
        Tzangas Plakas Mannos, Ltd., Lee E. Plakas, and Megan J. Frantz Oldham,
for appellant.
        Milligan Pusateri Co., L.P.A., Richard S. Milligan, Paul J. Pusateri, and
Thomas J. Himmelspach, for appellee.
        Vivian Whalen Duffrin and Kathleen Tatarsky, urging reversal for amicus
curiae Stark County Association for Justice.
        Willis & Willis Co., L.P.A., and Mark C. Willis, urging reversal for amici
curiae Ohio Association for Justice and Summit County Association for Justice.
        Nurenberg, Paris, Heller & McCarthy Co., L.P.A., Kathleen J. St. John, and
David M. Paris, urging reversal for amicus curiae AARP.
        Freking & Betz and Mark W. Napier, urging reversal for amicus curiae
Southwest Ohio Trial Lawyers Association.
        Reminger Co., L.P.A., Martin T. Galvin, and David Valent, urging
affirmance for amicus curiae Academy of Medicine of Cleveland and Northern
Ohio.
        Squire Patton Boggs, L.L.P., Keith Shumate, and Heather Stutz, urging
affirmance for amici curiae Ohio Hospital Association, Ohio State Medical
Association, Ohio Osteopathic Association, and Ohio Alliance for Civil Justice.
        Sean McGlone, urging affirmance for amicus curiae Ohio Hospital
Association.
                             ___________________




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