[Cite as Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496.]




    MEDICAL MUTUAL OF OHIO, APPELLANT, v. SCHLOTTERER, APPELLEE.
                      [Cite as Med. Mut. of Ohio v. Schlotterer,
                        122 Ohio St.3d 181, 2009-Ohio-2496.]
Patient consent to release medical information — Physician-patient privilege — A
        patient’s consent to the release of medical information is valid, and waives
        the physician-patient privilege, if the release is voluntary, express, and
        reasonably specific in identifying to whom the information is to be
        delivered.
    (No. 2008-0598 — Submitted February 3, 2009 — Decided June 3, 2009.)
              APPEAL from the Court of Appeals for Cuyahoga County,
                               No. 89388, 2008-Ohio-49.
                                ––––––––––––––––––––
                               SYLLABUS OF THE COURT
A patient’s consent to the release of medical information is valid, and waives the
        physician-patient privilege, if the release is voluntary, express, and
        reasonably specific in identifying to whom the information is to be
        delivered.
                              ––––––––––––––––––––
        MOYER, C.J.
                                              I
        {¶ 1} The physician-patient privilege generally protects medical records
from disclosure, subject to certain limited exceptions.             This case asks us to
determine whether the privilege prevents discovery of medical records by an
insurance company in a civil fraud action against a physician when the patients
have given broad consent to release their records to their insurer. We hold that a
patient’s consent to the release of medical information is valid, and waives the
physician-patient privilege, if the release is voluntary, express, and reasonably
specific in identifying to whom the information is to be delivered.
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                                        II
         {¶ 2} Defendant-appellee, Dr. William Schlotterer, is a practicing
physician.    Plaintiff-appellant, Medical Mutual of Ohio, provides insurance
coverage to many of Schlotterer’s patients. In 1990, Schlotterer and Blue Cross
Blue Shield of Ohio, Medical Mutual’s predecessor in interest, executed a
participation agreement, which provides coverage for policyholders who receive
treatment from Schlotterer. To document the services Schlotterer provides his
patients, Schlotterer submits reports to Medical Mutual detailing the services
rendered, and he is accordingly reimbursed by the insurance company.
         {¶ 3} Medical Mutual’s complaint in this action explains that as part of
the reports Schlotterer provides to Medical Mutual, he assigns AMA-developed
common-procedural-technology codes to each patient visit, based on Schlotterer’s
assessment of the patient’s condition, including the extent of the examination, the
comprehensiveness of the medical history taken, and the complexity of the
diagnosis and treatment. Those codes are detailed in the provider manual, which
is incorporated into the participation agreement. Schlotterer is correspondingly
compensated by Medical Mutual based on the codes he assigns. Medical Mutual
notes that the code warranting the highest reimbursement, to be used “rarely” and
“only where the provider faces significant and complex medical decisions,” is
99215.
         {¶ 4} Medical Mutual’s review of Schlotterer’s billing reports in 2004
revealed a high percentage of 99215 code submissions. Medical Mutual then
requested medical records for ten families, which Schlotterer provided.        The
insurer reviewed the records and determined that the 99215 billing code was not
warranted in those cases. A subsequent investigation into Schlotterer’s coding
practices allegedly revealed that Schlotterer had been overpaid by $269,576 for
99215 code submissions.




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       {¶ 5} Medical Mutual filed this action against Schlotterer for fraud,
breach of contract, and a demand for an accounting of the doctor’s liabilities to it.
Schlotterer denied the allegations in the complaint and filed a counterclaim,
alleging that Medical Mutual had refused to honor any submissions for
reimbursement since February 2005. To determine the extent of the alleged fraud,
Medical Mutual filed a motion “for a Qualified Protective Order and order
[directing Schlotterer] to respond to discovery” of patient records. These records
were to have obscured the information that identified the patients.         Medical
Mutual argued that the records were discoverable according to Ohio law, the
participation agreement, and the certificates of coverage issued to insureds.
Schlotterer opposed the motion based on the physician-patient privilege.
       {¶ 6} The certificates of coverage issued to each of Schlotterer’s patients
insured by Medical Mutual include the following language in the Claim Review
section:
       {¶ 7} “Consent to Release Medical Information — Denial of Coverage
       {¶ 8} “You consent to the release of medical information to Medical
Mutual when you enroll and/or sign an Application.
       {¶ 9} “When you present your identification card for Covered Services,
you are also giving your consent to release medical information to Medical
Mutual. Medical Mutual has the right to refuse to reimburse for Covered Services
if you refuse to consent to the release of any medical information.”
       {¶ 10} The participation agreement signed by Schlotterer similarly
contains the following provision in the Record Review section:
       {¶ 11} “Provider agrees to furnish, upon request, to [Medical Mutual] or
its agents all requested Records relating to claims filed with [Medical Mutual], as
defined in [Medical Mutual’s] Professional Provider Manual.”
       {¶ 12} The trial court granted Medical Mutual’s motion, ordering
Schlotterer to respond to the discovery requests subject to the protective order.




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Schlotterer appealed pursuant to R.C. 2505.02(A)(3) and (B)(4), and the court of
appeals vacated and remanded the trial court’s decision. Med. Mut. of Ohio v.
Schlotterer, Cuyahoga App. No. 89388, 2008-Ohio-49. The court of appeals held
that the order to comply with the discovery requests for the medical records
violated the physician-patient privilege, as codified in R.C. 2317.02(B)(1). Id. at
¶ 36. We accepted Medical Mutual’s discretionary appeal. Med. Mut. of Ohio v.
Schlotterer, 118 Ohio St.3d 1505, 2008-Ohio-3369, 889 N.E.2d 1024.
                                        III
       {¶ 13} We apply a de novo standard of review in this case. In general,
discovery orders are reviewed under an abuse-of-discretion standard. State ex rel.
Sawyer v. Cuyahoga Cty. Dept. of Children & Family Servs., 110 Ohio St.3d 343,
2006-Ohio-4574, 853 N.E.2d 657, ¶ 9. But whether the information sought is
confidential and privileged from disclosure is a question of law that is reviewed
de novo. Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership (1992), 78
Ohio App.3d 340, 346, 604 N.E.2d 808. When a court’s judgment is based on an
erroneous interpretation of the law, an abuse-of-discretion standard is not
appropriate. See Swartzentruber v. Orrville Grace Brethren Church, 163 Ohio
App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6; Huntsman v. Aultman Hosp.,
5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, ¶ 50.
       {¶ 14} Medical records are generally privileged from disclosure under
R.C. 2317.02(B)(1). See Hageman v. Southwest Gen. Health Ctr., 119 Ohio St.3d
185, 2008-Ohio-3343, 893 N.E.2d 153, ¶ 9 (“Numerous state and federal laws
recognize and protect an individual’s interest in ensuring that his or her medical
information remains” confidential – R.C. 2317.02(B)(1), the physician-patient
privilege; R.C. 149.43(A)(1)(a), which exempts medical records from the Public
Records Act; and the federal Health Information Portability and Accountability
Act of 1996). Civ.R. 26(B) accordingly states, “Parties may obtain discovery
regarding any matter, not privileged, which is relevant to the subject matter




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involved in the pending action * * *.” The physician-patient privilege does not
apply, however, where the patient has given express consent to disclosure. R.C.
2317.02(B)(1)(a)(i).
       {¶ 15} The physician-patient privilege is designed to “ ‘promote health by
encouraging a patient to fully and freely disclose all relevant information which
may assist the physician in treating the patient.’ ” State Med. Bd. of Ohio v.
Miller (1989), 44 Ohio St.3d 136, 140, 541 N.E.2d 602, quoting Huzjak v. United
States (N.D.Ohio 1987), 118 F.R.D. 61, 63, citing Floyd v. Copas (C.P.1977), 9
O.O.3d 298, 299-300.
       {¶ 16} A consent to the release of medical information is valid, and
waives the physician-patient privilege, if it is voluntary, express, and reasonably
specific in identifying to whom the information is to be delivered. Generally
“[p]ersons may either expressly or impliedly waive statutory provisions intended
for their own benefit.” State ex rel. Wallace v. State Med. Bd. of Ohio (2000), 89
Ohio St.3d 431, 435, 732 N.E.2d 960. But the physician-patient-privilege statute
specifically requires a patient’s express consent. R.C. 2317.02(B)(1)(a)(i). See
State ex rel. Lambdin v. Brenton (1970), 21 Ohio St.2d 21, 24, 50 O.O.2d 44, 254
N.E.2d 681.
       {¶ 17} In Biddle v. Warren Gen. Hosp. (1999), 86 Ohio St.3d 395, 407,
715 N.E.2d 518, we further recognized the importance of specificity in a release
of medical records. The hospital in Biddle released medical records to a law firm
it had hired to screen patients for Supplemental Security Disability Income
eligibility to help those patients pay their past-due medical bills. Id. at 396. The
hospital argued that its general-authorization-for-release-of-information form
provided the patients’ consent. Id. at 406. We noted, “By its express terms, this
form authorizes the hospital to release medical information only ‘to [one’s]
insurance company and/or third party payor,’ and then only ‘as may be necessary
for the completion of [one’s] hospitalization claims.’ ” Id. We held that the form




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was insufficient to authorize release of the records because it authorized only the
release of information to the patient’s insurance company or third-party payor and
not to the hospital’s lawyers. Id. at 406-407. The requirement of specificity
allows the patients to know exactly who will have access to their medical records
in order for them to make a properly informed decision regarding waiver of the
physician-patient privilege. It is important to note that this requirement also
prohibits a party receiving the records from sharing the information with others
who are not within the scope of the patient’s release. Id. at 407. The limited
nature of the consent would otherwise be defeated.
       {¶ 18} We also held in Biddle that the form provided inadequate consent
because it explicitly stated a purpose for releasing the information, namely
completion of hospitalization claims, that was inconsistent with the hospital’s
disclosure to the law firm to determine Supplemental Security Income eligibility.
Id. at 406. If a purpose is provided within an express waiver of privilege, then it
becomes part of the consent. The patient must be able to rely on any limitations
or exclusions if he or she is to be capable of fully understanding the implications
of the waiver. If medical information is released for a purpose other than what is
agreed to, it is effectively a violation of the express nature of the consent.
                                          IV
       {¶ 19} The consent provisions in the certificates of coverage provided to
all Medical Mutual insureds that were patients of Schlotterer meet the necessary
requirements for disclosure. First, there is no contention that the releases were
involuntary. Second, they qualify as express consent, given the sentence “You
consent to the release of medical information to Medical Mutual when you enroll
and/or sign an Application.” And third, the provisions are reasonably specific in
identifying to whom the release is made: i.e., Medical Mutual.
       {¶ 20} Nor would discovery of the medical records at issue be
inconsistent with any stated purpose in the consent provisions. The releases here




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are broader than those in Biddle, 86 Ohio St.3d at 406, 715 N.E.2d 518, where
disclosure was limited to the express purpose of completing hospitalization
claims. Medical Mutual’s consent statement contains no such express purpose.
Schlotterer argues that the release does not authorize Medical Mutual to
investigate fraud; instead he asserts that the statement allows for review of the
medical records only before the insurer makes a coverage determination. We
disagree. The second paragraph in the consent section of the certificates of
coverage states that the patient again consents to release of medical information
upon presenting an identification card and that Medical Mutual has the right to
refuse to reimburse if the patient refuses consent. This language does not limit
the release to permission to determine whether services will be reimbursed, but
merely explains the consequences should a patient withdraw his or her consent.
       {¶ 21} Schlotterer also points to the heading above the consent section in
the certificates of coverage, Claim Review.       We decline, however, to give
significant weight to it. Medical Mutual’s purpose for obtaining these records
falls within the category of claim review. The insurer is seeking to review prior
coverage    claims   to   investigate   whether    Schlotterer   received    proper
reimbursement.
       {¶ 22} Schlotterer further contends that disclosing medical records in the
context of this litigation would entail releasing the records to Medical Mutual’s
attorneys, who fall outside the specific language of the consent. This argument
also fails. The disclosure of the medical information to the law firm in Biddle fell
outside the release because it authorized the hospital to release records to the
patient’s insurance company or a third-party payor only. Id., 86 Ohio St.3d at
406-407, 715 N.E.2d 518. Although we required that the attorneys be specifically
named in the consent, rather than impliedly included with their client, we do not
require this specificity in all circumstances. The release to Medical Mutual in this
case also permits disclosure to its attorneys who are seeking disclosure on its




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behalf. Were we to find otherwise, a party that must turn to the courts to enforce
a waiver of privilege would be compelled to do so on a pro se basis. A party is
entitled to attorney representation in a court of law. The information will be
disclosed to Medical Mutual’s attorneys only because Schlotterer refused to
comply with the consent provision and provide the records directly to Medical
Mutual.    Biddle involved considerably different circumstances: the hospital
disclosed the medical records to the law firm on its own terms entirely outside the
context of litigation. Id. at 396.
                                         V
        {¶ 23} Because Schlotterer’s patients that are insured by Medical Mutual
validly consented to release their medical information to Medical Mutual, we hold
that the consent exception to the physician-patient privilege in R.C. 2317.02(B)(1)
applies. Medical Mutual is therefore entitled to discovery of the medical records
in this action. We do stress, however, that Civ.R. 26(C) still applies to discovery
that is excepted from privilege protection. Trial courts may use protective orders
to prevent confidential information, such as that contained in the medical records
at issue, from being unnecessarily revealed.       Whether a protective order is
necessary remains a determination within the sound discretion of the trial court.
See State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register,
116 Ohio St.3d 88, 2007-Ohio-5542, 876 N.E.2d 913, ¶ 18. Schlotterer has not
challenged the trial court’s protective order, but only the decision that the records
are not protected by the physician-patient privilege. We therefore reverse the
judgment of the court of appeals and remand to the trial court for further
proceedings.
                                                                 Judgment reversed
                                                               and cause remanded.
        LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and CUPP,
JJ., concur.




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       PFEIFER, J., concurs in part and dissents in part.
                              __________________
       PFEIFER, J., concurring in part and dissenting in part.
       {¶ 24} The insureds in this case did not consent to release medical
information to enable Medical Mutual to pursue a lawsuit against a doctor; they
consented to release medical information to enable Medical Mutual to determine
whether specific insurance claims should be paid. The insureds in this case
upheld their end of the bargain: their medical information was available to the
insurance company before the claims were paid. Now that the claims have been
paid, Medical Mutual is attempting to contort a specific, single-purpose consent to
release into a general, all-purpose consent to release. One thing is abundantly
clear: the insureds in this case did not consent to the release of their medical
information for any purpose other than to determine whether their claims would
be paid. Because the claims have been paid, the consent to release is no longer
available to the insurance company. The majority opinion’s interpretation of the
consent to release in this case is much too broad.
       {¶ 25} Nevertheless, the information sought by Medical Mutual should be
available to it to pursue a claim against Dr. Schlotterer for fraud. I would adopt a
new exception to the physician-patient privilege — one suggested by amici curiae
Ohio State Medical Association and American Medical Association. As they say,
“the exception should be narrowly defined and applied only after a demonstrated
compelling need for the information sought.” They argue that an exception to the
physician-patient privilege should be allowed only “where the insurer (1) has
made a prima facie showing of fraud that could not have been discovered, with
the exercise of due diligence, within the two-year period after payment was made
to the provider as set forth in R.C. 3901.388 [addressing recovery of insurance-
company overpayments to medical professionals], and (2) has demonstrated that
consent of the nonparty patients cannot be obtained.” Adopting this exception




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would allow insurance companies to pursue claims against allegedly fraudulent
doctors without eroding the physician-patient privilege.        The result that the
majority opinion reaches is laudable because its effect is to allow an insurance
company to combat fraud, but the means used are too general and too likely to
result in further litigation to determine the bounds of the general exception.
       {¶ 26} I would remand to the trial court to apply this new exception to the
physician-patient privilege. I dissent.
                                __________________
       Frantz Ward, L.L.P., Stephen F. Gladstone, Brian E. Roof, and Brendan
M. Gallagher, for appellant.
       Rengel Law Office, D. Jeffery Rengel, and Thomas R. Lucas, for appellee.
       Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,
Stephen P. Carney, Deputy Solicitor, and Scott Myers, Assistant Attorney
General, urging reversal for amicus curiae state of Ohio.
       Allen, Kuehnle, Stovall & Newman, L.L.P., and Lisa L. Norris; and Wiley
Rein, L.L.P., Kirk J. Nahra, and Howard Anglin, urging reversal for amici curiae
National Health Care Anti-Fraud Association, National Insurance Crime Bureau,
Coalition Against Insurance Fraud, and America’s Health Insurance Plans.
       Thompson Hine, L.L.P., Alan F. Berliner, Jennifer E. Short, and Philip B.
Sineneng, urging reversal for amici curiae Ohio Association of Health Plans and
Ohio Insurance Institute.
       Carrie L. Davis and Jeffrey M. Gamso, urging affirmance for amicus
curiae American Civil Liberties Union of Ohio Foundation, Inc.
       Bricker & Eckler, L.L.P., Anne Marie Sferra, and Bridget A. Purdue, not
expressly supporting the position of either party for amici curiae Ohio State
Medical Association and American Medical Association.
                                __________________




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