[Cite as Medina v. Medina Gen. Hosp., 2011-Ohio-3990.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 96171



                                  ARCELIA MEDINA
                                                PLAINTIFF-APPELLEE

                                                   vs.

               MEDINA GENERAL HOSPITAL, ET AL.
                                                DEFENDANTS-APPELLANTS




                                          JUDGMENT:
                                           AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CV-698231


        BEFORE:          Sweeney, J., Kilbane, A.J., and Jones, J.

        RELEASED AND JOURNALIZED:                        August 11, 2011

ATTORNEYS FOR APPELLANTS
Jeffrey E. Schobert, Esq.
David T. Moss, Esq.
Hanna, Campbell & Powell, L.L.P.
3737 Embassy Parkway, Suite 100
P.O. Box 5521
Akron, Ohio 44334


ATTORNEYS FOR APPELLEE

FOR ARCELIA MEDINA

Mitchell A. Weisman, Esq.
Weisman, Kennedy & Berris Co.
1600 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115

Jerry Esrig, Esq.
Zaideman & Esrig, P.C.
10 S. Riverside Plaza, Suite 1020
Chicago, Illinois 60606

FOR MARIA GRIFFITHS, M.D.

Mark R. Jones, Esq.
Roetzel & Andress
1375 East Ninth Street
Ninth Floor
Cleveland, Ohio 44114




(Continued)
FOR MATTHEW C. MCDONNELL, M.D., ET AL.

Thomas B. Kilbane, Esq.
Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115-1093

FOR OHIO ANESTHESIOLOGY SERV., ET AL.

Anna M. Carulas, Esq.
Ingrid Kinkopf-Zajac, Esq.
Roetzel & Andress
1375 East Ninth Street
Ninth Floor
Cleveland, Ohio 44114



JAMES J. SWEENEY, J.:

       {¶ 1} Defendant-appellant, Medina General Hospital (the “Hospital”)         appeals

the trial court’s order that granted plaintiff-appellee’s, Arcelia Medina (“Medina”) motion

to compel the Hospital to answer certain discovery and denied the Hospital’s motion for

protective order. This matter is before us on appeal presenting the sole issue of whether

the trial court’s order involves the disclosure of privileged information contrary to the

law. For the reasons that follow, we affirm.

       {¶ 2} This is a wrongful death action wherein Medina has asserted causes of

action against various defendants including allegations of medical malpractice and

negligence. During the course of discovery, Medina requested the Hospital to answer the

following interrogatories:
       {¶ 3} “3. For the period January 1, 2007 through October 9, 2009, state the

number of times Lana Mitchell signed an Anesthesia Record for a surgical procedure for

which she was the sole anesthesia provider present during the surgery and for which

general anesthesia was given to the patient and list the date of each such procedure.”

       {¶ 4} “4. For each procedure included in your answer to Interrogatory No. 3

above, state whether Lana Mitchell charted any numerical values for the patient’s end

tidal CO2.”

       {¶ 5} The trial court ordered the Hospital to answer the interrogatories, however,

limited the time frame to the “period of nine months immediately preceding Victor

Medina’s surgery.” The trial court reasoned that the responsive discovery, i.e., “the

number of times defendant Lana Mitchell charted end-tidal CO2 and the intervals at

which she did so, does not involve the disclosure of confidential or privileged

information.” The Hospital has appealed asserting the following error for our review:

       {¶ 6} “The trial court erred in granting Plaintiff-Appellee’s Motion to Compel

which required Defendant-Appellant Medina General Hospital to disclose medical

information which may only be derived from confidential patient medical records that are

statutorily protected pursuant to the statutory physician-patient privilege contained in R.C.

2317.02 and the Health Insurance Portability and Accountability Act (HIPAA).”

       {¶ 7} The subject order constitutes a final, appealable order only to the extent that

the Hospital is asserting that it calls for the disclosure of a privileged matter. R.C.
2505.02.    As to matters other than those concerning discovery of privileged matters, the

trial court’s order is deemed interlocutory, and not final and appealable.

       {¶ 8} Civ.R. 26(B)(1) provides “[p]arties may obtain discovery regarding any

matter, not privileged, which is relevant to the subject matter involved in the pending

action, whether it relates to the claim or defense of the party seeking discovery or to the

claim or defense of any other party, including the existence, description, nature, custody,

condition and location of any books, documents, electronically stored information, or

other tangible things and the identity and location of persons having knowledge of any

discoverable matter. 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.”

       {¶ 9} The burden of showing that testimony or documents are confidential or

privileged rests upon the party seeking to exclude it. Lemley v. Kaiser (1983), 6 Ohio

St.3d 258, 263-264, 452 N.E.2d 1304.         The decision whether to grant or deny the

protective order is within the trial court’s discretion, and will not be reversed absent an

abuse of that discretion. Ruwe v. Bd. of Springfield Twp. Trustees (1987), 29 Ohio St.3d

59, 61, 505 N.E.2d 957. However, we review matters involving the discovery of alleged

confidential and privileged information de novo. Roe v. Planned Parenthood S.W. Ohio

Region, 122 Ohio St.3d 399, 2009-Ohio-2973, 912 N.E.2d 61, ¶29.

       {¶ 10} The Hospital contends that the trial court’s order violates the physician

patient privilege codified in R.C. 2317.02 and as it has been interpreted by the Ohio
Supreme Court in Roe. The Hospital also maintains the disclosure involves personal

health information and is contrary to the provisions of HIPAA. The Hospital premises

its arguments upon its contention that in order to respond to the interrogatories it will

have to refer to hospital records pertaining to non-parties.

       {¶ 11} “The purpose of [the physician-patient] privilege is to encourage patients to

make a full disclosure of their symptoms and conditions to their physicians without fear

that such matters will later become public * * *.” State v. Antill (1964), 176 Ohio St. 61,

64-65, 197 N.E.2d 548.     It is the Hospital’s position that deriving any information from

medical records pertaining to non-parties violates the physician-patient privilege and the

Hospital relies heavily upon the Ohio Supreme Court’s decision in Roe.

       {¶ 12} The discovery sought in this case, however, is distinguishable from Roe.

There, the plaintiff was seeking the production of “any reports of abuse made pursuant to

R.C. 2151.421 and the medical records of nonparty minors who had been patients at

Planned Parenthood during a ten-year period.” Roe urged that disclosure would be

permissible if the nonparties personal identifiers were redacted from the records and the

balancing test established in Biddle v. Warren Gen. Hosp. (1999), 86 Ohio St.3d 395, 715

N.E.2d 518, was employed. In Roe, the Ohio Supreme Court held that its decision in

Biddle pertained only to the tort of unauthorized disclosure and did “not create a right to

discover confidential medical records of nonparties in a private lawsuit.” Roe, 122 Ohio

St.3d 399, paragraph one of the syllabus (emphasis added). The Ohio Supreme Court

instructed that medical records of nonparties are confidential and privileged and the
redaction of personal information does not alter that fact. Id. at 409, citing R.C.

2151.42(H)(1) and 2317.02. Unlike this case, there was no dispute in Roe that the

discovery involved the disclosure of confidential medical records of nonparties.

      {¶ 13} In a later case that distinguished Roe, the Ohio Supreme Court stated, “[w]e

have never held that the physician-patient privilege provides an absolute protection

against the disclosure of medical information.” Ward v. Summa Health Sys., 128 Ohio

St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, ¶29 (emphasis added).             The codified

privilege at issue protects “communications,” as defined in R.C. 2317.02(B)(1), between

the health care provider and the patient. For example, the identity of the health care

provider(s) that treated the patient is not protected information. See Turk v. Oiler, (N.D.

Ohio 2010), 732 F.Supp.2d 758, citing, Ingram v. Adena Health Sys. (2002), 149 Ohio

App.3d 447, 777 N.E.2d 901; Hudson v. United States Auto. Assoc. Ins. Co., 150 Ohio

Misc.2d 23, 34-35, 902 N.E.2d 101 (Ohio C.P. 2008).            A request is not seeking

privileged information under the statute if it does not involve something that the patient

communicated to the physician or vice versa. Id.

      {¶ 14} In this case Medina seeks the identification of defendant Mitchell’s conduct

and does not seek the disclosure of nonparty patient’s confidential medical records. Roe

does not preclude discovery of Hospital procedures or its employee’s or contractor’s

practices simply because the non-privileged information is extracted from confidential

records.   Medina is not seeking the disclosure of any nonparty medical records

themselves, which Medina agrees is privileged from disclosure.            Medina instead
requested the Hospital to identify non-privileged information in the form of interrogatory

answers, which does not involve the disclosure of any nonparty information. The number

of times defendant Mitchell charted end-tidal CO2 and the intervals at which she did so is

not privileged information but is the equivalent of “time data” that other jurisdictions

have found non-privileged.     See, e.g., Tomczak v. Ingalls Mem. Hosp., (1972) 359

Ill.App.3d 448, 453, 834 N.E.2d 549, citing, Gourdine v. Phelps Mem. Hosp., 40 A.D.2d

694, 336 N.Y.S.2d 316 (disclosure of time data contained in nonparty patients anesthesia

charts did not violate physician-patient privilege); and Holiday v. Harrows, Inc., (1983)

91 A.D.2d 1062, 458 N.Y.S.2d 669.

      {¶ 15} Based on the foregoing, we find that the trial court’s order does not require

the disclosure of non-party patients confidential medical records and does not violate R.C.

2317.02.

      {¶ 16} For the same reasons, we conclude that the discovery order does not involve

the disclosure of any PHI as defined by HIPAA. It is well-settled that Ohio law is more

restrictive in regards to the disclosure of privileged information than HIPAA. “The

HIPAA privacy regulation, found in Section 164.512, Title 45, C.F.R. allows disclosure

of protected health information in the course of any judicial or administrative proceeding

in response to a court order. HIPAA also allows for discovery of privileged health

information by subpoena, discovery request, or by other lawful processes if the covered

entity receives adequate assurances that the individual who is the subject of the health

information has been given notice of the request or that reasonable efforts have been
made to secure a protective order. Section 164.512(e), Title 45, C.F.R.” Grove v. N.E.

Ohio Nephrology Assoc., Inc., 164 Ohio App.3d 829, 2005-Ohio-6914, 844 N.E.2d 400,

¶22.   Because the discovery order at issue does not involve the disclosure of the

identities of any non-party patients nor any reasonable basis from which their identities

could be determined, it does not violate HIPAA.

       Judgment affirmed.



       It is ordered that appellee recover from appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




JAMES J. SWEENEY, JUDGE

MARY EILEEN KILBANE, A.J., and
LARRY A. JONES, J., CONCUR
