[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Torres Friedenberg v. Friedenberg, Slip Opinion No. 2020-Ohio-3345.]




                                        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. 2020-OHIO-3345
    TORRES FRIEDENBERG, APPELLANT, v. FRIEDENBERG, APPELLEE, ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as Torres Friedenberg v. Friedenberg, Slip Opinion No.
                                   2020-Ohio-3345.]
Application of physician-patient privilege, R.C. 2317.02(B), in domestic-relations
        cases that include claims for child custody or spousal support—Court of
        appeals’ judgment upholding trial court’s order compelling release, subject
        to protective order, of relevant medical records affirmed.
    (No. 2019-0416—Submitted February 11, 2020—Decided June 18, 2020.)
      APPEAL from the Court of Appeals for Lake County, No. 2017-L-149,
                                    2019-Ohio-325.
                               _____________________
        FRENCH, J.
        {¶ 1} This discretionary appeal concerns the contours of Ohio’s physician-
patient privilege, R.C. 2317.02(B), and its application in domestic-relations cases
that include claims for child custody or spousal support.
                             SUPREME COURT OF OHIO




       {¶ 2} The Lake County Court of Common Pleas, Domestic Relations
Division, ordered the release, subject to a protective order, of the mental-health
records of appellant, Belinda J. Torres Friedenberg, whose records had been
submitted to the court in response to a subpoena duces tecum and a court order. In
a split decision, the Eleventh District Court of Appeals affirmed that order, holding
that the physician-patient privilege did not shield the records from discovery,
because Belinda’s claims for child custody and spousal support put her mental and
physical conditions at issue in the pending divorce proceeding. We affirm that
judgment.
                        Facts and procedural background
       {¶ 3} Belinda and appellee, Keith A. Friedenberg, were married in 1991.
They had four children during the course of their marriage.
       {¶ 4} In March 2016, Belinda filed a complaint for divorce in which she
requested custody of the parties’ minor children and spousal support. Keith filed
an answer and a counterclaim in which he also sought custody of the children.
       {¶ 5} During discovery, Keith issued subpoenas for Belinda’s mental-
health records to various doctors and mental-health professionals, including Anna
J. Janicki, M.D., at the Cleveland Psychoanalytic Center. Belinda filed a motion to
quash those subpoenas, asserting the physician-patient privilege. Keith responded
with a motion to compel compliance with the subpoenas; he argued that Belinda’s
claims for custody and spousal support placed her physical and mental conditions
at issue and gave rise to a statutory exception to the physician-patient privilege.
       {¶ 6} The trial-court magistrate denied Belinda’s motion to quash and
granted Keith’s motion to compel. She agreed that Belinda placed her physical and
mental conditions at issue by asserting claims for child custody and spousal support,
both of which require the court to consider the parties’ mental and physical
conditions. The magistrate ordered that the subpoenaed records be submitted under
seal to the court for an in camera determination of their relevance, although she




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                                     January Term, 2020




stated, “[I]t is hard to imagine a scenario where the mental health records of a parent
would not be relevant to issues surrounding the allocation of parental rights and
responsibilities and the best interests of the children.”1
        {¶ 7} After Dr. Janicki submitted responsive records to the court, the
magistrate issued an order stating: “The records will not be ‘released’ to counsel;
however the records that are relevant will be made available to counsel for both
parties who can examine them at Court * * *. Records can be marked if counsel
expect to use them at trial and copies can be made for use as exhibits.” The order
did not indicate whether the magistrate had completed an in camera review of the
records. Dissatisfied with the magistrate’s order and arguing that it hindered his
ability to prepare for trial, Keith filed a motion to set it aside.
        {¶ 8} On October 16, 2017, the magistrate issued an order stating that she
had reviewed Dr. Janicki’s records in camera and had determined “there are
documents that are relevant to these proceedings.” The magistrate ordered counsel
for the parties to draft a protective order to limit dissemination of the records to
counsel, the parties, and their experts.
        {¶ 9} The trial judge overruled a motion filed by Belinda to set aside the
magistrate’s October 16, 2017 order. The judge agreed with the magistrate that
Belinda’s requests for child custody and spousal support put her physical and
mental conditions at issue and waived the physician-patient privilege. She noted
the magistrate’s in camera review and stated that the magistrate had determined
“the documents were relevant” to the divorce proceeding.                     She adopted the
protective order submitted by Keith’s counsel and ordered the immediate release of
Dr. Janicki’s records, subject to the protective order.



1. Belinda subsequently caused to be served on Keith’s psychologist a subpoena ordering production
of Keith’s medical file. Belinda later filed a motion to compel compliance with that subpoena,
which the trial court granted. In her motion to compel, Belinda argued that the parties had placed
their mental health at issue by seeking custody of the minor children.




                                                3
                              SUPREME COURT OF OHIO




       {¶ 10} Belinda appealed and filed motions in both the trial court and the
court of appeals to stay the order to release her mental-health records. Both courts
denied her motions to stay.
       {¶ 11} The parties report that the trial court adopted their agreed shared-
parenting plan in March 2018, while Belinda’s appeal was pending in the court of
appeals.
       {¶ 12} A divided panel of the Eleventh District affirmed the trial court’s
order. The majority held that a parent seeking child custody or a party seeking
spousal support waives the physician-patient privilege because a trial court is
statutorily required to consider the mental and physical conditions of a parent
seeking child custody in determining the best interest of the child and to consider
the mental and physical conditions of the parties in determining whether spousal
support is appropriate and reasonable. The dissenting judge, on the other hand,
stated that Belinda’s mental and physical conditions are not at issue, because Keith
did not challenge Belinda’s mental or physical ability to parent and neither Keith
nor Belinda raised health concerns related to Belinda’s ability to work. The
dissenting judge also concluded that the trial court abused its discretion by ordering
the release of all of the records, because the magistrate indicated that not all of the
records were relevant.
       {¶ 13} We accepted a discretionary appeal to address two propositions of
law concerning whether, and to what extent, a request for child custody or spousal
support constitutes a waiver of or an exception to the physician-patient privilege.
Those propositions state that (1) a request for custody does not constitute a
complete abrogation of the privilege when the health records do not relate to the
party’s ability to parent and (2) a request for spousal support does not constitute a
complete abrogation of the privilege when the health records do not relate to the
party’s earning ability. Belinda’s merit brief sets out six propositions of law, in
contrast to her memorandum in support of jurisdiction, which sets out just the two




                                          4
                                January Term, 2020




propositions of law mentioned above. The first and second propositions of law in
her brief resemble those argued in her memorandum in support of jurisdiction. To
the extent the additional propositions of law address arguments not raised in the
memorandum in support of jurisdiction, we decline to address them. See Estate of
Ridley v. Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities, 102 Ohio
St.3d 230, 2004-Ohio-2629, 809 N.E.2d 2, ¶ 27, citing In re Timken Mercy Med.
Ctr., 61 Ohio St.3d 81, 87, 572 N.E.2d 673 (1991).
                                      Analysis
       {¶ 14} Civ.R. 26(B)(1) establishes a broad scope for pretrial discovery:
“Parties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action * * *.” The question
here is whether the physician-patient privilege shields Belinda’s mental-health
records from discovery.
                    The physician-patient privilege in Ohio
       {¶ 15} R.C. 2317.02(B)(1) prohibits, except in limited circumstances, a
physician from testifying “concerning a communication made to the physician * * *
by a patient in that relation” or concerning the physician’s advice to a patient.
Communications between a licensed psychologist and a client are subject to the
same protections as communications between a physician and a patient. R.C.
4732.19.
       {¶ 16} The physician-patient privilege did not exist at common law. State
Med. Bd. v. Miller, 44 Ohio St.3d 136, 140, 541 N.E.2d 602 (1989), citing
McCormick, Evidence, Section 98, at 243 (3d Ed.Lawyers’ Ed.1984).
Accordingly, we construe the statutory privilege strictly against the party asserting
it and apply it only to those circumstances the statute specifically prescribes. Ward
v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, ¶ 15.
       {¶ 17} Belinda stresses the importance of the physician-patient privilege,
particularly in the context of mental-health treatment. This court has previously




                                         5
                                SUPREME COURT OF OHIO




recognized the “laudable purpose and goal to be achieved by the physician-patient
privilege.” Miller at 140. Because the privilege protects confidentiality, patients
feel comfortable fully disclosing their symptoms and conditions to their physicians
without fear that those matters will later become public; thus, the privilege enables
appropriate and complete treatment. Id. at 139-140. This court has also previously
posited that the privilege is of arguably heightened importance in the context of
mental health. In re Miller, 63 Ohio St.3d 99, 108, 585 N.E.2d 396 (1992). A
psychiatrist’s ability to help a patient depends completely upon the patient’s
willingness to talk freely. Jaffee v. Redmond, 518 U.S. 1, 10, 116 S.Ct. 1923, 135
L.Ed.2d 337 (1996). Unlike treatment for physical ailments, which can often
proceed successfully based on a physical examination and the results of diagnostic
tests, effective psychotherapy “depends upon an atmosphere of confidence and trust
in which the patient is willing to make a frank and complete disclosure of facts,
emotions, memories, and fears.” Id.
       {¶ 18} Although this court has acknowledged that the physician-patient
privilege serves important policy goals, it is not the court’s role to create law based
on public policy; the General Assembly is the final arbiter of public policy in Ohio.
State v. Smorgala, 50 Ohio St.3d 222, 223, 553 N.E.2d 672 (1990), superseded by
statute on other grounds as stated in State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-
4629, 833 N.E.2d 1216, ¶ 54. This court may not use any policy preferences it may
have to override valid legislative enactments. Id. (rejecting the argument that this
court had authority to override valid law because public interest in effective
prosecution of drunk-driving cases outweighed policy considerations underlying
physician-patient privilege).
       {¶ 19} By carving out a number of exceptions, the General Assembly has
made clear that the physician-patient privilege is not absolute. Ward, 128 Ohio
St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, at ¶ 22. Here, we are concerned with




                                          6
                                 January Term, 2020




R.C. 2317.02(B)(1)(a), which states that the privilege does not apply and that a
physician may be compelled to testify


               [i]n any civil action [and] in accordance with the discovery
       provisions of the Rules of Civil Procedure in connection with a civil
       action * * *
               ***
               (iii) [i]f a medical claim, dental claim, chiropractic claim, or
       optometric claim, * * * 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 * * *.


(Emphasis added.) If the patient files “any type of civil action,” the patient’s
physician may testify, and may be compelled to do so. Leopold v. Ace Doran
Hauling & Rigging Co., 136 Ohio St.3d 257, 2013-Ohio-3107, 994 N.E.2d 431,
paragraph two of the syllabus.
       {¶ 20} The filing of a civil action that triggers application of R.C.
2317.02(B)(1)(a)(iii) does not mean that every communication between the patient
and his or her physician is subject to disclosure; triggering the statutory exception
is not the end of the analysis. R.C. 2317.02(B)(1)(a) states that physician testimony
may be had only “in accordance with the discovery provisions of the Rules of Civil
Procedure,” which include the requirement of relevance, see Civ.R. 26(B)(1). And
when R.C. 2317.02(B)(1)(a)(iii) applies, “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 civil action filed by the patient. Leopold at
paragraph three of the syllabus; see also R.C. 2317.02(B)(3)(a). Thus, the reach of
the exception is limited, so as to minimize the amount of information unprotected.




                                          7
                              SUPREME COURT OF OHIO




       {¶ 21} Many appellate courts in Ohio have held that when there is a dispute
over whether a physician’s testimony or records are causally or historically related
to issues in the pending action, as R.C. 2317.02(B)(3)(a) requires, the trial court
should conduct an in camera inspection or review to resolve the dispute. Sweet v.
Sweet, 11th Dist. Ashtabula No. 2004-A-0062, 2005-Ohio-7060, ¶ 13, citing
Neftzer v. Neftzer, 140 Ohio App.3d 618, 622, 748 N.E.2d 608 (12th Dist.2000);
Trangle v. Rojas, 150 Ohio App.3d 549, 2002-Ohio-6510, 782 N.E.2d 617 (8th
Dist.), ¶ 35; Nester v. Lima Mem. Hosp., 139 Ohio App.3d 883, 887, 745 N.E.2d
1153 (3d Dist.2000); Weierman v. Mardis, 101 Ohio App.3d 774, 776, 656 N.E.2d
734 (1st Dist.1994). That procedure is consistent with this court’s treatment of
similar issues under other privilege statutes. See, e.g., Peyko v. Frederick, 25 Ohio
St.3d 164, 495 N.E.2d 918 (1986), paragraph two of the syllabus (requiring in
camera inspection to determine which portions of insurer’s claim file are subject to
attorney-client privilege).
                                Standard of review
       {¶ 22} Appellate courts generally review a discovery dispute under an
abuse-of-discretion standard, but if the dispute involves an alleged privilege, it is a
question of law, subject to de novo review. Ward, 128 Ohio St.3d 212, 2010-Ohio-
6275, 943 N.E.2d 514, ¶ 13. See also Roe v. Planned Parenthood Southwest Ohio
Region, 122 Ohio St.3d 399, 2009-Ohio-2973, 912 N.E.2d 61, ¶ 29 (reviewing de
novo whether exception to physician-patient privilege applied to otherwise
confidential medical information).
       Divorce is a civil action for purposes of R.C. 2317.02(B)(1)(a)(iii)
       {¶ 23} The first question we must answer in determining the applicability
of R.C. 2317.02(B)(1)(a)(iii) is whether Belinda—the patient—filed a civil action
when she filed for divorce.
       {¶ 24} This court has implicitly answered that question. See Hageman v.
Southwest Gen. Health Ctr., 119 Ohio St.3d 185, 2008-Ohio-3343, 893 N.E.2d 153.




                                          8
                                 January Term, 2020




The issue in Hageman was whether an attorney may be liable for the unauthorized
disclosure to a third party of an opposing party’s medical information obtained
through litigation. Id. at ¶ 1. The defendant-attorney obtained Hageman’s medical
records from Hageman’s psychiatrist while representing Hageman’s former wife in
divorce proceedings. While the court was divided on whether the attorney’s
subsequent release of Hageman’s records was actionable, the court did not question
that Hageman had waived the physician-patient privilege, for purposes of the
underlying divorce action, by filing a counterclaim for child custody. Id. at ¶ 14
(plurality), ¶ 25 (Cupp, J., concurring in syllabus and judgment), and ¶ 33
(O’Donnell, J., dissenting).
       {¶ 25} Ohio appellate courts that have considered whether the filing of a
domestic-relations claim can trigger the R.C 2317.02(B)(1)(a)(iii) exception to the
physician-patient privilege have, at least implicitly, likewise answered that question
in the affirmative. See, e.g., McGregor v. McGregor, 2d Dist. Clark No. 2011-CA-
88, 2012-Ohio-3389, ¶ 16-17 (not applying R.C. 2317.02(B)(1)(a)(iii) in visitation-
modification action, but only because the court could not determine whether
records were physician-generated); In re Kelleher, 7th Dist. Jefferson Nos. 08-JE-
31, 08-JE-32, 08-JE-33, and 08-JE-34, 2009-Ohio-2960, ¶ 18; Gill v. Gill, 8th Dist.
Cuyahoga No. 81463, 2003-Ohio-180, ¶ 18-19; Boling v. Valecko, 9th Dist.
Summit No. 20464, 2002 WL 185182 (Feb. 6, 2002), *6; Schill v. Schill, 11th Dist.
Geauga No. 2002-G-2465, 2004-Ohio-5114, ¶ 46-47; Neftzer, 140 Ohio App.3d at
622, 748 N.E.2d 608 (12th Dist.).
       {¶ 26} Belinda     does    not   contest   that   she   triggered   the   R.C.
2317.02(B)(1)(a)(iii) exception to the physician-patient privilege by filing a civil
action; instead, she argues that in this case, her mental-health records are not
causally or historically related to the issues of child custody or spousal support. We
address that argument below, but for now, we conclude that a divorce proceeding
is a civil action for purposes of R.C 2317.02(B)(1)(a)(iii). See 1970 Staff Note,




                                          9
                              SUPREME COURT OF OHIO




Civ.R. 75 (although divorce, annulment, and alimony actions seek relief different
from that normally sought in civil actions, “they are still ‘civil actions’ ”).
 A party’s physical and mental health are relevant to issues of child custody
                                and spousal support
        {¶ 27} When a patient files a civil action, “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.” Leopold, 136 Ohio St.3d 257, 2013-
Ohio-3107, 994 N.E.2d 431, at ¶ 14. Because Belinda filed a “civil action” for
divorce, her physicians and psychologists may be compelled to testify, but only as
to communications that are “related causally or historically to physical or mental
injuries relevant” in the divorce action. Id. at paragraph three of the syllabus.
        {¶ 28} At issue in the divorce proceeding here was custody of Belinda and
Keith’s minor children, as well as Belinda’s request for spousal support. The
General Assembly has made consideration of the parties’ physical and mental
health not only relevant but mandatory in determining both child custody and
spousal support. When allocating parental rights and responsibilities, a trial court
must take into account the best interests of the children, R.C. 3109.04(B)(1), and in
doing so, it must consider “all relevant factors, including * * * (e) [t]he mental and
physical health of all persons involved,” R.C. 3109.04(F)(1).                       R.C.
3105.18(C)(1)(c) similarly requires a court to consider the parties’ “physical,
mental, and emotional conditions” when determining whether spousal support is
appropriate and reasonable.
        {¶ 29} Belinda acknowledges the importance of a party’s physical and
mental health as factors in determining questions of custody and spousal support,
as well as the statutory requirement that the trial court consider those factors. She
nevertheless argues that her medical records are not relevant to those issues because
Keith has not asserted that she has any physical or mental condition that would




                                           10
                                January Term, 2020




inhibit either her ability to parent or her ability to work. The court of appeals
rejected that argument because the trial court’s duty to consider Belinda’s mental
health in determining the issues of child custody and spousal support did not depend
on whether Keith expressly raised a challenge based on her mental health. Nothing
in either R.C. 3109.04(B) or 3105.18(C) limits a court’s consideration to those
factors expressly challenged by the parties to the action. A party seeking custodial
authority over a child “ ‘subjects him or herself to extensive investigation of all
factors relevant to the permanent custody award.’ ” Schill, 11th Dist. Geauga No.
2002-G-2465, 2004-Ohio-5114, at ¶ 47, quoting Gill, 8th Dist. Cuyahoga No.
81463, 2003-Ohio-180, at ¶ 18. The same rationale applies when spousal support
is at issue.
        {¶ 30} Ohio appellate courts have generally aligned with the Eleventh
District’s holding in this case and hold that a parent’s request for custody of his or
her children puts the parent’s health at issue, so as to except the parent’s medical
information from the physician-patient privilege. See Gill at ¶ 18; Boling, 9th Dist.
Summit No. 20464, 2002 WL 185182, at *6 (“Because Boling’s mental state was
a factor that the trial court was required to consider [in the custody dispute], the
mental health assessments were causally related”); Whiteman v. Whiteman, 12th
Dist. Butler No. CA94-12-229, 1995 WL 375848, at *3 (June 26, 1995) (“in
seeking custody of the children when he filed a complaint for divorce, appellant
made his mental condition an element to be considered by the court in awarding
him custody”). We agree with those courts.
        {¶ 31} In support of her argument that her medical records are not causally
or historically related to the questions of custody and spousal support in this divorce
action, Belinda focuses on the Eleventh District’s decision in Sweet, 11th Dist.
Ashtabula No. 2004-A-0062, 2005-Ohio-7060, and the Twelfth District’s decision
in Neftzer, 140 Ohio App.3d 618, 748 N.E.2d 608. Those cases, however, involved
a different issue from the issue before this court; they dealt with whether the trial




                                          11
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courts erred in failing to conduct an in camera inspection. Sweet at ¶ 6; Neftzer at
621-623. In Sweet, the court stated that by seeking custody of her children, the
mother waived the physician-patient privilege only in regard to her ability to parent
her children. Id. at ¶ 10-11. And in Neftzer, the court stated that the mother made
her mental and physical conditions elements to be considered by seeking custody
of the parties’ children and that she waived the physician-patient privilege as to
those communications that relate causally or historically to conditions relevant to
custody issues.     Neftzer at 622-623.        But those statements were simply
acknowledgements of the limitation placed on physician testimony by R.C.
2317.02(B)(3)(a). In both cases, the courts of appeals held that the trial court erred
by ordering the release of the patient’s medical records without first conducting an
in camera inspection of the medical information to determine whether the
information was causally or historically related to issues in the case. Sweet at
¶ 16-17; Neftzer at 622-623.
       {¶ 32} Contrary to Belinda’s assertion, the Eleventh District’s decision here
is not inconsistent with its holding in Sweet. Rather, the trial court did exactly what
the Eleventh District said in Sweet that it should do. Faced with a dispute over
whether Belinda’s medical records are causally or historically related to the issues
in the case, the magistrate reviewed the documents in camera to make that
determination.
       {¶ 33} Belinda also points to Weaver v. Weaver, 5th Dist. Licking No.
2003CA00096, 2004-Ohio-4212, in which the court rejected the argument that a
father waived the testimonial privilege that covered his communications with a
mental-health counselor or social worker simply by seeking custody of his children.
But the testimonial privilege at issue in Weaver was R.C. 2317.02(G)(1), not R.C.
2317.02(B). The R.C. 2317.02(G)(1) privilege, which applies to certain counselors
and social workers, has its own set of statutory exceptions. But none of those
exceptions mirrors the provision at issue here, R.C. 2317.02(B)(1)(a)(iii), which




                                          12
                                January Term, 2020




expressly provides that the patient waives the physician-patient privilege in civil
actions filed by the patient. Accordingly, the Fifth District’s holding in Weaver
that there was no indication that “any of the exceptions under R.C. 2317.02(G)
applied,” id. at ¶ 72, does not support Belinda’s argument against application of
R.C. 2317.02(B)(1)(a)(iii) here.
       {¶ 34} Belinda’s reliance on Smith v. Chatwood, 2d Dist. Clark No. 2618,
1990 WL 119270 (Aug. 15, 1990), a child-custody case, fares no better. In Smith,
a father challenged the trial court’s exclusion from evidence of a psychological
report concerning his child’s mother. He argued that the trial court’s mandatory
consideration of the child’s best interests superseded the mother’s claim of privilege
and that the mother had waived her privilege because the psychological report had
been compiled at the request of her attorney. In rejecting the father’s arguments,
the court of appeals stated, “One does not waive the [physician-patient] privilege
merely by filing a law suit.” Id. at *5, citing State ex rel. Floyd v. Montgomery Cty.
Court of Common Pleas, 55 Ohio St.2d 27, 377 N.E.2d 794 (1978), and State ex
rel. Lamdin v. Brenton, 21 Ohio St.2d 21, 254 N.E.2d 681 (1970). Both Floyd and
Lamdin, however, were decided prior to the enactment of the exception now found
in R.C. 2317.02(B)(1)(a)(iii), see Am.Sub.H.B. No. 1, 142 Ohio Laws, Part I, 1661,
1692 (effective Jan. 5, 1988). In Lamdin, this court, in fact, acknowledged that the
General Assembly could enact a law regarding waiver of the physician-patient
privilege upon the filing of a civil action, but, the court stated, “until such time as
it is so adopted, a personal injury litigant does not waive the physician-patient
privilege merely by filing his petition.” Id. at 24. Years later, the General
Assembly did just that—it created the statutory exception at issue in this case.
       {¶ 35} Because the General Assembly has required trial courts to consider
the mental and physical health of the parties when determining claims for child
custody and spousal support, communications between those parties and their
physicians regarding their mental and physical health will often be causally or




                                          13
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historically related to the issues in domestic-relations cases in which those claims
are raised. That relationship does not depend on whether the party seeking the
release of medical information has specifically challenged the patient’s parenting
ability or earning potential based on health considerations. When there is a dispute
regarding the relationship of specific communications or other records to the issues
of custody or spousal support, trial courts should continue to use in camera review
to resolve those disputes and limit disclosure of physician communications
pursuant to R.C. 2317.02(B)(3)(a).
  The record does not demonstrate that the trial court released documents
                                found not relevant
       {¶ 36} In recognition of the R.C. 2317.02(B)(3)(a) limitation of physician
testimony to communications that relate causally or historically to issues in the
divorce proceeding, the trial court ordered that records responsive to Keith’s
subpoenas be submitted to the court for an in camera inspection to determine
whether the records were related to issues of custody or spousal support. The court
of appeals stated, “The lower court’s judgment states that the magistrate
‘determined the documents were relevant’ before directing their disclosure to
Keith’s counsel. Belinda does not demonstrate otherwise.” 2019-Ohio-325, ¶ 16.
       {¶ 37} Belinda argues, consistently with the dissenting opinion from the
court of appeals, that the trial court’s order was contrary to the magistrate’s
determination in her October 16, 2017 order that only some of the records were
relevant. Belinda superficially raised this argument in the court of appeals, but she
has never specifically argued that some identifiable subset of Dr. Janicki’s records
are irrelevant. Rather, Belinda’s consistent argument has been that the physician-
patient privilege shields from discovery all of the submitted records and that none
of those records is relevant to contested questions in the divorce proceeding.
       {¶ 38} The magistrate’s order, following her in camera inspection of Dr.
Janicki’s records, stated, “[T]here are documents that are relevant to these




                                         14
                                 January Term, 2020




proceedings.” It is admittedly unclear from that order whether the magistrate also
determined that there were documents that were not relevant to the proceedings.
Even assuming, however, that the magistrate did find that not all of the submitted
documents were relevant, there is simply nothing in the record to indicate that any
documents the magistrate determined were not causally or historically related to the
issues in this case were released.
                                     Conclusion
       {¶ 39} Both the trial court and the court of appeals correctly applied the
statutory provisions defining the physician-patient privilege in Ohio. Although
communications between a physician and patient are generally privileged under
R.C. 2317.02(B)(1), Belinda’s filing of this divorce action, with claims for child
custody and spousal support, triggered the R.C. 2317.02(B)(1)(a)(iii) exception to
the privilege for communications that relate causally or historically to physical or
mental injuries relevant to issues in the divorce action. By statute, Belinda’s mental
and physical conditions are mandatory considerations for the trial court’s
determination of her claims for both child custody and spousal support. See R.C.
3109.04(F)(1)(e) and 3105.18(C)(1)(c). And the trial court appropriately examined
in camera the submitted mental-health records to determine their relevance before
ordering their release, subject to a protective order.
       {¶ 40} We affirm the judgment of the Eleventh District Court of Appeals.
                                                                 Judgment affirmed.
       O’CONNOR, C.J., and FISCHER, J., concur.
       KENNEDY, J., concurs in judgment only.
       DEWINE, J., dissents, with an opinion joined by DONNELLY and STEWART,
JJ.
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       DEWINE, J., dissenting.
       {¶ 41} Because a majority of this court departs from the plain language of
the statutory provisions regarding the physician-patient privilege, I respectfully
dissent. The trial court ordered that Belinda Torres Friedenberg’s mental-health
records be turned over to her husband Keith Friedenberg simply because Belinda
had asked for custody of their children and for spousal support in their divorce
dispute. The statute establishing a privilege for physician-patient communications
neither requires nor permits such a result.
       {¶ 42} The General Assembly has put in place a framework under which
doctor-patient communications are confidential unless a specified exception
applies. The privilege is codified in R.C. 2317.02(B)(1), which directs that a
physician shall not testify “concerning a communication made to the physician
* * * by a patient in that relation” or about “advice of a physician * * * given to a
patient.” “Communication” is defined broadly to encompass


       acquiring, recording, or transmitting any information, in any
       manner, concerning any facts, opinions, or statements necessary to
       enable a physician * * * to diagnose, treat, prescribe, or act for a
       patient. A “communication” may include, but is not limited to, any
       medical or dental, office, or hospital communication such as a
       record, chart, letter, memorandum, laboratory test and results, x-ray,
       photograph, financial statement, diagnosis, or prognosis.


R.C. 2317.02(B)(5)(a).
       {¶ 43} The expansive protections provided for health records under this
section are limited by specific statutory exceptions.
       {¶ 44} A subsection of the statute provides that the testimonial privilege
concerning physician-patient communications and advice “does not apply” in civil




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actions filed by the patient. R.C. 2317.02(B)(1)(a)(iii); see Leopold v. Ace Doran
Hauling & Rigging Co., 136 Ohio St.3d 257, 2013-Ohio-3107, 994 N.E.2d 431,
paragraph two of the syllabus. But this exception is not nearly so broad as it first
appears. Another subsection makes clear that even when the testimonial privilege
does not apply, only certain information that is directly relevant may be disclosed.
A physician “may be compelled to testify or to submit to discovery”


        only as to a communication made to the physician * * * by the
        patient in question in that relation, or the advice of the physician
        * * * given to the patient in question, that related causally or
        historically to physical or mental injuries that are relevant to issues
        in the * * * civil action.


(Emphasis added.) R.C. 2317.02(B)(3)(a). Thus, while the civil rules generally
allow for the discovery of information that is relevant or reasonably calculated to
lead to the discovery of relevant information, see Civ.R. 26(B)(1), the ability to
obtain disclosure of physician-patient communications is much more limited.
        {¶ 45} The privilege statute provides a straightforward framework for
evaluating whether physician-patient information may be released. To be covered
by the privilege, the information must fall under the broad headings of
“communications” or “advice.” See R.C. 2317.02(B)(1); R.C. 2317.02(B)(5)(a).
Then,   the    statutory   protection      against   disclosure   of   physician-patient
communications is lifted only to the extent that the communication or advice at
issue is (1) causally or historically related to a physical or mental injury and (2) the
physical or mental injury is relevant to issues in the case. R.C. 2317.02(B)(3)(a).
If the physical- or mental-health information does not satisfy both requirements,
the statute does not permit disclosure.




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       {¶ 46} The lead opinion cites the statutory language at the outset but then
fails to apply it. Instead, the opinion collapses the inquiry by considering whether
the physician-patient communications sought “relate causally or historically to
issues in the divorce proceeding,” explaining that the trial court properly reviewed
the records to ascertain whether they were “related to issues of custody or spousal
support.” Lead opinion at ¶ 36. Applying this newly concocted standard, the author
concludes that there is nothing to indicate that the records released “were not
causally or historically related to the issues in this case.” Lead opinion at ¶ 38.
       {¶ 47} But the question is not whether the records are related to the issues
in the case; it’s whether the records are related to physical or mental injuries that
are relevant to issues in the case. See R.C. 2317.02(B)(3)(a). For example, if a
patient has been diagnosed with heliophobia and is unable to leave his house or
maintain employment, that may well constitute a mental injury that relates to an
issue in a child-custody or spousal-support case and the patient’s treatment records
may be discoverable to the extent they satisfy the statutory requirements. But a
patient’s reflections to a psychologist about the difficulties of his marriage are
almost certainly not causally or historically related to a physical or mental injury
and would therefore not be subject to disclosure.
       {¶ 48} The gap in the lead opinion’s logic is evidenced by its conclusion
that the physical and mental health of the parties are inevitably issues in every child-
custody or spousal-support case. With respect to child-custody proceedings, the
trial court is required to consider the best interest of the child, R.C. 3109.04(B)(1),
and the General Assembly has provided a list of factors for the court to rely upon
in reaching its best-interest determination, R.C. 3109.04(F)(1). The statute directs
the trial court to “consider all relevant factors, including, but not limited to: * * *
The mental and physical health of all persons involved in the situation.” (Emphasis
added.) R.C. 3109.04(F)(1)(e). Similarly, when allocating spousal support in a
divorce action, the trial court is required to consider “the physical, mental, and




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emotional conditions of the parties.” R.C. 3105.18(C)(1)(c). In view of these
factors, the lead opinion concludes that communications between parties and their
physicians “will often be causally or historically related to the issues in domestic-
relations cases.” Lead opinion at ¶ 35. But this cursory analysis falls short of
reflecting what the statute actually requires.
        {¶ 49} Though a trial court is required to consider certain statutory factors,
it does not follow that every factor listed is an issue in every case. See R.C.
2317.02(B)(3)(a) (the privilege is lifted only with respect to communications
related to “physical or mental injuries that are relevant to issues in the * * * civil
action”). The statute does not permit a court to order disclosure simply because
something might conceivably relate to a statutory factor; the court first must
determine that the discovery request is directed to an “injury” that relates to
something that is actually an “issue” in the case—that is, something actually
contested.
        {¶ 50} For instance, in a custody proceeding, the trial court is required to
consider whether either parent has been convicted of a criminal child-abuse offense,
R.C. 3109.04(F)(1)(h), as well as whether either parent has established a residence
outside of the state, R.C. 3109.04(F)(1)(j). If there is no indication that either parent
has been convicted of such an offense or lives out of state, we would never say that
these are “issues” in the case just because they are listed as factors for the court to
consider. The same goes for the health of the parties.
        {¶ 51} Contrary to the lead opinion’s contention, then, parties to a divorce
do not subject themselves to a fishing expedition through all of their physical- and
mental-health records simply by seeking custody of their children or financial
support from their spouse. The statutory exception is much more narrow: it requires
the court to review the records to determine whether the communication in question
is (1) related causally or historically to a physical or mental injury that is (2)




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relevant to an issue in the case. R.C. 2317.02(B)(3)(a). If the communication fails
in either respect, it may not be turned over.
       {¶ 52} Here, the magistrate employed the proper procedure by conducting
an in camera review of the records. But she plainly did not evaluate whether the
communications were “related causally or historically to physical or mental injuries
that are relevant to issues in” the case, R.C. 2317.02(B)(3)(a).         Rather, the
magistrate’s express view of the law was that “both parties are entitled to the
medical records of each other because they have placed their physical and mental
conditions in issue by requesting custody.” With that understanding, the magistrate
concluded that “there are documents that are relevant to these proceedings” and
permitted the release of the records pursuant to a protective order. Likewise, the
trial court reviewed the magistrate’s order and made the same error: the trial court
concluded that the parties’ mental and physical health are issues in every child-
custody or spousal-support case and therefore any party who seeks custody or
support has “waived” the statutory privilege.
       {¶ 53} Under any reasonable reading of the trial-court orders, it is apparent
that neither the magistrate nor the domestic-relations judge applied the statute when
reviewing the records at issue here. Rather, they operated under the assumption
that health records are always relevant in a custody or support proceeding and
released Belinda’s mental-health records on that basis.
       {¶ 54} I would therefore reverse the judgment of the court of appeals and
remand this case to the trial court. I would direct the trial court to inspect the
records in camera and—applying the statute—release only those records in which
the communication or advice is (1) causally or historically related to a physical or
mental injury that is (2) relevant to the issues in this case. Further, I would direct
the trial court to order the return and destruction of any nonqualifying records that
were previously released.




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       {¶ 55} Because a majority of this court holds otherwise, I respectfully
dissent.
       DONNELLY and STEWART, JJ., concur in the foregoing opinion.
                             _________________
       Stafford Law Co., L.P.A., Joseph G. Stafford, and Nicole A. Cruz, for
appellant.
       Dworken & Bernstein Co., L.P.A., and Gary S. Okin, for appellee.
                             ________________




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