[Cite as Leopold v. Ace Doran Hauling & Rigging Co., 2012-Ohio-497.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 97277


                          TODD L. LEOPOLD, ET AL.
                                                         PLAINTIFFS-APPELLEES

                                                   vs.

      ACE DORAN HAULING & RIGGING CO., ET AL.
                                                         DEFENDANTS-APPELLEES

                           [APPEAL BY DANIELLE LAURENCE]




                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-708330

        BEFORE: Rocco, J., S. Gallagher, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: February 9, 2012

ATTORNEYS FOR APPELLANTS
                                           2


For Danielle Laurence

Shannon J. George
Ritter, Robinson, McCready & James, Ltd.
405 Madison Ave., Suite 1850
Toledo, Ohio 43604

Bruce S. Goldstein
Bruce S. Goldstein Co., L.P.A.
1009 Ledgewood Trail
Lyndhurst, Ohio 44124-1070

ATTORNEYS FOR APPELLEES

For Todd L. Leopold, et al.

Philip J. Weaver
Smith Marshall LLP
1425 Superior Bldg.
815 Superior Avenue
Cleveland, Ohio 44115

For Ace Doran Hauling & Rigging Co., et al.
For Stillwagon, et al.

Brian D. Sullivan, Esq.
Kenneth P. Abbarno
Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Avenue West
Cleveland, Ohio 44115-1093

For American Fire & Casualty Co.

Donald G. Drinko
1501 Euclid Avenue
Sixth Floor Buckley Building
Cleveland, Ohio 44115
                                           -ii-
                                    3


For Ford Motor Co.

Barbara A. Lum
Thompson Hine LLP
3900 Key Center
127 Public Square
Cleveland, Ohio 44114

For The Netherlands Insurance Co.

Patti Jo Malnar
Law Offices of John Rasmussen
55 Public Square
Suite 725
Cleveland, Ohio 44113
                                            4

KENNETH A. ROCCO, J.:

       {¶ 1} Defendant-appellant Danielle Laurence appeals the trial court’s order that

denied her motion for a protective order.         This matter is before this court on an

interlocutory appeal filed pursuant to R.C. 2505.02(B)(4), with “the sole issue [being]

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

to the law.” Medina v. Medina Gen. Hosp., 8th Dist. No. 96171, 2011-Ohio-3990, ¶ 1, 7;

see also Hartzell v. Breneman, 7th Dist. No. 10 MA 67, 2011-Ohio-2472; compare

Viafora v. Suhail, 11th Dist. No. 2010-G-2987, 2010-Ohio-5796.

       {¶ 2} The underlying matter is a personal injury action originally filed in October

2009, by plaintiffs-appellees Todd Leopold and his wife.          The suit results from a

multi-vehicle accident that occurred on March 6, 2008. The Leopolds named numerous

defendants, including Laurence, who was driving one of the cars involved. Laurence and

some of the other defendants subsequently filed cross-claims against each other, seeking

contribution or indemnification should the plaintiffs prevail.

       {¶ 3} In April 2011, after the Leopolds had filed their third amended complaint,

Laurence filed her motion seeking a protective order pursuant to Civ.R. 26(C). She

sought to preclude “counsel for any party to this litigation from utilizing [her] medical

records [resulting from the accident] * * * for any purpose, including at any deposition of

any party or witness, in any motions for judgment on the pleadings, at trial or in any other

proceeding * * * .” In her brief in support of her motion, Laurence acknowledged the
                                           5

following facts.

       {¶ 4} After the accident, Laurence had made statements to emergency room

medical personnel that suggested she may have caused the accident. In November 2008,

Laurence had commenced a personal injury action, viz., Case No. CV-676218, which was

based upon the accident, against Stephen Stillwater and Ace Doran Hauling and Rigging

Co. (hereinafter, referred to in the singular as “Ace”), two defendants whom the Leopolds

also had named in the instant action. In responding to Ace’s requests for discovery in

her case, Laurence had turned over her statements. Laurence subsequently dismissed her

case. By the time she filed her motion seeking a protective order in this case, the statute

of limitations barred her from refiling CV-676218.

       {¶ 5} In this case, Leopold argued with respect to her request for a protective

order that her waiver of her “physician-patient privilege” in her previous action did not

extend to the current case. She further argued that some of the information she provided

to the medical personnel might be used by the other parties in this case for improper

purposes.

       {¶ 6} Ace filed a brief in opposition to Laurence’s motion. Therein, Ace argued

that Laurence’s request should be denied because she had not complied with Civ.R.

26(C)’s prerequisites and that her request was overbroad.          Ace also argued that

Laurence’s statements concerning the cause of the accident did not fit within the

protection of the physician-patient privilege.       The Leopolds later joined in Ace’s
                                            6

opposition to Laurence’s Civ.R. 26(C) motion.

       {¶ 7} Laurence filed a reply brief, to which Ace filed a responsive brief. In this

brief, Ace essentially argued that Laurence had waived her privilege with respect to the

statements when she made them in sworn testimony “in the context of her personal injury

action.”

       {¶ 8} On August 15, 2011, the trial court denied Laurence’s motion for a

protective order without opinion.

       {¶ 9} Laurence’s appeal of the trial court’s order presents one assignment of

error,1 in which she challenges the trial court’s order as denying her the protection of

physician-patient privilege in violation of R.C. 2317.02(B). Ace, on the other hand,

argues that the information Laurence seeks to protect does not fall under the statute’s

proscription, because Laurence waived her privilege when she filed her action in Case

No. CV-676218.

       {¶ 10} The burden of showing that testimony and documents are either confidential

or privileged rests upon the party seeking to exclude it. Lemley v. Kaiser, 6 Ohio St.3d

258, 263-264, 452 N.E.2d 1304 (1983). Moreover, a trial court’s decision whether to

grant or deny a protective order is one within the trial court’s discretion, and will not be

reversed absent an abuse of that discretion. Ruwe v. Bd. of Springfield Twp. Trustees, 29


       1 Laurence’sassignment of error states: “The trial court erred in denying
Appellant’s motion for a protective order, as Danielle Laurence did not waive any
medical privilege which would permit the use of her medical records in this case.”
                                            7

Ohio St.3d 59, 61, 505 N.E.2d 957 (1987).           However, this court reviews 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.

      {¶ 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 * * *.” (Emphasis added.) State v. Antill, 176

Ohio St. 61, 64-65, 197 N.E.2d 548 (1964). Therefore, R.C. 2317.02(B)(1) protects

communications between a health care provider and the patient. Medina v. Medina Gen.

Hosp., 8th Dist. No. 96171, 2011-Ohio-3990, ¶ 13.

      {¶ 12} R.C. 2317.02 provides in relevant part:

             “The following persons shall not testify in certain respects:

             “***

             “(B)(1) A physician or a dentist concerning a communication made

      to the physician or dentist by a patient in that relation or the physician’s or

      dentist’s advice to a patient except as otherwise provided in this division,

      division (B)(2), and division (B)(3) of this section, * * *.

             “The testimonial privilege established under this division does not

      apply, and a physician or dentist may testify or may be compelled to testify,

      in any of the following circumstances:
                                            8

             “(a) In any civil action, in accordance with the discovery provisions

      of the Rules of Civil Procedure in connection with a civil action, or in

      connection with a claim under Chapter 4123. of the Revised Code, under

      any of the following circumstances:

             “***

             “(iii) If a medical claim, dental claim, chiropractic claim, or

      optometric claim, * * * any other type of civil action, or a claim under

      Chapter 4123. of the Revised Code is filed by the patient * * * .

             “* * *

             “(3)(a) * * * [A] physician or dentist may be compelled to testify or

      to submit to discovery under the Rules of Civil Procedure only as to a

      communication made to the physician or dentist by the patient in question in

      that relation, or the physician’s or dentist’s advice to the patient in question,

      that related causally or historically to physical or mental injuries that are

      relevant to issues in the medical claim * * *.” (Emphasis added.)

      {¶ 13} There “existed no physician-privilege at common law. * * * Since the

privilege is in derogation of the common law, it must be strictly construed against the

party seeking to assert it. * * * [O]ur decisions have long reflected the belief that

discovery should be liberally allowed.” Bogart v. Blakely, 2d Dist. No. 2010 CA 13,

2010-Ohio-4526, ¶ 23, citing Arroyo v. Wagon Wheel Auto Sales Inc., 2d Dist. No.
                                           9

18235, 2000 WL 1133167 (Aug. 11, 2000).

      {¶ 14} According to R.C. 2317.02(B)(1)(a)(iii), the privilege is waived if the

patient filed a civil action. Laurence asserts that, since this action is not the one she

herself filed, if the trial court order stands, she will be required to waive her privilege

beyond the extent to which she intended.         Bogart, ¶ 29.   In addressing that same

assertion, the court in Menda v. Springfield Radiologists, 136 Ohio App.3d 656, 737

N.E.2d 590 (2d Dist.2000) made the following pertinent observations:

             “We disagree with [defendant’s] conclusion that the legislature could

      not have intended for a waiver of physician-patient privilege in one case to

      operate, at least in some situations, as a waiver in another case. The plain

      language of R.C. 2317.02(B) sets forth that the physician-patient privilege

      does not apply if the patient files a medical claim or ‘any other type of civil

      action’ which puts the mental or physical condition about which he saw the

      physician at issue. This is precisely what [defendant] did when he filed

      suit previously. The language of the statute does not limit the waiver to

      use of the information only in the patient’s case. Moreover, the privacy

      concern which seems to have been central to the legislature’s creation of the

      privilege is not compelling in a situation such as this one where [defendant]

      has already revealed his * * * health problems by filing a claim for

      [personal injury].” (Emphasis added.)
                                           10

       {¶ 15} This court agrees with the foregoing analysis as it applies in this case.

Laurence’s decision to file a claim of personal injury against Ace, which was based upon

the same accident that underlies the basis for the claims and defenses posed by the parties

herein, served to waive her physician-patient privilege with respect to that accident

pursuant to R.C. 2317.02(B). Id.

       {¶ 16} Accordingly, the trial court did not err in denying Laurence’s motion for a

protective order, and her assignment of error is overruled.

       Affirmed.

       It is ordered that appellees recover from appellant 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.



______________________________
KENNETH A. ROCCO, JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS;
SEAN C. GALLAGHER, P.J., DISSENTS
(SEE ATTACHED DISSENTING OPINION)
                                              11


SEAN C. GALLAGHER, P.J., DISSENTING:

          {¶ 17} I respectfully dissent from the majority opinion.   I would reverse the ruling

of the trial court because the medical records are protected under the physician-patient

privilege, R.C. 2317.02.

          {¶ 18} The majority relies upon the Second District Court of Appeals decision in

Menda v. Springfield Radiologists,136 Ohio App.3d 656, 737 N.E.2d 590 (2d Dist.2000),

which held that the waiver of the physician-patient privilege by filing a civil suit that puts

the plaintiff’s mental or physical health at issue also extends to separate lawsuits.

However, as the Second District recognized in a later case, “our holding in Menda has

most probably been overruled by the decision of the Supreme Court of Ohio in Hageman

v. S.W. Gen. Health Ctr.[, 119 Ohio St.3d 185, 2008-Ohio-3343, 893 N.E.2d 153].”

State v. Branch, 2d Dist. No. 22030, 2009-Ohio-3946, 2009 WL 2436867, ¶ 77. In

Hageman, the Ohio Supreme Court specifically held that “when the cloak of

confidentiality that applies to medical records is waived for the purposes of litigation, the

waiver is limited to that case” and that “waiver of medical confidentiality for litigation

purposes is limited to the specific case for which the records are sought * * *.” Id. at ¶

17, 20.

          {¶ 19} Laurence did not file the present action, and her medical condition is not at

issue herein.     Rather, appellees are seeking to impose liability upon Laurence for the

accident that occurred.     Contrary to appellees’ argument, the statements Laurence made
                                            12

to medical personnel as to how the accident happened were made for the purposes of

medical diagnosis or treatment.          Appellees wish to use Laurence’s privileged

communications to impeach her testimony, claiming the evidence constitutes prior

inconsistent statements.    However, appellees fail to cite any authority establishing that a

party may reference inadmissible, privileged communications in an attempt to impeach

the credibility of a witness.

       {¶ 20} Pursuant to Hageman, the fact that Laurence waived the physician-patient

privilege in a separate civil action does not effect a waiver of the privilege in this action.

See id. Therefore, Laurence’s medical records are not subject to disclosure, and the trial

court erred in denying her motion for a protective order.
