[Cite as Montei v. Montei, 2016-Ohio-8190.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     CLARK COUNTY

 GRETCHEN M. MONTEI, nka WELLS                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 2016-CA-12
                                                    :
 v.                                                 :   Trial Court Case No. 06-DR-568
                                                    :
 JAMIE H. MONTEI                                    :   (Criminal Appeal from
                                                    :    Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                             Rendered on the 16th December, 2016.

                                               ...........

WILLIAM WEST, Atty. Reg. No. 0018465, 20 South Limestone Street, Suite 120,
Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

BEVERLY FARLOW, Atty. Reg. No. 0029810, and KONSTANTIN MATEJIC, Atty. Reg.
No. 0090697, 270 Bradenton Avenue, Suite 100, Dublin, Ohio 43017
      Attorneys for Defendant-Appellant

                                              .............

HALL, J.

        {¶ 1} Appellant, a potential witness, but not a party, in post-decree proceedings in
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this divorce case, intervened to assert the physician-patient privilege regarding the

production of his medical records. The trial court ruled that the witness’ pursuit of a

subsequent separate civil action regarding breach of confidentiality of the medical

records, alleged to have occurred in the post-decree proceedings, waives his physician-

patient privilege in the ongoing post-decree proceeding. The witness appeals that

determination.

       {¶ 2} The original parties were divorced in August 2007 when their daughter was

three years old. At that time, they agreed to a shared-parenting plan. Significant disputes

have arisen concerning the shared parenting, including those indicated in a prior appeal,

Montei v. Montei, 2d Dist. Clark No. 2013 CA 24, 2013-Ohio-5343, and several motions

for modification of the parenting arrangement have been filed.

       {¶ 3} The trial court’s Entry filed December 4, 2015 describes the circumstances

that bring this case before us:

              On September 29, 2014, Ms. Wells [mother] filed a Motion seeking

       to terminate the aforementioned Shared Parenting Order and designate her

       as the sole residential parent and legal custodian for the parties’ daughter.

       Ms. Wells also filed a Motion May 19, 2015, seeking a modification of

       parenting time.

              On January 2, 2015, Mr. Montei [father] filed his own Motion seeking

       to modify (but not terminate) the existing shared parenting arrangement.

       On March 2, 2015, Mr. Montei also filed a Motion seeking an Order from

       this Court finding Ms. Wells in contempt for the reasons set forth therein.

              The aforementioned Motions filed by both of the parties are the
                                                                                      -3-


subject of the most recent litigation herein.

         The filing of these Motions require this Court to consider the “best

interest” of the parties’ daughter as defined by O.R.C. 3109.04.

         On March 4, 2015, this Court singed an Entry submitted on Plaintiff’s

behalf obligating the Upper Valley Medical Center to disclose possible

protected health information relating to treatment and care provided to a

minor child who resides in Mr. Montei’s household along with that child’s

mother * * * [father’s girlfriend]. Mr. Montei is not the biological father of this

child.

         On April 10, 2015, Mr. Montei filed a Motion with this Court seeking

a Protective Order concerning the aforementioned medical records which,

by that time, had already been obtained and submitted to the original

Guardian Ad Litem herein. That Guardian Ad Litem submitted an initial

report and made reference to the aforementioned records in her report,

although she did not attach them. Eventually, that Guardian Ad Litem

returned those records to Mr. Montei’s attorney and kept no copies thereof.

This Court has never reviewed any of the aforementioned records.

Similarly, the current Guardian Ad Litem has also never reviewed any such

records.

         On June 16, 2015, [father’s girlfriend] filed a civil lawsuit in the

General Division of the Clark County Common Pleas Court * * * relating to

the release and distribution of the aforementioned health care records of

[girlfriend’s] son. * * *.   [A]ttached to the Complaint filed on behalf of
                                                                                       -4-


      [girlfriend] is the report and recommendation submitted to this Court by the

      original Guardian Ad Litem herein.       As mentioned, that report makes

      reference to the health care records for [girlfriend’s] son in some detail,

      however, the report does not have any of those records attached to it as an

      exhibit.

(Doc. #125, Entry filed December 4, 2015).

      {¶ 4} In addition to the trial court’s rendition, we note that the issue about the

medical records arose when on February 5, 2015 counsel for the mother submitted a form

to the Clark County Clerk requesting the issuance of a subpoena to Upper Valley Medical

Center for an appearance at the then-scheduled March 3, 2015 hearing and to bring all

records for girlfriend’s son from an identified time period. The subpoena contained a

statement that in lieu of appearing the records could be mailed to plaintiff’s counsel by

February 23, 2015.

      {¶ 5} In the memorandum in support of father’s motion for removal of the GAL filed

April 10, 2015, it is represented that an attorney for Premier Health sent an e-mail to

plaintiff’s attorney on February 25, 2015, indicating that a court order would be required

to release the Upper Valley medical records. (Doc. #112). Thereafter, the trial court’s

March 4, 2015 entry was filed ordering Upper Valley Medical Center to disclose the

requested records. (Doc. 108). Counsel for father disclaimed any knowledge of the

subpoenas, the e-mail, and the court entry until after learning the records were sent to

mother’s counsel, shared with the GAL, and a GAL report was issued making reference

to the medical records. The subpoena for the records and the March 4, 2015 court entry

do not contain any indications that they were served on counsel for father. The GAL who
                                                                                           -5-


had access to, and who had referenced information from the records in her report, has

since become employed as a magistrate, resulting in the appointment of a new GAL who,

as indicated in the December 4, 2015 entry, has not reviewed the records.

       {¶ 6} Also filed on April 10, 2015 was a Motion for a Protective Order regarding the

records.1 (Doc. # 113). This motion evidently prompted the voluntary return of the records

to counsel for father who is also counsel for the patient.

       {¶ 7} In its December 4, 2015 entry, the trial court further concluded, after it

“independently reviewed the civil Complaint filed by [father’s girlfriend] on June 16, 2015

which seeks judgment against the Defendants named therein for alleged breach of

confidentiality relating to medical information [etc.],”2 that the independent civil action

effectively acted as a waiver of privilege of the records of her son and that if she continued

to pursue that action the court would order an in-camera review to determine what

information would be discoverable and admissible.

       {¶ 8} After a February 3, 2016 telephone status conference, the trial court’s Entry,

filed February 5, 2016, reflected that father’s girlfriend still intended to pursue the civil

claim. The trial court then ruled that privilege had been waived and ordered counsel to

provide the records to the court for an in-camera review. This appeal followed.3



           Pursuit of Litigation In One Case Does Not Necessarily Waive



1 The docket indicates the motion was fax-filed April 10, 2015. The original copy is file-
stamped April 14, 2015.
2That civil complaint is not in our record.
3It further appears that the potential witness is now an adult and is pursuing the civil
action on his own behalf.
                                                                                             -6-


          Privilege Regarding Litigator’s Medical Records in Another Case



       {¶ 9} Appellant’s first assignment of error states: “THE TRIAL COURT ERRED

BY DETERMINING THE PRIVILEGE OVER THE MEDICAL RECORDS AT ISSUE WAS

WAIVED BY THE FILING OF A SEPARATE LAWSUIT.”

       {¶ 10} Medical records in Ohio generally are statutorily privileged from disclosure.

R.C. 2317.02(B); Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496,

909 N.E.2d 1237, ¶ 14. The testimonial physician-patient privilege codified in the statute

has been held to encompass confidentiality of one’s medical records. Hageman v.

Southwest Gen. Health Ctr., 119 Ohio St.3d 185, 2008-Ohio-3343, 893 N.E.2d 153, ¶ 9.

One portion of the statute, R.C. 2713.02(B)(5)(a), includes medical records in the

definition of a protected “communication.”           There are, however, exceptions to

confidentiality in the statute itself. The privilege does not apply under R.C.

2317.02(B)(1)(a) “[i]n any civil action, * * * under any of the following circumstances: * * *

(iii) If a medical claim, * * * an action for wrongful death [or] * * *, any other type of civil

action, * * * is filed by the patient * * *.” But even if the civil-action-filed-by-the-patient

exception to confidentiality applies, the extent of the disclosure is further limited by R.C.

2317.02(B)(3)(a), which states:

       “If the testimonial privilege described in division (B)(1) of this section does

       not apply as provided in division (B)(1)(a)(iii) of this section, a physician * *

       * 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 * * * by

       the patient in question in that relation, or the physician’s * * * advice to the
                                                                                              -7-


       patient in question, that related causally or historically to physical or mental

       injuries that * * * are relevant to issues in the medical claim,* * * action for

       wrongful death, [or] * * * other civil action.

Accordingly, the pursuit of a civil action wherein physical or mental injuries are causally

or historically related to the issues that arise in that case is effectively treated as a waiver

of privilege with regard to those conditions.

       {¶ 11} In Menda v. Springfield Radiologists, 136 Ohio App.3d 656, 737 N.E.2d 590

(2d Dist.2000), we held that the effective waiver of the physician-patient privilege due to

a civil action filed by the patient, that puts the plaintiff's mental or physical health at issue

in that case, also extends that waiver of privilege to an unrelated prior and separate

lawsuit. However, we later observed that “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.

Montgomery No. 22030, 2009-Ohio-3946, ¶ 77. Hageman involved parties involved in a

divorce and counterclaim, with competing claims for custody of a minor child. While the

custody claims were pending, the wife separately filed for a Civil Protection Order (CPO).

In preparation for the full hearing on the CPO, wife’s attorney subpoenaed records from

husband’s psychiatrist, believing that privilege had been waived by the prior and separate

filing of the counterclaim for custody in the divorce case. Wife’s attorney also shared the

medical records with a prosecutor who was an observer at the CPO hearing. The

Hageman plurality opinion specifically states “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
                                                                                                -8-

specific case for which the records are sought * * *.” Hageman at ¶ 17.

       {¶ 12} In the present case, we are concerned about the asserted waiver of

privilege due to having filed a separate civil action for three reasons. First, the asserted

waiver by filing a separate action occurred well after the initial release of the medical

records in a case where the patient was not a party. Second, the separate civil action

here was filed to protect the privilege or to seek damages for the alleged breach of

confidentiality that occurred in the first case. Third, under Hageman the waiver by filing a

civil action extends only to that civil action.

       {¶ 13} The custody-related motions in the domestic relations case bring into

question the best interests of the parties’ child, which in turn makes relevant the

“interrelationship with the child’s parents, siblings, and any other person who may

significantly affect the child’s best interest,” R.C. 3109.04(F)(1)(c), which includes “the

mental and physical health of all persons involved in the situation.” R.C. 3109.04(F)(1)(e).

Those provisions could make relevant the mental and physical health of someone

residing in the household of either parent who participates in the shared-parenting

arrangement. But neither father’s girlfriend nor her son is a party in the domestic relations

case. When her son’s records were subpoenaed and obtained, there was no civil action

filed by or on behalf of the patient to support a waiver of the privilege regarding the

medical records. We fail to see how the subsequent filing of a case directed at recovery

of damages for a breach of confidentiality can constitute a waiver of the same

confidentiality the patient seeks to protect. If the filing of a separate civil action specifically

directed at recovery for breach of confidentiality of medical records is deemed to waive

the privilege regarding those very records, then anyone pursuing a civil action seeking
                                                                                           -9-


redress for breach of confidentiality automatically would be exposing the same

confidential information he seeks to protect. Finally, our interpretation of Hageman is that

the waiver of privilege by filing the civil claim for breach of confidentiality only waives

privilege to the extent the privileged information may be causally or historically related to

the claims in that case.

       {¶ 14} We hold that filing a civil action to recover for an alleged breach of

confidentiality of medical records that occurred in prior litigation in which the patient was

not a party does not function as a waiver of confidentiality allowing disclosure of those

records in the prior litigation. Accordingly, Appellant’s first assignment of error is

sustained.

       {¶ 15} Appellant’s second assignment of error states: “IF THIS COURT FINDS

THAT MENDA IS STILL APPLICABLE, THEN THE TRIAL COURT ABUSED ITS

DISCRETION BY DETERMINING THE MEDICAL RECORDS AT ISSUE ARE

CAUSALLY OR HISTORICALLY RELATED TO CASE NO. 15-CV-0416 ALLOWING

FOR THE WAIVER OF PRIVILEGE IN THIS MATTER.”

       {¶ 16} Based on our determination above that filing a separate civil action to

recover for an alleged breach of confidentiality of medical records did not result in a waiver

of confidentiality in the prior litigation, we need not address the Appellant’s second

assignment of error. Pursuant to App.R. 12(A)(1)(c), the second assignment of error is

overruled as moot.

                                    Conclusion

       {¶ 17} Having sustained the Appellant’s first assignment of error, we reverse the

trial court’s February 5, 2016 judgment regarding the waiver of privilege and remand the
                                                  -10-


cause for further proceedings.

                                  .............


FAIN, J., and FROELICH, J., concur.



Copies mailed to:

William West
Beverly Farlow
Konstantin Matejic
Hon. Thomas J. Capper
