[Cite as Boddie v. Van Steyn, 2014-Ohio-1069.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT



Howard Boddie, Jr.,                              :

                Plaintiff-Appellant,             :               No. 13AP-623
                                                            (C.P.C. No. 10CVH-15026)
v.                                               :
                                                         (ACCELERATED CALENDAR)
Dr. Scott J. Van Steyn,                          :

                Defendant-Appellee.              :




                                         D E C I S I O N

                                    Rendered on March 20, 2014


                Howard Boddie, Jr., pro se.

                Roetzel & Andress, LPA, Thomas A. Dillon, and Jeremy S.
                Young, for appellee.

                  APPEAL from the Franklin County Court of Common Pleas.

BROWN, J.
        {¶ 1} Howard Boddie, Jr., plaintiff-appellant, appeals from the judgment of the
Franklin County Court of Common Pleas which granted the motion for summary
judgment filed by Dr. Scott J. Van Steyn, defendant-appellee.
        {¶ 2} Appellant was scheduled for a criminal jury trial on May 26, 2009, for
felony offenses charged against him in 2008. Todd Barstow represented appellant. Leigh
Bayer and Shontell Walker were prosecutors for the case. On April 27, 2009, appellee
performed knee surgery on appellant. On April 29, 2009, appellant asked appellee if he
would provide a doctor's note excusing him from attending court due to his medical
No. 13AP-623                                                                                  2

condition. Appellee wrote appellant a doctor's note, which indicated, "For Howard
Boddie: Unable to attend court until July 1, 2009."
       {¶ 3} On May 16, 2009, Barstow faxed a letter to appellee dated May 15, 2009. In
the letter, Barstow stated that he represented appellant in several felony matters set for
jury trial on May 26, 2009, and prosecutor Bayer thought that either the doctor's note was
forged or that appellee overstated the severity of appellant's condition. The fax included a
subpoena requiring appellee's presence at a hearing on May 26, 2009, as well as
production of appellant's medical records. Barstow invited appellee to call him to discuss
the matter and further stated that it was "[p]ossibl[e] you have additional information
that would satisfy the prosecutor. She can be reached at 462-3555 should you wish to
communicate with her directly."
       {¶ 4} After receiving the letter, appellee telephoned Barstow. Barstow and
appellee discussed appellee's court appearance on May 26, 2009, and Barstow told
appellee to call Bayer to discuss his appearance and appellant's inability to attend trial.
       {¶ 5} Soon after the telephone conversation, appellee wrote a second note
regarding appellant's medical condition and his inability to attend the May 26, 2009 trial,
which provided: "To whom it may concern: Howard Boddie is currently under my care
following surgery for a complex knee injury. He is on crutches and taking narcotic pain
medication and in my opinion unable to attend trial."
       {¶ 6} After authoring the second note, appellee telephoned Bayer. Appellee avers
that, during the telephone call with Bayer, he did not disclose any details regarding
appellant's medical condition beyond that disclosed in the two letters.
       {¶ 7} On October 13, 2010, appellant filed an action against appellee, alleging
breach of physician-patient confidentiality. Appellant claimed he did not authorize
appellee to make any additional disclosures after the initial note to Barstow and Bayer
regarding his medical condition. On April 2, 2013, appellee filed a motion for summary
judgment. On April 12, 2013, appellant filed a motion for summary judgment. On
June 27, 2013, the trial court issued a decision granting appellee's motion for summary
judgment and denying appellant's motion for summary judgment. Appellant appeals the
judgment of the trial court, asserting the following assignments of error:
              [I.] The Trial Court erred as a matter of law and abused its
              discretion by granting Defendant-Appellee's Motion for
No. 13AP-623                                                                            3

             Summary Judgment; when the issue of liability was based on
             unauthorized disclosures of confidential medical information
             and no signed authorizations were ever produced; and, in fact,
             such breach of physician-patient confidentiality were made
             without consent or privilege.

             [II.] The Trial Court erred as a matter of law and abused its
             discretion by Denying Plaintiff-Appellant's Motion for
             Summary Judgment; when there were no genuine issues of
             material fact and Plaintiff-Appellant was entitled to Summary
             Judgment; as the issue of liability was based on the
             Defendant-Appellee, Doctor's unauthorized disclosures
             without any signed authorizations, consents or privilege.

      {¶ 8} We will address appellant's assignments of error together, as they both
generally rely upon the same arguments. Appellant argues in his assignments of error that
the trial court erred when it granted summary judgment in favor of appellee and denied
summary judgment in his favor. Summary judgment is appropriate when the moving
party demonstrates that: (1) there is no genuine issue of material fact, (2) the moving
party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but
one conclusion when viewing the evidence most strongly in favor of the non-moving
party, and that conclusion is adverse to the non-moving party. Hudson v. Petrosurance,
Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d
158, 2007-Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a motion for
summary judgment is de novo. Hudson at ¶ 29. This means that an appellate court
conducts an independent review, without deference to the trial court's determination.
Zurz v. 770 W. Broad AGA, L.L.C., 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.);
White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.).
      {¶ 9} When seeking summary judgment on the ground that the non-moving party
cannot prove its case, the moving party bears the initial burden of informing the trial
court of the basis for the motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on an essential element of the
non-moving party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving
party does not discharge this initial burden under Civ.R. 56 by simply making a
conclusory allegation that the non-moving party has no evidence to prove its case. Id.
Rather, the moving party must affirmatively demonstrate by affidavit or other evidence
No. 13AP-623                                                                                     4

allowed by Civ.R. 56(C) that the non-moving party has no evidence to support its claims.
Id. If the moving party meets its burden, then the non-moving party has a reciprocal
burden to set forth specific facts showing that there is a genuine issue for trial. Civ.R.
56(E); Dresher at 293. If the non-moving party does not so respond, summary judgment,
if appropriate, shall be entered against the non-moving party. Id.
       {¶ 10} In the present case, appellant's claim was for breach of doctor-patient
confidentiality. "In Ohio, an independent tort exists for the unauthorized, unprivileged
disclosure to a third party of nonpublic medical information that a physician or hospital
has learned within a physician-patient relationship." Biddle v. Warren Gen. Hosp., 86
Ohio St.3d 395 (1999), paragraph one of the syllabus. Thus, there can exist no tort, in this
respect, for a disclosure that is authorized by the patient. See id.
       {¶ 11} Here, appellant argues that the trial court erred when it found he authorized
appellee to reveal his medical condition to third parties after the first note. The trial court
first concluded the evidence demonstrated that the only communication beyond the first
note that appellee had with third parties was the second note. The court then found the
second note was an "expansion" of the first note and was authorized by actual authority or
authority implied from express authority given to appellee by appellant. The trial court
further found that, even if the second note was not authorized by the express authority
given for the first note, appellee had the legal authority to rely on the consent given to him
by Barstow, because Barstow was appellant's attorney and had the express and/or
apparent authority to act on behalf of appellant. The court reasoned that appellant did not
want to appear at his trial and gave Barstow express authority to request a continuance
based upon his medical condition, which would also entail any follow-up actions
necessary to procure the continuance.
       {¶ 12} Appellant contends that, because he gave no express authority or signed
authorization for appellee to disclose his medical information to third parties beyond the
first note, there remained genuine issues of material fact. He maintains that the trial court
improperly found an implied consent, when his request for the first note was limited to
his desire for appellee to write a single note indicating only that he could not attend trial.
       {¶ 13} However, we find that we need not address whether appellee was granted
actual authority by appellant to write the second note as an "expansion" of the first note
No. 13AP-623                                                                             5

because, even if we were to assume the second note was not authorized by the express
authority given for the first note, appellee had authority to author the second note based
upon the authority given to him from Barstow as appellant's attorney. It is undisputed
that Barstow was appellant's legal representative from the outset of the criminal matters.
It is well-settled that the relationship between an attorney and client is that of an agent
and a principal. Gaines Reporting Serv. v. Mack, 4 Ohio App.3d 234 (6th Dist.1982). It is
also a well-settled rule that a principal is bound by the acts of an agent acting within
actual or apparent scope of the agent's authority. Weeks v. United States, 245 U.S. 618
(1918).
       {¶ 14} As relied upon by the trial court, we also believe the legal notions
expounded in Master Consol. Corp. v. BancOhio Natl. Bank, 61 Ohio St.3d 570 (1991), are
applicable to the facts of this case. In Master Consol., the court defined "apparent
authority" as " 'the power to affect the legal relations of another person by transactions
with third persons * * * arising from * * * the other's manifestations to such third
persons.' " Id. at 576, quoting 1 Restatement of the Law 2d, Agency, Section 8, at 30
(1958). The court in Master Consol. further explained:
              " '[w]here a principal has by his voluntary act placed an agent
              in such a situation that a person of ordinary prudence,
              conversant with business usages, and the nature of the
              particular business, is justified in assuming that such agent is
              authorized to perform on behalf of his principal a particular
              act, such particular act having been performed the principal is
              estopped as against such innocent third person from denying
              the agent's authority to perform it.' * * * "

Id., quoting Gen. Cartage & Storage Co. v. Cox, 74 Ohio St. 284, 294 (1906).
       {¶ 15} In the present case, appellant averred in his affidavit that he informed
appellee of his pending court date and requested that he prepare a note for him to present
to the trial court to excuse his absence from his criminal proceedings. Thus, appellant
made it clearly apparent to appellee that appellant was going to give the note to third
parties to excuse his absence, and, in fact, appellant gave the note to his attorney,
Barstow. In his May 15, 2009 letter, Barstow informed appellee that he represented
appellant as his attorney and appellant had given him the medical note. Thus, appellant,
by his voluntary act of providing the medical excuse to his attorney, placed appellee in a
No. 13AP-623                                                                                6

situation that a person of ordinary prudence would be justified to assume Barstow was
authorized to seek further information from appellee regarding appellant's medical
condition in order to secure permission for his non-attendance. Having sought the first
medical note and providing it to Barstow, appellant is estopped as against appellee from
denying Barstow's authority to seek additional medical information. In other words, by
requesting the first note and giving it to his attorney, appellant implied to appellee that he
could further discuss appellant's medical reasons for being unable to attend trial, and
appellee could have reasonably believed that Barstow's letter was granting him
permission to discuss appellant's medical reasons for being unable to attend trial.
       {¶ 16} Furthermore, given our determination that appellant gave Barstow the
apparent authority to seek further medical information regarding appellant's inability to
attend trial and that appellee reasonably relied upon such authority in providing the
second note, we must find that appellee's conversation with Bayer was proper. In his
May 15, 2009 letter, Barstow invited appellee to call Bayer and discuss the matter, and he
reiterated the same invitation in their subsequent telephone conversation. Appellee
averred that he disclosed nothing more about appellant's medical condition to Bayer in
their telephone conversation than appellee disclosed in the second note. Therefore,
appellee's disclosure of medical information to Bayer was not improper. In addition,
although appellant also claims that appellee made a disclosure to another prosecutor,
Walker, there is no evidence of such in the record, other than appellant's affidavit
averments, which are not based upon personal knowledge and are unsupported by other
evidence. Therefore, we must reject these arguments.
       {¶ 17} Appellant also presents an argument that relies upon the allegation that
appellee wrote the first and second notes at the same time, on April 29, 2009, and they
were given to Barstow at the same time. Although this allegation relates to the issue of
whether the second note was proper as an "expansion" of the first note, which is moot
given our determination above, we, nevertheless, find that there is no evidence in the
record that the first and second notes were both written on April 29, 2009. In his
affidavit, appellee avers that he submitted the second note around the time of his phone
conversation with Barstow and after he had received the letter and subpoena from
Barstow. Therefore, this argument is without merit.
No. 13AP-623                                                                              7

       {¶ 18} Appellant also argues that the Health Insurance Portability and
Accountability Act ("HIPAA") required appellee to contact him before further disclosures
in order to obtain a signed consent. The purpose of HIPAA is to prevent the disclosure of
protected health information by health care providers, except under certain exemptions as
required by law. 45 C.F.R. 164.502. However, HIPAA does not allow a private cause of
action, according to Ohio law. OhioHealth Corp. v. Ryan, 10th Dist. No. 10AP-937, 2012-
Ohio-60, ¶ 18, citing Henry v. Ohio Victims of Crime Comp. Program, S.D.Ohio No. 2:07-
cv-0052 (Feb. 28, 2007) ("Congress neither expressly nor impliedly provided for any
private rights of action to enforce HIPAA."); Shepherd v. Sheldon, N.D.Ohio No. 1:11 CV
127 (July 21, 2011) (plaintiffs apparently conceded HIPAA did not create a private cause of
action); Siegler v. Ohio State Univ., S.D.Ohio No. 2:11-cv-170 (May 23, 2011) (in creating
HIPAA, Congress did not provide for any private right of action to enforce it); Wood v.
Blyer, N.D.Ohio No. 5:06 CV 137 (Aug. 9, 2006) (HIPAA does not provide a private cause
of action for improper disclosures of medical information but, rather, provides civil and
criminal penalties which must be enforced by the Department of Health and Human
Services). Thus, appellant's reliance upon HIPAA to support his claims is misguided. For
the foregoing reasons, appellant's first and second assignments of error are overruled.
       {¶ 19} Accordingly, appellant's two assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                      Judgment affirmed.

                             TYACK and KLATT, JJ., concur.

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