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Howell v. Park East Care & Rehabilitation

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 24, 2018

DAVID HOWELL, JR., ETC. PLAINTIFF-APPELLEE
v.
PARK EAST CARE & REHABILITATION, ET AL. DEFENDANTS-APPELLANTS

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-876418

          ATTORNEYS FOR APPELLANTS Martin T. Galvin Brian D. Sullivan Erin Siebenhar Hess Reminger Co., L.P.A.

          ATTORNEYS FOR APPELLEE Blake A. Dickson Danielle Chaffin The Dickson Firm, L.L.C.

          BEFORE: Blackmon, J., E.T. Gallagher, P.J., and Stewart, J.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, JUDGE

         {¶1} Defendants-appellants, Harborside of Cleveland Limited Partnership d.b.a. Park East Care & Rehabilitation, and its owners and operators (collectively "Park East"), appeal from the trial court's decision that denied their motion for a protective order and compelled them to provide discovery of records pertaining to a nursing home resident who allegedly assaulted decedent, Pauline Wilbourn ("Wilbourn"), mother of plaintiff-appellee, David Howell ("Howell"). Park East assigns the following errors for our review:

I. The trial court erred by ordering production of privileged medical records pertaining to a nonparty to the litigation, which party refused to consent to such disclosure.
II. The trial court erred by ordering production of statutorily privileged incident reports, reports to the Ohio Department of Health, and a nonparty patient's billing records as these items are each statutorily immune from discovery.

         {¶2} Having reviewed the record and pertinent law, we reverse and remand in order for the trial court to conduct an in camera review of the disputed documents in order to ensure that they are not protected by a privilege or are otherwise undiscoverable. The apposite facts follow.

         {¶3} On February 23, 2017, Howell filed suit against Park East, alleging that while Wilbourn was a resident of Park East, she was assaulted by a fellow resident, L.W., and died from her injuries.[1] Howell alleged that the actions or omissions of Park East were negligent, reckless, wanton and wilful, and substantially certain to cause harm to Wilbourn.

         {¶4} L.W. is deceased, and his estate is not a party to this action. It is undisputed that his estate has refused to consent to production of his records at Park East.

         {¶5} Howell propounded extensive discovery requests to Park East. As is relevant to this appeal, Howell seeks various incident reports, medical records, and other information records pertaining to L.W., including the following:

Request for Production of Documents 2: Documents relative to [L.W.], including nursing home chart, medical records, physician notes, nurse statements and notes, progress notes, documentation of activities of daily living, assessment reports, incident/accident reports, physical therapy, administration of narcotics, dietary records, communications about [L.W.], etc.
Request for Production of Documents 5: Documents relative to [L.W.] including medical records, documentation of any incidents, police reports, and witness statements.
Request for Production of Documents 6: [L.W.'s] original nursing home chart during his entire residency.
Request for Production of Documents 7: Documentation of any incidents in which [L.W.] verbally and/or physically threatened, abused, assaulted, and/or otherwise attacked anyone at the nursing home.
Request for Production of Documents 9: Documentation in any incident, investigation, or abuse file which contains reference to [L.W.] or any incident involving or otherwise pertaining to [L.W.] Request for Production of Documents 11: documentation reported to the Ohio Department of Health relative to [L.W.], including any reports of injuries of unknown origin or suspected abuse to that individual.
Request for Production of Documents 14: Billing that was sent out relative to [L.W.].
Request for Production of Documents 15: Documentation of amounts paid relative to [L.W.].
Request for Production of Documents 20: Incident reports and/or witness statements relative, in any way, to [L.W.].
Interrogatory 5: Identify and describe any and all instances in which [L.W.], at any time, verbally and/or physically threatened, abused, assaulted, battered, and/or otherwise attacked anyone in the building or on the premises of the nursing home, or exhibited any type of aggressive behavior. (Collectively referred to as "the disputed records").

         {¶6} Park East filed a motion for a protective order, arguing that the disputed records are privileged under: R.C. 2317.02 (physician-patient privilege); R.C. 3721.13 (Ohio's Nursing Home Residents' Bill of Rights); Health Insurance Portability and Accountability Act of 1996 ("HIPAA"); [2] R.C. 2305.252 (peer review privilege); and R.C. 2305.253 (incident report privilege). In opposition, Howell filed a motion to compel. Howell asserted that R.C. 3721.13 does not create a records privilege, R.C. 2317.02 is inapplicable because Howell is not seeking communications, that production of medical records pursuant to a court order does not violate HIPAA, and that the records are otherwise discoverable.

         {¶7} The trial court conducted a legal analysis of the issues. Without conducting an in camera review of the disputed documents, the court ruled that the documentation of conduct is not barred by the physician-patient privilege, and that Howell's interests in obtaining the documents outweigh L.W.'s confidentiality interests. The court also ruled that R.C. 3721.13 does not create a records privilege, and that HIPAA is not violated if discovery is ordered by a court. The court granted Howell's motion to compel and denied Park East's motion for a protective order.

         {¶8} Park East's first assigned error raises various privilege claims. We shall address each argument in turn.

         Standard of Review

         {¶9} Although discovery orders are generally reviewed under an abuse of discretion standard, the issue of whether information sought is confidential and privileged from disclosure is a question of law that should be reviewed de novo. Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13. Accord Schlotterer at ¶ 13 (considering claim based upon R.C. 2317.02); Large v. Heartland-Lansing of Bridgeport Ohio, LLC, 995 N.E.2d 872, 2013-Ohio-2877, ¶ 35 (7th Dist.)(considering claim based upon R.C. 3721.13); Dauterman v. Toledo Hosp., 6th Dist. Lucas No. L-10-1167, 2011-Ohio-148, ¶ 10 (considering claims based upon R.C. 2317.02 and HIPAA); Bailey v. Manor Care of Mayfield Hts., 2013-Ohio-4927, 4 N.E.3d 1071, ¶ 11 (8th Dist.) (considering claim based upon R.C. 2305.252 for peer review documents, and R.C. 2305.253 for risk management and incident reports).

         R.C. 2317.02

         {¶10} Park East argues that the records are privileged under R.C. 2317.02, and this privilege extends to third parties such as L.W. Park East asserts that the court's decision is erroneous, under Roe v. Planned Parenthood Southwest Ohio Region, 122 Ohio St.3d 399, 2009-Ohio-2973, 912 N.E.2d 61, and Bednarik v. St. Elizabeth Health Ctr., 7th Dist. Mahoning No. 09 MA 34, 2009-Ohio-6404. In opposition, Howell argues that this statute is inapplicable herein.

         {¶11} Pursuant to R.C. 2317.02, a physician cannot testify "concerning a communication made to the physician * * * by a patient in that relation or the physician's * * * advice to a patient." The statute defines "communication" as "acquiring, recording, or transmitting any information, in any manner, concerning any facts, opinions, or statements necessary to enable a physician or dentist to diagnose, treat, prescribe, or act for a patient." R.C. 2317.02(B)(5)(a).

         {¶12} In Biddle v. Warren Gen. Hosp., 86 Ohio St.3d 395, 402, 1999-Ohio-115, 715 N.E.2d 518, the Ohio Supreme Court reviewed privilege claims after a hospital released patient medical information to a law firm in order to determine Supplemental Security Income eligibility, and possible payment to the hospital. The Biddle court held that "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." Id. at paragraph one of the syllabus. The court also held:

In the absence of prior authorization, a physician or hospital is privileged to disclose otherwise confidential medical information in those special situations where disclosure is made in accordance with a statutory mandate or common-law duty, or where disclosure is necessary to protect or further a ...

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