Court of Appeals of Ohio, Eighth District, Cuyahoga
DAVID HOWELL, JR., ETC. PLAINTIFF-APPELLEE
PARK EAST CARE & REHABILITATION, ET AL. DEFENDANTS-APPELLANTS
Appeal from the Cuyahoga County Court of Common Pleas Case
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
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
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.
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. Howell alleged that the actions or
omissions of Park East were negligent, reckless, wanton and
wilful, and substantially certain to cause harm to Wilbourn.
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.
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
Request for Production of Documents 6:
[L.W.'s] original nursing home chart during his entire
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
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
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");  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
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.
Park East's first assigned error raises various privilege
claims. We shall address each argument in turn.
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).
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.
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).
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 ...