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2007-0376. Hageman v. Southwest Gen. Health Ctr., Slip Opinion No. 2008-Ohio-3343.
Cuyahoga App. No. 87826, 2006-Ohio-6765. Judgment affirmed and cause remanded.
Moyer, C.J., and Pfeifer and Lanzinger, JJ., concur.
O'Connor and Cupp, JJ., concur in the syllabus and judgment.
Lundberg Stratton and O'Donnell, JJ., dissent.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-3343.pdf
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(July 9, 2008) The Supreme Court of Ohio ruled today that an attorney may be liable to an opposing party for civil damages for the unauthorized disclosure of that party’s medical information obtained by the attorney through litigation.
In 2003, while Kenneth Hageman and his then-wife were going through a divorce and child custody dispute, criminal charges were filed against Hageman for allegedly assaulting his wife at their home. His wife sought and was granted a temporary protection order suspending her husband’s rights to contact or visitation with their daughter, pending a hearing. In preparation for that hearing, the attorney representing Hageman’s wife in the divorce, Barbara Belovich, subpoenaed confidential mental-health records from Mr. Hageman’s doctors, whose practice was housed in the Southwest General Health Center. Although Hageman did not sign a release approving disclosure of the medical records, his psychiatrist faxed the subpoenaed documents to Belovich.
On the date of the scheduled civil protection order hearing, the prosecutor in the pending criminal case against Hageman was present as an observer. Belovich met with him and provided him with copies of the psychiatric records she had obtained from Hageman’s physician. Before the scheduled hearing was held, Hageman and his wife entered into a separation agreement that was later incorporated into a divorce decree, with the result that Hageman’s medical records were never admitted into evidence in the divorce/protection order case. The records also were not admitted as evidence in the criminal case, in which Hageman was ultimately acquitted.
Hageman sued for damages for the unauthorized release of his records, naming his doctors, his ex-wife, Belovich and Southwest General Health Center as defendants. The Cuyahoga County Court of Common Pleas granted summary judgment dismissing his claims against all of the defendants. Hageman appealed. The 8th District Court of Appeals affirmed the trial court’s awards of summary judgment in favor of all of the defendants except Belovich. The appellate panel ruled that Belovich had “overstepped her bounds” as his ex- wife’s divorce attorney and exposed herself to possible civil liability when she disseminated Hageman’s confidential medical records obtained in the divorce case to the prosecutor. The court of appeals therefore remanded Hageman’s claim against Belovich to the trial court for further proceedings. Belovich sought and was granted Supreme Court review of the 8th District’s ruling.
In today’s majority opinion affirming the 8th District, Chief Justice Moyer noted that: “In general, a person’s medical records are confidential. Numerous state and federal laws recognize and protect an individual’s interest in ensuring that his or her medical information remains so.... Physician-patient and psychologist-patient privileges have been codified in Ohio to deny the use of such information in litigation except in certain limited circumstances.... We explicitly recognized and applied this basic policy of confidentiality in Biddle v. Warren Gen. Hosp. (1999). In that case, we confronted issues arising from the disclosure of health-care information obtained through a physician-patient relationship. After surveying cases in Ohio and beyond, we recognized that the breach of patient confidentiality is a palpable wrong. ... We defined the boundaries of this tort by recognizing two related causes of action: one against physicians and hospitals that disclose confidential medical information to a third party without authorization or privilege to do so, and one against third parties who induce physicians or hospitals to disclose such information.”
While acknowledging that the specific causes of action recognized in Biddle “apply imperfectly” to the facts in this case, the Chief Justice wrote: “(W)e conclude that the rationale for our decision there applies here. Biddle stressed the importance of upholding an individual’s right to medical confidentiality beyond just the facts of that case.”
The Chief Justice rejected Belovich’s argument that she should be held exempt from liability for providing Hageman’s medical records to the prosecutor because Hageman had waived the confidentiality of those records when he filed a counterclaim in the divorce action seeking custody of his daughter. “Hageman admits that he made his health an issue in the divorce action by seeking custody of his and his ex-wife’s minor child,” wrote Chief Justice Moyer. “Pursuant to the law of the Eighth Appellate District, Hageman was required to demonstrate that he was capable of caring for his child in order to be granted custody. For that reason, he waived his medical privilege for the purposes of that case. Whatever discomfort arose from this disclosure of private and confidential information was tempered by the possibility of success on his custody claim. However, there is neither a legal justification for nor a practical benefit to the proposition that a waiver for a specific, limited purpose is a waiver for another purpose.”
“Creating an expansive waiver would be inconsistent with the generally recognized confidentiality provisions in Ohio and federal law. Moreover, the expansive waiver urged by Belovich would not be desirable public policy for a number of reasons. First, individuals should be encouraged to seek treatment for medical or psychological conditions, and privacy is often essential to effective treatment.... Likewise, if an expansive waiver existed for medical records obtained through litigation, the potential for abuse of this waiver would be high. The party receiving the records will generally be the only person with anything to gain from the disclosure of the information beyond the underlying litigation. The facts in this case convince us that an attorney with medical records of a party in one case could use those records for purposes not intended by the party granting the waiver.”
With those considerations in mind, the Chief Justice concluded: “(W)e hold 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. An attorney can certainly use medical records obtained lawfully through the discovery process for the purposes of the case at hand – e.g. submitting them to expert witnesses for analysis or introducing them at trial. However, an attorney may be liable to an opposing party for the unauthorized disclosure of that party’s medical information that was obtained through litigation. Thus, as in our decision in Biddle, we conclude that an independent tort exists to provide an injured individual with a remedy for such an action.”
Chief Justice Moyer’s opinion was joined in its entirety by Justices Paul E. Pfeifer and Judith Ann Lanzinger.
Justices Maureen O’Connor and Robert R. Cupp concurred in the Court’s judgment and syllabus holding. However, Justice Cupp entered a separate opinion, joined by Justice O’Connor, stating that he would not have reached the issue of whether Hageman’s waiver of confidentiality for purposes of his child custody claim did or did not breach the privilege of that information for any other civil claim.
He wrote: “On its face, the specific statutory waiver or exception at issue here applies ‘in any civil action.’ See R.C. 2317.02(B)(1)(a). Accordingly, to resolve this case, it suffices to conclude that while Hageman’s asserting a child-custody counterclaim waived the privilege pursuant to R.C. 2317.02(B)(1)(a)(iii) for the divorce and civil-protection-order action, that statutory waiver did not apply to the separate criminal case involving Hageman. I would leave for another day the broader issue of whether the privilege is waived for all time and in all cases after the statutory waiver in R.C. 2317.02(B)(1)(a)(iii) has been found to apply in a particular case, as that issue was not fully briefed here.”
Justice Terrence O’Donnell entered a dissent, joined by Justice Evelyn Lundberg Stratton, in which he criticized the majority’s holding as an unwarranted expansion of and departure from the Court’s 1999 Biddle decision that “constitutes a usurpation of the role of the legislative branch of government and amounts to judicially legislating from the bench.”
Justice O’Donnell wrote: “In my view, the issue in this case concerns the scope of Hageman’s waiver of the physician-patient privilege.... The majority... limits the scope of the waiver, creates a new duty upon attorneys to protect the confidentiality of an adversary’s medical records properly obtained in the course of litigation, and imposes liability for their unauthorized disclosure – even if disclosure of that evidence is relevant and favorable to their client in a separate but related proceeding. The majority announces this new tort without setting forth the elements, or specifying the appropriate measure of damages for violation.”
“While there may be compelling public policy reasons for imposing a duty to maintain the confidentiality of a patient’s medical records when they are produced to opposing counsel in the course of litigation, ‘the legislative branch is “the ultimate arbiter of public policy.”’ Thus, the legislature is the proper branch of government to consider and announce such a cause of action if it deems it advisable. The majority today invades the province of the legislature by judicially creating this new cause of action.”
Contacts
Jacob A.H. Kronenberg, 216.426.2970, for Barbara Belovich.
James E. Boulas, 440.526.8822, for Kenneth Hageman.