Summary
In Floyd, the plaintiffs, relators in a personal injury action, sought a writ of prohibition to prevent a judge from enforcing pretrial orders providing for discovery of allegedly privileged medical information.
Summary of this case from Bogart v. BlakelyOpinion
No. 77-1049
Decided July 5, 1978.
Prohibition — To prevent enforcement of court order — Writ denied, when — Negligence — Personal injury — Disclosure of hospital records.
IN PROHIBITION.
On January 21, 1976, relators, Leo Floyd and Elaine Floyd, filed a complaint in the Court of Common Pleas of Montgomery County against Clement J. Copas, then deceased, and Allstate Insurance Company. The complaint alleged that on January 21, 1974, a vehicle operated by relator Leo Floyd was struck from the rear by an automobile operated by Clement J. Copas, and that as a result of such collision Leo Floyd sustained personal injuries. Relator Elaine Floyd claimed loss of consortium of her injured husband.
On May 19, 1976, relators filed a motion to substitute Della C. Royce, administratrix of the estate of Clement J. Copas, as a party defendant, which motion was granted.
On August 26, 1976, after a pre-trial conference, respondent Walter H. Rice, judge of the Court of Common Pleas of Montgomery County, ordered relators to furnish defense counsel a medical authorization to obtain "whatever hospital records might have been compiled upon the plaintiff." Relators did not comply with that order. Judge Rice subsequently ruled that:
"[P]rivileged matters disclosed by and discovered pursuant to the exchange ordered in this Court's pre-trial order * * * shall be protected in the sense that they may not be introduced into evidence at the trial of the captioned cause until such time as an express waiver of the privilege has been made by the plaintiff. In addition, the defendants will be precluded from using, at trial on the merits of the captioned cause, any evidence gained pursuant to the exchange of these privileged matters, again, until an express waiver of the privilege has been made by the plaintiff."
the judge later ruled that:
"[A]ny information, so disclosed, as a result of said order, be protected from use by the defendant, by the defense counsel or his client insurance company, in any fashion other than as a means of preparing the instant litigation for trial."
Relators have not complied with that order. On September 16, 1977, relators filed in this court a complaint for a writ of prohibition to prevent respondents from enforcing the pre-trial orders referred to above.
Messrs. E.S. Gallon Associates and Mr. Patrick W. Allen, for relators.
Mr. Lee C. Falke, prosecuting attorney, and Mr. James F. Barnhart, for respondents.
The conditions which must exist to support the issuance of a writ of prohibition are: (1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) it must appear that the refusal of the writ would result in injury for which there is no other adequate remedy. State, ex rel. Glass, v. Brown (1977), 52 Ohio St.2d 7.
Relators' position is that a party bringing suit for personal injuries may not be compelled to disclose privileged medical information by giving opposing counsel authority to investigate medical information prior to a waiver of the physician-patient privilege.
It is clear that such privilege has not been waived. A party does not waive the physician-patient privilege accorded to him by R.C. 2317.02(B) merely by filing suit and claiming personal injuries arising from an accident.
Relators are seemingly confusing waiver with disclosure of privileged information. Until a waiver occurs, defense counsel may not use the information at trial.
Respondent judge issued his order pursuant to Civ. R. 16, which states in part:
"A court may adopt rules concerning pretrial procedure to accomplish the following objectives:
"* * *
"(6) The exchange of medical reports and hospital records;
"* * *
" The producing by any party of medical reports or hospital records does not constitute a waiver of the privilege granted under Section 2317.02, Revisde Code." (Emphasis added.)
Local Rule 2.21(C) reflects this grant of authority by providing that in a pre-trial order the court may order the "exchange [of] medical reports and hospital records."
the above-emphasized portion of Civ. R. 16 creates a distinction between a court-ordered disclosure and the use at trial or discovery of that information.
Civ. R. 26(B)(1), relating to discovery, states that "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant * * *." (Emphasis added.)
Relators have not demonstrated that respondent's order was unauthorized by law. Therefore, a writ of prohibition will not lie, and it is hereby denied.
Writ denied.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.