[Cite as Bircher v. Durosko, 2013-Ohio-5873.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DONALD BIRCHER : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellant : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
ROBERT DUROSKO : Case No. 13-CA-62
:
:
Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County
Court of Common Pleas, Case No.
2013 CV 00026
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: December 19, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
MICHAEL K. GEISER BENJAMIN W. WRIGHT
Cecil & Geiser, LLP Gallagher, Gams, Pryor,
495 South High Street Tallan & Littrell, LLP
Suite 400 471 East Broad Street, 19th Floor
Columbus, OH 43215 Columbus, OH 43215
Fairfield County, Case No. 13-CA-62 2
Baldwin, J.
{¶1} Appellant Donald Bircher appeals a judgment of the Fairfield County
Common Pleas Court granting appellee Robert Durosko’s motion to compel the
discovery of medical records.
STATEMENT OF FACTS AND CASE
{¶2} Appellant brought the instant action seeking damages for injuries received
in an automobile accident with appellee on February 8, 2011. Appellee sought
production of “any and all medical reports and/or records in your possession by a
treating and/or examining physician for the ten (10) years prior to the injury that is the
basis of this lawsuit.” Appellant objected on the basis that the request sought medically
privileged information.
{¶3} When the parties were unable to resolve the discovery dispute, appellee
filed a motion to compel. In response, appellant argued that the records were not
relevant as they were not causally or historically related to the accident in question, and
in the alternative argued that the court should conduct an in camera inspection of the
records to determine which records were causally or historically related to the lawsuit
before disclosing them to appellee.
{¶4} The court granted the motion to compel, ordering appellant to respond to
all outstanding discovery requests from appellee, specifically the production of the
requested medical records, on or before October 4, 2013. Appellant assigns four errors
on appeal:
{¶5} “I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT’S MOTION
TO COMPEL.
Fairfield County, Case No. 13-CA-62 3
{¶6} “II. THE TRIAL COURT ERRED BY REQURIING PLAINTIFF TO
PRODUCE CONFIDENTIAL MEDICAL RECORDS IN CONTRAVENTION OF R.C.
2317.02.
{¶7} “III. THE TRIAL COURT ERRED IN FAILING TO ORDER AN IN
CAMERA INSPECTION OF PLAINTIFF’S MEDICAL RECORDS WHICH ARE
PRIVILEGED AND ARE NOT CAUSALLY OR HISTORICALLY RELATED TO THE
INJURIES SUSTAINED BY THE PLAINTIFF.
{¶8} “IV. THE TRIAL COURT ERRED IN NOT CLARIFYING WHETHER
PLAINTIFF WAS REQUIRED TO PRODUCE UNRELATED CONFIDENTIAL MEDICAL
RECORDS REQUESTED DURING DISCOVERY OR UNRELATED CONFIDENTIAL
MEDICAL RECORDS REQUESTED IN DEFENDANT’S MOTION TO COMPEL
PRODUCTION.”
{¶9} The instant case comes to us on the accelerated calendar. App.R. 11.1
governs accelerated-calendar cases and states in pertinent part:
{¶10} “(E) Determination and judgment on appeal.
{¶11} “The appeal will be determined as provided by App.R. 11.1. It shall be
sufficient compliance with App.R. 12(A) for the statement of the reason for the court's
decision as to each error to be in brief and conclusionary form.”
{¶12} One of the most important purposes of the accelerated calendar is to
enable an appellate court to render a brief and conclusory decision more quickly than in
a case on the regular calendar where the briefs, facts, and legal issues are more
complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463
N.E.2d 655 (1983).
Fairfield County, Case No. 13-CA-62 4
{¶13} This appeal will be considered with the above in mind.
{¶14} At the outset, appellee has argued that the judgment appealed from is not
a final, appealable order because there has not yet been a determination of privilege.
This Court has previously held that a discovery order compelling the production of
medical documents is a final, appealable order. Banks v. Ohio Physical & Medical
Rehabilitation, Inc., 5th Dist. Fairfield No. 07CA68, 2008-Ohio-2165, ¶16. Implicit in the
court’s order compelling appellant to turn over all medical records from the last ten
years is a finding that appellee has waived the privilege provided by R.C. 2317.02(B) by
filing the instant action. Therefore, the order appealed from is a final, appealable order.
III.
{¶15} We address appellant’s third assignment of error first, as it is dispositive of
the appeal. Appellant argues that the court erred in failing to conduct an in camera
inspection of the medical records to determine which records were causally or
historically related to the lawsuit. We agree.
{¶16} This court may not reverse a trial court's decision on a motion to compel
discovery absent an abuse of discretion. State ex rel. The V Cos. v. Marshall, 81 Ohio
St.3d 467, 469, 692 N.E.2d 198 (1998). The Supreme Court has frequently defined the
abuse of discretion standard as implying that the court's attitude was unreasonable,
arbitrary, or unconscionable. Id.
{¶17} R.C. 2317.02(B) provides that physicians’ records are generally privileged;
however, the statute sets forth situations in which the patient has been deemed to have
waived that privilege. Appellee claims appellant has waived that privilege pursuant to
R.C. 2317.02(B)(3)(a):
Fairfield County, Case No. 13-CA-62 5
{¶18} “If the testimonial privilege described in division (B)(1) of this section does
not apply as provided in division (B)(1)(a)(iii) of this section, a physician or dentist may
be compelled to testify or to submit to discovery under the Rules of Civil Procedure only
as to a communication made to the physician or dentist by the patient in question in that
relation, or the physician's or dentist's advice to the patient in question, that related
causally or historically to physical or mental injuries that are relevant to issues in the
medical claim, dental claim, chiropractic claim, or optometric claim, action for wrongful
death, other civil action, or claim under Chapter 4123. of the Revised Code.”
{¶19} In Folmar v. Griffin, 166 Ohio App. 3d 154, 549 N.E.2d, 324, 2006-Ohio-
1849, we found that a trial court abuses its discretion when it compels the discovery of
medical records without first determining by in camera inspection whether the records
are causally or historically related to the action:
{¶20} “We hold that the trial court erred in not conducting an in camera
inspection of the records before ordering them disclosed. The trial court should have
issued an order for the records to be transmitted under seal for the court's review in
camera. After receiving records under seal, a court then examines each record to
determine whether it is a medical or psychiatric document to which R.C. 2317.02(B)
applies. If the court finds that a record is a medical document, the court must further
determine whether it is related causally or historically to physical or mental injuries
relevant to the issues in the civil action. Only those medical and psychiatric records that
meet this definition under R.C. 2317.02(B) should be released.
Fairfield County, Case No. 13-CA-62 6
{¶21} “After the court has reviewed the documents in camera, it should place
any documents that it finds privileged in the record under seal so that in the event of an
appeal, this court may review the information.” Id. at ¶25, 27.
{¶22} Likewise, in Thompson v. Chapman, 176 Ohio App. 3d 334, 891 N.E.2d
1247, 2008-Ohio-2282, we found that the trial court abused its discretion in compelling
the production of psychological and psychiatric treatment records without first
conducting an in camera inspection to determine whether the records were subject to
disclosure pursuant to R.C. 2317.02(B). Id. at ¶24.
{¶23} In the instant case, the trial court abused its discretion in granting
appellee’s motion to compel discovery of medical records without first conducting an in
camera inspection to determine which records were causally or historically related to the
action. The third assignment of error is sustained.
{¶24} The remaining assignments of error are rendered moot by our disposition
of assignment of error three.
Fairfield County, Case No. 13-CA-62 7
{¶25} The judgment of the Fairfield County Common Pleas Court is reversed.
This cause is remanded to that court for further proceedings according to law,
consistent with this opinion. Costs are assessed to appellee.
By: Baldwin, J.
Gwin, P.J. and
Wise, J. concur.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. JOHN W. WISE
CRB/rad
[Cite as Bircher v. Durosko, 2013-Ohio-5873.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DONALD BIRCHER :
:
Plaintiff -Appellant :
:
-vs- : JUDGMENT ENTRY
:
ROBERT DUROSKO :
:
Defendant - Appellee : CASE NO. 13-CA-62
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Fairfield County, Ohio is reversed and
remanded. Costs assessed to appellee.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. JOHN W. WISE