[Cite as Croston v. Massillon Chiropractic Clinic, 2015-Ohio-25.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DANIEL L. CROSTON : JUDGES:
:
Plaintiff - Appellant : Hon. Sheila G. Farmer, P. J.
: Hon. Patrica A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
MASSILLON CHIROPRACTIC CLINIC, ET AL. : Case No. 2014CA00108
:
Defendants - Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No.
2014-CV-00154
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 5, 2015
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
Kenneth R. Haycock, D.C.
GRANT A. GOODMAN
Goodman Law Firm JOSEPH J. FELTES
1360 West 9th Street, Suite 410 JUSTIN S. GREENFELDER
Cleveland, OH 44113 Buckingham, Doolittle & Burroughs,
LLC
4518 Fulton Drive NW, Suite 200
P.O. Box 35548
Canton, OH 44735
Stark County, Case No. 2014CA00108 2
For Defendants- Appellees
Massillon Chiropractic Clinic and
Lynn A. Olszewski, D.C.
VICTORIA L. VANCE
MICHAEL J. RUTTINGER
Tucker Ellis LLP
950 Main Ave, Suite 1100
Cleveland, OH 44113
Stark County, Case No. 2014CA00108 3
Baldwin, J.
{¶1} Appellant Daniel L. Croston appeals a judgment of the Stark County
Common Pleas Court granting a motion to compel discovery of medical records in favor
of appellees Massillon Chiropractic Clinic, Kenneth R. Haycock, D.C. and Lynn A.
Olszewski, D.C.
STATEMENT OF FACTS AND CASE
{¶2} Appellant filed the instant action against appellees seeking damages for
chiropractic negligence/malpractice, assault and battery, lack of informed consent, and
negligent supervision. During discovery, appellees asked for the production of “all
hospital records, monitor strips of any type, x-rays, radiology films, MRIs, CT scans,
pathology slides and blocks relating to the care and treatment of Plaintiff, Daniel L.
Croston, from 2002 to the present.” Appellees also asked for the production of “all
records regarding Plaintiff, Daniel L. Croston, from any physician, chiropractor,
psychiatrist, psychologist or other health-care provider relating to the care and treatment
of Plaintiff, Daniel L. Croston, from 2002 to the present.” In the alternative, appellees
asked appellant to sign a medical release authorization form to allow them to obtain the
requested medical records.
{¶3} Appellant objected on the grounds that producing his entire medical record
would lead to the release of records outside the parameters of what is discoverable
under Ohio law. Appellant proposed a “pseudo in camera inspection” in which a court
reporting firm would obtain appellant’s medical records, Bates stamp them, and provide
them to counsel for appellant, who would then review them and determine which
records were privileged and which were discoverable. Counsel proposed that he would
Stark County, Case No. 2014CA00108 4
then turn over the unprivileged records to appellees, and give the records he believed to
be privileged to the court for in camera inspection.
{¶4} Appellees further requested any documents relating to collateral benefits
paid or expected to be paid, which appellant refused to provide on the basis that
collateral benefits are not admissible or discoverable.
{¶5} The parties were unable to resolve the discovery dispute, and appellee
Haycock filed a motion to compel discovery. The court granted the motion, giving
appellant seven days to provide full and complete responses to all interrogatories and
requests for documents. The court rejected appellant’s proposal for a pseudo in
camera inspection of medical records, and ordered appellant to execute an appropriate
medical authorization within seven days. The court stated that should appellant fail to
provide such authorizations, the court would order the release of appellant’s medical
records pursuant to Loc. R. 11. The court also found that an award of attorney fees
against appellant was appropriate pursuant to Civ. R. 37(A)(4).
{¶6} Appellant assigns nine errors on appeal:
{¶7} “I. THE TRIAL COURT ERRED BY GRANTING DEFENDANT
HAYCOCK’S MOTION TO COMPEL DISCOVERY OF PLAINTIFF’S COMPLETE
MEDICAL RECORDS, INCLUDING PRIVILEGED MEDICAL RECORDS.
{¶8} “II. THE TRIAL COURT ERRED IN COMPELLING THE PLAINTIFF TO
EXECUTE BLANK TICKET MEDICAL AUTHORIZATIONS ALLOWING DEFENDANT’S
ATTORNEY TO OBTAIN PLAINTIFF’S MEDICAL RECORDS ON HIS OWN WITH NO
MECHANISM FOR DETERMINING WHICH RECORDS ARE PRIVILEGED.
Stark County, Case No. 2014CA00108 5
{¶9} “III. THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION
FOR A PROTECTIVE ORDER TO ENSURE PRIVILEGED MEDICAL RECORDS
WERE NOT DIVULGED.
{¶10} “IV. LOC. R. 11, TO THE EXTENT IT IS USED AS A SUBSTITUTE FOR
IN CAMERA INSPECTIONS, VIOLATES OHIO LAW.
{¶11} “V. BECAUSE THERE ARE INSUFFICIENT SAFEGUARDS
PROTECTING AGAINST THE RELEASE OF A PLAINTIFF’S PRIVILEGED MEDICAL
RECORDS, LOC. R. 11 CANNOT BE USED IN CIVIL CASES.
{¶12} “VI. DEFENDANT’S USE OF LOC. R. 11, IN AN EFFORT TO OBTAIN
PRIVILEGED MEDICAL RECORDS, VIOLATES OHIO LAW.
{¶13} “VII. DEFENDANT’S USE OF LOC. R. 11, IN AN EFFORT TO OBTAIN
NON-HOSPITAL RECORDS, VIOLATES THE RULES.
{¶14} “VIII. IN ORDER TO DETERMINE THE AMOUNT ACCEPTED AS FULL
PAYMENT BY A MEDICAL PROVIDER, DEFENDANTS ARE NOT ALLOWED TO
VIOLATE THE COLLATERAL SOURCE RULE BY DISCOVERING EOBs AND OTHER
EVIDENCE IN THE POSSESSION OF HEALTH INSURERS.
{¶15} “IX. THE TRIAL COURT ERRED IN AWARDING DEFENDANT
HAYCOCK ATTORNEY’S FEES.”
I, II, III
{¶16} We address appellant’s first three assignments of error together, as the
parties did in their briefs.
Stark County, Case No. 2014CA00108 6
{¶17} Appellant argues that the court erred in granting the motion to compel
discovery because the request for medical records from all providers spanning a time
period from 2002 up to the present is overbroad, and encompasses matters protected
by physician-patient privilege.
{¶18} 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.
{¶19} 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:
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,
Stark County, Case No. 2014CA00108 7
action for wrongful death, other civil action, or claim under
Chapter 4123. of the Revised Code.
{¶20} 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:
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.
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.
Stark County, Case No. 2014CA00108 8
{¶21} Id. at ¶ 25, 27.
{¶22} We likewise held that a trial court could not order the discovery of arguably
privileged medical records without first conducting an in camera inspection to determine
whether the records are causally or historically related to physical or mental injuries
relevant to the issues in the civil action in Bircher v. Durosko, 5th Dist. Fairfield 13-CA-
62, 2013-Ohio-5873, Collins v. Interim Healthcare of Columbus, 5th Dist. Perry No. 13–
CA–00003, 2014–Ohio–40, In the Matter of the Guardianship of Ellen Jane Powelson
Sharp, 5th Dist. Muskingum No. CT2014–0003, 2014-Ohio-3613, and Moore v.
Ferguson, 5th Dist. Richland No. 12CA58, 2012-Ohio-6087.
{¶23} However, in the instant case, appellant is not seeking an in camera review
of records he has specifically identified as privileged pursuant to Civ. R. 26(B)(6)(a),
which provides:
When information subject to discovery is withheld on
a claim that it is privileged or subject to protection as trial
preparation materials, the claim shall be made expressly and
shall be supported by a description of the nature of the
documents, communications, or things not produced that is
sufficient to enable the demanding party to contest the claim.
{¶24} Rather, he is asking this Court to require the trial court to hire a court
reporting firm at appellee’s expense to collect all of the requested medical records, both
privileged and discoverable pursuant to R.C. 2317.02(B), or in the alternative for all of
the medical records to be released directly to the court for an in camera review. We
Stark County, Case No. 2014CA00108 9
decline to require the trial court to assume appellant’s burden pursuant to Civ. R.
26(B)(6)(a).
{¶25} Appellant has not made a supported claim of privilege to the trial court
pursuant to Civ. R. 26(B)(6)(a). Appellant has not collected the medical records and
reviewed them to determine which he believes are discoverable and which are
privileged. Therefore, there have not been any records produced for the court to
conduct an in camera inspection. The trial court did not err in granting the motion to
compel under the facts and circumstances of the instant case.
{¶26} Appellant’s first, second, and third assignments of error are overruled.
IV, V, VI, VII
{¶27} We address appellant’s fourth, fifth, sixth and seventh assignments of
error together, as the parties did in their briefs.
{¶28} Appellant argues that the court erred in using Loc. R. 11 to obtain medical
records. Appellant argues that this rule allows the court to order discovery of medical
records that are privileged.
{¶29} Stark County Common Pleas Court R. 11.01 provides:
Upon motion of any party showing good cause
therefore and upon notice to all other parties, the Judge may
order any hospital in the county, by any agent thereof
competent to act in its behalf, to reproduce by Photostatting
or other recognized method of facsimile reproduction, all or
any portion of designated hospital records or X-rays, not
privileged, which constitute or contain evidence pertinent to
Stark County, Case No. 2014CA00108 10
an action pending in this Court. Such order shall direct the
hospital to describe by cover-letter, the portion or portions of
the records reproduced and any omissions therefrom, and to
specify the usual and reasonable charges therefore, and
such order shall designate the person or persons to whom
such reproductions shall be delivered or made available.
{¶30} The trial court stated in the June 5, 2014 Judgment Entry that should
appellant fail to provide medical authorizations as ordered, “the Court hereby orders the
release of Plaintiff’s medical records pursuant to Local Rule 11.”
{¶31} We note that the court’s use of Local Rule 11 was conditional on
appellant’s failure to execute the authorizations. Further, while appellant argues the
court improperly used the rule to obtain all medical records and not specifically hospital
records, the record does not support appellant’s claim at this stage of the proceedings.
The rule specifically applies only to hospital records, and we presume that a trial judge
knows the law and applies it accordingly. See Smith v. Jewett, 5th Dist. Richland No.
04 CA 96, 2005-Ohio-3982, ¶33.
{¶32} Appellant also argues that the rule may be used to obtain privileged
records. The rule specifically states that the judge may order a hospital to produce
records that are not privileged. Therefore, the rule preserves the right of the litigant to
protect medical records which are privileged, and appellant’s right to make a specific
claim of privilege is not circumvented by Rule 11.01.
{¶33} The fourth, fifth, sixth and seventh assignments of error are overruled.
Stark County, Case No. 2014CA00108 11
VIII
{¶34} In his eighth assignment of error, appellant argues that the court erred in
compelling discovery of collateral benefits. Appellees requested the identification of
every “health or disability insurance company, medical plan, employer, state
compensation board, federal agency, welfare department, life insurance company
and/or other entity or individual” who had paid medical expenses, losses, or expenses,
including their names and addresses, and the specific bill and amount paid by each.
Appellant responded that “collateral benefits are not admissible and nondiscoverable.”
{¶35} Appellant cites no authority for his proposition that because evidence of
collateral benefits may not be admissible at trial, such evidence is therefore not
available to appellees in discovery. Civ. R. 26(B)(1) specifically states, “It is not ground
for objection that the information sought will be inadmissible at the trial if the information
sought appears reasonably calculated to lead to the discovery of admissible evidence.”
The Ohio Supreme Court has specifically held that it is not grounds for objection under
Civ.R. 26(B)(1) that evidence of collateral benefits will be inadmissible at trial. Buchman
v. Wayne Trace Local School Dist. Bd. of Edn., 73 Ohio St.3d 260, 272, 652 N.E.2d
952, 1995-Ohio-136, citing Hughes v. Groves, 47 F.R.D. 52, 56 (W.D.Mo.1969).
{¶36} The eighth assignment of error is overruled.
IX
{¶37} In his final assignment of error, appellant argues that the court erred in
awarding attorney fees to appellee Haycock.
Stark County, Case No. 2014CA00108 12
{¶38} The trial court found that an award of attorney fees was appropriate, and
ordered appellee Haycock to present his fee statements to the court for review within
seven days of the order. Appellant filed his notice of appeal on June 12, 2014.
Appellee Haycock submitted a fee statement later the same day. The court did not
enter judgment in accordance with the fee statement, but stayed all proceedings
pending appeal. Because the court did not make an award of fees, the issue of attorney
fees is not a final, appealable order. Folmar v. Griffin, supra, at ¶34; TCF Natl. Bank v.
Estate of Oliver, 5th Dist. Stark No. 2009CA00124, 2010-Ohio-1306, ¶8.
{¶39} The ninth assignment of error is overruled.
By: Baldwin, J.
Farmer, P.J. and
Delaney, J. concur.