Dr. Jeffrey C. Spencer, defendant-appellant, appeals the finding of contempt of court by the Cuyahoga County Court of Common Pleas for failure to produce medical records. Appellant assigns one error for review. This court, finding no error, affirms the decision of the trial court.
Appellant was served with a grand jury subpoena in October 1996, which sought the production of medical records for the time period from 1990-1996. *Page 337 More specifically, the records concerned prescriptions issued by appellant to Jeffrey Liberman that may or may not have been for legitimate medical purposes. Appellant and Liberman objected to the release of these records by filing motions to quash the subpoena based upon the physician-patient privilege as set forth in R.C. 2317.02.
On February 12, 1997, the trial court held a hearing on the motions to quash the subpoena. Testimony was taken from Frank Bodi, who is a compliance agent for the Ohio Board of Pharmacy. Bodi testified that on August 12, 1996, a law enforcement coordinator for the State Medical Board presented to him several faxed prescriptions from appellant to Jeffrey Liberman for a large amount of anabolic steroids.1
Bodi conducted an investigation, which revealed approximately twenty to thirty similar prescriptions taken to three different pharmacies. Upon further inquiry, all the pharmacies informed Bodi that they thought the prescriptions were unusual and, for that reason, confirmed the prescriptions with appellant.
Bodi further testified that he talked with an expert in sports medicine and steroid use and was referred by him to Dr. Robert Dimeff regarding the investigation. Dimeff reviewed the prescriptions and believed that they were written for body building or enhancement and not for any other purpose. However, to verify his suspicions, Dimeff requested to see Liberman's medical records. Bodi testified that as of August 12, 1996, the targets of the investigation were both appellant and Liberman.
On April 17, 1997, the trial court overruled the motions to quash the grand jury subpoena. Because of his failure to provide the medical records in question, appellant was found to be in contempt of court and ordered to be held in custody until he produced the records. Custody was stayed pending this appeal.
Appellant states as his sole assignment of error:
"The trial court erred in denying the motion to quash the subpoena of Jeffrey Spencer MD. because the medical records of Jeffrey Liberman are protected against disclosure by Ohio R.C.2317.02, and case law does not support a court-created exception to the physician-patient privilege."
Initially, we note that a denial of a motion to quash a grand jury subpoena is not a final appealable order pursuant to R.C.2505.02. In re Grand Jury (1996), 76 Ohio St. 3d 236,667 N.E.2d 363. However, in this case, after appellant refused to comply with the trial court's order to produce the medical records, he was found guilty of contempt and ordered to be held in custody by the *Page 338 sheriff until compliance with the court's order. In such instances, the judgment of contempt is a final and appealable order that presents to this court for review the propriety of the interlocutory order which is the underlying basis for the contempt adjudication. See Smith v. Chester Twp. Bd. (1979),60 Ohio St. 2d 13, 14 O.O.3d 162, 396 N.E.2d 743; McCarty v. Kimmel (1989), 62 Ohio App. 3d 775, 577 N.E.2d 665.
In this case, appellant argues that R.C. 2317.02 prohibits him from releasing the medical records of Liberman without his consent. Additionally, appellant argues that case law does not support a court-created exception to physician-patient confidentiality. For the following reasons, we find that the trial court properly denied appellant's motion to quash.
R.C. 2317.02 reads in part:
"The following persons shall not testify in certain respects:
"* * *
"(B)(1) A physician or a dentist, concerning a communication made to him by his patient in that relation or his advice to his patient, except as otherwise provided in this division, and division (B)(2) of this section, and except that, if the patient is deemed by section 2151.421 of the Revised Code to have waived any testimonial privilege under this division, the physician may be compelled to testify on the same subject."
R.C. 2317.02(B)(4) reads:
"As used in divisions (B)(1) to (3) of this section, `communication' means acquiring, recording, or transmitting any information, in any manner, concerning any facts, opinions, or statements necessary to enable a physician or dentist todiagnose, treat, prescribe, or act, for a patient. A `communication' may include, but is not limited to, any medical or dental record, chart, letter, memorandum, laboratory test and results, x-ray, photograph, financial statement, diagnosis, or prognosis." (Emphasis added.)
The intent of the privilege is to encourage a patient to be completely candid with his/her physician, thus enabling more complete treatment by the physician. See Ohio State Med. Bd. v.Miller (1989), 44 Ohio St. 3d 136, 541 N.E.2d 602. Stated differently, "[t]he purpose of this privilege is to encourage patients to make a full disclosure of their symptoms and conditions to their physicians without fear that such matters will later become public." State v. Antill (1964), 176 Ohio St. 61,64-65, 26 O.O.2d 366, 368, 197 N.E.2d 548, 551.
By its very terms, the physician-patient privilege attaches tocommunications only made within the physician-patientrelationship — that is, communications made relating to the medical treatment of the patient. If the communication *Page 339 between the physician and patient purports a fraud and/or other criminal activity, the "relationship" is not established and the privilege does not attach. See State v. Garrett (1983), 8 Ohio App. 3d 244, 8 OBR 318, 456 N.E.2d 1319; State v. McGriff (1996),109 Ohio App. 3d 668, 672 N.E.2d 1074. This is analogous to a situation where the attorney-client privilege cannot be asserted as a cover for wrongdoing. See Lemley v. Kaiser (1983), 6 Ohio St. 3d 258, 6 OBR 324, 452 N.E.2d 1304.
In this case, the trial court heard the testimony of Frank Bodi, who stated not only that he was aware of Liberman's prior use of steroids, but also that each prescription to Liberman was for an unusually large amount. In fact, Bodi testified that due to the quantity of steroids in each prescription, several pharmacies refused to fill them.
Additionally, Bodi testified that he was referred to Dr. Robert Dimeff by an expert in sports medicine and steroid use. Dimeff reviewed the prescriptions and was of the opinion that they were written for body building or enhancement and not for any other purpose. Ohio Adm. Code 4731-11-05 strictly prohibits a physician from prescribing steroids for the purpose of enhancing athletic ability. Appellant did not offer any evidence that would establish that the prescriptions were issued for a legitimate medical purpose.
When the unrebutted evidence supports the contention that prescribed pharmaceuticals far exceed the dosage levels generally accepted in the medical community, that circumstance takes the claimed "communication" outside the realm of "privilege." Inordinate amounts of prescribed drugs immediately raise red flags and suggest activity not within the scope of "privileged communication." See State v. Moss (May 13, 1993), Cuyahoga App. Nos. 62318 through 62322, unreported, 1993 WL 158264; State v.McCarthy (Sept. 24, 1991), Montgomery App. No. 12123, unreported, 1991 WL 215641. To permit a claim of physician-patient privilege wherein there is reasonable articulable evidence supporting a suspicion of criminality would work a fraud upon the court. Such a claim cannot be embraced.
It is accepted that exceptions to privileged communications are primarily statutory. In the case before this court, there is unchallenged evidence supporting a finding of criminal conduct; therefore, public policy mandates that this circumstance vitiate the privilege. Accordingly, this court need not address the issue raised, to wit, statutory exception versus public policy. Statev. Smorgala (1990), 50 Ohio St. 3d 222, 553 N.E.2d 672. The court has the duty and responsibility to determine at the outset whether the party is in a position to raise "privilege" before having to address the availability of an exception. In this *Page 340 case, the parties are not in a position to raise the shield afforded in ordinary physician-patient circumstances.
Accordingly, there is sufficient evidence in the record that demonstrates that appellant and Liberman were involved in illegal activity, i.e., prescribing steroids for the purpose of enhancing athletic ability. Therefore, the physician-patient relationship for purposes of the privilege set forth in R.C. 2317.02 does not exist.
Having resolved the matter based upon the lack of privilege, this court need not consider several issues regarding the applicability of the physician-patient privilege: (1) a "public policy exception" that may or may not exist due to the apparent conflict between the physician-patient privilege under R.C.2317.02 and a criminal grand jury proceeding pursuant to R.C. Chapter 2939, see Smogala, supra; (2) whether it was the appellant physician, as opposed to the patient, who has invoked the privilege in an effort to shield himself from potential criminal liability when evidence of criminal activity exists, seeHunter v. Hawkes Hosp. of Mt. Carmel (1989), 62 Ohio App. 3d 155,574 N.E.2d 1147, and Ohio St. Med. Bd. v. Miller (1989), 44 Ohio St. 3d 136,541 N.E.2d 602; (3) the difference between the application of the physician-patient privilege in a civil or criminal matter; and/or (4) the distinction between discoverable material in a grand jury proceeding and admissible material in a trial setting. In re Grand Jury Investigation of Brink (1988),42 Ohio Misc.2d 5, 536 N.E.2d 1202.
Therefore, while the trial court may or may not have been in error in denying the motion to quash based upon a "public policy" exception to the patient-physician privilege, we find that the trial court properly held that R.C. 2317.02 cannot be used as a shield in a criminal investigation when there exists sufficient credible evidence that the physician-patient relationship did not exist.
Judgment affirmed.
DYKE, P.J., concurs separately.
TIMOTHY E. McMONAGLE, J., dissents.
1 Bodi was both involved with and was aware of several investigations of Liberman, all regarding steroid use and/or distribution.