I respectfully dissent from the opinion of the majority, which finds that the communications between appellant Jeffrey Spencer, M.D. and Liberman were not made for a legitimate medical purpose and then concludes that the subpoenaed *Page 343 medical records of Liberman are, therefore, not protected from production by appellant pursuant to the physician-patient privilege as set forth in R.C. 2317.02 (B).
The majority finds today that sufficient evidence in the record demonstrates that appellant and Liberman were involved in illegal activity, i.e., prescribing steroids for the purpose of enhancing athletic ability. Then, in reliance on State v. Garrett, supra, and State v. McGriff supra, for the proposition that if the communication between the physician and patient purports a fraud and/or other criminal activity, the majority finds that a physician-patient "relationship" was not established between appellant and Liberman and, consequently, the statutory privilege did not attach.
The record simply does not support this conclusion. The record reveals that the prosecutor's office subpoenaed the medical records of appellant for his patient, David Liberman. Both physician/appellant and patient/Liberman filed motions to quash the subpoena with the court. In his motion, Liberman exercised his statutory right pursuant to R.C. 2317.02 (B) to prevent the disclosure of his medical records, asserting that this exercise of his right to the privilege "was not an attempt to thwart a criminal prosecution" but was made to protect matters which are "very personal and confidential" to him.
A full hearing was held on the motions to quash the subpoena. On the record, the prosecutor stated to the court that the subpoena was issued in an attempt "to gather the medical records, to have a medical expert review them, and find out if in factthese prescriptions were done in the legitimate course ofprofessional practice." (Emphasis added.) Further, at the hearing, the prosecutor stated, "We are here to gain those records and find out, if in fact that these drugs were given outfor legitimate medical purposes." (Emphasis added.) Finally, the court, as a preliminary matter, indicated for the record that the authority pursuant to which the prosecutor issued the subpoena was to determine whether it was "appropriate or legal for the doctor to prescribe this quantity of drugs."
To me, the record clearly reflects that it was precisely because the state did not know whether the drugs were legally or illegally prescribed that the medical records were sought. At the hearing on the motion to quash the subpoena, Bodi testified that the medical expert, whom he consulted regarding the matter, indicated that it was his impression that the prescriptions were written for body building, but the expert needed the medical records "to verify his suspicions" that the prescriptions were written, for body building and not for any other purpose. Further, Bodi's testimony indicated that all three pharmacists, prior to filling Liberman's prescriptions, communicated with Spencer to confirm the large amounts of steroids ordered and to determine the basis of Liberman's treatment. Apparently, two of the three pharmacists were sufficiently satisfied by Spencer's *Page 344 explanation that they filled the prescriptions. Moreover, as a result of the information that Liberman was presently receiving prescriptions for steroids and because he had a previous drug-related conviction in federal court, a probation violation hearing was held on the matter in federal court. However, after a hearing in federal court, Liberman's federal probation was not revoked but was continued. Consequently, I do not see that the evidence in the record is sufficient to demonstrate conclusively that appellant and Liberman were involved in an illegal activity as the majority finds.
I find that the reasoning of the majority sets a dangerous precedent in order to circumvent an otherwise almost inviolate privilege. By circular reasoning, the majority finds that because the physician failed to offer evidence to establish the legitimate medical purpose for which the prescriptions at issue were written then there is "unchallenged" evidence supporting criminal conduct. The majority determined that public policy mandates that this circumstance vitiate the privilege. However, the evidence which the physician refused to offer to support the existence of a legitimate medical claim is exactly the privileged medical information which the physician is by statute required to protect. It flies in the face of reason that, in order to demonstrate the valid privilege of the communications and to rebut allegations that these communications are outside the statutory privilege provided by R.C. 2317.02 (B), either the physician or the patient is required to reveal his or her privileged medical communications.
At best, I see the evidence and the reasoning of the majority approach something akin to a probable cause determination that illegal prescription drug activity may have taken place. However, the statute does not encompass or even consider "probable cause" as an exception to the physician-patient privilege which would allow disclosure of this patient's medical records.
Furthermore, the majority today equivocates as to whether the trial court may or may not have erred when it denied the motions to quash based upon a "public policy" exception to the statutory privilege as set forth in R.C. 2317.02. Our Supreme Court, in a unanimous decision, rejected such a judicial "public policy limitation" upon this statutorily created privilege. In State v.Smorgala (1990), 50 Ohio St. 3d 222, 553 N.E.2d 672, the court announced that "[j]udicial policy preferences may not be used to override valid legislative enactments, for the General Assembly should be the final arbiter of public policy." The Smorgala court, in its analysis of the statutory physician-patient privilege, determined that "it is clear that the legislature has stated that the privilege is to be given effect absent specific statutory exceptions, none of which applies to this case," id. at 223, 553 N.E.2d at 674. The court went on to hold that "since the legislature has enacted a specific statutory provision in R.C.2317.02 (B) to establish and control *Page 345 the physician-patient privilege, there is no vacuum within which we can proceed by common-law pronouncement." Id. at 225,553 N.E.2d at 676.
Accordingly, I would find that the medical records sought to be disclosed by the state are within the protection of the statutory privilege of R.C. 2317.02 (B), and absent a specific statutory exception, none of which applies to this case, I would find that the statutory privilege protects these medical records and they may not be disclosed by appellant. Therefore, I would find that the trial court's order of contempt against appellant for his failure to disclose medical records which are protected by statutory privilege is error, and I would reverse the decision of the trial court.