I must respectfully dissent from the majority opinion because the order appealed from does not, in my view, fit within the statutory definition of "final", so as to trigger the jurisdiction of this Court. However, even if I were inclined to conclude that it is a final, appealable order, I would nonetheless dissent since I also do not believe that the trial court abused its discretion by issuing the order to compel. *Page 888
With respect to the issue of whether the order to compel Deborah Nester's medical records from 1973 to the present should be considered final and appealable, I begin my analysis with Section 3(B)(2), ArticleIV of the Ohio Constitution, which bestows upon the courts of appeals "such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * *." A final order includes "[a]n order that grants or denies a provisional remedy and to which both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
R.C. 2505.02(B)(4)(a) (b). A "provisional remedy" is defined as "a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, or suppression of evidence." R.C. 2505.02(A)(3).
I agree that the entry in this case falls squarely within the definition of a "provisional remedy". I also believe that, in accordance with R.C. 2505.02(B)(4)(a), the order determines the action with respect to the medical records in question, and prevents the appellant from obtaining a judgment in her favor on this particular issue. In spite of this, I do not find that the requirement contained in R.C. 2505.02(B)(4)(b) has been satisfied, in that it is my belief that the appellant would have an effective or meaningful remedy of this issue on appeal after a final disposition.
"Whether a remedy is meaningful or effective essentially is determined by the impracticability and detrimental effect of a delayed review of such a `provisional decision'". Penko v. City of Eastlake (Dec. 11, 1998), Lake App. No. 98-L-186, unreported, at *3. In Gibson-Myers Assoc. v. Pearce (Oct. 27, 1999), Summit App. No. 19358, unreported, the Ninth District Court of Appeals stated:
"If a trial court orders the discovery of trade secrets and such are disclosed, the party resisting discovery will have no adequate remedy on appeal. The proverbial bell cannot be unrung and an appeal after final judgment on the merits will not rectify the damage."
I concur with the reasoning expressed by the Ninth District since the very definition of a trade secret is, in part, information that derives independent economic value from being generally unknown and not readily ascertainable by *Page 889 the public. See R.C. 1333.61(D). Once the information becomes available through the discovery process, a subsequent appeal, even if successful, cannot restore the valuable secretive nature. Thus, the complaining party may be forever precluded from realizing a benefit from the information.
In contrast, I am not persuaded that a similar detriment will occur from the trial court's order to compel the discovery in this case. Moreover, with the release of the holding announced today, I am concerned that the appellate courts will begin to construe R.C. 2505.02 to the point where any order compelling the discovery of allegedly privileged material will automatically be considered a final, appealable order. See, e.g., Cuervo v. Snell (Sept. 26, 2000), Franklin App. Nos. 99AP-1442, 99AP-1443, 99AP-1458, unreported, applying the reasoning ofGibson-Myers Assoc. to an order compelling the production of documents allegedly covered by the attorney-client privilege. Such a liberal construction was obviously not the intent of the legislature, given the two-prong test set forth in R.C. 2505.02(B)(4). For these reasons, I do not agree that the order appealed from in this case should be considered final and appealable.
Notwithstanding, even if I was convinced that the order in this case is final, I would still not agree with the majority's reasoning that the court provided the "unbridled disclosure" of privileged communications, thus, necessitating a remand to allow the court to conduct an in camera inspection to determine which medical records are discoverable. It is well established that the management of discovery lies within the broad discretion of the trial courts. State ex rel Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 57. Thus, an appellate court reviews an issue of discovery pursuant to an abuse of discretion standard. An abuse of discretion is a decision that can be characterized as unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983),5 Ohio St.3d 217, 219.
There is no physician-patient privilege under Ohio common law. Wargov. Buck (1997), 123 Ohio App.3d 110, 120. "Because the privilege is entirely statutory and in derogation of the common law, it must be strictly construed against the party seeking to assert it." Id. citingOhio State Med. Bd. v. Miller (1989), 44 Ohio St.3d 136, 140. The Ohio Revised Code generally provides that the physician-patient privilege is waived in the event that the patient files a medical claim. See R.C.2317.02. In accordance with R.C. 2317.02(B)(3)(a), if the privilege is waived, the physician may be compelled to testify as to communications or advise "that related causally or historically to physical or mental injuries that are relevant to issues in the medical claim * * *." "The underlying rationale for this waiver is to prevent patients from filing personal injury actions and then using the privilege to avoid *Page 890 responding to discovery requests." Wargo, 123 Ohio App.3d at 120.
The appellant in this case has alleged a myriad of physical and mental ailments, which she claims all stem from the 1997 laparoscopic surgery. These problems include chronic pain, Adult Respiratory Distress Syndrome, depression, joint stiffness, backaches, numbness, and loss of sexual desire. This extensive range of allegations essentially places the appellant's entire medical history at issue. Therefore, I believe that the trial court did not abuse its discretion by ordering the discovery of all medical records from 1973 to the present. Furthermore, I cannot agree with the majority's decision to remand for an in camera inspection since I fail to see how a trial judge is supposed to determine whether a previous medical problem is relevant to the underlying action when such a variety of disorders have been interjected into the lawsuit.
For these reasons, I would have either dismissed the appeal for lack of a final order, or affirmed the trial court's order to compel. *Page 891