This is an appeal by the state from a judgment of the Court of Common Pleas of Logan County ruling on the admissibility of a physician's patient records seized during a search of the physician's office and used to support the indictment of the physician on criminal charges. The trial court ruled, on August 11, 1994, that the state was prohibited from using the patients' medical records as evidence in the case, absent express permission from the patients themselves.
On December 2, 1992, a forty-two-count indictment was filed in Cuyahoga County against Dr. James McGriff and his wife, Renee, charging them with various counts of theft and fraud against health care insurers, and with several counts of illegally prescribing stimulant drugs specifically named in Schedules III(A) and IV(D), R.C. 3719.41. Since Dr. McGriff is a physician in his home county, the entire case was transferred to the Logan County Common Pleas Court, on September 29, 1993. After that court ruled that the state was prohibited from using Dr. McGriff's patient records as evidence of his wrongdoing, the state filed this appeal, asserting the following assignment of error:
"The trial court erred in permitting the defendant-doctor to immunize himself from criminal prosecution by asserting the doctor-patient privilege."
Following our review of the record and the law, we sustain the assignment of error and reverse the judgment of the trial court, for the reasons which follow. *Page 670
In Ohio, the patient is the holder of the physician-patient privilege. A person other than the patient cannot assert the privilege. Hunter v. Hawkes Hosp. of Mt. Carmel (1989), 62 Ohio App. 3d 155,157, 574 N.E.2d 1147, 1147-1148. In Johnston v.Miami Valley Hosp. (1989), 61 Ohio App. 3d 81, 85,572 N.E.2d 169, 171-172, the Court of Appeals for Montgomery County observed that neither physicians nor hospitals may shield themselves from criminal investigation by asserting the physician-patient privilege, finding:
"Courts have consistently rejected attempts by physicians or hospitals to assert a patient's privilege to hide their own `criminal' wrongdoing. See In re Grand Jury Proceedings (1982)56 N.Y.2d 348, 452 N.Y.S.2d 361, 437 N.E.2d 1118 (rejecting hospital's claim of physician-patient privilege during grand jury investigation of possible crimes committed by hospital staff against patients); People v. Doe (Sup.Ct. 1981),107 Misc. 2d 605, 435 N.Y.S.2d 656 (grand jury investigation of Medicaid fraud)."
Moreover, in Ohio State Med. Bd. v. Miller (1989), 44 Ohio St. 3d 136, 541 N.E.2d 602, the Supreme Court of Ohio held that a physician could not invoke the physician-patient privilege to frustrate the State Medical Board's investigation into allegations that the doctor improperly prescribed controlled substances, noting the importance of the public's interest "in detecting crimes in order to protect society." Id. at 140,541 N.E.2d 606, citing State v. Antill (1964), 176 Ohio St. 61, 65, 26 O.O.2d 366, 368, 197 N.E.2d 548, 551-552.
Pursuant to the cited authorities, properly censored medical records containing evidence of a physician's criminal activity may be utilized as evidence in a criminal prosecution against the doctor. Accordingly, the defendant doctor in this case should not be permitted to invoke his patients' privilege in order to shield himself from prosecution.
In support of its Crim.R. 12(J) appeal, the state has certified that it cannot prosecute this case in the absence of information contained in these patients' medical records. Since the defendant has been accused of prescribing controlled substances for improper and illegal purposes and of committing fraud against various health insurance companies, if there is evidence of wrongdoing it will be contained in notations to his patients' medical records. Without these records, the state will be unable to prosecute its case. The relevant and incriminating information, if any, contained in the patient records would be disclosed only to the extent needed to prosecute the defendant. Redaction of the records through erasure or concealment of the patients' names and addresses and other information inapplicable to the prosecution of the charged crimes would ensure that each patient's interest in confidentiality and privacy is protected without frustrating the state's interest in prosecuting illegal drug activity. See *Page 671 Miller, 44 Ohio St.3d at 140-141, 541 N.E.2d at 605-606. Accordingly, in this case the state should be permitted to use the medical records, so long as the trial court conceals the names and addresses of the patients in consideration of their privacy rights. See Humphry v. Riverside Methodist Hosp. (1986),22 Ohio St. 3d 94, 96, 22 OBR 129, 130-131, 488 N.E.2d 877,878-879 (nonparty patients' right to privacy recognized).
Therefore, having found error prejudicial to the appellant herein, in the particulars assigned and argued, we reverse the judgment of the trial court and remand the case to that court for further proceedings.
Judgment reversedand cause remanded.
HADLEY P.J., concurs.
BRYANT, J., dissents.