concurring in syllabus and judgment only.
{¶ 22} I write separately because I view the waiver-of-privilege issue somewhat differently from the plurality or dissent in this case.
{¶ 23} Ohio’s doctor-patient privilege statute, R.C. 2317.02(B)(1)(a)(iii), provides, “The testimonial privilege * * * does not apply, and a physician * * * may testify or may be compelled to testify * * * [i]n any civil action, in accordance with the discovery provisions of the Rules of Civil Procedure in connection with a civil action, * * * [i]f a medical claim * * * [or] any other type of civil action * * * is filed by the patient* * The court below determined, and the parties do not dispute, that Hageman’s counterclaim in the divorce case seeking custody of the couple’s daughter waived the doctor-patient privilege in R.C. 2317.02(B) for purposes of the divorce case. See, e.g., Gill v. Gill, 8th Dist. No. 81463, 2003-Ohio-180, 2003 WL 132447; cf. R.C. 3109.04(F)(1)(e) (the “mental and physical health of all persons involved in the situation” must be considered in determining the best interest of the child for custody purposes). The parties here dispute the extent of that waiver and whether it destroyed the privilege for all time, including with regard to cases separate from the divorce and civil-protection-order case.
{¶24} In this case, Belovieh provided the doctor’s notes to an assistant prosecutor in connection with a criminal case against Hageman. Although Hageman did not seek a protective order in the divorce case to limit the use or disclosure of his doctor’s notes, the doctor’s records were not introduced into evidence in the divorce case. (Thus, the confidentiality of Hageman’s medical *192information was not destroyed by making that information public at or in connection with a trial, for example.)
{¶ 25} On its face, the specific statutory waiver or exception at issue here applies “in any civil action.” See R.C. 2317.02(B)(1)(a). Accordingly, to resolve this case, it suffices to conclude that while Hageman’s asserting a child-custody counterclaim waived the privilege pursuant to R.C. 2317.02(B)(1)(a)(iii) for the divorce and civil-protection-order action, that statutory waiver did not apply to the separate criminal case involving Hageman. I would leave for another day the broader issue of whether the privilege is waived for all time and in all cases after the statutory waiver in R.C. 2317.02(B)(1)(a)(iii) has been found to apply in a particular case, as that issue was not fully briefed here.
{¶ 26} The plurality opinion does not discuss the elements of the tort it recognizes today, an extension of the tort created in Biddle v. Warren Gen. Hosp. (1999), 86 Ohio St.3d 395, 715 N.E.2d 518. Accordingly, the task of delineating the elements of this tort remains, either upon remand here or in another case.
{¶ 27} For the above reasons, I concur in the judgment affirming the court of appeals’ decision reversing the trial court’s order granting summary judgment for Belovich.
O’Connor, J., concurs in the foregoing opinion.