dissenting.
{¶ 28} I respectfully dissent.
{¶ 29} In today’s opinion, the plurality takes a step away from the independent tort that the court recognized in Biddle v. Warren Gen. Hosp. (1999), 86 Ohio St.3d 395, 715 N.E.2d 518, and recognizes a new tort creating liability on the part of opposing counsel for use of medical records received pursuant to a properly issued subpoena when a patient waived the physician-patient privilege. This holding constitutes a usurpation of the role of the legislative branch of government and amounts to judicially legislating from the bench.
{¶ 30} Notably, in Biddle, the court narrowly held that a third party could be liable for inducing the unauthorized unprivileged disclosure of nonpublic medical information that a physician or hospital learned within a physician-patient relationship. There, to determine whether a third party can be held liable for inducing the disclosure of private medical records, we established a three-part test. To be liable, the third party must have (1) knowledge of the existence of a physician-patient relationship, (2) an intent to induce disclosure of information about the patient, and (3) no reasonable belief that the physician could disclose the information without violating the physician’s duty of confidentiality. Id. at 408, 715 N.E.2d 518.
*193{¶ 31} In Biddle, we stated, “[T]he hospital’s general consent form did not provide the authority to release medical information to the law firm and, therefore, the disclosures were unauthorized.” Id. at 407, 715 N.E.2d 518.
{¶ 32} Here, however, Biddle is inapplicable for at least two reasons: one, Hageman waived privilege by placing his medical condition at issue in the litigation, and two, the attorney, Belovich, reasonably believed that Dr. Thysseril could disclose Hageman’s medical information without violating the physician-patient privilege because it had been waived. Accordingly, in my view, the holding in this case is a dramatic departure from the narrow holding in Biddle, and I am unable to join this majority.
{¶ 33} Here, Hageman waived the statutory physician-patient privilege by filing a counterclaim seeking custody of his minor child in the pending divorce action. Gill v. Gill, 8th Dist. No. 81463, 2003-Ohio-180, ¶ 19. Hageman’s waiver permitted opposing counsel to subpoena the medical records held by Hageman’s physician, who could have been compelled to testify about or submit discovery related to Hageman’s physical or mental conditions relevant to that proceeding. R.C. 2317.02(B)(3)(a).
{¶ 34} Furthermore, while the divorce was pending, Hageman allegedly assaulted his wife at their home, and his wife had obtained a civil domestic-violence protection order in that pending divorce. Therefore, Hageman’s claims that waiver -applied only to the divorce proceeding and not the civil domestic-violence protection order are without merit because they arise from the same case.3
{¶ 35} Because Hageman placed his mental condition at issue and because his behavior was such that the divorce court had issued a civil domestic-violence protection order, Belovich, in her duty to represent her client, subpoenaed Hageman’s medical records from his treating physician.
{¶ 36} The record reveals that Hageman’s physician, Dr. Thysseril, released the records to Belovich in response to the subpoena without contesting the matter. Moreover, the appellate court here affirmed the trial court’s grant of summary judgment to the physician who released those records because Hageman had, in effect, waived his physician-patient privilege. Hageman v. Southwest Gen. Health Ctr., Cuyahoga App. No. 87826, 2006-Ohio-6765, 2006 WL 3743095, ¶ 29.
{¶ 37} In my view, the issue in this case concerns the scope of Hageman’s waiver of the physician-patient privilege. The plurality, without citing any law to support its position, states “[Tjhere is neither a legal justification for nor a *194practical benefit to the proposition that a waiver for a specific, limited purpose is a waiver for another purpose.” I respectfully disagree.
{¶ 38} Hageman engaged in confidential communications with his physician regarding his medical condition, but voluntarily waived that confidentiality by filing a lawsuit that placed his medical condition at issue. Hageman first learned that opposing counsel had his medical records on October 17, 2003, when he appeared at the domestic relations court for a scheduled hearing on the civil domestic-violence protection order. Although he was aware that Belovich had the records, he did not seek a protective order from the court to limit the use of the medical records, nor did he seek any agreement with opposing counsel to maintain this confidentiality. As counsel for his wife, Belovich had no duty to preserve the confidentiality of his medical information.
{¶ 39} I agree with the plurality’s conclusion that the physician-patient privilege and the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) demonstrate a public policy favoring the confidentiality of personal medical records. But in my view, that confidentiality applies only in the context of medical records maintained by a healthcare provider or other entity specifically described in those statutes. Thus, I cannot agree that HIPAA or the privilege supports a broad public policy favoring the confidentiality of medical information held by someone who has no statutory or common law duty to the patient and is, in fact, an adversary of the patient.
{¶ 40} The underlying purpose of the physician-patient privilege and its resulting confidentiality is to encourage patients to freely disclose all necessary information to their physicians, no matter how private or potentially embarrassing, in order to facilitate the proper treatment of the patient’s medical condition. Ohio State Med. Bd. v. Miller (1989), 44 Ohio St.3d 136, 139, 541 N.E.2d 602. The privilege did not exist at common law and therefore must be strictly construed against the party seeking to assert it. Id. at 140, 541 N.E.2d 602. Moreover, the purpose of the privilege is not furthered by permitting a party to invoke it after he has placed his health at issue in a legal proceeding.
{¶ 41} Several jurisdictions recognize that the waiver of the physician-patient privilege at trial should bar a claim of privilege at a subsequent trial. See, e.g., Menda v. Springfield Radiologists, Inc. (2000), 136 Ohio App.3d 656, 659, 737 N.E.2d 590; People v. Bloom (1908), 193 N.Y. 1, 7, 85 N.E. 824; State v. Mincey (1984), 141 Ariz. 425, 439, 687 P.2d 1180. See also Wigmore, Evidence (McNaughton Ed. 1961) Section 2389(d)(4) (“A waiver at a former trial should bar a claim of the privilege at a later trial, for the original disclosure takes away once and for all the confidentiality sought to be protected by the privilege. To enforce it thereafter is to seek to preserve a privacy which exists in legal fiction only.” [Emphasis omitted.]) These cases generally stand for the proposition that once *195confidential information is made public, it cannot be hidden or concealed again— the proverbial bell cannot be unrung. Although these cases address situations in which the confidential information was disclosed in a public courtroom, they recognize that a waiver of the privilege is general, rather than limited, because once the information is disclosed, there is nothing left to protect. People at 10, 85 N.E. 824 (“The statute as a matter of public policy gave the defendant a personal privilege, but he intentionally surrendered it, and the surrender was unconditional by operation of law”).
{¶ 42} In contrast, the Michigan Supreme Court has recognized that a party’s failure to assert a privilege during the course of discovery has waived the privilege for purposes of the litigation at hand, but has not waived it for the purposes of any other action. See Landelius v. Sackellares (1996), 453 Mich. 470, 475, 556 N.W.2d 472. Notably, however, this holding relies upon an express provision in Michigan Civ.R. 2.314(B)(1), which reads: “A party who has a valid privilege may assert the privilege and prevent discovery of medical information relating to his or her mental or physical condition. The privilege must be asserted in the party’s written response to a request for production of documents under MCR 2.310, in answers to interrogatories under MCR 2.309(B), before or during the taking of a deposition, or by moving for a protective order under MCR 2.302(C). A privilege not timely asserted is waived in that action, but is not waived for the purposes of any other action.”
{¶ 43} Ohio has no such corresponding rule. Rather, the General Assembly has expressed its intention to limit the scope of a party’s waiver of the physician-patient privilege in only one context — when the patient is deceased and there is a dispute regarding the patient’s competency at the time he executed a document. In that context alone, R.C. 2317.02(B)(1)(e)(v) provides: “A person to whom protected health information is disclosed under division (B)(1)(e)(i) [providing for disclosure when the patient is deceased and his earlier competency to execute a document is disputed] of this section shall not use or disclose the protected health information for any purpose other than the litigation or proceeding for which the information was requested and shall return the protected health information to the covered entity or destroy the protected health information, including all copies made, at the conclusion of the litigation or proceeding.”
{¶ 44} Applying the maxim “expressio unius est exclusio alterius,” I would assert that the legislature’s express limitation of the waiver to the litigation or proceeding for which the information was requested in one circumstance implies that in all other circumstances, the waiver of the physician-patient privilege should be broadly interpreted.
{¶ 45} The majority, however, limits the scope of the waiver, creates a new duty upon attorneys to protect the confidentiality of an adversary’s medical *196records properly obtained in the course of litigation, and imposes liability for their unauthorized disclosure — even if disclosure of that evidence is relevant and favorable to their client in a separate but related proceeding. The majority announces this new tort without setting forth its elements or specifying the appropriate measure of damages for violation.
James E. Boulas Co., L.P.A., and James E. Boulas, for appellee Kenneth Hageman. Law Office of Jacob Kronenberg and Jacob A.H. Kronenberg, for appellant.{¶ 46} While there may be compelling public policy reasons for imposing a duty to maintain the confidentiality of a patient’s medical records when they are produced to opposing counsel in the course of litigation, “the legislative branch is ‘the ultimate arbiter of public policy.’ ” Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 21, quoting State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Information Network v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 21. Thus, the legislature is the proper branch of government to consider and announce such a cause of action if it deems it advisable. The majority today invades the province of the legislature by judicially creating this new cause of action.
{¶ 47} Hageman waived his physician-patient privilege by filing a counterclaim in the divorce action, thereby placing his medical condition at issue, and failed to contest the disclosure of his medical records by his physician. Under these circumstances, the attorney who lawfully came into possession of the records, which were no longer privileged, owed no duty to Hageman. Rather, in the proper representation of her client, who allegedly had been the victim of an assault, she provided the information to the prosecuting attorney. Today’s decision takes a step away from Biddle, in which the hospital released patient medical records to its own counsel. Here, opposing counsel obtained the medical records through the use of a properly issued subpoena by operation of law. Nothing in our prior case, however, would suggest that opposing counsel owed any duty whatsoever to the opposing party to maintain the confidentiality of the medical information. The very purpose of permitting its discovery is to allow its examination and use by opposing counsel in furtherance of the cause of a client. Accordingly, I would reverse the judgment of the court of appeals.
Lundberg Stratton, J., concurs in the foregoing opinion.. The disclosure at issue here was made to the prosecutor in the separate but related criminal case against Hageman for the alleged assault on his wife.