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No.
08-1350In the Supreme Court of Ohio
APPEAL FROM THE COURT OF APPEALS
EIGHTH APPELLATE DISTRICT
CUYAHOGA COUNTY, OHIOCASE No. 090031
MARIA CEPEDA, et al.,
Plaintiff-Appellee
V.
LUTHERAN HOSPITAL, et al.
Defendants-Appellants
MEMORANDUM IN SUPPORT OF JURISDICTION OF DEFENDANTS-APPELLANTSALI S. HALABI, M.D., AND ALI S. HALABI, M.D., INC.
Rachel May Weiser, Esq.Jay Milano, Esq.Milano Weiser2639 Wooster RoadRocky River, Ohio 441 1 6-29 1 1
Counsel for Plaintiff-AppelleeMaria Cepeda
,.,
Anna Moore Carulas (0037161)Ingrid Kinkopf-Zajac (0066446)ROETZEL & ANDRESS1375 E. Ninth StreetOne Cleveland Center, Suite 900Cleveland, Ohio 44114(216) 623-0150(216) [email protected]@ralaw.com
Counsel for Defendants-AppellantsAli S. Halabi, M.D. andAli S. Halabi, M.D., Inc.
CLk.R4t OF(,UIIR-1SUPREME COUiTi JF !JNIO
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
1. Explanation of Why This Case Is Of Public and Great General hiterest ............................ I
H. Statement Of The Case And Facts ...................................................................................... 4
III. Argument In Support Of Propositions Of Law ................................................................... 8
PROPOSITION OF LAW NO. 1: The Eighth District's decision created an interpanel
conflict with its decision in Medical Mutual v. Schlotterer (Feb 12, 2008) Cuyahoga App.No. 89388, unreported 2008-Ohio-49 and failed to properly apply Biddle vs. Warren
General Hosp. (1999) 86 Ohio St. 3d 395, 1999-Ohio-115 resulting in the real danger ofindiscriminate dissemination of non-party patients' privileged medical records . .. ............ 8
IV. CONCLUSION ................................................................................................................. 15
CERTIFICATE OF SERVICE ........ ............................................................................................. 16
TABLE OF AUTHORITIES
Page
CASES
Biddle vs. Warren General H o s p . (1999) 86 Ohio St. 3d 395, 1999-Ohio-115 . 1, 2, 7, 8, 9, 12, 13
Medical Mutual vs. Schlotterer (Feb. 12, 2008) Cuyahoga App. No. 89388, unreported,2008-Ohio-49 .............................................................................. 1, 2, 6, 7, 9, 10, 11, 12, 13
Roe vs. Planned Parenthood (2007) 173 Ohio App. 3d 414, 2007-Ohio-4318 .............................. 6
RULES
Evid.R. 401 ................................................................................................................................... 11R.C. 2317.02 .. ............................................................................................................................. 8,9R.C. 2317.02(B) .............................................................................................................................. 5
11
I. EXPLANATION OF WHY THIS CASE IS OF PUBLIC ANDGREAT GENERAL INTEREST
This case is of great public and general interest because the Eighth District has put all
non-party medical patients in Cuyahoga County and throughout Ohio at risk of having their
personal and privileged medical records subjected to unrestricted disclosure during any medical
malpractice action. hi Ohio, the statutory physician-patient privilege is paramount, but the
Eighth District's decision is nothing more than a judicially created waiver that is in direct
conflict with its own authority in Medical Mutual vs. Schlotterer (Feb. 12, 2008) Cuyahoga App.
No. 89388, unreported, 2008-Ohio-49 and is also not sanctioned by this Court's decision in
Biddle vs. Warren General Hosp. (1999) 86 Ohio St. 3d 395, 1999-Ohio-115. This case is of
such enormous public and general interest because the Eighth District's total disregard for the
statutory physician-patient privilege provides legal authority whereby the entire public at large
faces the real danger of having their privileged and confidential medical matters produced in an
medical malpractice action in which they have no knowledge of and, more importantly, no
ability to protect their own privacy rights.
Under the Eighth District's legally flawed decision, a plaintiff-patient's attorney need
only assert groundless and bare allegations of misconduct on the part of the defendant-physician
and this, alone, would justify the production of non-party patients' medical records. The Eighth
District has now provided legal authority that permits an unwarrauted "fishing expedition" into
non-party patients' medical records at the expense of protecting the privacy rights afforded non-
party patients under Ohio's statutory physician-patient privilege.
In a split decision, the Eighth District's majority opinion failed to follow the doctrine of
stare decisis within its own district when it erroneously ordered the production of unredacted
privileged medical records of non-party patients. In rendering its decision, the Eighth District's
1
majority opinion completely failed to address the dispositive case of Medical Mutual. Dr. Halabi
heavily relied upon the Medical Mutual case because it is undoubtedly controlling to the legal
issues and facts of this case. This is evidenced by the fact that the dissenting opinion correctly
addressed and applied the Medical Mutual case in its well-reasoned conclusion that the Trial
Court erred in compelling the production of non-party patients' privileged medical records.
The majority opinion's failure to address and apply the Medical Mutual case has now
provided attorneys in medical malpractice cases with unlimited access to the medical records of
non-party patients by merely raising unsupportive and bare allegations of misconduct. There are
numerous medical malpractice cases pending in Cuyahoga County and throughout Ohio where
non-party patients' medical records can now be disclosed in direct violation of their privacy
rights guaranteed by the statutory physician-patient privilege. The current situation created by
the Eighth District has essentially rendered the statutory physician-patient privilege moot
throughout Ohio.
Additionally, the Eighth District's majority opinion completely ignored this Court's
admonition in the Biddle decision that patients are to decide what their interests are with respect
to personal medical matters, not lawyers. The Eighth District's decision has abrogated the
statutory physician-patient privilege by now permitting a plaintiff-patient's attorney to
unilaterally justify the disclosure of non-party patients' medical information by merely raising
unsupportive assertions of misconduct. According to the Eighth District's decision, non-party
patients' confidential medical records are at risk of disclosure in any medical malpractice action.
Consequently, the Eighth District's decision constitutes a legal divergence from its own decision
in Medical Mutual and this Court's decision in Biddle.
2
To make matters worse, the Eighth District failed to sufficiently protect the identities of
non-party patients in its erroneous decision to permit the production of confidential medical
matters. Without the appropriate safeguards to protect the identities of Dr. Halabi's other
patients, their names, addresses, social security numbers and other identifying information are all
subject to unrestricted disclosure under the Eighth District's opinion. This, too, constitutes a
legal divergence from the well-established law in Ohio that such confidential information must
be sufficiently redacted in order to preserve the statutory physician-patient privilege.
The errors in the Eighth District's majority opinion violate the fundamental principles of
the statutory physician-patient privilege and, consequently, the privacy rights of non-party
patients in Cuyahoga County and throughout Ohio are no longer protected. Indeed, the Eighth
District's decision instructs Trial Courts that they can freely order the production of non-party
patients' medical records in any medical malpractice case at the whim of a plaintiff's attorney.
The Eighth District has created legal authority that undennines the purpose of the
statutory physician-patient privilege. Now, with the real danger that their medical records will
be disseminated, non-party patients will be discouraged from freely and frankly communicating
with their physicians in order to obtain the proper diagnosis and appropriate treatment. It is clear
that the legal conflicts and confusion in the Eighth District jurisprudence requires guidance and
clarification from this Court. This Court now has the opportunity to reinstate the statutory
physician-patient privilege and to provide all Ohio Appellate and Trial Courts with clarification
on how to guarantee that the privacy rights of non-party patients are protected.
3
II. STATEMENT OF THE CASE AND FACTS
On July 11, 2005, Plaintiff-Appellee Maria Cepeda ("Plaintiff') filed this medical
malpractice action against Defendants-Appellants Ali S. Halabi, M.D. and his medical group,
Ali S. Halabi, M.D., Inc. ("Dr. Halabi").' Also named as Defendants were Lutheran Hospital
and The Cleveland Clinic Foundation. Lutheran Hospital settled with the Plaintiff and was then
voluntarily dismissed. The Cleveland Clinic was simply voluntarily dismissed.
Plaintiff alleged that Dr. Halabi performed a hysterectomy on Mrs. Cepeda on
February 17, 2004 that was not medically indicated. The only triable issue in this case is
whether Dr. Halabi rendered reasonable medical care and treatment to Mrs. Cepeda.Z Dr. Halabi
filed his Answer on September 27, 2005 denying all of Plaintiff's allegations.
On April 27, 2006, Plaintiffs counsel took the deposition of Dr. Halabi. (Plaintiff's
Motion to Compel, Exhibit "A"). Dr. Halabi was asked several questions pertaining to highly
privileged matters that were not even germane to the medical issues at hand. Specifically,
Dr. Halabi was asked questions pertaining to billing statements sent to Medicare and Medicaid
for all of his patients for the last five years; Dr. Halabi's average salary; Dr. Halabi's income
from gynecology; the percentage of Dr. Halabi's income from gynecology in 2003; and
Dr. Halabi's tax returns for the past five years. (Id. p. 2; Notice of Deposition filed on
January 26, 2006). Since Plaintiffs counsel's questions sought privileged and wholly irrelevant
medical information, Dr. Halabi's counsel properly objected and instructed Dr. Halabi to refrain
from answering said questions. (Id.)
1 Plaintiff s husband's claim was voluntarily dismissed on August 2, 2007.2 Dr. Halabi has a pending Motion for Summary Judgment on Plaintiff's punitive damages claim.The basis of Dr. Halabi's Motion is that Plaintiff cannot establish a prima facie case for punitivedamages. Dr. Halabi is also seeking summary judgment on Plaintiff s claims for Lack ofInformed Consent, Assault and Battery, Intsntional Infliction of Emotional Distress, NegligentInfliction of Emotional Distress and Unauthorized Practice of Medicine.
4
On March 5, 2007, Plaintiff filed a Motion to Compel Dr. Halabi to Answer Deposition
Questions and a Motion for Expenses. Plaintiff requested that the Trial Court order Dr. Halabi to
answer questions and to produce documentation relating to other patients and Dr. Halabi's
income and finances.
Dr. Halabi filed a Brief in Opposition and Motion for Protective Order on
March 15, 2007 and a Sur-Reply Brief on April 2, 2007. Dr. Halabi set forth several reasons
why Plaintiff's Motion to Compel should be denied. Specifically, Dr. Halabi argued that the
information sought by Plaintiff about Dr. Halabi's other patients was statutorily protected under
the physician-patient privilege pursuant to R.C. 2317.02(B) and also protected under the Health
Insurance Portability and Accountability Act ("HIPAA"). Additionally, Dr. Halabi argued that
his income and financial information was wholly irrelevant to the medical issues in this case and
also constituted an unwarranted invasion of Dr. Halabi's right to privacy.
On May 25, 2007, the Trial Court granted Plaintiff's Motion to Compel. In doing so, the
Trial Court ordered Dr. Halabi to submit to another deposition and to answer questions regarding
other patients and his income and finances. In essence, the Trial Court's Order cornpelled
Dr. Halabi to reveal to Plaintiff's counsel, to defense counsel and to the Court Reporter
information pertaining to highly privileged medical matters that were not relevant to the issues in
this case. Dr. Halabi would be forced to actually provide to Plaintiff's counsel medical bills of
countless other patients which include identifying information as to their patients, their diagnoses
and their medical care and treatment.
In ordering that Dr. Halabi's deposition be sealed, the Trial Court obviously recognized
the sensitivity of the issues involving privileged medical matters. However, the Trial Court's
Order did not afford the appropriate protection of this privileged material. Although the Trial
5
Court ordered Dr. Halabi's deposition transcript to be sealed, said order still did not protect the
privileged medical information of the other patients that would inevitably be disclosed in another
deposition of Dr. Halabi. The Trial Court summarily compelled Dr. Halabi to reveal privileged
matters when, at a minimurn, the Trial Court should have ordered the redaction of any
identifying information and undertaken an in-camera review of the requested materials.
Dr. Halabi timely appealed to the Eighth District Court of Appeals in order to reverse and
vacate the Trial Court's order compelling the disclosure of privileged medical information.
Dr. Halabi argued that the Trial Court erred in granting Plaintiff's Motion to Compel which
required Dr. Halabi to violate the statutory physician-patient privilege.
Prior to Oral Arguments, Dr. Halabi filed a Notice of Supplemental Authorities on
March 14, 2008. Dr. Halabi supplemented his Appellate Briefs with two cases that were clearly
on point with the instant case both legally and factually. Dr. Halabi submitted the First District
case of Roe vs. Planned Parenthood (2007) 173 Ohio App. 3d 414, 2007-Ohio-4318. More
importantly, Dr. Halabi provided the Eighth District with its own decision in Medical Mutual v.
Schlotterer (Feb. 12, 2008) Cuyahoga App. No. 89388, unreported, 2008-Ohio-49, which relied
heavily upon the Roe case.
In the Medical Mutual case, the Eighth District addressed virtually identical facts and
legal issues to the instant case with respect to the protection of privileged medical records of
non-party patients. The Eighth District in Medical Mutual recognized the importance of
protecting the privacy rights of non-party patients when the discovery requests are not necessary
to the claims at issue. Consequently, Dr. Halabi submitted the Medical Mutual case to the
Eighth District as supplemental authority because just like the holding in Medical Mutual, the
6
Eighth District was required herein to prohibit the disclosure of the privileged medical records of
Dr. Halabi's other patients.
On June 15, 2008, the Eighth District, in a split decision, issued its opinion affirming the
Trial Court's Order. Interestingly, the majority's opinion completely failed to address its own
decision in Medical Mutual, despite the fact that Medical Mutual is both factually and legally
binding upon the instant case. Instead, the Eighth District relied upon other appellate districts
and a case from Indiana. hr essence, the Eighth District set forth an unfounded statement of law
and created a conflict within the Eighth District with respect to the production of privileged
medical records of unknowing and unwilling patients.
On the other hand, the dissenting opinion correctly addressed the Medical Mutual case
and appropriately applied it to this case. In doing so, the dissenting opinion correctly noted that
the majority opinion "found a judicially created right of injured patients to obtain non-party
patients' privileged confidential medical information." The dissenting opinion rejected the
majority's allowance of a "super attorney general" approach that basically destroyed non-party
patients' privacy rights. The dissenting opinion properly followed the dictate of this Court's
decision in the Biddle case and found that judicially created exceptions to the statutory
physician-patient privilege are disfavored.
Additionally, the dissenting opinion recognized the majority's failure to sufficiently
protect the identity of the non-party patients when the case is supposed to be remanded for
further discovery. The dissenting opinion properly noted that without an order of redaction of
non-party patients' names, addresses and social security numbers, the privileged medical
information will be disclosed in direct violation of the patients' rights to have their personal
matters kept confidential.
7
It is clear that the legal conflict and confusion in the Eighth District's jurisprudence
requires guidance and clarification from this Court. This Court now has the opportunity to
provide all Ohio Appellate Courts and Trial Courts with clarification on determining the
appropriateness of discovery into the privileged medical records of non-party patients' medical
records while maintaining their privacy rights under the statutory physician-patient privilege.
This Court should accept jurisdiction over this matter in order to address the Eighth District's
abrogation of Ohio's statutory physician-patient privilege.
III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
PROPOSITION OF LAW NO. 1: The Eighth District's decision created aninterpanel conflict with its decision in Medical Mutual v. Schlotterer (Feb 12,2008) Cuyahoga App. No. 89388, unreported 2008-Ohio-49 and failed toproperly apply Biddle vs. Warren General Hosp. (1999) 86 Ohio St. 3d 395,1999-Ohio-115 resulting in the real danger of indiscriminate dissemination ofnon-party patients' privileged medical records.
Ohio law recognizes the statutory physician-patient privilege that explicitly protects the
privacy rights of patients throughout all of Ohio. R.C. 2317.02. The purpose of the physician-
patient statute is to encourage persons needing medical aid to seek it without fear of betrayal and
to encourage free and frank disclosure between patients and physicians in order to assist
physicians in the proper diagnosis and appropriate treatment. Unfortunately, the Eighth
District's decision herein runs afoul of the plain language of the physician-patient privilege
statute and defeats the very purpose of the physician-patient privilege.
In this case, the privacy rights of Dr. Halabi's other patients and the confidentiality of
their medical information under the physician-patient privilege substantially outweighed
Plaintiff's right for discovery. Plaintiff could not demonstrate any cognizable need for the
discovery of the medical information relating to Dr. Halabi's other patients. In balancing the
competing interests herein, Plaintiff could not demonstrate a need for the disclosure of privileged
8
medical information in order to pursue relevant information in the prosecution of her medical
malpractice action.
The Eighth District's decision affirming disclosure of medical information imperils the
specific purpose of the physician-patient privilege as set forth in R.C. 2317.02. The Eighth
District erroneously affirmed the Trial Court's Order that required Dr. Halabi to violate his duty
of confidentiality owed to his other patients pursuant to R.C. 2317.02. Dr. Halabi's other
patients have an absolute right to privacy which protects against the disclosure of their medical
information.
By completely ignoring its own legal authority in Medical Mutual and failing to follow
this Court's guidance in Biddle, the Eighth District has now provided legal authority that denies
non-party patients the protection of confidential medical information afforded them by Ohio's
statutory physician-patient privilege. The Eighth District's decision will have grave
consequences in Cuyahoga County and throughout all of Ohio with respect to the physician-
patient privilege. The whole point of the physician-patient privilege and confidentiality is to
allow patients to safely share their most private personal and medical concems with healthcare
providers. Under the Eighth District's decision, the safe and confidential enviromnent for
patients is shattered as every statement and diagnosis can be disclosed in any pending medical
malpractice case. Non-party patients will now reluctantly withhold pertinent medical
information of an embarrassing or otherwise confidential nature because the Eighth District has
effectively created a real fear and danger of public disclosure of their privileged medical records.
The Eighth District's disregard of its own legal authority and this Court's precedent in Biddle
neither serves a public interest nor protects the private interests of non-party patients.
9
In the Medical Mutual case, the Eighth District issued a decision which is both legally
and factually controlling to the instant case. Dr. Halabi relied heavily upon the Medical Mutual
case in arguing before the Eighth District that the Trial Court erred in compelling him to disclose
privileged medical information that was irrelevant to the issues in this case. The Eighth District
in Medical Mutual recognized the importance of protecting the privacy rights of patients when
the discovery requests are not necessary to the claims at issue. Just like the instant case, the
plaintiff in Medical Mutual engaged in a "fishing expedition" in order to conduct an audit of the
doctor's billing practice. The facts of the Medical Mutual case are virtually identical to the facts
of this case. Medical Mutual sought the medical records of a doctor's other patients in order to
conduct an audit of the doctor's other billing practice. Medical Mutual was pursuing a fraud and
breach of contract action against the doctor for allegedly "up-coding" the medical conditions of
his patients. The Trial Court issued an Order directing the doctor to respond to Medical
Mutual's discovery requests pertaining to his other patients, subject to the redaction of other
patient's identities.
The Eighth District reversed the Trial Court's Order by finding that Medical Mutual had
no concern for the interests of the doctor's other patients and was only concerned with its own
pecuniary interest. The Eighth District further found that Medical Mutual was seeking disclosure
of privileged matters as a "fishing expedition" in order to conduct an audit of the doctors' billing
practices. The Eighth District held in Medical Mutual that it was error to allow such an
unwarranted "fishing expedition"
In this case, the privacy rights and interests of Dr. Halabi's other patients greatly
outweigh Plaintiff's unsubstantiated allegations and suspicions that Dr. Halabi practices
medicine unethically and/or fraudulently. Plaintiff s outlandish accusations against Dr. Halabi
10
are not even supported by her Complaint where Plaintiff did not even allege any fraudulent
conduct on the part of Dr. Halabi. The fact that there is no claim for fraud in this case makes the
Medical Mutual case even more binding upon this case. The Eighth District held that Medical
Mutual was not entitled to discovery of non-party patients' medical records even where there
was a claim of fraudulent conduct. The instant case only involves a claim for medical
negligence and, therefore, the majority opinion should have applied its decision in Medical
Mutual to reverse and vacate the Trial Court's Order.
This is a straightforward medical negligence action against Dr. Halabi. In fact, Plaintiff
readily admitted that the surgery in this case was not indicated and this constitutes the only
theory of her case. In order to succeed on a malpractice claim, Plaintiff must show that Dr.
Halabi acted negligently in his care and treatment of Mrs. Cepeda and that the negligence
proximately caused her injuries. The financial information and medical information of Dr.
Halabi's other patients sought by Plaintiff are in no way relevant to proving the claims in this
case - i.e., the evidence does not have a tendency to make the existence of any fact that is of any
consequence to the determination of the action more probable or less probable than it would be
without the evidence. Evid.R. 401. Moreover, Plaintiff's assertion that any of the information is
directly relevant to show Dr. Halabi's motive for committing the alleged malpractice is absurd
and wholly unconvincing in light of the fact that motive is not even an element of a medical
negligence claim. Thus, Plaintiff's focus on developing her illogical theory of motive has no
place in this civil case and, therefore, the medical records of Dr. Halabi's other patients should
never have been the subject of any discovery.
Similar to the plaintiff in Medical Mutual, Plaintiff herein was also attempting to conduct
a "fishing expedition" into Dr. Halabi's billing practices. The Eighth District should have
11
followed the Medical Mutual case and, likewise, held that Plaintiff should have been precluded
from discovering privileged matters relating to Dr. Halabi's other patients. Although the
Medical Mutual case has virtually identical legal issues and relevant facts as this case, the
majority opinion completely failed to address or even acknowledge the Medical Mutual decision.
Consequently, the Eighth District effectively created an interpanel conflict within its own
District, because there now exists inconsistent decisions between this case and the Medical
Mutual case. As a result, parties in the Eighth District and parties throughout Ohio are now left
with unpredictable stare decisis on the issues pertaining to privileged medical records of non-
party patients.
As the dissenting opinion properly determined, this case is not one of the "special
situations" envisioned by this Court in Biddle that would justify the production of non-party
patients' medical records. The dissenting opinion recognized that the majority improperly
broadened the Biddle holding by taking away patients' rights to determine who should have
access to his/her medical records. Instead, as the dissenting opinion aptly recognized, the
majority's opinion now allows for a "super attorney general" approach that basically destroys
non-party patients' privacy rights. The Eighth District now has legal authority whereby non-
party patients' medical records are subject to disclosure "in any case where disclosure is sought
to aid a private lawsuit against a doctor who has been accused in malpractice." Unfortunately,
the Eighth District ignored this Court's mandate in Biddle and as a result, non-party patients face
the real danger of their confidential medical matters being disclosed in any medical malpractice
action.
Admittedly, under this Court's holding in Biddle, there are circumstances in which non-
party patients' medical records may be subject to disclosure. However, as this Court found in the
12
Medical Mutual case, Biddle was intended to be narrow in scope and, thus, the Supreme Court
reiterated its admonition that judicially created exceptions to statutory privileges are disfavored.
In order to justify disclosure, the Biddle decision requires that the plaintiff-patient's interest in
disclosure must undoubtedly outweigh the interests of non-party patients in confidentiality and
privacy. But, before this balancing test can be considered, the plaintiff-patient's interest must
first be defined, which was not done by the majority opinion in this case. The majority opinion
is legally flawed because it did not specifically define Plaintiff's interest that would justify
disclosure of Dr. Halabi's other patients' medical records.
The Eighth District's legally unsound reasoning for allowing the disclosure of privileged
medical records of non-party patients is compounded by its failure to provide adequate
safeguards in order to protect the confidentiality of Dr. Halabi's other patients. The Eighth
District failed to adequately address the requisite protective measures with respect to protecting
non-party patients' privacy rights. The confidentiality of inedical information afforded by the
statutory physician-patient privilege would inevitably be defeated if Dr. Halabi is deposed by
Plaintiffs counsel and specifically asked about his medical practice and his other patients.
Although Dr. Halabi's deposition would subsequently be sealed, Dr. Halabi would have already
breached his duty of confidentiality owed to his other patients by answering privileged questions
in front of the attendees at the deposition. In other words, a deposition of Dr. Halabi would
result in the indiscriminate dissemination of privileged medical information to the participants of
the deposition (counsel, parties, court reporter). Sealing the deposition would be deemed moot
because it would occur "after the fact," i.e. Dr. Halabi will have already disclosed privileged
medical information at his deposition.
13
The dissenting opinion correctly recognized that not only was the majority opinion's
legally flawed with respect to affmning the Trial Court's Order compelling the production of the
medical records of Dr. Halabi's other patients, the majority opinion also failed to order the
necessary safeguards required to protect the privacy rights of Dr. Halabi's other patients. The
dissenting opinion correctly found that the majority's opinion improperly allows for the
unlimited disclosure of confidential matters to opposing counsel, which is in direct violation of
the statutory physician-patient privilege.
Neither the Trial Court nor the Eighth District imposes any conditions that are necessary
in order to maintain the confidentiality of Dr. Halabi's other patients. There exist no safeguards,
whatsoever, that would protect the identity and privacy of non-party patients. Consequently, the
Eighth District has effectively eliminated the physician-patient privilege with respect to
Dr. Halabi's other patients.
The Eighth District has created unfounded legal authority that constitutes both a
misstatement and misapplication of Ohio law with respect to the sanctity of Ohio's statutory
physician-patient privilege. The Eighth District's decision now permits the unwarranted
injection into gLny medical malpractice action privileged medical information of a stranger to a
suit under the guise that it has some bearing on the underlying allegations of medical
malpractice. To allow the production of privileged medical records of non-party patients based
upon bare allegations of misconduct is legally incorrect and in direct violation of the privacy
rights statutorily afforded patients throughout Ohio. The Eighth District's erroneous decision is
a derogation of the statutory physician-patient privilege in Ohio and the very spirit of the
physician-patient privilege is no longer preserved. Patients in Ohio can no longer seek medical
aid without the fear of being publicly disclosed.
14
This Court should accept jurisdiction of this matter in order to address the Eighth
District's improper deprivation of the privacy rights of non-party patients that are guaranteed
under Ohio's statutory physician-patient privilege. This Court has the opportunity to provide
Ohio Court's with clarification and guidance with respect to the protection of non-party patients'
private medical information against unwarranted and unnecessary public disclosure.
IV. CONCLUSION
The Eighth District's decision was not only erroneous, it goes far beyond its own legal
precedent and the rule of law expressed by this Court. It violates principals of substantial justice
and improperly creates a judicially created exception to Ohio's statutory physician-patient
privilege. Consequently, non-party patients' rights to privacy and confidentiality are no longer
paramount in Ohio. Under the Eighth District's decision, there now exists legal authority
creating a real danger that non-party patients' privileged medical records will be disclosed in any
pending medical malpractice action throughout all of Ohio.
This Court should accept jurisdiction, resolve a conflict within the Eighth District and
provide Ohio Court's with the proper guidance needed with respect to protecting privileged
medical information under Ohio's statutory physician-patient privilege.
Respectfully submitted,
Anna Moore Carulas (0037161)Ingrid Kinkopf-Zajac (0066446)ROETZEL & ANDRESS1375 E. Ninth StreetOne Cleveland Center - 9th FloorCleveland, Ohio 44114(216) 623-0150(216) 623-0134 facsimileCounsel for Defendants-Appellants
15
CERTIFICATE OF SERVICE
vA true copy of the foregoing was sent this jU' day of July 2008 to:
Rachel May Weiser, Esq. Counsel for Plaintiff-AppelleeJay Milano, Esq. Maria CepedaMilano Weiser2639 Wooster RoadRocky River, Ohio 44116-2911
CrC.^-c-c.,^t3J,Anna Moore Carulas (0037161)
387389 v_01\061739.0780
16
MAY 2 7 2008
Tnur# nf Appettt's of 04iaEIGHTH APPELLATE DISTRICT
COUNTY OP CUYAHOGA
JOURNAL ENTRY AND OPINIONNo. 90037.
MARIA CEPEDA, ET AL.
PLAINTIFFS-APPELLEES
vs.
LUTHERAN HOSPITAL, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:AFFIRMED
Civil Appeal from theCuyahoga County Court of Common Pleas
Case No. CV-566589
BEFORE: Dyke, J., Kilbane, P.J., and Blackmon, J.
RELEASED: May 15, 2008
JOURNALIZED: MAY 2 7 2008
CA07090031 51770482
^ ^^^^^^ 1111111111111111111111111111110 658 §0210
-1-
AITORNEYS FOR APPELLANTS
Ir grid Kinkopf-Zajac, Esq.Anna M. Carulas, Esq.Roetzel & Andress1375 East Ninth StreetO ne Cleveland Center, Suite 900C.eveland, Ohio 44114
ATTORNEYS FOR APPELLEESMARIA CEPEDA, ET AL.
Rachael May Weiser, Esq.Je.y Milano, Esq.Milano & Weiser2639 Wooster RoadRocky River, Ohio 44116
ATTORNEYS FOR APPELLEELIJTHERAN HOSPITAL
Sz.ndra M. DiFranco, Esq.Rita A. Maimbourg, Esq.Tucker, Ellis & West, LLP1150 Huntington Bldg.92 5 Euclid AvenueCleveland, Ohio 44115-1475
CAi.17090031 51552255
lI"i'i'iiiiii'Ii'iiii11lillIIl' lli'1 ilIilliiim
FILED AND JOTJRNALIZEDPER APP. R. 21(E)
MAY 2 7 2008GERALD E. FUERST
CLEqK OF(JM!^ 00 lll///RT FAPPEALS
BY'.^^`eDEP.
APIPIOUNCEIaIEt7T OF DECISIONPER APP.RR.E2C% T
V^A^ 2^^
MAY 1 '5 2008
E6iALD E. FUERBT
CLERI F TB9E 9DS1T OP APFEALS®y: DE6.
N. B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D)and 26(A); Loc.App.R. 22. This decision will be journalized and will become thejuctgment and order of the court pursuant to App.R. 22(E) unless a motion forreconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days ofthe announcement of the court's decision. The time period for review by the Supreme
Co urt of Ohio shall begin to run upon the journalization of this court's announcement
of -lecision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1).
V&P 658 100 2 1 1
-1-
AVN DYKE, J.:
Defendants-appellants, Ali S. Halabi, M.D., and Ali S. Halabi, M.D., Inc.
("defendants"), appeal the trial court granting plaintiffs' motion to compel. For
the reasons set forth below, we affirm.
On July 11, 2005, plaintiff-appellee, Maria Cepeda, filed a complaint
against defendants, Lutheran Hospital, The Cleveland Clinic Foundation and
David F. Perse, M.D., and averred Dr. Halabi inappropriately and unnecessarily
removed her uterus and ovaries. In the complaint, she alleged medical
m.alpractice, lack of informed consent, assault and battery, intentional and
ne gligent infliction of emotional distress, unauthorized practice of medicine, and
negligent hiring/negligent credentialing/ corporate negligence. Her husband,
Ex asmo, and her four children, Nestor, Natanael, Madailissa and Michael, filed
lo:.s of consortium claims against each of the aforementioned defendants as well.
LL.theran Hospital settled with the plaintiffs and subsequently was voluntarily
di:;missed. Plaintiffs also voluntarily dismissed The Cleveland Clinic and David
F. Perse, M.D. from the action. Thereafter, plaintiffs' claims remained pending
against defendants only.
On April 27, 2006, plaintiffs' counsel deposed Dr. Halabi. At the
depositi.on, Dr. Halabi refused to answer questions pertaining to billing
stF.tements sent to Medicare and Medicaid for all of his patients for the past five
YO:0658 VO 0 2 I2
years; his average salary; his income from gynecology; the percentage of his
income from gynecology in 2003; and his tax returns for the past five years. Dr.
Halabi objected to the questions, arguing they were privileged communications
between physician and patient and irrelevant.
On March 5, 2007, plaintiffs filed a motion to compel Dr. Halabi to answer
the deposition questions and a motion for expenses. Defendants filed a brief in
opposition and motion for protective order on March 15, 2007. The trial court
granted plaintiffs' motion to compel on May 25, 2007, but denied the motion for
expenses. The court ordered Dr. Halabi to submit to another deposition and to
answer questions regarding other patients and his income and finances. The
court also ordered the "Deposition transcript to be sealed by order of the court
and subject to disclosure only by further order of the court."
Defendants now appeal and assert one assignment of error for our review.
Defendants' sole assignment of error states:
"The trial court erred in granting plaintiff-appellee's motion to compel
which required defendant-appellant Ali S. Halabi, M.D. to disclose privileged
medical information prior to an in-camera inspection that is also irrelevant to
the issues in this case."
Defendants contend the trial court erred in granting plaintiffs' motion to
compel because the unauthorized disclosure of billing statements of non-party
ISO 6 5s Po00 213
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pE tients sent to Medicare and Medicaid would violate the patient-physician
pxivilege. Additionally, defendants argue that information regarding Dr.
Hababi's finances and income was unnecessary for plaintiffs to pursue their
claims. We find defendants' arguments without merit.
First, we will address defendants' contention that questions regardingthe
bi.ling statements of non-party patients of Dr. Halabi sent to Medicare and
Madicaid are confidential under the patient-physician privilege.
As a procedural matter, we note that normally, we review a trial court's
decision regarding the management of discovery under an abuse of discretion
standard. Roe v. Planned Parenthood Southwest Ohio Region, 173 Ohio App.3d
414, 419, 2007-Ohio-4318, 878 N.E.2d 1061. Questions of privilege, however,
"irLcluding the proprietary of disclosure, are questions of law and are reviewed
de novo." Id.
R.C. 2317.02 provides for a testimonial privilege of patient and physician
coinmunications. The privilege afforded under R.C. 2317.02, however, is not
absolute. Biddle v. Warren Gen. Hosp., 86 Ohio St.3d 395, 402, 1999-Ohio-115,
715 N.E.2d 518. The Ohio Supreme Court has held that the discovery of such
protected communications may be appropriate under certain circumstances. Id.
First, disclosure is permitted in the absence of prior authorization of privileged
me tters where disclosure is made pursuant to a statutory mandate or common-
4- 06 5 8N0214
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law duty. Id. Second, discovery of such protected communications is appropriate
to protect or further a countervailing interest that outweighs the non-party
p<itient's interest in confidentiality. Id.
Ohio Courts have permitted discovery of confidential information to
further a countervailing interest only if the non-party patient's identity is
su.fficiently protected. Richards v. Kerlakian, 162 Ohio App.3d 823, 2005-Ohio-
4914, 825 N.E.2d 768; Fair v. St. Elizabeth Med. Ctr. (2000), 136 Ohio App.3d
M2, 737 N.E.2d 106. Shielding the identity preserves the objective of the
pe tient-physician privilege while still achieving the public's interest in justice.
In Terre Haute Regional Hosp., Inc. v. Trueblood (Ind. 1992), 600 N.E.2d 1358,
the Indiana Supreme Court eloquently explained:
"Along with a patient's individual interest in quality medical care, the
public has an interest in being protected from incompetent physicians. * * * It
is unlikely that a patient would be inhibited from confiding in his physician
where there is no risk of humiliation and embarrassment, and no invasion of the
pa tient's privacy. The public policy involved is strong and carries a great societal
ini erest. In situations where the medical records are relevant, a`blanket
prohibition against examination and use against the hospital of such records
would result in an injustice."'
Id. at 1361 (citations omitted).
4'O1O 658 000 2 15
-5-
In Richards v. Kerlakian, supra, the plaintiffs sued Dr. Kerlakian after
their son died following gastric bypass surgery performed by the doctors. Id. at
824. During litigation, the plaintiffs requested production of all operative
reports for gastric bypass surgeries performed on a number of non-party patients
by Dr. Kerlakian at Good Samaritan Hospital without prior authorization of
these patients. Id. Dr. Kerlakian filed a protective order, arguing disclosure
would violate the patient-physician privilege and that the records were
irrelevant. Id.
The Richards court affirmed the trial court's denial of the protective order
and order to produce redacted medical records. Id. at 826. The court determined
th3tt the plaintiffs' interest in disclosure outweighed the non-party patients'
ini;erest in confidentiality. Id. The requested medical documents were necessary
to establish a primary claim against defendants and to impeach portions of Dr.
Kerlakian's deposition. Id. at 825-826. Furthermore, the trial court provided
adequate protection for the identity of the non-party patients and protected
against dissemination of the information sought by ordering redaction of certain
information from the reports and ordering that the records be filed with the
coitrt under seal. Id. at 826.
The questions regarding the billing statements of all patients sent to
ME dicare and Medicaid for the past five years are undeniably confidential and
7,9143 6 s8 960 216
-6-
privileged under the patient-physician privilege. See R.C. 2317.02(B)(5)(a).
Nevertheless, plaintiffs were entitled to such information, as it was necessary
to protect or further a countervailing interest that outweighed a non-party's
privilege.
The instant action is analogous to that in Richards, supra. Here,
plaintiffs sought the discovery of the patients' billing statements in an effort to
es :ablish Dr. Hababi's alleged motive to supplement his income by performing
unnecessary procedures on patients with Medicare or Medicaid. Plaintiffs
sought discovery of information pertaining to non-party surgical patients where
thl; plaintiffs' claims are similarly based on alleged unnecessary surgeries. Such
information, in the least, would lead to admissible evidence establishing the
neoessary elements of plaintiffs' causes of action. Moreover, such evidence
re:;ponds to alleged defenses, aids in establishing plaintiffs' claims for punitive
da;nages, and replies to defendants' motion for summary judgment in that
regard. Accordingly, as in Richards, we find such information is necessary to
further a countervailing interest that outweighs the non-parties' privilege.
Additionally, the trial court provided for protection against disclosure of
the identity of the non-party patients and included language against
inciscriminate dissemination of the information sought to be discovered by
orc.ering the deposition be sealed. In its judgment entry granting plaintiffs'
1919658 PGQ217
-7-
motion to compel, the court added the following language: "Deposition transcript
to be sealed by order of the court and subject to disclosure only by further order
of the court in connection with trial." Under these circumstances, the trial court
did not err in granting plaintiff's motion to compel and in ordering Dr. Halabi to
te stify.
Defendants further argue that questions regarding billing statements of
non-party patients discloses medical information that is protected under the
H.,-alth Insurance Portability and Accountability Act ("HIPAA"). We disagree.
Generally, HIPAA prohibits health care providers from disclosing a
potient's personal health information without their consent. 45 C.F.R.
IE 4.508(a). HIPAA, however, permits disclosure when the healthcare provider
is ordered by the court. 45 C.F.R. 164.512(e) states in pertinent part:
"(1) Permitted disclosures. A covered entity may disclose protected health
in:'ormation in the course of any judicial or administrative proceeding:
"(i) In response to an order of a court or administrative tribunal, provided
that the covered entity discloses only the protected health information expressly
authorized by such order; * * *."
In this case, the trial court issued a written order, limits the information
sought to only Dr. Halabi's finances and income, and provides for protection
Yfil•a658 Po8218
-8-
against the dissemination of that information. Accordingly, the order does not
violate HIPAA and defendants' argument in this regard is without merit.
Finally, defendants assert that questions regarding Dr. Halabi's finances
are irrelevant and constitute an invasion of his privacy. We disagree. The
in'ormation sought is relevant and reasonably calculated to lead to admissible
evidence.
As previously briefly mentioned, we review the trial court's decisions on
th a managementof discovery matters under an abuse of discretion standard. Roe
v. Planned Parenthood Southwest Ohio Region, supra. The complaining party
must establish a clear and prejudicial abuse of discretion that materially
prejudices the party. O'Brien v. Angley (1980), 63 Ohio St.2d 159, 163, 407
N. E.2d 490. Absent an abuse of discretion, an appellate court may not overturn
thD trial court's ruling on discovery matters. Feichtner v. Cleveland (1994), 95
Ohio App.3d 388, 397, 642 N.E.2d 657 citing Vinci v. Ceraolo (1992), 79 Ohio
Ax-p.3d 640, 607 N.E.2d 1079.
"Abuse of discretion connotes more than an error of law or judgment; it
implies that the court's attitude is unreasonable, arbitrary or unconscionable."
Blxkemore v. Blahemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. The
Supreme Court of Ohio has explained this standard as follows:
.Y.BM 6 5 8 N 0 219.
-9-
"An abuse of discretion involves far more than a difference in
***opinion***. The term discretion itself involves the idea of choice, of an
eii.:ercise of the will, of a determination made between competing considerations.
Ir.. order to have an'abuse' in reaching such a determination, the result must be
sc palpably and grossly violative of fact and logic that it evidences not the
ey.ercise of will but perversity of will, not the exercise of judgment but defiance
thereof, not the exercise of reason but rather of passion or bias." Huffman U.
Hxir Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 482 N.E.2d 1248.
Civ.R. 26(B)(1) states in relevant part:
"Parties may obtain discovery regarding any matter, not privileged, which
is relevant to the subject matter involved in the pending action, whether it
relates to the claim or defense of the party seeking discovery... It is not ground
fo ° objection that the information sought will be inadmissible at the trial if the
inFormation sought appears reasonably calculated to lead to the discovery of
acmissible evidence."
The relevancy test pursuant Civ.R. 26(B)(1) "is much broader than the test
to be utilized at trial. [Evidence] is only irrelevant by the discovery test when the
in:ormation sought will not reasonably lead to the discovery of admissible
evidence." Tschantz v. Ferguson (1994), 97 Ohio App.3d 693, 715, 647 N.E.2d
5C7, citing Icenhower v. Icenhower (Aug. 14, 1975), Franklin App. No. 75AP-93.
V1,0658 90220
-io-
U nder this broad discovery test, questions regarding Dr. Hababi's finances and
income are relevant and therefore discoverable. Plaintiffs sought the discovery
of Dr. Hababi's finances in an effort to establish his alleged motive to
supplement his income by performing unnecessary procedures on patients with
Medicare or Medicaid. In the least, such information is necessary to lead to
ac:.missible evidence that may establish plaintiffs' claims. Moreover, such
evidence counters asserted defenses, assists in establishing plaintiffs' claims for
pl..nitive damages, and responds to defendants' motion for summary judgment
in that regard. Suoboda v. Clear Channel Communications, Inc., Lucas App. No.
L-02-1149, 2003-Ohio-6201 (discovery of defendant's finances and income for
pL.nitive damage claim is permitted as it may lead to admissible evidence.)
Ac cordingly, the judgment of the trial court is affirmed.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
SO! 658 fp©221
-11-
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, P.J., CONCURS.PATRICIA ANN BLACKMON, J., DISSENTS (SEEATTACHED DISSENTING OPINION)
PliTRICIA ANN BLACKMON, J., DISSENTING:
I respectfully dissent from the Majority Opinion. This is not one of those
"special situations" envisioned by the Ohio Supreme Court in Biddle U. Warren
Ge n. Hosp.' Plaintiff Biddle sued the hospital for unauthorized disclosure of her
medical information. The disclosure was induced by the hospital's law firm.
Tl-.e hospital's law firm attempted to collect from the Social Security
Aa.ministration monies Biddle owed to the hospital, assuming she was eligible.
It was uncontested that Biddle owed the hospital money for services it rendered
her. The hospital agreed to send her inedical information to the law firm.
Biddle argued that she did not consent to this disclosure, and the hospital had
violated the privilege of confidentiality between it and her. The Ohio Supreme
'86 Ohio St3d 395, 1999-Ohio-115.
VB05 5 830222
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Cnurt agreed and held a hospital could be held liable for the unauthorized
disclosure of its patients' medical information.
The Ohio Supreme Court also held that the doctor-patient privilege was
not absolute; moreover, it held that it is the patient's right to determine who
should have access to her medical records. Here, the plaintiff, a patient of the
defendant-doctor, seeks to have disclosed the medical records of the defendant-
doctor's other patients' who have not consented to this disclosure and are not
a party to her lawsuit. This case and others2 seek to broaden Biddles holding
to apply in any case where disclosure is sought to aid a private lawsuit against
a (loctor who has been accused of malpractice. Richards a. Kerlakian3 is a case
sicnilar to this one where the plaintiff-patient sued a doctor for breach of a
pr)fessional duty. I believe that Richards is overreaching and misapplies
Biddle.
The Biddle court used the balancing of "countervailingg interest" test to
de termine whether a patient's medical records can be disclosed to a third party.
In order for Biddle to apply here, the plaintiff-patient's interest in disclosure
must oppose forcefully the interest of the nonparty patient's interest against
ZRichards v. Kerlakian 162 Ohio App.3d, 823, 2005-Ohio-4414; Fair v. St. ElizabethMed. Ctr. (2000), 136 Ohio App.3d 522.
'Supra.
VsM 6 58 P0 0223
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di sclosure and protected privacy. This being said, I believe that before a trial
court may apply this balancing test, the trial court and this court must define
specially what the plaintiff-patient's interest is. This has not been done in this
case.
In Biddle, the Ohio Supreme Court sought to warn the medical profession
and its lawyers that the unauthorized disclosure of confidential medical
inFormation will be guarded with the utmost scrutiny. The decisions in this
case, Richards, and Fair are the unintended consequences of Biddle's well
m^aning principle of law.
In fact, the Majority Opinion has joined the more relaxed understanding
of Biddle and found a judicially created right of injured patients to obtain non-
party patients' privileged confidential medical information to punish a wrong
in:licted by the patient's doctor. This "super attorney general" concept,
designed to personally vindicate a party-patient's welfare, was not sanctioned
in Biddle. There are remedies against the wrongdoer doctor that could be used,
wliich would not destroy the nonparty patients' privacy, such as, a complaint
to the medical board to revoke the doctor's license for using a medical procedure
for his economic gain, or a grand jury investigation for potential criminal
charges against the doctor.
VA658 PPa224
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Assuming our dicta in Med. Mut. Of Ohio v. Schlotterer (suggesting that
th :"countervailing interest" permits disclosure when the welfare of patients are
at interest) and Richards (patient's right against wrongdoer doctors) are correct
and apply in this case, the trial court has not sufficiently protected the identity
of the nonparty patients.
The trial court ordered as follows:
"Motion to compel and motion for expenses (filed March 5,2007) is granted in part and denied in part. Motion tocompel is granted. Dr. Halabi is to submit to deposition byplaintiff regarding questions of income and finances.Deposition transcript to be sealed by order of the court andsubject to disclosure only by further order of the court inconnection with trial. Plaintiff's motion for expenses isdenied."
In other cases, the court has permitted the discovery of similar
confidential documents, but ordered the patients' names, addresses, and social
security numbers redacted. This allows for the patients' identities to be
su:ficiently concealed. Here, the court did not order redaction. Although the
court ordered the deposition of the defendant-doctor to be sealed, at that point,
the information has already been disclosed to opposing counsel, which would
violate the patients' rights to have their matters kept confidential.
Consequently, I would reverse.
WL0653 P60225
![Biddle v. Warren Gen. Hosp. - Supreme Court of OhioCite as Biddle v. Warren Gen. Hosp. (1999), 86 Ohio St.3d 395.] Torts — Independent tort for the unauthorized, unprivileged disclosure](https://img.pdfslide.us/doc/110x75/5afae6087f8b9ad2208fd94c/biddle-v-warren-gen-hosp-supreme-court-of-cite-as-biddle-v-warren-gen-hosp.jpg)
