On July 1, 2009, the Ohio Supreme Court decided Roe v. Planned Parenthood Southwest Ohio Region, Slip Opinion No. 2009-Ohio-2973. In Roe, Plaintiffs alleged that Planned Parenthood illegally performed an abortion on their 14-year-old daughter, Jane. Plaintiffs sought discovery of the medical records of all minors who had been patients at Planned Parenthood during a ten-year period1.
The Court held that the non-party medical records at issue were privileged from disclosure in discovery, and that redaction of personal identifying information did not remove the privileged status of the records.
Proceedings in the Trial and Appellate Courts
The Plaintiffs moved to compel discovery of the confidential medical records of non-parties to the litigation. Planned Parenthood filed a motion for protective order, arguing that this discovery should not be permitted. The trial court granted the motion to compel, citing to Biddle v. Warren Gen. Hosp., 86 Ohio St.3d 395, 715 N.E.2d 518 as authority for discovery of the confidential medical records of non-parties to further a countervailing interest that outweighs the non-party patients' interest in confidentiality. After applying the Biddle balancing test, the trial court concluded that the Plaintiffs had a "tremendous interest" in the requested medical records and that their need for the information outweighed the non-party patients' interest in maintaining the confidentiality of their medical records.
The First District Court of Appeals reversed. Roe v. Planned Parenthood Southwest Ohio Region, 173 Ohio App.3d 414, 2007-Ohio-4318. The appellate court applied Biddle and reached a different conclusion -- finding that the medical records of non-parties were not necessary to the Plaintiffs' case. The appellate court stated that even if the records were tenuously necessary, the potential invasion of the privacy rights of the non-parties outweighed the probative value of the records to the case.
Ohio Supreme Court Decision
The Ohio Supreme Court affirmed the decision of the Court of Appeals, but on different grounds. Rather than apply Biddle and balance the interests of the Plaintiffs and non-parties, the Court held that the medical records at issue were privileged from disclosure pursuant to R.C. 2317.02 (Ohio's physician-patient privilege statute). The Court further held that redaction of personal identifying information does not remove the privileged status of the records. Thus, even if redacted, the non-party medical records were not discoverable
The majority opinion was authored by Justice Lundberg Stratton, with Chief Justice Moyer and Justices Lanzinger and Cupp concurring. Justices Pfeifer and O'Donnell concurred in part and dissented in part. Sitting by assignment, Justice Donovan dissented.
No Right To Obtain Non-Party Confidential Medical Records
Plaintiffs contended that the non-party medical records sought were relevant and necessary to their claims. The Court stated that Civ. R. 26 excludes privileged information from the general rule of discovery. Thus, even if the documents were relevant, Plaintiffs needed to establish an exception to the physician-patient privilege to obtain this discovery. Plaintiffs relied on Biddle as authority to discover the medical records of non-parties, arguing that their need for the records outweighed the non-parties' interest in protecting the confidential nature of the records.
The Court noted that Biddle did not involve discovery of medical records, but rather recognized a cause of action and imposed liability for the improper release of such documents. Nevertheless, as the Court recognized, litigants have used Biddle to seek non-party confidential medical information and courts have interpreted Biddle as creating a right to obtain non-party confidential medical information.
The Court rejected Biddle as providing an exception to the physician-patient privilege and held that Biddle does not create a right to discover the confidential medical records of non-parties in a private lawsuit. The majority declined to create a judicial exception to the physician-patient privilege, opining that any exception is a matter for the General Assembly to address.
Redaction of Personal Information Does Not Divest Medical Records of Their Privileged Status
Plaintiffs also argued that when all patient identifying information is redacted, the anonymity of the patients is retained, and the confidential and privileged nature of the documents is removed. The Court disagreed and held that redaction of personal information does not divest the privileged status of confidential medical records. Redaction is merely a tool that a court may use to safeguard the personal, identifying information within confidential records that have become subject to disclosure either by waiver or by an exception.
Concurrence by Justice Cupp
Justice Cupp agreed with the majority that Biddl's balancing test does not serve as a basis for the discovery sought because it applies only to claims for damages from unauthorized release of confidential medical records "and not to the circumvention of restrictions on the confidentiality of unreleased records." Justice Lanzinger concurred in Justice Cupp's concurring opinion.
Concurrence and Dissent by Justice Pfeifer
Justice Pfeifer disagreed with the majority's decision to clarify Biddle, opining that it was not necessary to revisit Biddle to resolve the issues before the Court.
Concurrence and Dissent by Justice O'Donnell
Justice O'Donnell dissented from the "holding that third-party medical records are never subject to discovery under Civil Rule 26(B)(1)." Justice O'Donnell asserted that Biddle sets forth "an appropriate balancing test for determining when a claimant may discover information that might otherwise be subject to the physician-patient privilege." He would reverse the judgment of the Court of Appeals in part and reinstate the trial court's order compelling Planned Parenthood to disclose the third-party medical records, subject to a protective order and redaction of information that identifies these patients. (Justice O'Donnell concurred in the majority's decision regarding punitive damages and the confidentiality of child-abuse reports pursuant to former R.C. 2151.421.)
Dissent by Sitting Justice Donovan (Second District Judge sitting for Justice O'Connor)
Sitting Justice Donovan would reinstate the trial court's order compelling discovery. Among other things, she disagreed with the majority's narrow construction of Biddle. In her opinion, redacting all patient-identifying information from the documents preserves the purpose of the physician-patient privilege.
