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Plaintiff in Private Lawsuit Has No Right to Discover Confidential Medical Records of Non-Parties

2007-1832.  Roe v. Planned Parenthood Southwest Ohio Region, Slip Opinion No. 2009-Ohio-2973.
Hamilton App. No. C-060557, 173 Ohio App.3d 414, 2007-Ohio-4318.  Judgment affirmed.
Moyer, C.J., and Lundberg Stratton, Lanzinger, and Cupp, JJ., concur.
Pfeifer and O'Donnell, JJ., concur in part and dissent in part.
Donovan, J., dissents.
Mary E. Donovan, J., of the Second Appellate District, sitting for O'Connor, J.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-2973.pdf

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(July 1, 2009) The Supreme Court of Ohio ruled today that, under the state laws in force at the time their claim arose in a private civil lawsuit against Planned Parenthood, the parents of a Cincinnati teenager who obtained an abortion at a Planned Parenthood clinic are not entitled to discover confidential child abuse reports or medical records of other minors who were treated at the same clinic.

In a majority decision written by Justice Evelyn Lundberg Stratton, the Court held that: (1) a balancing test for the disclosure of confidential medical information set forth in a 1999 Ohio  Supreme Court decision, Biddle v. Warren General Hospital, applies only as a defense against the tort of unauthorized disclosure of such records and does not create a right to discover confidential medical records of nonparties in a private lawsuit;  (2) a  former version of the state law requiring health care professionals to report suspected child abuse did not authorize an award of punitive damages for failure to report abuse; and (3) legislative amendments to the abuse-reporting law enacted in December 2008 affect a substantive right and therefore may not be applied retroactively to claims that arose before the law was amended.

The case involved “Jane Roe” of Cincinnati, a 14 year old who obtained an abortion from Planned Parenthood of Southwest Ohio in March 2004.  In legal filings, Planned Parenthood stated that Jane told its medical staff she had been impregnated by a school classmate and that her parents knew and approved of her plan to obtain an abortion but were unable to come to the clinic. The clinic stated that its representative called a phone number provided by Jane as her father’s to provide the required notification and obtain parental consent. The doctor spoke with an adult male who identified himself as Jane’s father and confirmed that he knew about and consented to the procedure. Relying on that authorization, the clinic performed the abortion.

Shortly after the procedure was performed, a teacher at Jane’s school reported her suspicion that Jane had been involved in a sexual relationship with her 21-year-old soccer coach, John Haller. A police investigation revealed that Jane had been sexually abused and impregnated by Haller; that the phone number provided to Planned Parenthood by Jane had been Haller’s cell phone number; and that the person from whom the clinic had obtained consent for the abortion was Haller, not Jane’s father. Haller was later convicted on multiple counts of sexual battery. 

Jane’s parents subsequently filed a civil suit on their own and Jane’s behalf seeking compensatory and punitive damages from Planned Parenthood and the physician who performed the abortion. The suit alleged that Planned Parenthood and the doctor intentionally breached their legal duties to: (1) notify Jane’s parents and obtain their consent before performing the abortion; (2) provide Jane with all the information required by law and obtain her informed consent to the procedure; and (3) notify police or a child services agency of a known or suspected case of sexual abuse of a minor. In support of their claim for punitive damages, the Roes alleged that the breaches of legal duties in Planned Parenthood’s handling of Jane’s case were part of a “pattern or practice” of similar breaches in cases involving other minors who had obtained abortions through the Planned Parenthood clinic.

During pretrial proceedings, the Roes filed a discovery motion demanding that Planned Parenthood provide them with copies of all medical records and child abuse reports in its files for every minor who had sought an abortion from the clinic in the preceding 10 years.  The clinic provided copies of Jane’s medical records, but refused to provide records of  any other patients on the basis that their disclosure was barred by the physician-patient privilege. The Roes obtained a discovery order from the Hamilton County Court of Common Pleas directing the clinic to produce the requested abuse reports and medical records with information disclosing the identities of the other patients redacted (blacked out). Planned Parenthood appealed the trial court’s discovery order to the 1st District Court of Appeals, which reversed the trial court and invalidated the discovery order for the other patients’ records.

The Roes sought and were granted Supreme Court review of the 1st District’s ruling.

Writing for the majority in today’s decision, Justice Stratton held as a threshold matter that, although the General Assembly expressed intent that  2008 amendments to the state’s child abuse reporting statute should apply retroactively to civil actions pending on the effective date of the act, April 7, 2009,  retroactive  application of a new law to pre-existing cases is prohibited by the state constitution if the new law affects a substantive right.

She noted that the pre-2008 version of the statute, R.C. 2151.421, made no reference to any civil damages for violating the abuse reporting requirement, while the 2008 amendments specifically authorize the award of  “compensatory and exemplary damages” against violators. “The newly enacted division (M) adds a punitive measure of damages that did not previously exist,” wrote Justice Stratton. “It does not merely clarify and confirm that a plaintiff had available both compensatory and exemplary damages for a common law violation of the statute as the Roes contend. Instead, such a change is akin to a statutory penalty which is substantive. ... Thus, we hold that R.C. 2151.421(M) affects a substantive right, and its retroactive application would violate due process.”

Because the Roes’ failure-to-report claim must be asserted under the pre-2008 version of R.C. 2151.421, and that version included only criminal penalties for violations with no provision for recovery of civil damages, the majority concluded that the Roes could not assert a claim for punitive damages based on the clinic’s alleged failure to report known or suspected sexual abuse of Jane.

With regard to the discoverability of the medical records of other Planned Parenthood patients, Justice Stratton wrote that both the trial and appellate court decisions mistakenly applied a “balancing test” set forth in the Supreme Court’s 1999 decision in Biddle v. Warren General Hospital

She wrote: “The Roes rely on Biddle ... as authority for discovery of the confidential medical records of nonparties because ‘disclosure is necessary to protect or further a countervailing interest that outweighs the patient’s interest in confidentiality.’  Biddle was a tort case in which we addressed liability for unauthorized disclosure and stressed the utmost importance of the patient’s right to confidentiality of medical communications. ... Biddle did not involve discovery of documents, but rather the improper release of documents.  Nevertheless, apparently litigants have used Biddle to seek nonparty confidential medical information, and courts in several types of tort cases have interpreted Biddle as creating a right to obtain nonparty confidential medical information.”

“(P)aragraph two of the syllabus in Biddle addressed the defenses to the tort of unauthorized disclosure of confidential medical information – i.e., the circumstances under which a physician or hospital may release confidential medical records in the absence of a waiver without incurring tort liability. Biddle did not create a litigant’s right to discover the confidential medical records of nonparties in a private lawsuit.  Any such exception to the physician-patient privilege is a matter for the General Assembly to address.” 

“The Roes also argue that the trial court ordered all patient-identifying information redacted, so the anonymity of the patients will be retained, and the confidential and privileged nature of the documents will be removed,” wrote Justice Stratton. “Redaction of personal information, however, does not divest the privileged status of confidential 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. ... Here, the Roes seek confidential information of third parties that is privileged from disclosure. ... Because Biddle applies as a defense to the tort of unauthorized disclosures of confidential medical information, we hold that Biddle does not authorize the Roes to discover the confidential medical records of nonparties from Planned Parenthood.” 

However, Justice Stratton concluded: “The Roes still may pursue their private claims for damages against Planned Parenthood for statutory violations: whether Planned Parenthood performed an unlawful abortion on Jane under R.C. 2919.12 and 2919.121, which authorize an award of punitive damages; whether Jane’s consent was proper under R.C. 2317.56, which authorizes an award of punitive damages; and whether it had a duty to report suspected abuse of Jane under former R.C. 2151.421. The Roes are entitled to discover Jane’s own medical records. They may pursue discovery of other matters, not privileged, that are relevant and reasonably calculated to lead to the discovery of admissible evidence.”

The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Judith Ann Lanzinger and Robert R. Cupp. Justice Cupp also entered a separate concurring opinion. Justices Paul E. Pfeifer and Terrence O’Donnell entered separate opinions partially concurring with and partially dissenting from the majority holding.  Judge Mary E. Donovan of the 2nd District Court of Appeals, who sat by assignment in place of Justice Maureen O’Connor, entered a dissenting opinion.

In his concurrence, which was joined by Justice Lanzinger, Justice Cupp emphasized that while the underlying circumstances of the case, including the sexual abuse of an eighth grade student by a trusted adult and a subsequent course of events resulting in an abortion without notice to or consent of the child’s parents, are “deeply troubling,” the Court “is duty bound to resolve the legal issues before it by applying the law in the same way it would apply the law to cases with less disturbing facts.”

“(F)ormer R.C. 2151.421 ...  plainly does not permit a private plaintiff to obtain civil damages for the failure of a person to comply with the statute’s reporting requirements for suspected child abuse,” wrote Justice Cupp. ... “Because the statute does not authorize civil damages, we may not judicially insert words to permit a remedy the statute plainly does not provide. The same analysis is applicable to plaintiffs’ claims for access to the abuse reports and medical records of other persons who are not parties to this action.  Under former R.C. 2151.421(H), the version in effect when the conduct giving rise to this action occurred, such abuse and medical reports are confidential, and as the majority opinion states, no exception is provided in the statute for the discovery of abuse reports of nonparties to the civil action. ... In the final analysis, then, plaintiffs can be granted the results they seek in this court only if we judicially amend the child-abuse reporting and the patient-physician privilege statutes or disregard the constitutional prohibition on retroactive substantive legislation. To do so, however, would be to step across the line that marks the boundary of authority that our constitutional system of separation of powers has allocated to the judiciary. That is a step we may not properly take.”

Justice Pfeifer concurred with the majority holding that former R.C. 2151.421 made no reference to any civil damages for a violation of the statute, and therefore, that punitive damages are unavailable to the Roes. He disagreed, however with the majority’s additional review of the Biddle decision and discussion of a 1913 case, Kleybolte v. Buffon, stating that in his view it was not necessary for the Court to revisit either of those cases in order to resolve the legal issue presented to it in this case.

Justice O’Donnell concurred with the majority holdings that punitive damages and access to confidential child abuse reports involving other clinic patients are not available to the Roes under the applicable version of R.C.2151.421.  He wrote separately, however, to dissent from the majority holding “that third-party medical records are never subject to discovery under Civ.R. 26(B)(1).  In my view, this Court’s decision in Biddle v. Warren Gen. Hosp. (1999) ... sets forth an appropriate test for determining when a claimant may discover information that might otherwise be subject to the physician-patient privilege. Moreover, trial courts have the authority to enter discovery orders that protect the privacy interests of patients whose records are disclosed in these circumstances. ... Thus, I 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.”

Judge Donovan wrote that in her view the entire judgment of the court of appeals should be reversed because the Roes are entitled to seek civil damages from Planned Parenthood under the pre-2008 version of the abuse-reporting statute, and are also entitled to discovery of redacted medical records of other clinic patients under the balancing test in Biddle.  She wrote that in her view the Biddle test applies to claims other than the defense of claims for unauthorized disclosure of medical information, and should be applied to allow plaintiffs like the Roes to obtain evidence of possible tortious behavior by medical service providers.

Brian E. Hurley, 513.784.1525, for John & June Roe and Jane Roe.

Daniel J. Buckley, 513.723.4000, for Planned Parenthood of Southwest Ohio.