Supreme Court of Ohio Clerk of Court - Filed June 08, 2015 - Case No. 2015-0948

Appendix - 01

Appendix - 02

Appendix - 03

Appendix - 04

Appendix - 05

Appendix - 06

Appendix - 07

Appendix - 08

Appendix - 09

Appendix - 10

Appendix - 11

Appendix - 12

Appendix - 13

Appendix - 14

Appendix - 15

Appendix - 16

Appendix - 17

Appendix - 18

Appendix - 19

Appendix - 20

Appendix - 21

Appendix - 22

Appendix - 23

Appendix - 24

Appendix - 25

CASE_D SCR 2013 CV 06827

CASE_TYPE CV DOCKET_CODE

FORMSGEN YES WORDDOC YES

IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO

CIVIL DIVISION

BRIANNA MARCUM, ADMINISTRATOR OF

THE ESTATE OF FREDDIE MARCUM,

Plaintiff,

-vs-

MIAMI VALLEY HOSPITAL, et al.,

Defendants.

CASE NO.: 2013 CV 06827

JUDGE MARY WISEMAN

DECISION, ORDER AND ENTRY

GRANTING DEFENDANTS’ MOTION

TO COMPEL PLAINTIFFS TO

PRODUCE DISCOVERY AND SIGNED

MEDICAL AUTHORIZATIONS

This matter is before the Court on Defendants Miami Valley Hospital’s, Artur Karimov, M.D.’s,

MVHE, Inc.’s, Lauren Woeste, R.N.’s and Laura Wright, R.N.’s [collectively, “the MVH Defendants”]1 joint

Motion to Compel Plaintiffs to Produce Discovery and Signed Medical Authorizations [“Motion to

Compel”], filed on May 16, 2014. On May 29, 2014, Plaintiff filed a Memorandum Contra Defendant

Miami Valley Hospital’s Motion to Compel Signed Medical Authorizations [“Memo Opp.”], and on June 5,

2014, the MVH Defendants filed a Reply Memorandum in Support of Motion to Compel Signed Medical

Authorizations [“Reply”].

For the reasons that follow, the MVH Defendants’ Motion to Compel Plaintiffs to Produce Discovery

and Signed Medical Authorizations is GRANTED.

FACTUAL & PROCEDURAL BACKGROUND/THE PARTIES’ CLAIMS

On November 6, 2013, then-Plaintiff Rayetta Siniff, as Administrator of the Estate of Freddie

Marcum, initiated this medical malpractice and wrongful death action against Defendants Miami Valley

1 Three other Defendants listed as movants on this motion – Premier Health Partners, Joseph See, M.D., and Farrukh

Ashraf, M.D. – have been dismissed by Plaintiff and thus no longer are parties to this action. (See 4/16/14 & 6/6/14

Notices of Voluntary Dismissal).

Mo

ntg

om

ery

Co

un

ty C

om

mo

n P

lea

s C

ou

rt

Ge

ne

ral

Div

isio

n

ELECTRONICALLY FILEDCOURT OF COMMON PLEASTuesday, June 24, 2014 3:07:48 PMCASE NUMBER: 2013 CV 06827 Docket ID: 19206274GREGORY A BRUSHCLERK OF COURTS MONTGOMERY COUNTY OHIO

Appendix - 26

2

Hospital; Premier Health Partners; Artur Karimov, M.D.; Joseph See, M.D.; Farrukh Ashraf, M.D.; MVHE,

Inc.; Bipin Sarodia, M.D.; Dharmesh Gandhi, M.D.; Pulmonary and Critical Care Consultants, Inc.; Lauren

Woeste, R.N.; Laura Wright, R.N.; and ten unnamed John Doe Defendants. (See Complaint). The complaint

alleges that Plaintiff’s decedent, Freddie Marcum, died on December 12, 2012, as the result of an overdose of

narcotic pain medication negligently administered while Mr. Marcum was a patient at Miami Valley

Hospital, under Defendants’ care. (Id., ¶¶16, 19-21, 23). On behalf of Mr. Marcum’s estate, the complaint

seeks an award of damages for Mr. Marcum’s medical expenses; his pain and suffering; his loss of life

expectancy; his burial and funeral expenses; and his next-of-kin’s loss of support and consortium. (Id., ¶¶21-

22, 24-25).

On February 26, 2014, Brianna Marcum was substituted as Plaintiff in this matter, due to her

appointment as the successor administrator of Mr. Marcum’s estate. (Entry); (see 2/13/14 Motion to

Substitute Plaintiff). On April 16, 2014, Plaintiff voluntarily dismissed Premier Health Partners without

prejudice pursuant to Civ.R. 41(A)(1)(a). (Notice of Voluntary Dismissal of Defendant Premier Health

Partners). On June 6, 2014, Plaintiff also voluntarily dismissed Drs. See and Ashraf. (Notice of Voluntary

Dismissal of Defendants Joseph See, M.D. and Farrukh Ashraf, M.D.).

The remaining MVH Defendants now move for an order compelling Plaintiff to produce signed

authorizations permitting Defendants to gain access to Mr. Marcum’s social security records and his medical

records for the 12 years2 preceding his death. (Motion to Compel). Defendants assert that they provided

blank forms to be executed by Plaintiff in conjunction with their first discovery requests served on November

14, 2013, but that Plaintiff has refused to sign those forms. (Id., p. 2 and Exhs. A & B). They argue that the

case law of this appellate district unequivocally establishes their right to such medical authorizations in a

personal injury action such as this. (Id., pp. 2-5). Moreover, the MVH Defendants contend that the same

case law makes clear that in camera review by the trial court is not required before medical records are

produced. (Id., pp. 5-6). Noting that the complaint seeks damages for loss of Mr. Marcum’s services

although he “was on disability at the time of his death,” Defendants also maintain that Plaintiff should be

2 Although Defendants’ motion suggests that they seek only 10 years of records (see Motion to Compel, pp. 2, 5),

Plaintiff aptly notes (see Memo Opp., pp. 5, 9) that some of the actual authorization forms proffered by Defendants refer

to Mr. Marcum’s medical records “from 12/12/00 to 12/12/12” – i.e., 12 years. (See Motion to Compel, Exh. A, p. 1).

Appendix - 27

3

compelled to execute a release form with Mr. Marcum’s social security number in order for Defendants to

obtain Mr. Marcum’s social security disability file “to determine the nature and extent of his disability.” (Id.,

p. 6).

In opposing the MVH Defendants’ motion, Plaintiff expressly states that she has no objection to

making Mr. Marcum’s social security records available to Defendants. (Memo Opp., p. 5, n. 1). Plaintiff

also asserts that “the entire chart” from Mr. Marcum’s treatment history at Cedarville Family Practice

previously was produced for the 12 years requested. (Id., pp. 6-7) (emphasis in original). As to Mr.

Marcum’s remaining medical records, however, Plaintiff concedes that authority from the appellate court for

this district “requir[es] a plaintiff in any personal injury litigation to execute blanket medical authorizations

allowing defense counsel” to access a plaintiff’s medical records (id., p. 2) (emphasis in original), yet urges

this Court to ignore such precedent in favor of authority which suggests that medical records are privileged –

and thus need not be produced – unless “related causally or historically” to the injury at issue in the lawsuit.

(Id., pp. 7-15). She also insists that this Court should conduct an in camera review of such medical records

before they are produced to Defendants. (Id., pp. 7-15).

The MVH Defendants’ reply urges that all records they seek are relevant to this action, and that

Plaintiff’s concession re existing Second District precedent mandates that this Court grant Defendants’

motion to compel, without the need for an in camera review of those records. (Reply, pp. 1-6).

LAW & ANALYSIS

Law re Discovery & Motions to Compel

“Discovery provides a means to narrow and sharpen the scope of the issues to be litigated

between parties to a dispute.” Zinn v. Leach, 2nd

Dist. Nos. 90-CA-03, 90-CA-08, 1990 Ohio App.

LEXIS 5199, **11-12 (Nov. 29, 1990) (citing State ex rel. Daggett v. Gessaman, 34 Ohio St. 2d 55,

295 N.E.2d 659 (1973)). “To this end, Ohio has adopted a liberal discovery policy which, subject to

privilege, enables opposing parties to obtain all evidence that is material, relevant and competent

notwithstanding its admissibility at trial.” Id. at *12.

Ohio Civ.R. 26(B)(1) provides that parties may obtain discovery as to “any matter, not

privileged, which is relevant to the subject matter involved in the pending action, whether it relates

Appendix - 28

4

to the claim or defense of the party seeking discovery or to the claim or defense of any other party.”

A discovery request is not objectionable on admissibility grounds so long as “the information

sought appears reasonably calculated to lead to the discovery of admissible evidence.” Civ.R.

26(B).

Nevertheless, a party responding to a discovery request may interpose an objection to that

request in lieu of producing the requested information. See Civ.R. 33(A)(3); 34(B)(1). The

objecting party must articulate the reasons for its objection. See id. The party opposing discovery

ordinarily bears the burden of establishing that the requested information will not lead to the

discovery of admissible evidence. See State ex rel. Fisher v. Rose Chevrolet, Inc., 82 Ohio App. 3d

520, 523, 612 N.E.2d 782 (12th

Dist. 1992); see also Unklesbay v. Fenwick, 167 Ohio App. 3d 408,

2006-Ohio-2630, ¶21 (2nd

Dist.) (“an insurance company bears the burden of establishing that

materials sought to be excluded from discovery on the basis of privilege in fact are privileged”).

Civ.R. 37(A)(2) authorizes a party to move for an order compelling discovery from any

party that fails to respond to a discovery request made pursuant to the civil rules. Rule 37 also

applies to efforts to compel discovery responses from a party that has made an “unreasonable

objection” to a discovery request. See Babb v. Ford Motor Co., 41 Ohio App. 3d 174, 181, 535

N.E.2d 676 (8th

Dist. 1987); see also Polen v. Young, 2nd

Dist. No. 1992, 1985 Ohio App. LEXIS

6240, at **7-8 (Apr. 3, 1985) (court intervenes re Civ.R. 34 discovery requests “only when there is

non-compliance or objection or both”). Pursuant to Civ.R. 36(A)(4), the court “shall” require the

unsuccessful party regarding a motion to compel to pay the opposing party’s reasonable expenses

incurred with respect to that motion, including attorney’s fees.

Despite Rule 37, however, “in general, discovery is self-regulating and should require court

intervention only as a last resort.” Unklesbay, 2006-Ohio-2630, ¶10 (quoting Studer v. Seneca

County Humane Soc., 3rd

Dist. No. 13-99-59, 2000-Ohio-1823, at *17). “It is unquestioned that

Appendix - 29

5

‘courts have broad discretion over discovery motions.’” State ex rel. Mason v. Burnside, 117 Ohio

St. 3d 1, 2007-Ohio-6754, ¶11, 881 N.E.2d 224 (citation omitted)).

Law re Physician-Patient Privilege

Current law regarding privileged communications between doctors and patients is codified

in Ohio at R.C. § 2317.02(B). That statute explicitly provides that the testimonial privilege therein

protected “does not apply”

[i]f a medical claim . . . [for malpractice], an action for wrongful

death, any other type of civil action, or a claim under Chapter 4123.

of the Revised Code is filed by the patient [or] the personal

representative of the estate of the patient if deceased . . .

R.C. § 2317.02(B)(1)(a)(iii). Further,

[i]f the testimonial privilege described in division (B)(1) of this

section does not apply as provided in division (B)(1)(a)(iii) of this

section, a physician . . . may be compelled . . . to submit to discovery

under the Rules of Civil Procedure only as to a communication made

to the physician . . . by the patient in question . . ., or the physician’s .

. . advice to the patient in question, that related causally or

historically to physical or mental injuries that are relevant to issues in

the medical claim, . . . action for wrongful death, other civil action, or

claim under Chapter 4123. of the Revised Code.

R.C. § 2317.02(B)(3)(a).

Because the physician-patient privilege “did not exist at common law,” that statutory

privilege “must be strictly construed against the party seeking to assert it.” Ward v. Summa Health

Sys., 128 Ohio St. 3d 212, 2010-Ohio-6275, ¶15, 943 N.E.2d 514. Even in the context of a medical

malpractice action, “when a party directly places their health at issue, the basis for this underlying

cause of action is discoverable.” Miller v. Bassett, 8th

Dist. No. 86938, 2006-Ohio-3590, ¶24.

The court of appeals for this appellate district also has recognized that

“[b]y filing suit,” a party waives the physician-patient privilege “as to the specific information that

is ‘related causally or historically’ to the injuries that form the basis of his complaint.” Bogart v.

Blakely. 2nd

Dist. No. 2010 CA 13, 2010-Ohio-4526, ¶24. Whether the privilege applies to specific

Appendix - 30

6

medical records “is a factual issue.” Id. On that point, the court there quoted with favor the

following excerpt from an earlier decision:

An argument could be made that the scope of court ordered disclosure

must be limited to only those medical reports made by those persons

who will testify at the trial, to those hospital records from institutions

in which the injured plaintiff was a patient following the incident

which forms the basis of the lawsuit in question, to prior

hospitalizations for the same or similar physical conditions or injuries

claimed as arising from the incident in question, or, at the outside, to

those records that are relevant to the issues framed by the pleadings.

This court cannot agree with such a contention because, inter alia, it

would make the court, or the party against whom disclosure is sought,

the arbiter of what is and what is not either relevant or likely to lead to

the discovery of relevant evidence . . .

* * *

Therefore, as long as the item to be disclosed might be within the

ambit of the injured plaintiff's possible waiver of the physician-patient

privilege, the disclosure will be ordered . . .

Id., ¶¶31-34 (quoting Floyd v. Copas, Mont. Cty. Com. Pleas Ct. No. 76-146, 9 Ohio Op. 3d 298,

1977 Ohio Misc. LEXIS 126, at **14-18 (Jun. 9, 1977) (Rice, J.), writ of prohibition denied by

State ex rel. Floyd v. Court of Common Pleas, 55 Ohio St. 2d 27, 377 N.E.2d 794 (1978)).

After considering the plaintiff’s arguments against discovery, including citations to arguably

conflicting authority from other appellate districts, the court in Bogart affirmed the trial court’s

order compelling the plaintiff to disclose medical records implicated by his allegations of “multiple

and permanent physical and mental injuries.” Id., ¶¶43-64. In so doing, the court relied in part on

yet another Second District decision that approved the trial court’s ordered disclosure of medical

records, which decision noted in part as follows:

While the trial court is necessarily the final arbiter of what is and is

not relevant, disputes over what must be revealed during pretrial

preparation has the potential of involving the trial court in such

disputes at a point at which the court is not in a good position to make

ultimate determinations as to relevance. The time for the trial court to

become involved is immediately prior to, or during trial, when both

sides have been afforded complete discovery and complete disclosure,

when both sides have finalized their trial objectives, strategies, and

Appendix - 31

7

tactics, and when both sides are in the optimum position to apprise the

trial court of their respective positions concerning the relevance of

certain information obtained by either discovery or disclosure. We

thus approve . . . of the order made in this case, notwithstanding that

the [plaintiffs] may well be required to disclose more than is relevant

under R.C. 2317.02, as amended.

Horton v. Addy, 2nd

Dist. No. 13524, 1993 Ohio App. LEXIS 281, at **10-11 (Jan. 25, 1993)

(citation omitted) (cited with favor in Bogart, 2010-Ohio-4526, ¶¶29, 62-63).

More recently, the Second District again adhered to that approach in Higbee v. Higbee, 2nd

Dist. No. 2013-CA-81, 2014-Ohio-954. There, the plaintiff-appellant in a divorce action appealed

an interlocutory trial court order directing her to execute authorization forms for disclosure of her

health information to the defendant-appellee. Id., ¶¶1-3. The appellant acknowledged that she had

“made her health an issue” in the divorce action by claiming that a disability limited her earning

ability, but argued that the broad scope of the authorization forms “should be more narrowly

tailored to filter out irrelevant information.” Id., ¶9. Reiterating its position that disclosure is

appropriate as to any item that “might be within the ambit” of the plaintiff’s waiver of privilege, and

noting “that discovery is an issue separate from the question of whether evidence may be admissible

at trial,” the court affirmed the trial court’s order to compel. Id., ¶¶13-15 (emphasis added) (quoting

Bogart, supra at ¶34 and Horton, supra).

MVH Defendants’ Motion to Compel

Here, as Plaintiff herself acknowledges (see Memo Opp., p. 2), the MVH Defendants’ request

that Plaintiff execute authorizations allowing Defendants access to the entirety of Mr. Marcum’s

medical records from Greene Memorial Hospital and Cedarville Family Practice for the 12 years

preceding his death (see Motion to Compel, Exh. A) is essentially consistent with the scope of

discovery permitted in a well-established line of decisions by the Second District Court of Appeals.

See Floyd, 1977 Ohio Misc. LEXIS 126; Horton, 1993 Ohio App. LEXIS 281; Menda v.

Springfield Radiologists, 136 Ohio App. 3d 656, 737 N.E.2d 590 (2nd

Dist. 2000); Bogart, 2010-

Ohio-4526; Higbee, 2014-Ohio-954. As that Court previously considered but rejected the very

Appendix - 32

8

arguments now asserted by Plaintiff as warranting a different result in this case (see Bogart, 2010-

Ohio-4526, ¶¶43-64), this Court is constrained to follow that precedent.

Plaintiff unquestionably waived the physician-patient privilege applicable to Mr. Marcum’s

medical records by filing this action. See R.C. § 2317.02(B)(1)(a)(iii). As a result, all

communications between Mr. Marcum and his health care providers “causally or historically”

related to “physical or mental injuries that are relevant to issues” implicated by Plaintiff’s current

claims are subject to discovery. See R.C. § 2317.02(B)(3)(a). Existing precedent binding on this

Court dictates that the “factual issue” of the requested records’ causal or historical relevance is not

determined by the person asserting the privilege, or even by the Court at this juncture. See Bogart,

2010-Ohio-4526, ¶¶24, 70) (“Prior to trial, it is unreasonable and impractical to require a trial judge

to attempt to determine whether a plaintiff’s extensive medical history is relevant to the underlying

action,” so plaintiff “not entitled to in camera review”). Rather, in this appellate district, the

preferred approach remains to require the plaintiff to produce all medical records that may fall

“within the ambit” of the waiver of privilege, with the trial court to decide admissibility issues

closer to the time of trial. See Higbee, 2014-Ohio-954, ¶¶13-15.

Especially in a wrongful death action such as this, where the decedent’s prior medical

history may well have affected his life expectancy and thus the amount of damages recoverable for

his premature death, the Court concludes that Mr. Marcum’s medical records for conditions other

than that for which he was being treated at the time of his death definitely fall “within the ambit” of

discoverable information. See id. The MVH Defendants’ motion to compel therefore is well taken.

Nevertheless, given persuasive authority suggesting that discovery of medical records

should be restricted to a reasonable time period, see, e.g., Gentile v. Duncan, 2013-Ohio-5540, ¶25,

5 N.E.3d 100 (10th

Dist.) (appropriate limits on discovery of medical information include

“limitations as to a relevant time period for the medical authorizations”), and that Defendants

themselves suggest that they seek only 10 (rather than 12) years of Mr. Marcum’s medical records

Appendix - 33

9

(see Motion to Compel, pp. 2, 5 & Exh. B), the Court will limit the ordered authorizations to only

the 10-year period from December 12, 2002 to December 12, 2012. (Compare Motion to Compel,

Exh. A).

Finally, the Court notes Plaintiff’s stated intention “to file an immediate appeal in the event

this Court issues the order sought by MVH” as to the execution of medical authorizations providing

access to Mr. Marcum’s medical records. (Memo Opp., p. 2). Previously, interlocutory discovery

orders were considered “neither final nor appealable,” including orders that deny an asserted

statutory privilege. See Walters v. Enrichment Ctr. of Wishing Well, 78 Ohio St. 3d 118, 1997-

Ohio-232, 676 N.E.2d 890 (syllabus). Pursuant to the subsequently amended provisions of the Ohio

Revised Code, however, a “provisional remedy” granting “discovery of privileged matter”

constitutes a final order subject to immediate appellate review if “both of the following apply”

(a) The order in effect determines the action with respect to the

provisional remedy and prevents a judgment in the action in favor of

the appealing party with respect to the provisional remedy.

(b) The appealing party would not be afforded a meaningful or

effective remedy by an appeal following final judgment as to all

proceedings, issues, claims, and parties in the action.

R.C. § 2505.02(A)(3) and (B)(4).

Because authority from the Second District Court of Appeals suggests that Plaintiff would

have an effective remedy for any overly broad disclosure by means of an appeal following final

judgment, this Court declines to designate this decision as a final appealable order. See In re

Isaacs, 2nd

Dist. No. 18104, 2000 Ohio App. LEXIS 3491, at **10-11 (Jul. 31, 2000).

CONCLUSION

For the foregoing reasons, the MVH Defendants’ Motion to Compel Plaintiffs to Produce

Discovery and Signed Medical Authorizations hereby is GRANTED. Plaintiff therefore is ORDERED to

provide to said Defendants, within ten (10) days of the date of this Order, duly executed “Authorization[s] to

Disclose Health Information” in the form reflected in Defendants’ Exhibit A that authorize Greene Memorial

Hospital and Cedarville Family Practice to release decedent Freddie Marcum’s medical records from

Appendix - 34

10

December 12, 2002 to December 12, 2012 to said Defendants; and also to provide to said Defendants a duly

executed “Consent for Release of Information” in the form reflected in Defendants’ Exhibit B that authorizes

the Social Security Administration to release all documents from decedent Freddie Marcum’s social security

file from December 12, 2002 to December 12, 2012 to said Defendants.

SO ORDERED:

JUDGE MARY WISEMAN

This document is electronically filed by using the Clerk of Courts e-Filing system. The system will post a record of the

filing to the e-Filing account "Notifications" tab of the following case participants:

CRAIG STEVEN TUTTLE

Attorney for Plaintiff, Brianna Marcum

GERALD S. LEESEBERG

(614) 221-2223

Attorney for Plaintiff, Brianna Marcum

NEIL F. FREUND

(937) 222-2424

Attorney for Defendant, Miami Valley Hospital

LEONARD J. BAZELAK

(937) 222-2424

Attorney for Defendant, Miami Valley Hospital

NEIL F. FREUND

(937) 222-2424

Attorney for Defendant, Artur Karimov, M.D.

LEONARD J. BAZELAK

(937) 222-2424

Attorney for Defendant, Artur Karimov, M.D.

NEIL F. FREUND

(937) 222-2424

Attorney for Defendant, MVHE, Inc.

LEONARD J. BAZELAK

(937) 222-2424

Attorney for Defendant, MVHE, Inc.

MICHAEL F. LYON

(513) 421-6630

Attorney for Defendant, Bipin Sarodia, M.D.

LAURIE A. McCLUSKEY

(513) 421-6630

Attorney for Defendant, Bipin Sarodia, M.D.

MICHAEL F. LYON

(513) 421-6630

Attorney for Defendant, Dharmesh Gandhi, M.D.

LAURIE A. McCLUSKEY

Appendix - 35

11

(513) 421-6630

Attorney for Defendant, Dharmesh Gandhi, M.D.

MICHAEL F. LYON

(513) 421-6630

Attorney for Defendant, Pulmonary Critical Care Consultants, Inc.

LAURIE A. McCLUSKEY

(513) 421-6630

Attorney for Defendant, Pulmonary Critical Care Consultants, Inc.

NEIL F. FREUND

(937) 222-2424

Attorney for Defendant, Lauren Woeste, R.N.

LEONARD J. BAZELAK

(937) 222-2424

Attorney for Defendant, Lauren Woeste, R.N.

NEIL F. FREUND

(937) 222-2424

Attorney for Defendant, Laura Wright, R.N.

LEONARD J. BAZELAK

(937) 222-2424

Attorney for Defendant, Laura Wright, R.N.

Tandi Danklef, Bailiff (937) 225-4384, dankleft@montcourt.org

Appendix - 36

General Divison

Montgomery County Common Pleas Court

41 N. Perry Street, Dayton, Ohio 45422

Type: Decision

Case Number: 2013 CV 06827

Case Title: RAYETTA SINIFF ADMINISTRATOR vs MIAMI VALLEYHOSPITAL

So Ordered

Electronically signed by mwiseman on 2014-06-24 15:08:20 page 12 of 12

Appendix - 37