Opinion · Ohio Supreme Court
Biddle v. Warren General Hospital
86 Ohio St. 3d 395
- Type
- Opinion
- Court
- Ohio Supreme Court
- Jurisdiction
- Ohio
- Date
- 1999-09-15
- Topic
- general
holding that, “in Ohio, an independent tort exists for the unauthorized, unprivileged disclosure to a third party of non-public medical information that a physician or hospital has learned within a physician-patient relationship” | comparing the theories to "fítfting] a round peg into a square hole” and observing that they are “ill-suited for the purpose, and their application contrived” | "[w]e hold that in Ohio, an independent tort exists for the unauthorized, unprivileged disclosure to a third party of nonpublic medical information that a physician or hospital has learned within a physician-patient relationship"
Citator
- Cited by
- 32 opinions
[This opinion has been published in Ohio Official Reports at86 Ohio St.3d 395
.]
BIDDLE ET AL., APPELLEES AND CROSS-APPELLANTS, v. WARREN GENERAL
HOSPITAL ET AL., APPELLANTS AND CROSS-APPELLEES.
[Cite as Biddle v. Warren Gen. Hosp., 1999-Ohio-115
.]
Torts—Independent tort for the unauthorized, unprivileged disclosure of nonpublic
medical information exists in Ohio—Disclosure of confidential medical
information permitted, when—Proof required to establish liability for
unauthorized, unprivileged disclosure of nonpublic medical information.
1. In Ohio, an independent tort exists for the unauthorized, unprivileged
disclosure to a third party of nonpublic medical information that a physician
or hospital has learned within a physician-patient relationship.
2. In the absence of prior authorization, a physician or hospital is privileged to
disclose otherwise confidential medical information in those special
situations where disclosure is made in accordance with a statutory mandate
or common-law duty, or where disclosure is necessary to protect or further
a countervailing interest that outweighs the patient’s interest in
confidentiality.
3. A third party can be held liable for inducing the unauthorized, unprivileged
disclosure of nonpublic medical information that a physician or hospital has
learned within a physician-patient relationship. To establish liability the
plaintiff must prove that (1) the defendant knew or reasonably should have
known of the existence of the physician-patient relationship, (2) the
defendant intended to induce the physician to disclose information about
the patient or the defendant reasonably should have anticipated that his
actions would induce the physician to disclose such information, and (3) the
defendant did not reasonably believe that the physician could disclose that
information to the defendant without violating the duty of confidentiality
SUPREME COURT OF OHIO
that the physician owed the patient.
(No. 98-952—Submitted March 30, 1999—Decided September 15, 1999.)
APPEAL and CROSS-APPEAL from the Court of Appeals for Trumbull County, No.
96-T-5582.
__________________
{¶ 1} Sometime prior to 1993, appellant and cross-appellee Robert L.
Heller, a shareholder in appellant and cross-appellee Elliott, Heller, Maas, Moro &
Magill Co., L.P.A. (“the law firm”), attended a legal seminar, where he got the idea
that the law firm could assist a hospital in determining whether unpaid medical bills
could be submitted to the Social Security Administration for payment. Upon his
return, Heller proposed this idea to Rush Elliott, president of the law firm and, at
that time, a trustee of Warren General Hospital Foundation and president of Warren
General Hospital Health Systems. Elliott asked Mark Tierney, then chief financial
officer of appellant and cross-appellee Warren General Hospital (“the hospital”), to
meet with Heller.
{¶ 2} In early 1993, a meeting was held resulting in an unwritten agreement
under which, according to Tierney, “[t]he law firm would screen potential
candidates for SSI [Supplemental Security Income] eligibility and contact those
patients on the hospital’s behalf as to their rights to apply for SSI Disability, thus
having their medical claim covered under SSI and the hospital could, therefore,
receive payment for services that it provided that it would otherwise have to write-
off [sic] as an uncollect[i]ble account, and in return for those services, upon
payment from SSI, the hospital would pay a contingency fee to Elliott, Heller &
Maas.”
{¶ 3} Heller informed the hospital that in order for the law firm to perform
this service, it would be necessary for the hospital to provide four pieces of
information with regard to each patient to be screened: name, telephone number,
age, and medical condition. Accordingly, a joint decision was made to provide the
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January Term, 1999
law firm with the hospital’s patient registration forms.
{¶ 4} Over the next two and one-half years, the hospital released all of its
patient registration forms to the law firm without obtaining any prior consent or
authorization from its patients to do so, and without prescreening or sorting them
in any way. The law firm sent a courier to the hospital on a weekly basis to retrieve
the forms and bring them back to its office, where they were reviewed by Heller
and Sharyn Jacisin, a legal assistant employed by the law firm, and separated
according to potential SSI eligibility. The forms of those patients whom the law
firm determined not to be eligible for disability benefits were put in a cardboard
box and eventually placed in storage, and nothing further was done on those
accounts.
{¶ 5} Those patients who were considered potential candidates for SSI were
telephoned by either Jacisin or Melanie Sutton, who at that time was Heller’s
secretary. According to the law firm, neither Jacisin nor Sutton indicated where
they worked, but instead stated that they were calling on behalf of the hospital and
that “you might be entitled to Social Security benefits that might help you pay your
medical bill.” Those patients who showed interest were referred to Heller. Jacisin
testified at deposition that she made approximately one hundred of these phone
calls, the purpose of which was to make an appointment to see if those patients
were eligible for Social Security benefits.
{¶ 6} Heller testified that he met with only “[p]robably 5” individuals, that
he “absolutely [did] not” tell them that he or his law firm would represent them in
making application for benefits, but that these individuals did retain him, without
any discussion of compensation, “to help them get their benefits so their medical
bills could get paid.” However, Elliott testified that it “was more or less the
understood agreement * * * between the firm and the hospital” that the hospital was
the initial client of the law firm, but “at some point in time” the law firm may come
to represent individual patients with regard to their Social Security benefits.
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{¶ 7} One patient stated by way of affidavit that Sutton telephoned her in
July 1993, indicated that she was Heller’s secretary, “and stated that the law firm
worked closely with Warren General Hospital and * * * was trying to help Warren
General Hospital patients obtain SSI benefits.” She stated that “Sutton asked me
to come into the office of Attorney Heller and engage Attorney Heller to represent
me regarding a potential Social Security claim.” She also stated that she met with
Heller, that neither he nor Sutton said anything regarding her hospital bill or
whether it would be paid by SSI, and that she was a Medicaid recipient and her bill
had already been paid prior to the communications from the law firm. Lastly, she
stated that even though she never retained the services of Heller or the law firm,
“Heller’s name appears as my representative on my Social Security denial of
benefits letter dated Sept. 29, 1993.”
{¶ 8} On May 12, 1994, Sutton learned that the law firm was going to
terminate her employment and began photocopying the patient registration forms.
It appears that Sutton later sent copies of these registration forms to WFMJ-TV in
Youngstown, Ohio, and when a reporter for the station confronted the law firm in
June 1995, as part of an investigation into breach of patient confidentiality, the
relationship between the law firm and the hospital was terminated.
{¶ 9} On July 10, 1995, appellees and cross-appellants, Cheryl A. Biddle,
individually and as surviving spouse of Robert A. Biddle, and Gary Ball, filed a
class action complaint against the hospital, the law firm, Heller, and appellant and
cross-appellee Kevin Andrews, who at all pertinent times was the administrator,
executive director, and chief executive officer of the hospital. The complaint seeks
compensatory and punitive damages and injunctive relief on behalf of appellees
and approximately twelve thousand other patients whose patient registration forms
were provided by the hospital to the law firm without prior authorization.
Appellees allege several causes of action, all of which are based on the premise that
the arrangement between the hospital and the law firm constituted a breach of
4
January Term, 1999
patient confidentiality. These include claims for invasion of privacy, intentional
infliction of emotional distress, and negligence against the hospital and Andrews,
and similar claims for inducement against the law firm and Heller. Appellees also
assert claims for breach of implied contract and various statutory violations against
the hospital and Andrews, and an improper solicitation claim against the law firm
and Heller.
{¶ 10} In two separate entries, the trial court (1) issued a protective order
precluding appellees from taking the deposition of Melanie Sutton, (2) struck four
of appellees’ evidentiary exhibits, (3) granted summary judgment in favor of
appellants on all claims, and (4) denied as moot appellees’ motion for class
certification.
{¶ 11} The court of appeals affirmed the judgment of the trial court with
respect to its issuance of a protective order and order to strike, but reversed as to
summary judgment and, therefore, as to the mootness of class certification. In so
doing, the appellate court found most of appellees’ stated legal theories to be
nonviable in some way, but found that appellees adequately pleaded a claim for
tortious breach of confidentiality, which the court expressly recognized as a valid
cause of action in Ohio. The court defined this action as an unconsented,
unprivileged disclosure to a third party of nonpublic information that the defendant
has learned within a confidential relationship.
{¶ 12} The court of appeals rejected appellants’ arguments that they did not
breach the duty of patient confidentiality because the disclosures were made to a
law firm who is required to maintain the confidentiality of its client, and because
disclosure was made on a privileged occasion. The court held that “the elements
of the tort of breach of confidentiality only require the disclosure of confidential
information to any third party, which includes a law firm for the hospital. If
hospitals wish to engage in this type of procedure in the future, liability can be
avoided by obtaining clear patient consent for this type of informational release.”
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In addition, the court found that “a physician’s disclosure is ‘privileged’ in those
instances when public policy and the Revised Code mandate disclosure,” that “the
application of a qualified privilege is inappropriate in a case that does not involve
defamation,” and that even if the privilege could be applied in this case, “the public
policy protecting the confidential nature of the physician-patient relationship is
more compelling than the public policy permitting certain disclosures to be
protected by a qualified privilege.”
{¶ 13} The cause is now before this court pursuant to the allowance of a
discretionary appeal and cross-appeal.
__________________
Maguire & Schneider, L.L.P., Dennis P. Zapka and Emery J. Leuchtag, for
appellees and cross-appellants.
Jones, Day, Reavis & Pogue, Richard B. Whitney, Kathleen B. Burke and
Anne Owings Ford; Keating, Keating & Kuzman and W. Leo Keating, for appellants
and cross-appellees Warren General Hospital and Kevin Andrews.
Charles L. Richards, for appellants and cross-appellees Robert L. Heller
and Elliott, Heller, Maas, Moro & Magill Co., L.P.A.
Bricker & Eckler, L.L.P., James H. Hughes, Jr., Catherine M. Ballard and
Karen D. Smith, urging reversal for amici curiae OHA: The Association for
Hospitals and Health Systems and the Ohio State Medical Association.
Eugene P. Whetzel, urging reversal for amicus curiae Ohio State Bar
Association.
__________________
ALICE ROBIE RESNICK, J.
{¶ 14} Aside from the procedural and evidentiary questions, these appeals
present five general issues for our determination. The first issue is whether a
physician or hospital can be held liable for the unauthorized, out-of-court disclosure
of confidential information obtained in the course of the physician-patient
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January Term, 1999
relationship.
{¶ 15} This issue is easily resolved. “In Ohio, a physician can be held liable
for unauthorized disclosures of medical information. See Hammonds v. Aetna Cas.
& Sur. Co. (N.D.Ohio 1965), 243 F.Supp. 793
[7 Ohio Misc. 25
,34 O.O.2d 138
]; Nationwide Mut. Ins. Co. v. Jackson (1967),10 Ohio App.2d 137
,39 O.O.2d 242
,226 N.E.2d 760
; Prince v. St. Francis-St. George Hospitals, Inc. (1985),20 Ohio App.3d 4
, 20 OBR 4,484 N.E.2d 265
; Levias v. United Airlines (1985),27 Ohio App.3d 222
, 27 OBR 262,500 N.E.2d 370
; see, also, R.C. 4731.22(B)(4) (‘Willfully betraying a professional confidence’ is a ground for physician discipline.); see, generally, Johnston, Breach of Medical Confidence in Ohio (1986), 19 Akron L.Rev. 373.” Littleton v. Good Samaritan Hosp. & Health Ctr. (1988),39 Ohio St.3d 86, 98
,529 N.E.2d 449, 459, fn. 19
.
{¶ 16} However, Littleton does not specify the basis or legal theory under
which a physician can be held liable for unauthorized disclosures of medical
information. As one legal writer has observed:
“Faced with situations involving a disclosure of personal information in
breach of confidence, some courts have explicitly recognized a breach of
confidence tort. Most courts, however, have resorted to a confused tangle of legal
theories, including invasion of privacy, implied term of contract, implied private
cause of action in statute, and tortious breach of confidence, to make out a cause of
action in such situations.” Vickery, Breach of Confidence: An Emerging Tort
(1982), 82 Colum.L.Rev. 1426, 1437.
{¶ 17} The second issue, therefore, is whether this court should recognize
an independent common-law tort of breach of confidence in the physician-patient
setting. Since appellants raise no serious argument against the recognition of such
an action, this issue need not detain us long either.
{¶ 18} Over eighty years ago, the Supreme Court of Washington stated:
“We shall not go into the question, suggested in respondents’ brief, that the
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action is improperly designated as one for slander. If the facts set forth in the
complaint entitle appellant to relief, it is wholly immaterial by what name the action
is called. Neither is it necessary to pursue at length the inquiry of whether a cause
of action lies in favor of a patient against a physician for wrongfully divulging
confidential communications. For the purposes of what we shall say it will be
assumed that, for so palpable a wrong, the law provides a remedy.” Smith v.
Driscoll (1917), 94 Wash. 441, 442
,162 P. 572, 572
.
{¶ 19} Since then, courts in Ohio and elsewhere have faced common
metamorphic disturbances in attempting to provide a legal identity for an actionable
breach of patient confidentiality. In their efforts to devise a civil remedy “for so
palpable a wrong,” many of these courts have endeavored to fit a breach of
confidence into a number of traditional or accepted legal theories. In much the
same way as trying to fit a round peg into a square hole, courts have utilized theories
of invasion of privacy, defamation, implied breach of contract, intentional and
negligent infliction of emotional distress, implied private statutory cause of action,
breach of trust, detrimental reliance, negligence, and medical malpractice.
Invariably, these theories prove ill-suited for the purpose, and their application
contrived, as they are designed to protect diverse interests that only coincidentally
overlap that of preserving patient confidentiality. These courts, therefore, often
find themselves forced to stretch the traditional theories beyond their reasonable
bounds, or ignore or circumvent otherwise sound doctrinal limitations, in order to
achieve justice within the parameters they have set for themselves. In so doing,
they rely on various sources of public policy favoring the confidentiality of
communications between a physician and a patient, including state licensing or
testimonial privilege statutes, or the Principles of Medical Ethics of the American
Medical Association (1957), Section 9, or the Oath of Hippocrates. Some note that
while public policy considerations are a sound enough basis to support liability, a
more appropriate basis can be found in the nature of the physician-patient
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January Term, 1999
relationship itself, either because of its fiduciary character or because it is
customarily understood to carry an obligation of secrecy and confidence. Slowly
and unevenly, through various gradations of evolution, courts have moved toward
the inevitable realization that an action for breach of confidence should stand in its
own right, and increasingly courts have begun to adopt it as an independent tort in
their respective jurisdictions. Hobbs v. Lopez (1994), 96 Ohio App.3d 670
,645 N.E.2d 1261
; Howes v. United States (C.A.6, 1989),887 F.2d 729
(applying Ohio law); Neal v. Corning Glass Works Corp. (S.D.Ohio 1989),745 F.Supp. 1294
(applying Ohio law);Levias, supra,
27 Ohio App.3d 222
, 27 OBR 262,500 N.E.2d 370
;Prince, supra,
20 Ohio App.3d 4
, 20 OBR 4,484 N.E.2d 265
; Knecht v. Vandalia Med. Ctr., Inc. (1984),14 Ohio App.3d 129
, 14 OBR 145,470 N.E.2d 230
;Hammonds, supra,
243 F.Supp. 793
,7 Ohio Misc. 25
,34 O.O.2d 138
(interpreting Ohio law); Lujan v. Mansmann (E.D.Pa.1997),956 F.Supp. 1218, 1229-1230
; Bullion v. Gadaleto (W.D.Va.1995),872 F.Supp. 303
; Morris v. Consolidation Coal Co. (1994),191 W.Va. 426
,446 S.E.2d 648
; Mrozinski v. Pogue (1992),205 Ga.App. 731
,423 S.E.2d 405
; Saur v. Probes (1991),190 Mich.App. 636
,476 N.W.2d 496
; Tighe v. Ginsberg (1989),146 A.D.2d 268
,540 N.Y.S.2d 99
; Crocker v. Synpol, Inc. (Tex.App.1987),732 S.W.2d 429
; Stempler v. Speidell (1985),100 N.J. 368, 374-377
,495 A.2d 857, 860-861
; Alberts v. Devine (1985),395 Mass. 59
,479 N.E.2d 113
; Vassiliades v. Garfinckel’s (D.C.App.1985),492 A.2d 580
; Humphers v. First Interstate Bank of Oregon (1985),298 Ore. 706
,696 P.2d 527
; MacDonald v. Clinger (1982),84 A.D.2d 482
,446 N.Y.S.2d 801
; Doe v. Roe (1977),93 Misc.2d 201
,400 N.Y.S.2d 668
; Horne v. Patton (1973),291 Ala. 701
,287 So.2d 824
; Hague v. Williams (1962),37 N.J. 328
,181 A.2d 345
; Alexander v. Knight (1962),197 Pa.Super. 79
,177 A.2d 142
; Clark v. Geraci (1960),29 Misc.2d 791
,208 N.Y.S.2d 564
; Berry v. Moench (1958),8 Utah 2d 191
,331 P.2d 814
; Simonsen v. Swenson (1920),104 Neb. 224
,177 N.W. 831
; Johnston, supra, 19 Akron L.Rev. 373; Vickery, supra, 82
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Colum.L.Rev. 1426; Annotation, Physician’s Tort Liability for Unauthorized
Disclosure of Confidential Information About a Patient (1986), 48 A.L.R.4th 668
;
61 American Jurisprudence 2d (1981) 298-305, Physicians, Surgeons, and Other
Healers, Sections 166-173; 24 American Jurisprudence POF 3d (1994) 123, Proof
of Unauthorized Disclosure of Confidential Patient Information by a
Psychotherapist; 32 American Jurisprudence Trials (1985) 105, Unauthorized
Disclosure of Confidential Patient Information.
{¶ 20} We hold that in Ohio, an independent tort exists for the unauthorized,
unprivileged disclosure to a third party of nonpublic medical information that a
physician or hospital has learned within a physician-patient relationship.
{¶ 21} The third issue, as framed by the law firm, “is whether the duty to
hold this patient information confidential is absolute, as the Court of Appeals has
held, or, whether, and under what circumstances the hospital may disclose the
confidential information to others and for what purpose.” In particular, appellants
and their amici argue that a privilege should attach in this case under which a
hospital may disclose confidential medical information to its attorney without
obtaining prior patient authorization to do so.
{¶ 22} We do not interpret the court of appeals’ decision to provide for an
absolute duty of confidentiality, but it does contain some language suggesting that
a disclosure may be privileged only if mandated by statute. Disclosures of
otherwise confidential medical information made pursuant to statutory mandate are
certainly privileged, such as occupational diseases (R.C. 3701.25 and 4123.71),
diseases which are infectious, contagious, or dangerous to public health (R.C.
3701.24, 3701.52, 3707.06), medical conditions indicative of child abuse or neglect
(R.C. 2151.421), and injuries indicative of criminal conduct (R.C. 2921.22).
Otherwise, a physician would be forced into the dilemma of violating a statute for
failing to report a medical condition to the appropriate state agency or incurring
civil liability for disclosing it. Thus, when a physician’s report “is made in the
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January Term, 1999
manner prescribed by law, he of course has committed no breach of duty toward
his patient and has betrayed no confidence, and no liability could result.” Simonsen, supra,
104 Neb. at 228
,177 N.W. at 832
.
{¶ 23} The physician also has certain duties under the common law to
disclose otherwise confidential medical information concerning the public health
or safety to third persons, the breach of which can result in civil liability. See, e.g.,
Estates of Morgan v. Fairfield Family Counseling Ctr. (1997), 77 Ohio St.3d 284, 301
,673 N.E.2d 1311, 1324
; Jones v. Stanko (1928),118 Ohio St. 147
,160 N.E. 456
. If a privilege to disclose were held not to attach under these circumstances,
the physician would be placed in the untenable position of incurring civil liability
for breaching one of two opposing common-law duties.
{¶ 24} More important, the privilege to disclose is not necessarily
coextensive with a duty to disclose. “Even without such a legal obligation, there
may be a privilege to disclose information for the safety of individuals or important
to the public in matters of public interest.” Humphers, supra,
298 Ore. at 720
,696 P.2d at 535
. As one court explained, the duty of confidentiality “is not absolute, and its breach is actionable only if it is wrongful, that is to say, without justification or excuse. Although public policy favors the confidentiality described herein, there is a countervailing public interest to which it must yield in appropriate circumstances.”MacDonald, supra,
84 A.D.2d at 487
,446 N.Y.S.2d at 805
. Thus, special situations may exist where the interest of the public, the patient, the physician, or a third person are of sufficient importance to justify the creation of a conditional or qualified privilege to disclose in the absence of any statutory mandate or common-law duty. See, e.g.,Hague, supra,
37 N.J. at 336
,181 A.2d at 349
;Berry, supra,
8 Utah 2d at 197
,331 P.2d at 817-818
;Simonsen, supra,
104 Neb. at 228
,177 N.W. at 832
. See, generally, Johnston, supra, 19 Akron L.Rev. at
384-392; Vickery, supra, 82 Colum.L.Rev. at 1462-1468.
{¶ 25} We hold that in the absence of prior authorization, a physician or
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hospital is privileged to disclose otherwise confidential medical information in
those special situations where disclosure is made in accordance with a statutory
mandate or common-law duty, or where disclosure is necessary to protect or further
a countervailing interest which outweighs the patient’s interest in confidentiality.
{¶ 26} The law firm argues that “[i]n the instant case, the interest which
needs to be protected by the application of the qualified privilege doctrine, is the
free and uninhibited flow of information from a client to an attorney.” In support,
it relies on Neal, supra,
745 F.Supp. at 1297
, for the proposition that disclosure is
privileged where it is made to another who is also subject to a duty of
confidentiality. According to the law firm, the lawyer’s duty to preserve the
confidences and secrets of a client extends to any confidential information the client
may reveal about third persons, including patients. The law firm refers to this as
“a closed loop in which confidential or privileged information goes from the patient
to the hospital and then from the hospital to its lawyers the duty to keep the
confidence encircling everybody involved.”
{¶ 27} The hospital and amicus curiae Ohio State Bar Association take
particular exception to the court of appeals’ characterization of the law firm as a
“third party” for purposes of the tort of breach of confidence. They argue that an
attorney is the agent or “alter ego” of his or her client and, therefore, is not a third
party. Since there is a legal identity of the agent with the principal, the hospital was
in effect disclosing medical information to itself when it released the patient
registration forms to the law firm. According to the hospital, the General Assembly
has recognized this principle in R.C. 2317.021 by defining “client” for purposes of
the attorney-client privilege statute as a person “who communicates, either directly
or through an agent.” OSBA adds that liability against either the hospital or law
firm in this case would undermine the goals of DR 4-101 and EC 4-1, which, OSBA
states, are “(1) to encourage full disclosure by the client; and (2) to allow an attorney
to most effectively represent his or her client.”
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January Term, 1999
{¶ 28} The main thrust of these arguments is to focus our attention on the
nature of the relationship between attorney and client, rather than between
physician and patient. From this perspective, the physician’s duty to keep patient
confidences is irrelevant, and the action itself is viewed as an attack on the viability
of the attorney-client relationship. Nevertheless, we are being asked to recognize
a privilege under which a hospital can release thousands of patient registration
forms without consent or authorization so that a law firm can search for potential
Social Security claimants, on the sole basis that the medical bill of one or more of
these patients may thereby be paid. Placed in its proper perspective, such a
privilege would also protect the individual medical practitioner who releases the
bulk of his or her office files without authorization so that a lawyer can search
through them for potential workers’ compensation or personal injury claimants.
{¶ 29} In Neal, supra, 745 F.Supp. at 1297
, the court recognized a
conditional privilege under which a patient’s physician can disclose medical
information to another treating physician. In so doing, the court reasoned as
follows:
“This Court must conclude that while the disclosure of Plaintiff’s test results
to Dr. Gullia was technically unauthorized by Plaintiff, Defendant Armacost’s
actions under the facts of this case could not reasonably be said to constitute a
willful betrayal of a professional secret: Defendant Armacost disclosed the medical
information only to the physician otherwise responsible for the treatment of
Plaintiff for conditions manifested in the course of or affecting his employment —
a physician also bound by O.R.C. § 4731.22(B)’s mandate of confidentiality. Under
the analogy to trust law articulated in Hammonds v. Aetna Casualty [& Sur. Co.
(N.D.Ohio 1965), 3 Ohio Misc. 83
], 237 F.Supp. [96] at 102, Defendant Armacost
as trustee made the [information] available only to another trustee—Dr. Gullia—
who also owed Plaintiff a fiduciary duty.” (Emphasis added.)
{¶ 30} The privilege recognized in Neal applies only to disclosures made to
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a third party who owes a duty of confidentiality to the patient, i.e., “a physician also
bound by O.R.C. § 4731.22(B)’s mandate of confidentiality.” It does not extend to
disclosures made to a third party who owes a duty of confidentiality to the patient’s
physician, but not the patient.
{¶ 31} In the present case, the law firm is not bound by R.C. 4731.22(B)(4)
or any such statutory mandate that imposes affirmative duties on physicians with
regard to their patients. Instead, it is bound by DR 4-101(B) to preserve the
confidences and secrets of its client. EC 4-1 makes clear that the lawyer’s duty to
preserve the confidences and secrets of his client extends to “one who has employed
or sought to employ him.” (Emphasis added.) In defining “secret,” DR 4-101(A)
makes clear that the concern is with the wishes of, and the effect disclosure has on,
“the client.” DR 4-101(C) provides for certain circumstances under which the
lawyer may reveal a confidence or secret of his client, all of which involve the
interests or actions of the lawyer and the client. The lawyer’s duty, therefore, is to
keep his client’s confidences and secrets, and this duty neither arises out of, nor is
it dependent upon, any confidential relationship that may exist between his client
and a stranger. In the present case, no attorney-client relationship existed between
the law firm and the hospital’s patients. Since the law firm was employed by the
hospital, and not by the hospital’s patients, its duty under DR 4-101 is to preserve
the confidences and secrets of the hospital, not the hospital’s patients. Thus, the
privilege established in Neal, supra,
is not applicable in this case.
{¶ 32} The hospital’s reliance on R.C. 2317.021 and the “alter ego” theory
is also misplaced. R.C. 2317.021 has nothing to do with the concept of a unified
legal identity between lawyer and client. In fact, the “agent” to whom R.C.
2317.021 refers is someone who communicates to the attorney on behalf of the
client, that is, someone other than the attorney. This does not mean that the attorney
is never the client’s agent; it simply means that R.C. 2317.021 has nothing to do
with such a status. In addition, the “alter ego” doctrine may align the identity of
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January Term, 1999
principal and agent with regard to their dealings with others, but it does not
transform the agent into an acceptable legal repository for the unauthorized
disclosure of confidential information that the principal learned within another
confidential relationship. In fact, in Mohan J. Durve, M.D., Inc. v. Oker (1996),
112 Ohio App.3d 432, 446-447
,679 N.E.2d 19, 28
, a patient’s ex-physician
successfully argued that even the patient’s lawyer has no right to access his client’s
medical records unless the client-patient executes a waiver or release or files an
action that places her physical condition at issue. In holding that the trial court
properly granted the physician’s motion for a protective order, the court rejected
appellants’ argument that the patient’s attorney, as her representative, is entitled to
her records.
{¶ 33} The hospital also relies on the Uniform Health-Care Information
Act, approved by the National Conference of Commissioners on Uniform State
Laws in 1985, and adopted in Washington and Montana. Under Section 2-
104(a)(2) of the Act, a health-care provider may disclose health-care information
without the patient’s authorization, on a need-to-know basis, to any person “who
requires health-care information * * * to provide * * * legal * * * services to the
health-care provider.” See Wash.Rev.Code 70.02.050(1)(b) and Mont.Code Ann.
50-16-529(2). Even if we assume, arguendo, that such a provision would apply
under the circumstances of this case, neither Ohio nor the vast majority of the other
states have adopted it. See Van der Goes, Opportunity Lost: Why and How to
Improve the HHS-Proposed Legislation Governing Law Enforcement Access to
Medical Records (1999), 147 U.Pa.L.Rev. 1009, 1067, fn. 58.
{¶ 34} Contrary to the assertions of appellants and OSBA, a refusal to
recognize a privilege in this case will not sound the death knell of the attorney-
client relationship. By withholding a privilege in this case, we do no more than
recognize that there are some circumstances under which a hospital can be held
liable for the unauthorized disclosure of confidential medical information to its
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SUPREME COURT OF OHIO
attorney.
{¶ 35} It is appropriate at this point to step back for a moment and review
the facts of this case. A hospital hands over to a law firm thousands of patient
registration forms containing information about the medical condition of each
patient, including diagnoses of alcohol and drug abuse, mental illness, and sexually
transmitted diseases. The law firm reviews these forms for the sole purpose of
finding amongst them potential Social Security claimants. The firm then calls these
potential claimants and gives them unsolicited advice that they should take legal
action in the form of obtaining SSI. In so doing, the law firm either conceals its
legal identity or, according to one account, directly asked the potential claimant to
engage Attorney Heller to represent her regarding a potential Social Security claim.
Those who show interest are scheduled for an appointment with Heller, which is
the admitted purpose of making the calls, and the law firm ultimately accepts
employment (which Elliott testified was contemplated from the outset).
{¶ 36} We can find no interest, public or private, that would justify the
recognition of a privilege under these circumstances.1 Thus, we agree with the
1. There is some discussion in the parties’ briefs about the hospital’s actions being a collection effort.
Johnston, supra, 19 Akron L.Rev. at 391, explains:
“In Patton v. Jacobs [(1948), 118 Ind.App. 358
,78 N.E.2d 789
], an Indiana court held that
a physician may disclose the patient’s medical bill in an effort to collect an overdue debt. This
seems logical, and is probably the law in Ohio, but it is important to note the discussion below
concerning the limits placed upon conditional privileges. The type of information which a physician
may release to collect a just debt should be limited to that which is necessary to collect the debt.”
However, we find it unnecessary to determine in this case whether and to what extent a
privilege applies to a debt collection matter. The hospital’s disclosures in this case went far beyond
that necessary for any mere debt collection effort. Tierney testified that “[i]f the issue was mere
delinquency, the only financial information [made] available would be the amount of the bill owed
and any payment history and any insurance information would be [made] available to the attorney
in that instance.” He also stated that in the absence of any SSI benefits, the hospital would write off
the accounts as uncollectible. It is also undisputed that the law firm’s function was limited to
identifying and contacting patients who were potential Social Security claimants, and that once it
determined that a patient was not a potential claimant, it would put that patient’s form in a cardboard
box, place the box in storage, and do nothing further with respect to that account. While it may have
been necessary for the hospital to disclose the patient registration forms in order to carry out their
plan, it is the plan itself that we find to be unprivileged. The hospital’s actions may, only in the
16
January Term, 1999
court of appeals that “[i]f hospitals wish to engage in this type of procedure in the
future, liability can be avoided [only] by obtaining clear patient consent for this
type of informational release.”
{¶ 37} This brings us to the fourth issue presented in this case, which is
whether the hospital did in fact obtain such consent. The hospital contends that its
general authorization for release of information form was sufficient to permit it to
disclose the patient registration forms to its attorney. The form provides:
“Authorization is hereby granted to release to my insurance company and/or
third party payor such information including medical records as may be necessary
for the completion of my hospitalization claims. I understand that the information
released upon authority of this authorization may contain information concerning
treatment for alcohol, drug abuse, a psychiatric condition, or HIV test results, an
AIDS diagnosis, or AIDS-related condition.”
{¶ 38} By its express terms, this form authorizes the hospital to release
medical information only “to my insurance company and/or third party payor,” and
then only “as may be necessary for the completion of my hospitalization claims.”
It does not authorize the release of medical information to the hospital’s lawyer,
and certainly not for the purpose of determining the patient’s status as a potential
Social Security claimant.
{¶ 39} The hospital argues, however, that “[i]n the form, the patient told the
hospital that it was acceptable to disclose confidential information on an as-needed
basis to secure third party payment of the patient’s bill.” The patient told the
hospital no such thing. What the patient told the hospital is that it may “release to
my insurance company and/or third party payor such information including medical
records as may be necessary for the completion of my hospitalization claims.” In
broadest possible sense, be characterized as a collection effort, but it is certainly not the kind of
collection effort contemplated by those authorities who would grant a privilege to collect an overdue
debt.
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SUPREME COURT OF OHIO
no way can this language be read to encompass what has occurred in this case.
{¶ 40} Moreover, a consent to release medical information must be fairly
specific in terms of to whom the release is made. As one court explained:
“Subparagraph (a)(4) of [Ga.Code] § 37-7-166 would have authorized
disclosure of the clinical records and the attending psychiatrist’s affidavit to the
patient’s attorney if the patient consented to the release. The patient consented to
this release, but the release was not made to the patient’s attorney; it was made to
her mother’s attorney. Disclosure of this material was therefore unauthorized under
§ 37-7-166(a)(4). The release of clinical records and the attending physician’s
affidavit based thereon was therefore unauthorized.” (Emphasis sic.) Mrozinski, supra,
205 Ga.App. at 736
,423 S.E.2d at 410
.
{¶ 41} In this case, the hospital’s general consent form did not provide the
authority to release medical information to the law firm and, therefore, the
disclosures were unauthorized.
{¶ 42} The fifth and final substantive issue is whether a third party can be
held liable for inducing the unauthorized, unprivileged disclosure of nonpublic
medical information. Those courts that have considered this issue have answered
in the affirmative, and, for the reasons expressed in those decisions, we now do the
same. See Hammonds, supra, 243 F.Supp. at 803
;Morris, supra,
191 W.Va. at 435
,446 S.E.2d at 657
;Alberts, supra,
395 Mass. at 70-71
,479 N.E.2d at 121
; Alexander, supra,197 Pa.Super. at 79
,177 A.2d at 146
.
{¶ 43} The law firm argues that “Attorney Heller needed the information
set forth on the patient registration forms to determine which patients might be
eligible for the SSI program.” We have no doubt of this. In each of the cases cited
above, the alleged inducer needed the information for some reason or purpose.
However, the inducer’s need for the information is irrelevant unless it is to advance
or protect some interest giving rise to a privilege.
{¶ 44} The law firm also argues that, unlike the above-cited cases, it did not
18
January Term, 1999
use the information against the patients. “Here, the information which the law firm
obtained from the hospital was to be used to produce a benefit for the patient, i.e.,
payment of the patients’ bill by a third party (Social Security).”
{¶ 45} Properly construed, this argument goes to the question of privilege.
As we explained above, there may be special situations where the interests of the
patient will justify the creation of a privilege to disclose. However, the only interest
that has been recognized in this regard is the patient’s interest in obtaining medical
care and treatment, and disclosure is limited to those who have a legitimate interest
in the patient’s health. Neal, supra,
745 F.Supp. at 1297
;Hague, supra,
37 N.J. at 336
,181 A.2d at 349
;Berry, supra,
8 Utah 2d at 196
,331 P.2d at 817
. Otherwise,
it is for the patient—not some medical practitioner, lawyer, or court—to determine
what the patient’s interests are with regard to personal confidential medical
information.
{¶ 46} We hold that a third party can be held liable for inducing the
unauthorized, unprivileged disclosure of nonpublic medical information that a
physician or hospital has learned within a physician-patient relationship. “To
establish liability the plaintiff must prove that: (1) the defendant knew or
reasonably should have known of the existence of the physician-patient
relationship; (2) the defendant intended to induce the physician to disclose
information about the patient or the defendant reasonably should have anticipated
that his actions would induce the physician to disclose such information; and (3)
the defendant did not reasonably believe that the physician could disclose that
information to the defendant without violating the duty of confidentiality that the
physician owed the patient.” Alberts, supra,
395 Mass. at 70-71
,479 N.E.2d at 121
. See, also,Morris, supra,
191 W.Va. at 435
,446 S.E.2d at 657
.
{¶ 47} Construing the evidence most strongly in favor of appellees, Civ.R.
56(C), we find that reasonable minds could conclude that the hospital breached its
duty of confidentiality owing to appellees and that the law firm induced the hospital
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SUPREME COURT OF OHIO
to do so. Accordingly, we hold that the trial court improperly granted summary
judgment as to each appellant, and the decision of the court of appeals is affirmed
as to this issue. Upon remand, the trial court shall, as soon as practicable, proceed
to the issue of class certification in accordance with Civ.R. 23.
{¶ 48} As to the procedural and evidentiary issues raised by appellees’
cross-appeal, we hold that (1) the issues with regard to the striking of appellees’
evidentiary exhibits are rendered moot by virtue of our decision denying summary
judgment; (2) the issues with regard to the trial court’s protective order precluding
appellees from deposing Melanie Sutton are also rendered moot by our decision
regarding summary judgment, in light of the trial court’s statement that “[i]f either
motion for summary judgment is denied, plaintiffs may then move the court for
relief from this protective order and for the right to depose Ms. Sutton”; and (3) the
trial court acted within the bounds of its discretionary authority in overruling
appellees’ motion to strike certain “scandalous and indecent matter” contained in
the law firm’s motion for a protective order.
{¶ 49} Accordingly, the judgment of the court of appeals is affirmed as to
these issues, but only for the reasons we have stated.
{¶ 50} Lastly, as to appellees’ continued insistence that they be entitled to
pursue other theories of liability, we agree with the reasoning of the appellate court
that these other theories are either unavailable, inapplicable because of their
respective doctrinal limitations, or subsumed by the tort of breach of confidence.
Indeed, it is the very awkwardness of the traditional causes of action that justifies
the recognition of the tort for breach of confidence in the first place. While cases
may arise in which the facts fall outside the parameters of this tort, but within the
parameters of some other theory of liability, this is not such a case. Thus, the
judgment of the court of appeals is affirmed with respect to these issues as well.
{¶ 51} For all the foregoing reasons, the judgment of the court of appeals is
affirmed, and the cause is remanded to the trial court for further proceedings
20
January Term, 1999
consistent with this opinion.
Judgment affirmed
and cause remanded.
MOYER, C.J., DOUGLAS, F.E. SWEENEY and PFEIFER, JJ., concur.
COOK, J., concurs in part and dissents in part.
LUNDBERG STRATTON, J., dissents.
__________________
COOK, J., concurring in part and dissenting in part.
{¶ 52} I concur with the majority’s recognition of independent torts for the
unauthorized disclosure of medical information and for the inducement thereof as
set forth in the syllabi. The United States District Court for the Northern District
of Ohio recognized these torts more than thirty years ago. Hammonds v. Aetna Cas.
& Sur. Co. (1965), 243 F.Supp. 793
,7 Ohio Misc. 25
,34 O.O.2d 138
. The holding
of today’s decision is appropriately narrow: it does “no more than recognize that
there are some circumstances under which a hospital can be held liable for the
unauthorized disclosure of confidential medical information to its attorney.” This
decision does not apply to disclosure of medical information in the context of the
risk management and quality assurance aspects of hospitals and medical facilities.
An entire body of law separate from that involved in our inquiry here exists to
govern those issues.
{¶ 53} I disagree, however, with the majority’s decision to rule on the
propriety of summary judgment. I would instead remand the cause to the trial court
to exercise that judgment after allowing the parties to address the elements of the
newly recognized torts.
Summary Judgment Ruling Should Be Remanded to the Trial Court
{¶ 54} Neither the tort of “unauthorized disclosure of medical information”
nor the tort of “inducement of unauthorized disclosure of medical information” was
at issue in the trial court; therefore, the trial court did not assess the evidence
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SUPREME COURT OF OHIO
presented in light of their elements. We should permit the trial court, now that the
issues have been pared down, to be the first to review the case for the propriety of
summary judgment. The matter should be remanded to the trial court to be
considered from the position that Biddle’s complaint states a claim of unauthorized
disclosure of medical information and inducement thereof. If the hospital and the
law firm wish to move for summary judgment on those claims, they should have
that opportunity. The new torts prompt different arguments from the defendants.
For example, until the recognition of the new torts, the hospital and the law firm
made only passing references to the hospital’s consent form because it was
unnecessary to resolve the other claims. On remand, the hospital and the law firm
may be able to produce evidence that consent was implied from this form, thereby
entitling them to summary judgment on the new torts. While both appellate courts
have reviewed the consent form, the trial court’s judgment gives no indication that
it considered the form in granting summary judgment on the pleaded torts.
{¶ 55} Even more important, though, is that with the recognition of the new
torts, the issues of causation and damages become very relevant, perhaps
dispositive. Prior to recognition of the new torts, it was unnecessary for the hospital
and the law firm to argue lack of causation or lack of damages in support of their
summary judgment motions because Biddle was grossly lacking support for other
elements of the pleaded torts. But under the new tort theories, causation and
damages are central to all of the hospital’s and law firm’s arguments concerning
the attorney-client relationship, the inherent confidentiality of that relationship, the
lack of publication beyond the law firm (all parties have agreed that the law firm is
not responsible for the secretary’s stealing the records and turning them over to the
television station), and the production of records to the law firm for the patient’s
benefit. The hospital and law firm should be permitted to make these arguments to
the trial court in the context of a summary judgment motion based on the elements
of the new torts.
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January Term, 1999
Conclusion
{¶ 56} Thus, I concur with the affirmance of the judgment of the appellate
court insofar as it recognized the torts of “unauthorized disclosure of medical
information” and “inducement of unauthorized disclosure of medical information.”
And I agree with the majority that the judgment of the court of appeals should be
affirmed on the evidentiary issues raised by the cross-appeal.
{¶ 57} I dissent, however, from this court’s judgment finding that questions
of fact exist as to these two torts — the trial court should have the first opportunity
to make such a determination. I would remand the matter to the trial court for
proceedings consistent with the recognition that plaintiff’s complaint states two
new causes of action. If the hospital and the law firm then wish to move for
summary judgment on those claims, they should have that opportunity.
__________________
LUNDBERG STRATTON, J., dissenting.
{¶ 58} I respectfully dissent. I view this case in simpler terms than the
extensive rationale set forth by the majority.
{¶ 59} 1. An attorney-client relationship existed between the law firm and
the hospital. The hospital, not the patients, was the law firm’s client. It is
immaterial to this case how the firm acquired the hospital as a client. The simple,
undisputed fact is that an attorney-client relationship existed between the law firm
and the hospital.
{¶ 60} 2. Because an attorney-client relationship existed, the law firm was
an agent, not a third party. It does not matter whether the release given by the
patient authorized the hospital to send the patient files to the law firm. As the
hospital’s agent, the law firm was entitled to review its client’s files and records.
The law firm was not a third party according to fundamental agency principles.
{¶ 61} The relationship between a principal and an agent is consensual and
fiduciary in nature. Miles v. Perpetual S. & L. Co. (1979), 58 Ohio St.2d 93, 95
,
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SUPREME COURT OF OHIO
12 O.O.3d 106, 107
,388 N.E.2d 1364, 1365
; Connelly v. Balkwill (1954),160 Ohio St. 430
,52 O.O. 329
,116 N.E.2d 701
. A principal-agent relationship exists “when one party exercises the right of control over the actions of another, and those actions are directed toward the attainment of an objective which the former seeks.” Hanson v. Kynast (1986),24 Ohio St.3d 171
, 24 OBR 403,494 N.E.2d 1091
, paragraph one of the syllabus. See, also, Mermer v. Med. Correspondence Serv. (1996),115 Ohio App.3d 717, 721
,686 N.E.2d 296, 299
(law firm acts as agent for
its client in securing medical records for litigation). Therefore, as the hospital’s
agent, the law firm stood in the shoes of its client, the hospital, when it acquired the
patient registration forms.
{¶ 62} 3. The attorney-client privilege encourages the free disclosure of all
information between the client and the attorney. The United States Supreme Court
acknowledged this basic principle in Upjohn v. United States (1981), 449 U.S. 383, 389
,101 S.Ct. 677, 682
,66 L.Ed.2d 584, 591
, when it stated that “[t]he privilege
recognizes that sound legal advice or advocacy serves public ends and that such
advice or advocacy depends upon the lawyer’s being fully informed by the client.”
{¶ 63} This principle is also embodied in the Ohio Code of Professional
Responsibility at EC 4-1:
“Both the fiduciary relationship existing between lawyer and client and the
proper functioning of the legal system requires the preservation by the lawyer of
confidences and secrets of one who has employed or sought to employ him. A
client must feel free to discuss whatever he wishes with his lawyer and a lawyer
must be equally free to obtain information beyond that volunteered by his client. A
lawyer should be fully informed of all the facts of the matter he is handling in order
for his client to obtain the full advantage of our legal system.”
{¶ 64} The concept is simple, based upon common sense and needs no
elaboration. A client must be free to share with its attorney any and all information
the client may possess in furtherance of the client’s interests.
24
January Term, 1999
{¶ 65} 4. The attorney is obligated to preserve all confidences of his or her
clients. Again, this is simple black-letter law. EC 4-1 continues:
“It is for the lawyer in the exercise of his independent professional judgment
to separate the relevant and important from the irrelevant and unimportant. The
observance of the ethical obligation of a lawyer to hold inviolate the confidences
and secrets of his client not only facilitates the full development of facts essential
to proper representation of the client but also encourages laymen to seek early legal
assistance.” See, also, DR 4-101(B).
{¶ 66} The lawyer’s duty to preserve the client’s confidences survives the
termination of the client-attorney relationship. Kala v. Aluminum Smelting &
Refining Co., Inc. (1998), 81 Ohio St.3d 1, 4
,688 N.E.2d 258, 262
; EC 4-6. This duty also survives the death of the client. Swetland v. Miles (1920),101 Ohio St. 501
,130 N.E. 22
. An attorney who discloses privileged information may be subject to disciplinary action, including suspension from the practice of law or disbarment. See Disciplinary Counsel v. Yurich (1997),78 Ohio St.3d 315
,677 N.E.2d 1190
.
Such privileged information is not subject to discovery. Civ.R. 26(B)(1). An
attorney may not be forced to testify concerning information acquired from a client
except in certain circumstances. R.C. 2317.02(A). I agree with the expression used
by appellants that these restrictions placed upon the attorney create a “closed loop”
that fully protects the patient’s information.
{¶ 67} 5. The hospital had a right to retain counsel for debt collection
purposes. Whether the law firm’s review of the records for potential
reimbursement from Social Security was a useful exercise or not is immaterial. The
hospital had a right to explore all avenues to seek reimbursement of its expenses.
If a patient had government assistance available for payment, the hospital had a
right to explore that resource, whether by its internal staff or through an agent.
{¶ 68} I fear that the majority opinion will severely impair the ability of a
hospital to function through its many agents. The lines of this decision are so fluid
25
SUPREME COURT OF OHIO
that it will be impossible to know when and where this new tort of “breach of
confidentiality” has been committed. Amici curiae identify a number of agents
upon whom hospitals must rely to conduct its business—auditors, billing agents,
claim form preparers, debt collectors, researchers, discharge planners, peer review
boards, consultants, vendors, technology assistants, and volunteers—all of whom
may be affected by this expansive opinion. Conversely, a patient release form must
now be so broad and encompassing as to be virtually meaningless.
{¶ 69} Attorneys may face similar constraints now that they will be viewed
in terms of third parties and not agents of their clients. Attorneys may now be
subject to potential liability for “inducing” a client to reveal to them privileged
information that the client possesses. It may now be necessary for an attorney to
advise a client that, because of all the privileges and confidential information that
the client potentially may have, the client should not disclose everything to the
attorney in order for both the attorney and the client to avoid potential liability for
breach of a confidence. Such a scenario, however absurd, is now only too real. I
believe the majority’s opinion will severely curtail full and frank disclosure of
information between an attorney and a client.
{¶ 70} I also question how to measure damages in a breach of
confidentiality case. The majority remands this cause to the trial court for
consideration of class certification. What damages could have been incurred from
a cursory review of a patient’s hospital registration form that eventually ended up
back in storage? The real culprit in this case is the disgruntled employee who took
the records and turned them over to a television station. How can the law firm be
liable for such theft and the callous disregard of the patients’ rights? Don’t the
employee’s actions break the chain of causation? I wonder how severely
traumatized were the few patients who were contacted by the law firm offering to
help them secure government benefits? Assuming arguendo that a tort had been
committed, I fail to see any resulting damages.
26
January Term, 1999
{¶ 71} There is no need to create a new tort because sufficient remedies for
the unauthorized, unprivileged disclosure of nonpublic medical information to a
third party already exist under current law. I believe that the issues of “inducing
the unauthorized, unprivileged disclosure of nonpublic medical information” and
“qualified privilege” are red herrings and not material. The extent of the patient
release given to the hospital is not an issue. This is simply a case about a hospital’s
right to provide information, albeit confidential patient information, to its lawyers
for review and the lawyers’ corresponding right to hold this information in
confidence. No more.
{¶ 72} I concur with Justice Cook’s dissenting opinion that, at the very
least, this court should remand this matter to allow the parties to proceed to litigate
the merits of the case in light of this newly created tort. Due process requires such
a remand.
{¶ 73} For these reasons, I respectfully dissent.
__________________
27