Hageman v. Southwest General Health Center

I

{¶ 1} This case presents the issue of whether an attorney may be liable for the unauthorized disclosure to a third party of medical information regarding an opposing party that was obtained through litigation. For the following reasons, we hold that an attorney may be held liable for such an unauthorized disclosure. Therefore, we affirm the judgment of the court of appeals and remand the case for further proceedings.

II

{¶ 2} In January 2003, appellee, Kenneth Hageman, began meeting with Dr. Thomas Thysseril for psychiatric treatment. In his first treatment session, Hageman admitted having homicidal thoughts about his wife. Dr. Thysseril determined that Hageman has bipolar disorder and treated him for this condition through July 2003.

{¶ 3} In February 2003, Hageman’s wife filed for- divorce in the Cuyahoga County Court of Common Pleas. Appellant, Barbara Belovich, served as her attorney in this matter. Hageman filed a counterclaim, in which he sought legal custody of the couple’s minor child.

{¶ 4} While both the divorce case and Hageman’s psychiatric treatment were ongoing, Hageman allegedly assaulted his wife at their home, and criminal charges were brought against him. Shortly thereafter, his wife sought and received a civil domestic-violence protection order. The order gave her temporary custody of the couple’s child and suspended Hageman’s contact and visitation rights until a full hearing could be held.

{¶ 5} In preparation for this hearing, Belovich issued subpoenas to Dr. Thysseril, seeking the production of Hagemaris medical records. Belovich believed that Hageman had waived his privilege to those records by filing the *187counterclaim for custody in the divorce action, given the decision of the Court of Appeals for Cuyahoga County in Gill v. Gill, 8th Dist. No. 81463, 2003-Ohio-180, 2003 WL 132447.1 Although Hageman did not sign a release for this information, Dr. Thysseril’s office faxed Hageman’s records to Belovich.

{¶ 6} On the date of the civil-protection-order hearing, Belovich met with the prosecutor in the criminal case against Hageman. The prosecutor was attending the hearing as an observer and was not scheduled to testify or otherwise participate in the hearing. Nonetheless, Belovich gave the prosecutor a copy of Hageman’s medical records that she had received from Dr. Thysseril.

{¶ 7} Before the scheduled hearing, Hageman and his wife entered into a separation agreement that was ultimately incorporated into a divorce decree entered by the trial court. Hageman’s medical records were therefore never admitted into evidence in the divorce/protection-order case. Likewise, they were not admitted in the criminal matter, and Hageman was ultimately acquitted.

{¶ 8} Shortly after the separation agreement was completed, Hageman brought the instant action against Belovich, Hageman’s ex-wife, Dr. Thysseril, Oak Tree Physicians (Dr. Thysseril’s employer), and Southwest General Health Center (the hospital housing Oak Tree). Hageman alleged that the defendants had improperly disclosed his medical records without his authorization. The trial court granted summary judgment to the defendants on all of Hageman’s claims. The court of appeals affirmed the trial court’s holding in regard to the motions for summary judgment filed by all the defendants except Belovich. Hageman v. Southwest Gen. Health Ctr., Cuyahoga App. No. 87826, 2006-Ohio-6765, 2006 WL 3743095, ¶ 29-30. In reversing the trial court’s holding as to Belovich, the court of appeals stated that she had “overstepped her bounds as [the ex-wife’s] divorce attorney when she disseminated information regarding [Hageman’s] psychiatric condition to the prosecution.” Id. at ¶ 31. We accepted Belovich’s discretionary appeal. Hageman v. Southwest Gen. Health Ctr., 114 Ohio St.3d 1410, 2007-Ohio-2632, 867 N.E.2d 844.

Ill

{¶ 9} In general, a person’s medical records are confidential. Numerous state and federal laws recognize and protect an individual’s interest in ensuring that his or her medical information remains so. For example, the Ohio Public Records Act prohibits medical records maintained by public institutions from being released pursuant to a public-records request: “ ‘Public record’ means *188records kept by any public office * * * [but] does not mean any of the following: (a) Medical records.”2 R.C. 149.43(A)(1)(a). Likewise, the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) prevents health-care providers from disclosing health information except in certain specific circumstances. See generally 45 C.F.R. 164.502. Physician-patient and psychologist-patient privileges have been codified in Ohio to deny the use of such information in litigation except in certain limited circumstances. See R.C. 2317.02(B)(1) and 4732.19. Physical and mental-health examinations of a litigating party may be ordered only when relevant and “for good cause shown.” See Civ.R. 35(A).

{¶ 10} We explicitly recognized and applied this basic policy of confidentiality in Biddle v. Warren Gen. Hosp. (1999), 86 Ohio St.3d 395, 715 N.E.2d 518. In that case, we confronted issues arising from the disclosure of health-care information obtained through a physician-patient relationship. After surveying cases in Ohio and beyond, we recognized that the breach of patient confidentiality is a palpable wrong. Id. at 400, 715 N.E.2d 518. However, we also determined that such an injury is difficult to remedy appropriately. Id.

{¶ 11} Finding the various methods that courts have used to address such claims (including theories like invasion of privacy, defamation, breach of contract, and others) to be unsatisfactory, we recognized a separate tort for breach of confidentiality related to medical information. Id. at 400-401, 715 N.E.2d 518. We defined the boundaries of this tort by recognizing two related causes of action: one against physicians and hospitals that disclose confidential medical information to a third party without authorization or privilege to do so, and one against third parties who induce physicians or hospitals to disclose such information. Id. at paragraphs one and three of the syllabus.

{¶ 12} Hageman has cited Biddle as one of the underlying justifications for his claim against Belovich. In her sole proposition of law, Belovich argues that the causes of action recognized in Biddle do not apply to attorneys disclosing healthcare information lawfully obtained in the course of litigation, even if the disclosure to a third party is otherwise unauthorized.

{¶ 13} Notwithstanding that the specific causes of action recognized in Biddle apply imperfectly to the facts in this case, we conclude that the rationale for our decision there applies here. Biddle stressed the importance of upholding an individual’s right to medical confidentiality beyond just the facts of that case. “[I]t is for the patient — not some medical practitioner, lawyer, or court — to *189determine what the patient’s interests are with regard to personal confidential medical information.” Biddle, 86 Ohio St.3d at 408, 715 N.E.2d 518. As the Supreme Court of California has observed in discussing the related concept of a right to privacy, such a right “ ‘is not so much one of total secrecy as it is of the right to define one’s circle of intimacy — to choose who shall see beneath the quotidian mask.’ ” (Emphasis sic.) Hill v. Natl. Collegiate Athletic Assn. (1994), 7 Cal.4th 1, 25, 26 Cal.Rptr.2d 834, 865 P.2d 633, quoting Briscoe v. Reader’s Digest Assn., Inc. (1971), 4 Cal.3d 529, 534, 93 Cal.Rptr. 866, 483 P.2d 34. If the right to confidentiality is to mean anything, an individual must be able to direct the disclosure of his or her own private information.

{¶ 14} Hageman admits that he made his health an issue in the divorce action by seeking custody of his and his ex-wife’s minor child. Pursuant to the law of the Eighth Appellate District, Hageman was required to demonstrate that he was capable of caring for his child in order to be granted custody. See Gill, 2003-Ohio-180, 2003 WL 132447, ¶ 18-19. For that reason, he waived his medical privilege for the purposes of that case. See id. Whatever discomfort arose from this disclosure of private and confidential information was tempered by the possibility of success on his custody claim. However, there is neither a legal justification for nor a practical benefit to the proposition that a waiver for a specific, limited purpose is a waiver for another purpose.

{¶ 15} Creating an expansive waiver would be inconsistent with the generally recognized confidentiality provisions in Ohio and federal law. Moreover, the expansive waiver urged by Belovich would not be desirable public policy for a number of reasons. First, individuals should be encouraged to seek treatment for medical or psychological conditions, and privacy is often essential to effective treatment. This fact is especially true for psychological conditions. “Effective psychotherapy * * * depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.” Jaffee v. Redmond (1996), 518 U.S. 1, 10, 116 S.Ct. 1923, 135 L.Ed.2d 337, citing studies and authorities presented by the American Psychiatric Association and the American Psychological Association.

{¶ 16} Likewise, if an expansive waiver existed for medical records obtained through litigation, the potential for abuse of this waiver would be high. The party receiving the records will generally be the only person with anything to gain from the disclosure of the information beyond the underlying litigation. The *190facts in this case convince us that an attorney with medical records of a party in one case could use those records for purposes not intended by the party granting the waiver. Belovich represented Hageman’s ex-wife in the divorce and civil-protection-order cases and obtained Hageman’s psychological records as part of the divorce action. By sharing that information with the prosecutor in the criminal case against Hageman when it had not yet been made available in that case, she intensified the legal pressure against Hageman. It is not difficult to imagine that someone facing such actions might be encouraged to settle more quickly than he or she would had the medical records not been shared.

{¶ 17} With these considerations in mind, we hold that when the cloak of confidentiality that applies to medical records is waived for the purposes of litigation, the waiver is limited to that case. An attorney can certainly use medical records obtained lawfully through the discovery process for the purposes of the case at hand — e.g., submitting them to expert witnesses for analysis or introducing them at trial. However, an attorney may be liable to an opposing party for the unauthorized disclosure of that party’s medical information that was obtained through litigation. Thus, as in our decision in Biddle, we conclude that an independent tort exists to provide an injured individual with a remedy for such an action.

{¶ 18} One final note is necessary. Belovich suggested at oral argument that if we were to recognize such a cause of action, it could be waived if the disclosing party failed to take steps to keep the medical records private, such as by requesting a protective order.

{¶ 19} We note her concern, but decline to address what effect the failure to take such actions may have on the tort recognized herein, given these facts. While it is undisputed that Hageman did not request a protective order or another form of protection for his medical records, it is also true that he did not explicitly authorize Dr. Thysseril to disclose the records to Belovich, the trial court did not hold a hearing on the disclosure (rather, Belovich executed a subpoena on her own without a signed release), the records were distributed to the prosecutor only a few days after they were released to Belovich, and the records were never entered into evidence in the divorce proceeding or the criminal matter. Thus, Hageman had no opportunity to object to the production of these records or to seek a protective order, given Belovich’s conduct. Further, because the records were not introduced into evidence, they did not become public before Belovich disclosed them. It may be appropriate to discuss the failure to take protective measures if the issue actually arises.

IV

{¶ 20} By giving the psychological records she obtained in the divorce case to the prosecutor in the criminal case against Hageman, Belovich violated Hage*191man’s rights to keep that information confidential. Allowing attorneys with such information obtained through discovery to treat the information as public would violate the policy of maintaining the confidentiality of individual medical records. We therefore recognize that waiver of medical confidentiality for litigation purposes is limited to the specific case for which the records are sought and that an attorney who violates this limited waiver by disclosing the records to a third party unconnected to the litigation may be held liable for these actions.

{¶ 21} Therefore, the judgment of the court of appeals is hereby affirmed, and the case is remanded for further proceedings consistent with this opinion.

Judgment affirmed and cause remanded.