In Hageman v. Southwest Gen. Health Ctr., et al., Slip Opinion 2008-Ohio-3343, the plaintiff produced his psychiatric records pursuant to discovery in a divorce/child custody dispute. Criminal assault charges were also pending against the plaintiff regarding allegations made by his ex-wife. The attorney for the plaintiff’s ex-wife provided those records to the prosecutor upon request. Mr. Hageman had not signed any release of those records with the health care provider. The medical records in question were never made part of the record in either the civil domestic case, or in the criminal case.
A divided court held that such confidential and privileged records, produced in discovery, should remain confidential regarding any other matters, following and expanding upon its 1999 decision in Biddle v. Warren Gen. Hosp. (1999), 86 O.S.3d 395, and that disclosure of such records by an attorney without a waiver can result in liability in tort for such disclosure. Although such confidentiality is deemed waived when an issue is presented in litigation for which medical records are relevant, the majority found that such records should remain confidential regarding any other potential disclosure. Two dissenting justices noted that the majority’s decision “amounts to judicially legislating from the bench,” and that this new tort action is created “without setting forth the elements, or specifying the appropriate measure of damages for violation.”
Lawyers who obtain medical records in the normal course of discovery must insure that such records remain confidential other than for the purposes for which they were provided in specific
litigation. Disclosure to persons beyond or outside the scope of such litigation will expose lawyers, and others, to potential tort liability in Ohio.