McCoy v. Maxwell

Nader, Judge. Appellant, Elaine McCoy, appeals the judgment issued by the Portage County Court of Common Pleas, granting appellee Jennifer Maxwell’s motion to compel discovery. On December 28, 1998, appellant filed a complaint against appellee for malicious prosecution, libel, and slander. On January 21,1999, appellee filed a motion for a definite statement, pursuant to Civ.R. 12(E). On February 10, 1999, the trial court granted appellee’s motion and ordered appellant to file an amended complaint. Appellant’s amended complaint set forth causes of action for libel and slander and included the following allegations: “1. On or about November 23, 1998, Defendant, Jennifer Maxwell, maliciously filed a report with the Kent State University Police Department in which she falsely accused Plaintiff of criminal conduct and made other false statements which maliciously maligned Plaintiffs character and reputation, including, but. not limited to, the statement that Plaintiff was an alcoholic whose alcoholism was out of control, that Plaintiff was an unstable individual who had been sexually harassing Defendant and, that Plaintiff had been stalking Defendant and might potentially try to kill her. “2. Plaintiff has suffered irreparable damages, including damage to her personal and professional reputation as a proximate result of Defendant’s maliciously libeling her.” On August 10, 1999, appellee filed a motion to compel discovery of the name and address of appellant’s psychologist and/or psychiatrist and her treatment records. Appellee argued that the information was discoverable because appellant had made a claim for damages, and appellee was entitled to verify damages *358 that appellant may seek for emotional distress. Appellee also argued that because appellant’s complaint alleged that appellee stated that appellant was an unstable person, appellant’s psychological and psychiatric records may provide information relevant to appellee’s defense. On September 22, 1999, appellant filed a memorandum in opposition to appellee’s motion to compel discovery. Appellant argued that the records were not relevant because she had not made any claim for emotional distress and that if they were relevant, the records are privileged and undiscoverable under R.C. 2317.02 and 4732.19. On October 8, 1999, the trial court granted appellee’s motion to compel discovery and ordered that appellant provide to appellee’s attorney the names and addresses of all treating psychologists and psychiatrists and the appropriate medical releases for records. The trial court concluded that the information was discoverable because appellant’s psychiatric background was relevant to appellee’s defense. From this judgment, appellant assigns the following error: “The trial court committed prejudicial error as a matter of law in granting a motion to compel plaintiff to divulge privileged information regarding any psychiatric or psychological treatment.” Appellant contends that any information about her psychiatric or psychological treatment is privileged under R.C. 2317.02(B) and 4732.19 and cannot be discovered unless that privilege is waived. Appellant asserts that because she is not claiming damages for emotional distress in her lawsuit against appellee, she did not waive the physician-patient or psychologist-client privilege. Pursuant to R.C. 4732.19, confidential communications between a licensed psychologist and client are “privileged in the same manner as communications between a physician and a patient.” State v. Stewart (1996), 111 Ohio App.3d 525, 530, 676 N.E.2d 912, 916. R.C. 2317.02 governs the physician-patient privilege and has been interpreted by the Supreme Court of Ohio to mean that the privilege applies to all communications between a physician and patient unless it is waived. In re Miller (1992), 63 Ohio St.3d 99, 109, 585 N.E.2d 396, 404-405. R.C. 2317.02(B)(1) sets forth three circumstances when the physician-patient privilege is waived: “The testimonial privilege under this division does not apply * * * in any of the following circumstances: “(a) In any civil action, in accordance with the discovery provisions of the Rules of Civil Procedure in connection with a civil action, or in connection with a claim under Chapter 4123. of the Revised Code, under any of the following circumstances: *359 “(i) If the patient or the guardian or other legal representative of the patient gives express consent; “(ii) If the patient is deceased, the spouse of the patient or the executor or administrator of his estate gives express consent; “(iii) If a medical claim, dental claim, chiropractic claim, or optometric claim, as defined in section 2305.11 of the Revised Code, 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, the personal representative of the estate of the patient if deceased, or his guardian or other legal representative.” R.C. 2317.02(B)(l)(a)(iii) applies to this case because appellant is a patient who has filed a civil action; however, her medical records are not automatically discoverable merely because she fits within this category. Although R.C. 2317.02(B)(l)(a)(iii) provides that the physician-patient privilege does not apply to an individual in appellant’s circumstances, R.C. 2317.02(B)(3)(a) places a limit on what communications may be discovered and provides: “If the testimonial privilege described in division (B)(1) of this section does not apply as provided in division (B)(l)(a)(iii) of this section, a physician or dentist may be compelled to testify or to submit to discovery under the Rules of Civil Procedure only as to a communication made to him by the patient in question in that relation, or his 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, dental claim, chiropractic claim, or optometric claim, action for wrongful death, other civil action, or claim under Chapter 4123. of the Revised Code.” In the instant case, appellant’s psychiatric or psychological records remain privileged because they are not communications that relate causally or historically to physical or mental injuries that are relevant to issues in the defamation suit filed by appellant. We recognize that information contained in appellant’s psychological or psychiatric records may be extremely relevant to appellee’s defense of the defamation suit; however, relevancy alone does not waive the physician-patient or psychologist-client privilege. Because appellant has not made a claim for emotional distress or mental anguish and has merely alleged that statements made by appellee damaged her personal and professional reputation, she did not waive the physician-patient or psychologist-client privilege. The trial court erred by ordering appellant to divulge information relating to her psychiatric or psychological treatment. Appellant’s sole assignment of error has merit. *360 For the foregoing reasons, the judgment of the Portage County Court of Common Pleas is reversed, and this cause is remanded to the trial court for proceedings consistent with this opinion. Judgment reversed and cause remanded. William M. O’Neill, J., concurs. Christley, P.J., dissents.