Biddle v. Warren General Hospital

Ajlice Robie Resnick, J. 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 relationship. 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. 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. 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. Over eighty years ago, the Supreme Court of Washington stated: — 400 — “We shall not go into the question, suggested in respondents’ brief, that the 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. 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 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. Coming 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 — 401 — Ohio Misc. 25, 34 O.O.2d 138 (interpreting Ohio law); Lujan v. Mansmann (E.D.Pa.1997), 956 F.Snpp. 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; Home 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 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. 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. 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. 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 — 402 — (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 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. 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. 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, siopra, 19 Akron L.Rev. at 384-392; Vickery, supra, 82 Colum.L.Rev. at 1462-1468. We hold that 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 which outweighs the patient’s interest in confidentiality. 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 — 403 — 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.” 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.” 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. 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 Plaintiffs 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 Armaeost disclosed the medical information only to the physician otherwise responsible for the treatment — 404 — of Plaintiff for conditions manifested in the course of or affecting his employment — a physician also bound by O.R.C. § 1731.22(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.) The privilege recognized in Neal applies only to disclosures made to 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. 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. 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 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), — 405 — 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. 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(l)(b) and MontCode 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. 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 attorney. 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 SSL 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). We can find no interest, public or private, that would justify the recognition of — 406 — a privilege under these circumstances.1 Thus, we agree with the 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.” 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.” 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. 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 — 407 — 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 no way can this language be read to encompass what has occurred in this case. 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. 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. 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. 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. The law firm also argues that, unlike the above-cited cases, it did not 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).” 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 — 408 — 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. 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. 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 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. 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. Accordingly, the judgment of the court of appeals is affirmed as to these issues, but only for the reasons we have stated. 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 — 409 — 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. 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 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. Footnotes [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 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.