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OHIO REVISED CODE

TITLE XXIII COURTS - COMMON PLEAS

CHAPTER 2317 EVIDENCE

§ 2317.02. Privileged communications.

The following persons shall not testify in certain respects:

(A) An attorney, concerning a communication made to the attorney by a client in that relation or the attorney's advice to a client, except that the attorney may testify by express consent of the client or, if the client is deceased, by the express consent of the surviving spouse or the executor or administrator of the estate of the deceased client and except that, if the client voluntarily testifies or is deemed by section 2151.421 [2151.42.1] of the Revised Code to have waived any testimonial privilege under this division, the attorney may be compelled to testify on the same subject;

(B) (1) A physician or a dentist concerning a communication made to the physician or dentist by a patient in that relation or the physician's or dentist's advice to a patient, except as otherwise provided in this division, division (B)(2), and division (B)(3) of this section, and except that, if the patient is deemed by section 2151.421 [2151.42.1] of the Revised Code to have waived any testimonial privilege under this division, the physician may be compelled to testify on the same subject.

The testimonial privilege established under this division does not apply, and a physician or dentist may testify or may be compelled to testify, 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:

(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 the patient's estate gives express consent;

(iii) If a medical claim, dental claim, chiropractic claim, or optometric claim, as defined in section 2305.113 [2305.11.3] 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 the patient's guardian or other legal representative.

(b) In any civil action concerning court-ordered treatment or services received by a patient, if the court-ordered treatment or services were ordered as part of a case plan journalized under section 2151.412 [2151.41.2] of the Revised Code or the court-ordered treatment or services are necessary or relevant to dependency, neglect, or abuse or temporary or permanent custody proceedings under Chapter 2151. of the Revised Code.

(c) In any criminal action concerning any test or the results of any test that determines the presence or concentration of alcohol, a drug of abuse, or alcohol and a drug of abuse in the patient's blood, breath, urine, or other bodily substance at any time relevant to the criminal offense in question.

(d) In any criminal action against a physician or dentist. In such an action, the testimonial privilege established under this division does not prohibit the admission into evidence, in accordance with the Rules of Evidence, of a patient's medical or dental records or other communications between a patient and the physician or dentist that are related to the action and obtained by subpoena, search warrant, or other lawful means. A court that permits or compels a physician or dentist to testify in such an action or permits the introduction into evidence of patient records or other communications in such an action shall require that appropriate measures be taken to ensure that the confidentiality of any patient named or otherwise identified in the records is maintained. Measures to ensure confidentiality that may be taken by the court include sealing its records or deleting specific information from its records.

(e) In any will contest action under sections 2107.71 to 2107.77 of the Revised Code if all of the following apply:

(i) The patient is deceased.

(ii) A party to the will contest action requests the testimony, demonstrates to the court that that party would be an heir of the patient if the patient died without a will, is a beneficiary under the will that is the subject of the will contest action, or is a beneficiary under another testamentary document allegedly executed by the patient, and demonstrates to the court that the testimony is necessary to establish the party's rights as described in this division.

(2) (a) If any law enforcement officer submits a written statement to a health care provider that states that an official criminal investigation has begun regarding a specified person or that a criminal action or proceeding has been commenced against a specified person, that requests the provider to supply to the officer copies of any records the provider possesses that pertain to any test or the results of any test administered to the specified person to determine the presence or concentration of alcohol, a drug of abuse, or alcohol and a drug of abuse in the person's blood, breath, or urine at any time relevant to the criminal offense in question, and that conforms to section 2317.022 [2317.02.2] of the Revised Code, the provider, except to the extent specifically prohibited by any law of this state or of the United States, shall supply to the officer a copy of any of the requested records the provider possesses. If the health care provider does not possess any of the requested records, the provider shall give the officer a written statement that indicates that the provider does not possess any of the requested records.

(b) If a health care provider possesses any records of the type described in division (B)(2)(a) of this section regarding the person in question at any time relevant to the criminal offense in question, in lieu of personally testifying as to the results of the test in question, the custodian of the records may submit a certified copy of the records, and, upon its submission, the certified copy is qualified as authentic evidence and may be admitted as evidence in accordance with the Rules of Evidence. Division (A) of section 2317.422 [2317.42.2] of the Revised Code does not apply to any certified copy of records submitted in accordance with this division. Nothing in this division shall be construed to limit the right of any party to call as a witness the person who administered the test to which the records pertain, the person under whose supervision the test was administered, the custodian of the records, the person who made the records, or the person under whose supervision the records were made.

(3) (a) If the testimonial privilege described in division (B)(1) of this section does not apply as provided in division (B)(1)(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 the physician or dentist by the patient in question in that relation, or the physician's or dentist's 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.

(b) If the testimonial privilege described in division (B)(1) of this section does not apply to a physician or dentist as provided in division (B)(1)(c) of this section, the physician or dentist, in lieu of personally testifying as to the results of the test in question, may submit a certified copy of those results, and, upon its submission, the certified copy is qualified as authentic evidence and may be admitted as evidence in accordance with the Rules of Evidence. Division (A) of section 2317.422 [2317.42.2] of the Revised Code does not apply to any certified copy of results submitted in accordance with this division. Nothing in this division shall be construed to limit the right of any party to call as a witness the person who administered the test in question, the person under whose supervision the test was administered, the custodian of the results of the test, the person who compiled the results, or the person under whose supervision the results were compiled.

(c) If the testimonial privilege described in division (B)(1) of this section does not apply as provided in division (B)(1)(e) of this section, a physician or dentist may be compelled to testify or to submit to discovery in the will contest action under sections 2107.71 to 2107.77 of the Revised Code only as to the patient in question on issues relevant to the competency of the patient at the time of the execution of the will. Testimony or discovery conducted pursuant to this division shall be conducted in accordance with the Rules of Civil Procedure.

(4) The testimonial privilege described in division (B)(1) of this section is not waived when a communication is made by a physician to a pharmacist or when there is communication between a patient and a pharmacist in furtherance of the physician-patient relation.

(5) (a) As used in divisions (B)(1) to (4) of this section, "communication" means acquiring, recording, or transmitting any information, in any manner, concerning any facts, opinions, or statements necessary to enable a physician or dentist to diagnose, treat, prescribe, or act for a patient. A "communication" may include, but is not limited to, any medical or dental, office, or hospital communication such as a record, chart, letter, memorandum, laboratory test and results, x-ray, photograph, financial statement, diagnosis, or prognosis.

(b) As used in division (B)(2) of this section, "health care provider" means a hospital, ambulatory care facility, long-term care facility, pharmacy, emergency facility, or health care practitioner.

(c) As used in division (B)(5)(b) of this section:

(i) "Ambulatory care facility" means a facility that provides medical, diagnostic, or surgical treatment to patients who do not require hospitalization, including a dialysis center, ambulatory surgical facility, cardiac catheterization facility, diagnostic imaging center, extracorporeal shock wave lithotripsy center, home health agency, inpatient hospice, birthing center, radiation therapy center, emergency facility, and an urgent care center. "Ambulatory health care facility" does not include the private office of a physician or dentist, whether the office is for an individual or group practice.

(ii) "Emergency facility" means a hospital emergency department or any other facility that provides emergency medical services.

(iii) "Health care practitioner" has the same meaning as in section 4769.01 of the Revised Code.

(iv) "Hospital" has the same meaning as in section 3727.01 of the Revised Code.

(v) "Long-term care facility" means a nursing home, residential care facility, or home for the aging, as those terms are defined in section 3721.01 of the Revised Code; an adult care facility, as defined in section 3722.01 of the Revised Code; a nursing facility or intermediate care facility for the mentally retarded, as those terms are defined in section 5111.20 of the Revised Code; a facility or portion of a facility certified as a skilled nursing facility under Title XVIII [18] of the "Social Security Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended.

(vi) "Pharmacy" has the same meaning as in section 4729.01 of the Revised Code.

(6) Divisions (B)(1), (2), (3), (4), and (5) of this section apply to doctors of medicine, doctors of osteopathic medicine, doctors of podiatry, and dentists.

(7) Nothing in divisions (B)(1) to (6) of this section affects, or shall be construed as affecting, the immunity from civil liability conferred by section 307.628 [307.62.8] or 2305.33 of the Revised Code upon physicians who report an employee's use of a drug of abuse, or a condition of an employee other than one involving the use of a drug of abuse, to the employer of the employee in accordance with division (B) of that section. As used in division (B)(7) of this section, "employee," "employer," and "physician" have the same meanings as in section 2305.33 of the Revised Code.

(C) A member of the clergy, rabbi, priest, or regularly ordained, accredited, or licensed minister of an established and legally cognizable church, denomination, or sect, when the member of the clergy, rabbi, priest, or minister remains accountable to the authority of that church, denomination, or sect, concerning a confession made, or any information confidentially communicated, to the member of the clergy, rabbi, priest, or minister for a religious counseling purpose in the member of the clergy's, rabbi's, priest's, or minister's professional character; however, the member of the clergy, rabbi, priest, or minister may testify by express consent of the person making the communication, except when the disclosure of the information is in violation of a sacred trust;

(D) Husband or wife, concerning any communication made by one to the other, or an act done by either in the presence of the other, during coverture, unless the communication was made, or act done, in the known presence or hearing of a third person competent to be a witness; and such rule is the same if the marital relation has ceased to exist;

(E) A person who assigns a claim or interest, concerning any matter in respect to which the person would not, if a party, be permitted to testify;

(F) A person who, if a party, would be restricted under section 2317.03 of the Revised Code, when the property or thing is sold or transferred by an executor, administrator, guardian, trustee, heir, devisee, or legatee, shall be restricted in the same manner in any action or proceeding concerning the property or thing.

(G) (1) A school guidance counselor who holds a valid educator license from the state board of education as provided for in section 3319.22 of the Revised Code, a person licensed under Chapter 4757. of the Revised Code as a professional clinical counselor, professional counselor, social worker, independent social worker, marriage and family therapist or independent marriage and family therapist, or registered under Chapter 4757. of the Revised Code as a social work assistant concerning a confidential communication received from a client in that relation or the person's advice to a client unless any of the following applies:

(a) The communication or advice indicates clear and present danger to the client or other persons. For the purposes of this division, cases in which there are indications of present or past child abuse or neglect of the client constitute a clear and present danger.

(b) The client gives express consent to the testimony.

(c) If the client is deceased, the surviving spouse or the executor or administrator of the estate of the deceased client gives express consent.

(d) The client voluntarily testifies, in which case the school guidance counselor or person licensed or registered under Chapter 4757. of the Revised Code may be compelled to testify on the same subject.

(e) The court in camera determines that the information communicated by the client is not germane to the counselor-client, marriage and family therapist-client, or social worker-client relationship.

(f) A court, in an action brought against a school, its administration, or any of its personnel by the client, rules after an in-camera inspection that the testimony of the school guidance counselor is relevant to that action.

(g) The testimony is sought in a civil action and concerns court-ordered treatment or services received by a patient as part of a case plan journalized under section 2151.412 [2151.41.2] of the Revised Code or the court-ordered treatment or services are necessary or relevant to dependency, neglect, or abuse or temporary or permanent custody proceedings under Chapter 2151. of the Revised Code.

(2) Nothing in division (G)(1) of this section shall relieve a school guidance counselor or a person licensed or registered under Chapter 4757. of the Revised Code from the requirement to report information concerning child abuse or neglect under section 2151.421 [2151.42.1] of the Revised Code.

(H) A mediator acting under a mediation order issued under division (A) of section 3109.052 [3109.05.2] of the Revised Code or otherwise issued in any proceeding for divorce, dissolution, legal separation, annulment, or the allocation of parental rights and responsibilities for the care of children, in any action or proceeding, other than a criminal, delinquency, child abuse, child neglect, or dependent child action or proceeding, that is brought by or against either parent who takes part in mediation in accordance with the order and that pertains to the mediation process, to any information discussed or presented in the mediation process, to the allocation of parental rights and responsibilities for the care of the parents' children, or to the awarding of parenting time rights in relation to their children;

(I) A communications assistant, acting within the scope of the communication assistant's authority, when providing telecommunications relay service pursuant to section 4931.35 of the Revised Code or Title II of the "Communications Act of 1934," 104 Stat. 366 (1990), 47 U.S.C. 225, concerning a communication made through a telecommunications relay service. Nothing in this section shall limit the obligation of a communications assistant to divulge information or testify when mandated by federal law or regulation or pursuant to subpoena in a criminal proceeding.

Nothing in this section shall limit any immunity or privilege granted under federal law or regulation.

(J) (1) A chiropractor in a civil proceeding concerning a communication made to the chiropractor by a patient in that relation or the chiropractor's advice to a patient, except as otherwise provided in this division. The testimonial privilege established under this division does not apply, and a chiropractor may testify or may be compelled to testify, 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:

(a) If the patient or the guardian or other legal representative of the patient gives express consent.

(b) If the patient is deceased, the spouse of the patient or the executor or administrator of the patient's estate gives express consent.

(c) If a medical claim, dental claim, chiropractic claim, or optometric claim, as defined in section 2305.113 [2305.11.3] 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 the patient's guardian or other legal representative.

(2) If the testimonial privilege described in division (J)(1) of this section does not apply as provided in division (J)(1)(c) of this section, a chiropractor may be compelled to testify or to submit to discovery under the Rules of Civil Procedure only as to a communication made to the chiropractor by the patient in question in that relation, or the chiropractor's 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.

(3) The testimonial privilege established under this division does not apply, and a chiropractor may testify or be compelled to testify, in any criminal action or administrative proceeding.

(4) As used in this division, "communication" means acquiring, recording, or transmitting any information, in any manner, concerning any facts, opinions, or statements necessary to enable a chiropractor to diagnose, treat, or act for a patient. A communication may include, but is not limited to, any chiropractic, office, or hospital communication such as a record, chart, letter, memorandum, laboratory test and results, x-ray, photograph, financial statement, diagnosis, or prognosis.

HISTORY: RS § 5241; S&S 558; S&C 1038; 51 v 57, § 315; 67 v 113, § 314; GC § 11494; Bureau of Code Revision, 10-1-53; 125 v 313 (Eff 10-13-53); 136 v H 682 (Eff 7-28-75); 136 v H 1426 (Eff 7-1-76); 138 v H 284 (Eff 10-22-80); 140 v H 205 (Eff 10-10-84); 141 v H 528 (Eff 7-9-86); 141 v H 529 (Eff 3-11-87); 142 v H 1 (Eff 1-5-88); 143 v S 2 (Eff 11-1-89); 143 v H 615 (Eff 3-27-91); 143 v S 3 (Eff 4-11-91); 144 v S 343 (Eff 3-24-93); 145 v S 121 (Eff 10-29-93); 145 v H 335 (Eff 12-9-94); 146 v S 230 (Eff 10-29-96); 146 v S 223 (Eff 3-18-97); 147 v H 606 (Eff 3-9-99); 148 v H 448 (Eff 10-5-2000); 148 v S 172 (Eff 2-12-2001); 148 v S 180 (Eff 3-22-2001); 148 v H 506 (Eff 4-10-2001); 149 v H 94 (Eff 9-5-2001); 149 v H 533 (Eff 3-31-2003); 149 v H 374 (Eff 4-7-2003); 149 v S 281. Eff 4-11-2003.



Publisher's Note

The amendments made by HB 533 (149 v - ), HB 374 (149 v - ) and SB 281 (149 v - ) have been combined. See provisions of RC § 1.52.



Cross-References to Related Sections

Application for interception warrant, RC § 2933.53.

Instructions to officers, RC § 2933.58.

Oral approval for an interception, RC § 2933.57.

Attorney-client privilege -

Client defined; application of attorney-client privilege to dissolved corporation or association, RC § 2317.02.1.

Election commission or panel considered client of full-time attorney hired for representation, RC § 3517.15.7.

Insurance fraud, RC § 2913.47.

Party caucuses, RC § 101.30.1.

Patient care incident or risk management report, RC § 2305.25.2.

Required report by attorneys of suspected child abuse; exceptions, RC § 2151.42.1.

Cases in which a party shall not testify, RC § 2317.03.

Husband-wife communication rule not applicable in prostitution cases, RC § 2907.26.

Mediation communication; disclosure, RC § 2317.02.3.

Pharmacist privilege not to interfere with criminal investigations, RC § 4729.19.

Physician-patient privilege -

Duty of physician and others to report serious physical harm believed to have resulted from violent offense, RC § 2921.22.

Nursing, rest, community alternative home and adult care facilities patient records, RC § 2317.42.2.

Psychologist and client; privileged communications, RC § 4732.19.

Request to health care provider for results of alcohol or drug tests for use in criminal proceeding, RC § 2317.02.2.

Required report by physicians of suspected child abuse; exceptions, RC § 2151.42.1.

State medical board proceedings; applicability of physician-patient privilege, RC §§ 4730.26, 4731.22.

Statement of physician required for school employee's sick leave not waiver of privilege, RC § 3319.14.1.

Telecommunications relay service; privileged nature of assisted communications, RC § 4931.35.



Ohio Rules

General rule of privileges, EvR 501.

Physical and mental examination of persons, CivR 35.

Pretrial procedure, CivR 16.



Ohio Adminstrative Code

Bureau of workers' compensation -

Health partnership program (HPP): confidentiality of records. OWCH: OAC 4123-6-15.

State board of psychology -

Rules of professional conduct pertaining to confidential communications and physician-patient privilege. OAC 4732-17-01.



Text Discussion

Competency as witnesses. 1 Anderson Fam. L. § 11.8

Civil actions. 1 Anderson Fam. L. § 11.9

Criminal cases. 1 Anderson Fam. L. § 11.11

Competency of parties as witnesses. 1 Anderson Fam. L. § 22.23

Confidentiality; introduction. Ohio Prof. Resp. § 9.1

Distinguishing different confidentiality rules. Ohio Prof. Resp. § 9.2

Divorce, annulment, and alimony actions. 1 Anderson Fam. L. § 11.10

Waiver of incompetency. 1 Anderson Fam. L. § 11.12

Exceptions to confidentiality. Ohio Prof. Resp. § 9.5

Hospital records. 2 Ohio Civ. Prac. § 74.04

Limitations on discovery: privileged information. 5 Ohio Civ. Prac. 159.06

Privileged communications and acts. 1 Anderson Fam. L. § 11.13

Waiver of physician-patient privilege. 5 Ohio Civ. Prac. 163.08

Waiver of privilege. 1 Anderson Fam. L. § 11.14

Research Aids

Privileged communications:

O-Jur3d: Alt Disp Res § 176; Dec Est §§ 329, 590; Evid & Witn §§ 391, 437, 453, 782, 787, 788, 789.1, 790, 795, 798, 799, 809, 810, 814, 817, 818, 820, 821, 823, 824, 837, 842, 844, 846; Gifts § 47; Guar & W § 221; Malprac § 150; Trusts § 512; Workers' Comp § 370

Am-Jur2d: Witn § 285 et seq



ALR

Admissibility of physician's testimony as to patient's statements or declarations, other than res gestae, during medical examinations. 37 ALR3d 778.

Admissibility of testimony by an attorney as to unperformed compromise agreement. 26 ALR2d 864.

Applicability in criminal proceedings of privilege as to communications between physician and patient. 7 ALR3d 1458.

Applicability of attorney-client privilege to communications made in presence of or solely to or by third person. 14 ALR4th 594.

Applicability of attorney-client privilege to communications with respect to contemplated tortious acts. 2 ALR3d 861.

Applicability of attorney-client privilege to evidence or testimony in subsequent action between parties originally represented contemporaneously by same attorney, with reference to communication to or from one party. 4 ALR4th 765.

Applicability of attorney-client privilege to matters relating to drafting of nonexistent or unavailable nontestamentary documents. 55 ALR3d 1322.

Assertion of privilege in pretrial discovery proceeding as precluding waiver of privilege at trial. 36 ALR3d 1367.

Attorney-client privilege as affected by communications between several attorneys. 9 ALR3d 1420.

Attorney-client privilege as affected by its assertion as to communications, or transmission of evidence, relating to crime already committed. 16 ALR3d 1029.

Attorney-client privilege as applicable to communications between attorney and client's agent, employee, spouse, or relative. 139 A.L.R. 1250.

Attorney-client privilege as extending to communications relating to contemplated civil fraud. 31 ALR4th 458.

Attorney-client privilege: who is "representative of the client" within state statute or rule privileging communications between an attorney and the representative of the client. 66 ALR4th 1227.

Attorney's disclosure, in federal proceedings, of identity of client as violating attorney-client privilege. 84 ALRFed 852.

Calling or offering accused's spouse as witness for prosecution as prejudicial misconduct. 76 ALR2d 920.

Commencing action involving physical condition of plaintiff or decedent as waiving physician-patient privilege as to discovery proceedings. 21 ALR3d 912.

Communication between unmarried couple living together as privileged. 4 ALR4th 422.

Communication by corporation as privileged in stockholder's action. 34 ALR3d 1106.

Communications between spouses as to joint participation in crime as within privilege of interspousal communications. 62 ALR4th 1134.

"Communications" within testimonial privilege of confidential communications between husband and wife as including knowledge derived from observation by one spouse of acts of other spouse. 10 ALR2d 1389.

Competency of general practitioner to testify as expert witness in action against specialist for medical malpractice. 31 ALR3d 1163.

Competency of one spouse to testify against other in prosecution for offense against child of both or either. 93 ALR3d 1018.

Competency of one spouse to testify against other in prosecution for offense against third party as affected by fact that offense against spouse was involved in same transaction. 74 ALR4th 277.

Constitutionality, with respect to accused's rights to information or confrontation, of statute according confidentiality to sex crime victim's communications to sexual counselor. 43 ALR4th 395.

Construction and application of state statutes authorizing civil cause of action by persons whose wire or oral communication is intercepted, disclosed, or used in violation of statutes. 33 ALR4th 506.

Construction of statute creating privilege against disclosure of communications made to stenographer or confidential clerk. 96 ALR2d 159.

Conversations between husband and wife relating to property or business as within rule excluding private communications between them. 4 ALR2d 835.

Corporation's right to assert attorney-client privilege. 98 ALR2d 241.

Crimes against spouse within exception permitting testimony by one spouse against other in criminal prosecution - modern state cases. 74 ALR4th 223.

Criminal conspiracy between spouses. 74 ALR3d 838.

Determination of whether a communication is from a corporate client for purposes of the attorney-client privilege - modern cases. 26 ALR5th 628.

Development, since Hickman v. Taylor, of attorney's "work product" doctrine. 35 ALR3d 412.

Disclosure of name, identity, address, occupation, or business of client as violation of attorney-client privilege. 16 ALR3d 1047.

Effect of divorce or annulment on competency of one former spouse as witness against other in criminal prosecution. 38 ALR2d 570.

Effect, on competency to testify against spouse or on marital communication privilege, of separation or other marital instability short of absolute divorce. 98 ALR3d 1285.

Existence of spousal privilege where marriage was entered into for purpose of barring testimony. 13 ALR4th 1305.

Federal courts as following law of forum state with respect to privileged communications. 95 ALR2d 320.

Insured-insurer communications as privileged. 55 ALR4th 336.

Involuntary disclosure or surrender of will prior to testator's death. 75 ALR4th 1144.

Liability for interference with physician-patient relationship. 87 ALR4th 845.

Liability in tort for interference with attorney-client relationship. 90 ALR4th 621.

Libel and slander: application of privilege attending statements made in course of judicial proceedings to pretrial depositions and discovery procedures. 23 ALR3d 1172.

Marital privilege under Rule 501 of Federal Rules of Evidence. 46 ALRFed 735.

Matters to which the privilege covering communications to clergyman or spiritual advisor extends. 71 ALR3d 794.

Party's waiver of privilege as to communications with counsel by taking stand and testifying. 51 ALR2d 521.

Persons other than client or attorney affected by, or included within, attorney-client privilege. 96 ALR2d 125.

Physical injury requirement for emotional distress claim based on false positive conclusion on medical test diagnosing disease. 69 ALR5th 411.

Physician-patient privilege as applied to physician's testimony concerning wound required to be reported to public authority. 85 ALR3d 1196.

Physician-patient privilege as extending to patient's medical or hospital records. 10 ALR4th 552.

Physician-patient privilege: testimony as to communications or observations as to mental condition of patient treated for other condition. 100 ALR2d 648.

Physician's tort liability for unauthorized disclosure of confidential information about patient. 48 ALR4th 668.

Pleading or raising defense of privilege in defamation action. 51 ALR2d 552.

Police surveillance privilege. 67 ALR5th 149.

Presence of child at communication between husband and wife as destroying confidentiality of otherwise privileged communication between them. 39 ALR4th 480.

Privilege as to communications between lay representative in judicial or administrative proceedings and client. 31 ALR4th 1226.

Privilege as to communications to attorney drawing will. 66 ALR2d 1302.

Privileged communications between accountant and client. 33 ALR4th 539.

Privilege, in judicial or quasi-judicial proceedings, arising from relationship between psychiatrist or psychologist and patient. 44 ALR3d 24.

Privilege of newsgatherer against disclosure of confidential sources or information. 99 ALR3d 37.

Propriety and prejudicial effect of comment by counsel as to refusal to permit introduction of privileged testimony. 32 ALR3d 906.

Propriety and prejudicial effect of comment or instruction by court with respect to party's refusal to permit introduction of privileged testimony. 34 ALR3d 775.

Propriety of attorney who has represented corporation acting for corporation in controversy with officer, director, or stockholder. 1 ALR4th 1124.

Right of attorney to conduct ex parte interviews with corporate party's nonmanagement employees. 50 ALR4th 652.

Right of attorney to conduct ex parte interviews with former corporate employees. 57 ALR5th 633.

Right of one against whom testimony is offered to invoke privilege of communication between others. 2 ALR2d 645.

Right of physician, notwithstanding physician-patient privilege, to give expert testimony based on hypothetical question. 64 ALR2d 1056.

Rights and duties of attorney in a criminal prosecution where client informs him of intention to present perjured testimony. 64 ALR3d 385.

Right to ex parte interview with injured party's treating physician. 50 ALR4th 714.

Spouse as competent witness for or against co-offender with other spouse. 90 ALR2d 648.

Spouse's betrayal or connivance as extending marital communications privilege to testimony of third person. 3 ALR4th 1104.

Subject matter and waiver of privilege covering communications to clergy member or spiritual adviser. 93 ALR5th 327.

Testimony before or communications to private professional society's judicial commission, ethics committee, or the like, as privileged. 9 ALR4th 807.

Under what circumstances can corporation claim privilege for communications from its employees and agents to corporation's attorney. 9 ALRFed 685.

Validity, construction, and application of statute limiting physician-patient privilege in judicial proceedings relating to child abuse or neglect. 44 ALR4th 649.

Waiver of attorney-client privilege by personal representative or heir of deceased client or by guardian of incompetent. 67 ALR2d 1268.

Waiver of evidentiary privilege by inadvertent disclosure - state law. 51 ALR5th 603.

Waiver of privilege as regards one physician as a waiver as to other physicians. 5 ALR3d 1244.

Waiver under statutory provision relaxing, in event of action for personal injuries, rule in respect of communications between physician and patient. 25 ALR2d 1429.

What constitutes privileged communications with preparer of federal tax returns so as to render communication inadmissible in federal tax prosecution. 36 ALRFed 686.

Who are "clergy" or like within privilege attaching to communications to clergy members or spiritual advisers. 101 ALR5th 619.

Who is "clergyman" or the like entitled to assert privilege attaching to clergymen or spiritual advisors. 101 ALR5th 619.

Who may waive privilege of confidential communication to physician by person since deceased. 97 ALR2d 393.

Work product privilege as applying to material prepared for terminated litigation or for claim which did not result in litigation. 27 ALR4th 568.



Law Review

Applicability of the attorney-client privilege to corporate communications. Note. 48 CinLRev 819 (1979).

The attorney-client privilege as applied to corporate clients. Comment. 15 Akron L. Rev. 119 (1981).

Breach of medical confidence in Ohio. Craig E. Johnston. 19 Akron L. Rev. 373 (1986).

Clergy malpractice: bad news for the Good Samaritan or a blessing in disguise? Comment. 17 ToledoLRev 209 (1985).

Confidential communications to the clergy. Seward P. Reese. 24 Ohio St. L.J. 55 (1963).

Confidentiality and privilege: the status of social workers in Ohio. Gary W. Paquin. 19 Ohio N.U.L. Rev. 199 (1992).

Creating therapist-incest offender exception to mandatory child abuse reporting statutes - when psychiatrist knows best. Phyllis Coleman. 54 CinLRev 1113 (1986).

The crime fraud exception to attorney-client privilege - United States v. Zolin. 109 SCt 2619. Casenote. 15 UDayLRev 365 (1990).

Discovery practice in Ohio - pathway to progress. Edwin F. Woodle. 8 WestResLRev 456 (1957).

The ethics of internal investigations in Kentucky and Ohio. Edward C. Brewer III. 27 NoKyLRev 721 (2000).

Evidence - the penitent-clergy privilege. James K. Gaynor. 1 NoKyStLF 16 (1973).

Evidence - physician-patient privilege - waiver upon commencing an action. Mathis v. Hildebrand, 416 P2d 8 (Ala. 1966). Case note. 36 CinLRev 152 (1967).

Evidentiary privilege: help for corporations? The [US] Supreme Court rejects the control group test; strengthens the work-product doctrine - Upjohn Co. v. United States, 449 US 383 (1981). Note. 7 UDayLRev 195 (1981).

Fathers, biological and anonymous, and other legal strangers: determination of parentage and artificial insemination by donor under Ohio law: Susan G. Eisenman. 45 Ohio St. L.J. 383 (1984).

Foreword: reflection on the law of privileged communications - the psychotherapist-patient privilege in perspective. D. W. Louisell & K. Sinclair. 59 CalifLRev 30 (1971).

Garner is Good: A re-examination of assumptions underlying application of the attorney-client privilege in shareholder suits. Douglas J. Nill. 15 Ohio N.U.L. Rev. 641 (1988).

Husband-wife privileged communications, summarized. Donald L. Guarnieri. 8 ClevMarLRev 531 (1959).

In an administrative fair hearing, a dissatisfied applicant or recipient of public social services impliedly is provided by statute a privilege through his lay representative that is comparable to an attorney-client privilege - Welfare Rights Organization v. Crisan, 33 Cal3d 766, 661 P2d 1073, 190 CalRptr. 919. Note. 52 CinLRev 1119 (1983).

Lawyers, clients, and AIDS: some notes from the trenches. Rhonda R. Rivera. 49 Ohio St. L.J. 883 (1989).

Limits to attorney-client confidentiality: a "philosophically informed" and comparative approach to legal and medical ethics. Nancy J. Moore. 36 Case W. Res. 177 (1986).

Major evidentiary issues in prosecution of family abuse cases. Susan P. Mele. 11 Ohio N.U.L. Rev. 245 (1984).

Mandatory arbitration of attorney-client fee disputes: a concept whose time has come. James R. Devine. 14 ToledoLRev 1205 (1983).

The Ohio physician-patient privilege: modified, revised, and defined. Comment. 49 Ohio St. L.J. 1147 (1989).

Ohio's mandatory reporting statute for cases of child abuse. Mario C. Ciano. 18 WestResLRev 1405 (1967).

Ohio's physician-patient privilege in personal injury cases - time for reform. Mark O'Neill. 16 WestResLRev 334 (1965).

Parent-child testimonial privilege: an absolute right or an absolute privilege? Comment. 11 UDayLRev 709 (1986).

A parent-child testimonial privilege: its present existence, whether it should exist and to what extent. Comment. 13 CAP. U.L. Rev. 556 (1984).

Parent-child testimonial privilege: preserving and protecting the fundamental right to family privacy. Marianne E. Scott. 52 CinLRev 901 (1983).

Physician-patient privilege in Ohio. Naoma Lee Stewart. 8 ClevMarLRev 444 (1959).

Privilege - corporations - discovery - evidence - whether the attorney-client privilege is applicable in a given corporate context may not be determined by identifying whether the corporate employee making the communication is authorized to seek legal advice or to act on that advice, but must be established on a case-by-case basis. - Upjohn Co. v. United States, 101 SCt 677 (1981). Note. 50 CinLRev 451 (1981).

Privileged communications - attorney and client - presence of a third party agent of client. Case note. 23 Ohio Op., Ohio Op. 2d, Ohio Op. 3d 419 (1942).

Privileged communications between counsel and the corporate client. R. G. Markey & C. S. Bonnell. 28 Clev. St. L. Rev. 565 (1979).

Privileged communications between physician and patient. Clinton DeWitt. 10 WestResLRev 488 (1959).

Privileged communications in Ohio and what's new on the horizon: Ohio house bill 52 accountant-client privilege. Comment. 31 Akron L. Rev. 505 (1998).

Privileged communications - who may assert and who may waive the privilege under the Ohio statute. 20 CinLRev 76 (1951).

Privileges under the uniform rules of evidence. 26 CinLRev 537 (1957).

Privilege - waiver of doctor-patient privilege. Case note. 28 CinLRev 534 (1959).

The realities of attorney-client confidences. Robert Allen Sedler and Joseph J. Simeone. 24 Ohio St. L.J. 1 (1963).

Standing to claim privileges in Ohio. V. C. Ball. 24 Ohio St. L.J. 115 (1963).

A uniform testimonial privilege for mental health professionals. Note. 51 Ohio St. L.J. 741 (1990).

United States v. Arthur Young: no protection for tax accrual workpapers. John P. Dedon. 16 ToledoLRev 45 (1984).

United States v. Upjohn Co. [600 F2d 1223 (6thCir 1979)]: the sixth circuit adopts the control group test. Note. 9 CAP. U.L. Rev. 809 (1980).

Upjohn Co. v. United States [449 US 383 (1981)]: determining who within the corporate structure can assert the attorney-client privilege. Case note. 11 CAP. U.L. Rev. 611 (1982).

The use of juvenile court jurisdiction and restraining authority to address the problem of maternal drug abuse in Ohio. Deborah A. Wainey. 17 Ohio N.U.L. Rev. 611 (1991).

Waiver of doctor-patient privilege. Case note. 7 Ohio St. L.J. 92 (1941).

CASE NOTES AND OAG








Analysis

Action against a married woman.

Action on note.

Assignor.

Attorney-client.

Attorney-client privilege.

Blood donors.

Blood tests.

Blood-alcohol tests.

Breach of confidentiality.

Children services agency records.

Chiropractors.

Civil commitment proceedings.

Clergyman or priest.

Clergyman-confessor privilege.

Clergyman-penitent privilege.

Client's name.

Communication.

Communications in presence of third persons.

Competency.

Contesting a will.

Counseling.

Counselor-client privilege.

Counselors.

Cross-examination.

Custody case.

Death of third person.

Dentist and patient.

Dependency.

Disclosure.

Discovery.

Discovery of insurer's claims files.

Doctor and patient.

Duties.

EMS run sheets.

Estate administration.

Evidence.

Evidentiary hearings.

Excluded communications.

Experts.

Fee issues.

Fraud.

General rules of construction.

Habeas corpus.

Heirship proceedings.

Hospital records.

Husband and wife privilege.

Husband-wife privilege.

Jury instructions.

Legislative intent.

Liability.

Malpractice.

Marriage.

Medical examinations.

Medical laboratory technicians.

Medical malpractice.

Medical records.

Medical reports and hospital records.

Medical technologists and patients.

Mental health advisors.

Motion in limine.

Motion to compel.

Nurse and patient.

Nurses.

Objecting to testimony.

Parent and social worker.

Patient and nurse.

Patient records.

Personal injury actions.

Physical examinations.

Physician-patient privilege.

- Privileges.

- Scope.

Physicians.

Prescriptions.

Presence of third person.

Presumption of admissibility.

Privacy.

Privileges.

Probating will.

Psychiatrist's records.

Psychologist privilege.

Records.

Relationships not covered by privilege.

Representing both spouses.

Sanity.

Separated spouses.

Separation and divorce issues.

Slander.

Social workers.

Subscribing witnesses.

Taped conversations.

Testimony.

Testimony about handwriting.

Testimony about odor of alcohol.

Testimony by a spouse about his or her spouse.

Testimony by spouse.

Testimony of physicians.

Testimony of spouses.

Waiver.

Waiver by testimony.

Waiver of privilege.

Will contest.

Will contests.

Will drafting.

Wills.

Witnesses.

Wrongful death actions.





Action against a married woman


In an action against a married woman and others when the husband is incompetent to testify for or against her, he is nevertheless a competent witness for a codefendant, if the case be one in which separate judgments may be rendered: Edwards v. Edwards, 24 Ohio St. 402 (1873).



Action on note


In an action by the indorsee of a promissory note against the maker, the executor may compel the payee and assignor of the note to testify to facts that occurred prior to the death of the testator: Roberts v. Briscoe, 44 Ohio St. 596, 10 N.E. 61 (1887).



Assignor


In an action between executors or administrators of different estates, a person who has been the predecessor of one of the parties is not on that account incompetent as a witness against the adverse party, to testify to facts which occurred before the death of the latter's testator or intestate. Such a case is not within the reason or spirit of this section, which excludes the testimony of an assignor of a claim in certain cases: Banning v. Gotshall, 62 Ohio St. 210, 56 N.E. 1030 (1900); Knedler v. Doster, 69 Ohio St. 573, 70 N.E. 1125 (1904).



Attorney-client


Trial court erred in ruling that the subpoenaed documents involving attorney-client communications fell within an exception to the attorney-client privilege based on fundamental fairness and fair play because there was no allegation of bad faith. Garcia v. O'Rourke, - Ohio App. 3d - , - N.E.2d - 2003 Ohio App. LEXIS 2497 (May 23, 2003).



Attorney-client privilege


In a prosecution for failure to appear, testimony by the defendant's former counsel that she had provided him with notice of the hearing date did not violate the attorney-client privilege: State v. Kemper, 158 Ohio App. 3d 185 (2004).

In the event of the death of a client, RC § 2317.02(A) authorizes the surviving spouse of that client to waive the attorney-client privilege protecting communications between the deceased spouse and attorneys who had represented that deceased spouse. The attorney of a deceased client may not assert attorney-client privilege to justify refusal to answer questions of a grand jury where the surviving spouse of the attorney's client has waived the privilege in conformity with RC § 2317.02(A), and the attorney has been ordered to testify by a court: State v. Doe, 101 Ohio St. 3d 170 (2004).

The court abused its discretion by ordering a party to produce documents claimed to be protected by the attorney-client privilege or work-product doctrine without allowing the party to amend its privilege log or, alternatively, conducting an in camera inspection: Cargotec, Inc. V. Westchester Fire Ins. Co., 155 Ohio App. 3d 653 (2003).

The critical issue in evaluating the discoverability of otherwise privileged materials in an insurer's claims file is not whether the attorney-client communications related to the existence of coverage, but whether they may cast light on bad faith on the part of the insurer. Attorney work product is discoverable to the same extent as attorney-client communications: Garg v. State Auto Mut. Ins. Co., 155 Ohio App. 3d 258 (2003).

Neither the atttorney-client nor the work-product privilege prevented discovery of documents from a business which procured insurance policies on behalf of its clients. Ordinary fact or unprivileged fact work product, such as witness statements and underlying facts, receives lesser protection that opinion work product: Perfection Corp. v. Travelers Cas. & Sur., 153 Ohio App. 3d 28 (2003).

A monitoring attorney appointed in a disciplinary action may not review privileged materials without a specific waiver by the client of the respondent: Allen Cty. Bar Assn. v. Williams, 95 Ohio St. 3d 160, 2002-Ohio-2006, 766 N.E.2d 973 (2002).

In an action alleging bad faith denial of insurance coverage, the insured is entitled to discover claims file materials containing attorney-client communications related to the issue of coverage that were created prior to the denial of coverage: Boone v. Vanliner Ins. Co., 91 Ohio St. 3d 209, 744 N.E.2d 154 (2001).

An attorney has no right under USConst amend I or OConst art I, § 11 to disseminate information protected by the attorney-client privilege: American Motors Corp. v. Huffstutler, 61 Ohio St. 3d 343, 575 N.E.2d 116 (1991).

In the absence of a waiver of the privilege by one competent to do so, as provided for in this section, an attorney cannot testify as to a decedent's competency, where the attorney's opinion is based upon knowledge gained during an attorney-client relationship with the decedent and is related to the services for which he was retained to perform for the decedent: Taylor v. Sheldon, 172 Ohio St. 118, 15 Ohio Op. 2d 206, 173 N.E.2d 892 (1961).



Blood donors


A blood donor is not a "patient" for purposes of the physician-patient privilege of RC § 2317.02(B)(1), nor is information he supplies with his blood donation a "communication" as defined in RC § 2317.02(B)(3): Doe v. Univ. of Cincinnati, 42 Ohio App. 3d 227, 538 N.E.2d 419 (1988).



Blood tests


Regardless of whether the defendant consented to the test, the hospital's blood test did not constitute state action for purposes of implicating the fourth amendment. RC § 4511.19(D)(1) is not limited to tests conducted at the request of a law enforcement officer: State v. Meyers, 146 Ohio App. 3d 563, 2001-Ohio-2282, 767 N.E.2d 739 (2001).

Revised Code § 2317.02(B)(1)(b) did not require suppression of the defendant's blood-alcohol test result where the blood-alcohol test was taken at the direction of medical personnel at the attending hospital and the sheriff's department requested his medical records several days after the accident in full compliance with RC § 2317.02(B)(2)(a): State v. Slageter, No. C-990584 2000 Ohio App. LEXIS 1358 (1st Dist. 2000).



Blood-alcohol tests


Where a hospital administers a blood alcohol test in the course of treating a conscious patient, the patient is not under arrest, and a police officer did not request the test, RC § 2317.02(B)(1)(b), not RC § 4511.19.1(A) controls. Federal drug and alcohol treatment confidentiality provisions do not apply: Middletown v. Newton, 125 Ohio App. 3d 540, 708 N.E.2d 1086 (1998).

Federal law did not prohibit disclosure of the defendant's blood-alcohol test performed by the hospital: State v. Williams, 94 Ohio Misc. 2d 113, 703 N.E.2d 1284 (CP 1998).

The court erroneously admitted privileged testimony regarding the result of a blood-alcohol test performed at the direction of defendant's physician: State v. Lampman, 82 Ohio App. 3d 515, 612 N.E.2d 779 (1992).

Blood-alcohol tests administered at the hospital where a party was treated after an accident are not privileged under RC § 2317.02(B): Kromenacker v. Blystone, 43 Ohio App. 3d 126, 539 N.E.2d 675 (1987).

Where, in a prosecution for driving while intoxicated (RC § 4511.19), the defendant seeks to suppress the results of a blood-alcohol test on the basis that such evidence is not admissible due to the physician-patient privilege set forth in RC § 2317.02(B), and where the evidence shows that the blood-alcohol test was not administered at the request of a police officer pursuant to RC §§ 4511.19 and 4511.19(A), but was administered solely pursuant to the request of the defendant's attending physician following an accident, the public interest in the sensible and efficient administration of criminal justice outweighs the policy considerations which support the physician-patient privilege and the results of the blood-alcohol test are admissible, notwithstanding the physician-patient privilege of RC § 2317.02(B): State v. Dress, 10 Ohio App. 3d 258, 10 Ohio B. 372, 461 N.E.2d 1312 (1982).

A blood-alcohol test administered in connection with a patient's physical examination constitutes a "communication" as the word is used in RC § 2317.02(B): State v. Dress, 10 Ohio App. 3d 258, 10 Ohio B. 372, 461 N.E.2d 1312 (1982).



Breach of confidentiality


Expressly recognizing the tort of breach of confidentiality in Ohio, the court held that in order to establish a cause of action for breach of confidentiality, a plaintiff must demonstrate an unconsented, unprivileged disclosure to a third party of nonpublic information that the defendant has learned within a confidential relationship: Biddle v. Warren Gen. Hosp., No. 96-T-5582 1998 Ohio App. LEXIS 1273 (11th Dist. 1998).



Children services agency records


A defendant is entitled to the court's in camera inspection of children services agency records where the defendant shows that there is a reasonable probability, grounded on some demonstrable fact, that the records contain material relevant to the defense: State v. Allan, No. L-94-272 1996 Ohio App. LEXIS 272 (6th Dist. 1996).



Chiropractors


The physician-patient privilege does not apply to chiropractors: In re Polen, 108 Ohio App. 3d 305, 670 N.E.2d 572 (1996).



Civil commitment proceedings


Revised Code § 2317.02 makes no exception for civil commitment proceedings: In re Miller, 63 Ohio St. 3d 99, 585 N.E.2d 396 (1992).



Clergyman or priest


A communication made to a clergyman or priest to be deemed privileged under authority of RC § 2317.02, must apply only to a confession made in the understood pursuance of church discipline which gives rise to the confessional relation and not to a communication of other tenor: In re Soeder, 7 Ohio App. 2d 271, 36 Ohio Op. 2d 404, 220 N.E.2d 547 (1966).



Clergyman-confessor privilege


The legislature did not intend RC § 2317.02 to protect persons against disclosures by a counseling minister outside legal proceedings. However, there may be a claim for common law negligence. A cause of action for clergy malpractice is not available when other torts provide a remedy. Disclosures do not constitute an invasion of privacy where they are to a counselee's spouse and the spouse's family, rather than the public at large: Alexander v. Culp, 124 Ohio App. 3d 13, 705 N.E.2d 378 (1997).



Clergyman-penitent privilege


The clergyman-penitent privilege did not apply in this instance because the challenged testimony concerned only a conversation, and not a confession, between the clergyman and a member of his church: Radecki v. Schuckardt, 50 Ohio App. 2d 92, 4 Ohio Op. 3d 60, 361 N.E.2d 543 (1976).



Client's name


The confidentiality of a client's name or identity is dependent upon several factors: (1) In most instances, the client's name or identity is not one of the facts about which the client seeks advice; therefore, it is, in most instances, not confidential; (2) If the client's name or identity are matters about which the client seeks advice, then the client's name and identity are confidential; (3) The privilege is lost if it is used as a cover for the attorney's cooperation in his client's wrongdoing: In re Grand Jury Subpoena Issued to Burns, 42 Ohio Misc. 2d 12, 536 N.E.2d 1206 (CP 1988).



Communication


The term, "communication," as used in RC § 2317.02 relating to privileged communications, includes not only knowledge transmitted by words but also that gained by observations: Taylor v. Sheldon, 172 Ohio St. 118, 15 Ohio Op. 2d 206, 173 N.E.2d 892 (1961).



Communications in presence of third persons


A conversation between spouses is not privileged and is admissible in a criminal trial when the conversation was conducted in the presence or hearing of third persons. Ohio's spousal privilege statutes protect oral communications with one's spouse intended to be private, but do not protect written communications with one's spouse, even though it is reasonably expected that the communication will remain confidential: State v. Howard, 62 Ohio App. 3d 910, 577 N.E.2d 749 (1990).



Competency


In an action to set aside a deed on the ground of undue influence, the evidence of the attorney of the grantor who acted as witness to the deed and also as notary, as to the mental condition of the grantor at the execution of such deed, is competent: Ziegle v. Barr, 24 Ohio N.P. (n.s.) 235 (CP 1922).

General Code §§ 11493, 11494 and 11495 (RC §§ 2317.01, 2317.02 and 2317.03) relate to the same subject matter-the competency of persons as witnesses, and incompetency of certain testimony. The legislature is presumed to have had the whole subject before it in drafting these three statutes, as shown by the express reference to these several statutes in GC § 11495 (RC § 2317.03). General Code § 11495 (RC § 2317.03) expressly excludes "proceedings involving the validity of a deed, will, or codicil." The judicial branch of the government is not warranted in adding said clause to this section, as the legislature did to GC § 11495 (RC § 2317.03): Swetland v. Miles, 101 Ohio St. 501, 130 N.E. 22 (1920), [affirming Swetland v. Miles, 31 Ohio Ct. App. 529, 35 Ohio Cir. Dec. 458] (1920).



Contesting a will


In an action to contest a will, a former will in the hands of an attorney at law who prepared both wills is privileged under this section: In re Hurin, 59 Ohio App. 82, 12 Ohio Op. 377, 17 N.E.2d 287 (1938).



Counseling


Psychological counseling and evaluation provided by church authorities to a priest accused of child sexual abuse are privileged under RC § 2317.02 if they are performed for treatment purposes. They are not privileged if performed in order to determine the church's response to the misconduct: Niemann v. Cooley, 93 Ohio App. 3d 81, 637 N.E.2d 943 (1994).



Counselor-client privilege


The clear-and-present-danger exception under RC § 2317.02(G)(1)(a) does not provide a waiver of all confidential communications: State v. Orwick, 153 Ohio App. 3d 88 (2003).

The intent of the privilege under RC § 2317.02(G)(1) is to encourage clients to be completely candid with a counselor, thus enabling more complete treatment. The purpose of the exception under RC § 2317.02(G)(1)(a) is to protect persons subject to harm at the hands of another: State v. Orwick, 153 Ohio App. 3d 65 (2003).

Statements made by an individual to a licensed psychologist or licensed independent social worker in the course of an examination ordered by a court for forensic purposes are not communications received "from a client in that relation," RC § 2317.02(G)(1): In re Jones, 99 Ohio St. 3d 203 (2003).

In the absence of a specific statutory waiver or exception, the testimonial privileges established under RC § 2317.02(B)(1) (concerning communications between a physician and patient), RC § 4732.19 (concerning communications between a licensed psychologist and client), and RC § 2317.02(G) (concerning communications between a licensed counselor or licensed social worker and client) are applicable to communications made by a parent in the course of treatment ordered as part of a reunification plan in an action for dependency and neglect: In re Wieland, 89 Ohio St. 3d 535, 733 N.E.2d 1127 (2000).



Counselors


Subject to the exceptions set forth in RC § 2317.02(G)(1)-(6), RC § 2317.02(G) prohibits a Rehabilitation Services Commission employee, who is licensed as a professional counselor under RC § 4757.07 and serves as a professional counselor of RSC clients, from testifying concerning a confidential communication made to him by an RSC client in the professional counselor-client relationship or his advice to his client. (1946 OAG No. 931, p.305, overruled.): OAG No. 87-005 (1987).



Cross-examination


Answering questions as to treatment from a physician in response to questions on cross-examination does not waive the privilege of confidentiality because it is not voluntary within the meaning of RC § 2317.02: Hanly v. Riverside Methodist Hosp. Found., Inc., 71 Ohio App. 3d 778, 595 N.E.2d 429 (1991).

Merely answering questions as to treatments from physician in response to questions on cross-examination does not waive the privilege under this section; such testimony is not voluntary within the purview of the statute: Harpman v. Devine, 133 Ohio St. 1, 9 Ohio Op. 347, 10 N.E.2d 776 (1937).



Custody case


By seeking custody of the children in a divorce action, a spouse makes his or her mental and physical condition an element to be considered by the court in awarding custody: Neftzer v. Neftzer, 140 Ohio App. 3d 618, 748 N.E.2d 608 (2000).



Death of third person


The death of the third person present does not disqualify the husband or wife: Sessions v. Trevitt, 39 Ohio St. 259 (1883); Morgan v. Bartlette, 3 Ohio C.C. 431, 2 Ohio Cir. Dec. 244 (1888); Sieving v. Seidelmeyer, 7 Ohio Dec. Reprint 609, 4 Weekly L. Bull. 213 (Superior Ct., 1879).



Dentist and patient


A dentist or a dental surgeon does not fall within RC § 2317.02(A) and is not granted a privilege from testifying: Belichick v. Belichick, 37 Ohio App. 2d 95, 66 Ohio Op. 2d 166, 307 N.E.2d 270 (1973).



Dependency


In an action seeking a determination of dependency and neglect and an order of permanent custody of a child, the statutes of Ohio make no exception to the privilege attaching to the communications between psychiatrist and patient, psychologist and patient (or client), and to the privilege, if it exists, between social workers employed in the office of the psychiatrist and psychologist and client: In re Decker, 20 Ohio App. 3d 203, 20 Ohio B. 248, 485 N.E.2d 751 (1984).



Disclosure


A partial, voluntary disclosure of privileged communications can result in the loss of privilege for all other communications which deal with the same subject matter. The rule applies to disclosure of materials covered by an attorney-client privilege and to disclosure of materials which are protected by the work product doctrine: Mid-American Natl. Bank & Trust Co. v. Cincinnati Ins. Co., 74 Ohio App. 3d 481, 599 N.E.2d 699 (1991).



Discovery


Interlocutory discovery orders entered in common-law or equity actions, even those requiring a nonlitigant to produce privileged information, are not immediately appealed notwithstanding their impact on the substantial rights of the parties and nonparties. Such orders may only be appealed after final judgment: Kelly v. Daly, 99 Ohio App. 3d 670, 651 N.E.2d 513 (1995).

Hospital incident reports which are submitted to its legal counsel and to its utilization committee are exempt from discovery under RC §§ 2317.02 and 2305.24: Ware v. Miami Valley Hospital, 78 Ohio App. 3d 314, 604 N.E.2d 791 (1992).

A discovery order compelling disclosure of medical records affects a substantial right and the harm from disclosure could not be mitigated on a later merit appeal: Grant v. Collier, No. 12670 1992 Ohio App. LEXIS 555 (2nd Dist. 1992).

When an attorney improperly answers interrogatories propounded to his client, and when, at trial, the client testifies contrary to the answers, the court should conduct an in camera hearing of the offending attorney, under oath, with opposing counsel being permitted to cross-examine the offending attorney as to the answer or answers at issue. The basic purpose of such hearing is to determine to what extent, if any, the party who submitted the interrogatory was prejudiced: Inzano v. Johnston, 33 Ohio App. 3d 62, 514 N.E.2d 741 (1986).



Discovery of insurer's claims files


In an RC § 1343.03(C) proceeding for prejudgment interest, neither the attorney-client privilege nor the so-called work product exception precludes the discovery of the contents of an insurer's claims file. The only privileged matters contained in the file are those that go directly to the theory of defense of the underlying case in which the decision or verdict has been rendered: Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St. 3d 638, 635 N.E.2d 331 (1994).



Doctor and patient


A doctor should not disclose information to a third party without the patient's consent: Hammonds v. Aetna Cas. & Surety Co., 3 Ohio Misc. 83, 31 Ohio Op. 2d 174, 237 F. Supp. 96 (N.D. Ohio 1965).



Duties


A statement by a husband to his wife concerning his duties and whereabouts for the next few days made in order for her to communicate with him does not come within the true intent and meaning of RC § 2317.02 concerning privileged communications between husband and wife: Finnegan v. Metropolitan Life Ins. Co., 81 Ohio L. Ab. 417, 162 N.E.2d 216 (App 1958).



EMS run sheets


Information on a run sheet created and maintained by a county emergency medical services organization that documents medication or other treatment administered to a patient by an EMS unit, diagnostic procedures performed by an EMS unit, or the vital signs and other indicia of the patient's condition or diagnosis, and is relied upon by a physician for diagnostic or treatment purposes, is a communication covered by the physician-patient testimonial privilege of RC § 2317.02(B), and thus is confidential information, the release of which is prohibited by law for purposes of RC § 149.43(A)(1)(v). (1996 OAG No. 96-005 and 1999 OAG No. 99-006, approved and followed.) If a physician authorizes an emergency medical technician (EMT) to administer a drug or perform other emergency medical services, documentation of the physician's authorization and administration of the treatment or procedure by the EMS unit may also fall within the physician-patient testimonial privilege: OAG No. 2001-041 (2001).



Estate administration


A decedent's widower called as a witness in proceedings involving the administration of decedent's estate, is incompetent under this section to testify to statements and conversations he had had with his wife during the period of coverture relative to the subject matter in question: In re Ruhl, 36 Ohio L. Ab. 250, 43 N.E.2d 760 (App 1941).



Evidence


An attorney who receives physical evidence from a third party relating to a possible crime by a client is obligated to relinquish that evidence to law enforcement authorities and must comply with a subpoena to that effect: In re Original Grand Jury Investigation, 89 Ohio St. 3d 544, 733 N.E.2d 1135 (2000).

Courts may not allow otherwise clearly inadmissible evidence to be received in drunk driving cases: State v. Gabriel, 72 Ohio App. 3d 825, 596 N.E.2d 538 (1991).

It is just as reasonable to assume that a conversation between husband and wife was held in the presence of a third person as it is to assume that it was not held in the presence of a third person, in the absence of evidence in that respect: Finnegan v. Metropolitan Life Ins. Co., 81 Ohio L. Ab. 417, 162 N.E.2d 216 (App 1958).



Evidentiary hearings


Where a party moves to strike an attorney's affidavit on the basis that there was a prior attorney-client relationship with the attorney, but such relationship is denied by the attorney, an evidentiary hearing will ordinarily be required to assess the witnesses' credibility: Maust v. Palmer, 94 Ohio App. 3d 764, 641 N.E.2d 818 (1994).



Excluded communications


In an RC § 1343.03(C) proceeding for prejudgment interest, only those attorney-client communications contained in an insurer's claims file that go directly to the theory of defense are to be excluded from discovery: Radovanic v. Cossler, 140 Ohio App. 3d 208, 746 N.E.2d 1184 (2000).



Experts


Where the physician-patient privilege contained in RC § 2317.02(B) has not been waived, a non-party treating physician may testify as an expert witness "provided that in answering the questions he disregards what he learned and observed while attending the patient and his own opinion formed therefrom." (Strizak v. Indus. Comm. [1953], 159 OS 475 [50 OO 394], paragraph two of the syllabus, applied and followed.): Moore v. Grandview Hospital, 25 Ohio St. 3d 194, 25 Ohio B. 259, 495 N.E.2d 934 (1986).



Fee issues


When the validity of fees paid by an administrator for legal services rendered decedent is challenged on exceptions to the administrator's account, the attorney may testify to matters which are not excluded by this section: In re Butler, 137 Ohio St. 96, 17 Ohio Op. 432, 28 N.E.2d 186 (1940), [connected case, 137 Ohio St. 115, 17 Ohio Op. 440, 28 N.E.2d 196 (1940).].



Fraud


In a suit by an insurance company for the cancellation of life insurance policy on ground of fraud in the application, physician's testimony relative to diagnosis and treatment of insured and insured's statements to him, and patient's hospital record, are inadmissible under the privileged communication rule: Prudential Ins. Co. v. Heaton, 20 Ohio L. Ab. 454 (App 1935).



General rules of construction


In a civil case involving claims based on state law, the existence of a privilege is to be determined in accordance with state, not federal, law: Jewell v. Holzer Hospital Foundation, Inc., 899 F.2d 1507, (6th Cir. 1990).



Habeas corpus


When ordering a physician to testify before the grand jury concerning communications that he has had with his patient and to deliver records bearing the patient's name, the trial court must limit its order to information that has been shown to be unprivileged; when a physician has been held in contempt and incarcerated as a result of his failure to comply with an order that is not properly limited to unprivileged information, a writ of habeas corpus may be sought: State ex rel. Buchman v. Stokes, 36 Ohio App. 3d 109, 521 N.E.2d 515 (1987).



Heirship proceedings


In a proceeding for determination of heirship, where petitioner, claiming to be the natural child of the decedent, was born while his mother was married to a person other than the decedent who later married the mother, evidence of admission by decedent, not in presence of third person, that petitioner is his child is admissible: Snyder v. McClelland, 83 Ohio App. 377, 38 Ohio Op. 434, 81 N.E.2d 383 (1948).



Hospital records


Admission of hospital records in violation of RC § 2317.02 may constitute harmless error: State v. Webb, 70 Ohio St. 3d 325, 638 N.E.2d 1023 (1994).

Plaintiff's medical records at university were privileged by virtue of the constitution and RC § 2317.02 and the university should have been aware that it was not free to disclose those records, even to other university departments or to their attorneys, in the absence of a release by the patient or a court order: Mann v. University of Cincinnati, 824 F. Supp. 1190, (S.D. 1993).

In a criminal prosecution for a violation of RC § 4511.19 (driving while intoxicated), the physician-patient privilege, as expressed in RC § 2317.02(B), does not preclude the receipt in evidence of hospital records containing the results of a blood-alcohol test administered to the defendant by a treating physician or other hospital employee. Nor does the privilege prevent the admission of properly qualified expert testimony necessary to provide foundational support for such evidence. (State v. Dress, 10 OApp3d 258, explained, approved and followed.): State v. Tu, 17 Ohio App. 3d 159, 17 Ohio B. 291, 478 N.E.2d 830 (1984).

Any hospital records of a party may not be released to anyone if such matters are privileged, unless such privilege is waived by the party who is the subject of the records: Pacheco v. Ortiz, 11 Ohio Misc. 2d 1, 11 Ohio B. 43, 463 N.E.2d 670 (CP 1983).

Hospital records made in connection with examinations made of decedent by physicians engaged by decedent's employer are not privileged communications where such examinations did not include treatment nor advice and clearly were not for the purpose of alleviating decedent's pain nor curing his malady: Suetta v. Carnegie-Illinois Steel Corp., 75 Ohio L. Ab. 487, 144 N.E.2d 292 (App 1955).



Husband and wife privilege


In an action by a former husband against his divorced wife to have her declared a trustee for him as to property purchased with his money, he cannot testify as to communication between himself and his wife before the divorce, unless in the known presence or hearing of a third person who is a competent witness: Dischner v. Dischner, 16 Ohio App. 86, 21 Ohio L. 260 (1921), [motion to certify record overruled, Dischner v. Dischner, 20 Ohio L. 84 (1922).].

In an action on a promissory note, where one of the makers is denying that he executed the note or that there was consideration therefor, it is not error to permit the widow of the other maker to testify as to certain matters which arose between herself and her husband when no other person competent to be witness was present: Woodbury v. Bollmeyer, 20 Ohio C.C. (n.s.) 113, 31 Ohio Cir. Dec. 157 (1912).

Communications and acts of a husband not in the known presence of a third person, having been testified to by her on his behalf without objection, the cross-examination may go to further particulars: Haberty v. State, 8 Ohio C.C. 262, 4 Ohio Cir. Dec. 462 (1894).



Husband-wife privilege


Federal and state parameters of the husband-wife privilege discussed: Trammel v. U.S., 445 U.S. 40, 63 L. Ed. 2d 186, 100 S. Ct. 906, (1980).



Jury instructions


The city was the "client" of its chief prosecutor. The prosecutor's pessimistic assessment of the chances of a conviction, based on the likely jury instructions, was not admissible. The fact that it was "leaked" by an unauthorized person did not waive the privilege: State v. Today's Bookstore, Inc., 86 Ohio App. 3d 810, 621 N.E.2d 1283 (1993).



Legislative intent


The true intent of the legislature in passing RC § 2317.02, providing that a husband and wife shall not testify concerning any communication made by one to the other, was for the protection of the marital relationship and was intended to cover those conversations, or acts, between husband and wife which are confidential in nature, and was not necessarily intended to exclude all types of conversation between married persons: Finnegan v. Metropolitan Life Ins. Co., 81 Ohio L. Ab. 417, 162 N.E.2d 216 (App 1958).



Liability


A physician was not liable to a third party who contracted a disease from a patient allegedly due to the physician's negligent treatment and advising of the patient: D'Amico v. Delliquadri, 114 Ohio App. 3d 579, 683 N.E.2d 814 (1996).



Malpractice


Where a treating physician contacts defense counsel and opines that a malpractice defendant was not negligent, the contact is a mere private conversation. RC § 2317.02 does not limit or prevent such conversations. The privilege does not extend to testimony by a treating physician concerning matters causally and historically related to an injury which is the subject of a malpractice action: Chaffin v. Mercy Med. Ctr., No. 96-CA-0076 1996 Ohio App. LEXIS 5956 (2nd Dist. 1996).



Marriage


When it appears that the relation between the parties was in its inception meretricious, but subsequently their relations to each other assume a matrimonial character by being surrounded by evidence of a valid marriage, a question of fact of marriage or no marriage is presented. In such case either party is a competent witness to prove the agreement. After the matrimonial status is fixed by cohabitation, the parties thereafter come under the rule of exclusion as is provided in this section: Umbenhour v. Labus, 85 Ohio St. 238, 97 N.E. 832 (1912), [affirming Umbenhour v. Umbenhour, 12 Ohio C.C. (n.s.) 289, 21 Ohio Cir. Dec. 317 (1909).].



Medical examinations


A medical examination by a physician for the purpose of determining the eligibility of a person for admission to a state asylum for the blind, and not for the purpose of medical treatment, does not establish a physician-patient relationship within the meaning of this section: Bowers v. Industrial Comm., 30 Ohio L. Ab. 353 (App 1939).



Medical laboratory technicians


A medical laboratory technician is not one of the persons encompassed by RC § 2317.02: In re Washburn, 70 Ohio App. 3d 178, 590 N.E.2d 855 (1990).



Medical malpractice


Where a medical malpractice action concerned events occurring in 1997, an order allowing discovery of all of the plaintiff's medical records back to 1973 was overly broad. The court must conduct an in camera inspection to determine which documents are discoverable: Nester v. Lima Mem. Hosp., 139 Ohio App. 3d 883, 745 N.E.2d 1153 (2000).



Medical records


Where an appellate court did not consider that portion of a trial court order requiring a hospital to provide certain privileged information, the order was a final appealable order pursuant to R.C. § 2505.02(B)(4) and the hospital's motion for reconsideration was granted and the appeal reinstated. Walker v. Firelands Community Hosp., - Ohio App. 3d - , - N.E.2d - 2003 Ohio App. LEXIS 2626 (June 5, 2003).

Where a patient in a mental facility allegedly attacked another patient, a special situation existed making certain medical records of the alleged attacker discoverable: Fair v. St. Elizabeth Med. Ctr., 136 Ohio App. 3d 522, 737 N.E.2d 106 (2000).

In a malpractice action against a doctor, the doctor's own medical records are privileged under RC § 2317.02: Calihan v. Fullen, 78 Ohio App. 3d 266, 604 N.E.2d 761 (1992).

Medical records of an allegedly intoxicated driver are protected by the physician-patient privilege: Akron v. Springston, 67 Ohio App. 3d 645, 588 N.E.2d 160 (1990).

In a patient's action against a hospital based on an assault by another patient, the other patient's medical records are exempt from discovery under RC § 2317.02: Johnston v. Miami Valley Hospital, 61 Ohio App. 3d 81, 572 N.E.2d 169 (1989).

When records collected for the trauma system registry or the emergency medical services incidence reporting system pursuant to RC § 4765.06 constitute a medical record, as defined at RC § 149.43(A)(3), or are confidential, pursuant to the physician-patient privilege of RC § 2317.02(B), or some other provision of state or federal law, such records do not become public records and the state board of emergency medical services is not required to disclose such records to the public under RC § 149.43(B) or RC § 4765.06. Additionally, in utilizing such non-public records that have been collected in the trauma system registry or emergency medical services incidence reporting system under RC § 4765.06, the board is required to maintain the confidentiality of any patient-identifying information contained therein: OAG No. 96-005 (1996).



Medical reports and hospital records


Civil Rule 16(B) establishes only two exceptions, for medical reports and hospital records, to the privilege embodied in RC § 2317.02(B). The rule may not be expanded to create additional exceptions for office records and the taking of a deposition: Brown v. Yothers, 56 Ohio App. 3d 29, 564 N.E.2d 714 (1988).



Medical technologists and patients


The relation of medical technologist and patient not being named in RC § 2317.02(B) (concerning privileged communications), a medical technologist is not prohibited by the statute from testifying as to the blood-alcohol content of a blood sample taken from an injured driver who was brought to a hospital emergency room following an automobile collision: State v. McKinnon, 38 Ohio App. 3d 28, 525 N.E.2d 821 (1987).



Mental health advisors


Although privilege has been consistently held to be in the possession of the individual seeking professional advice, psychologists, psychiatrists and a variety of other counselors have independent obligations to maintain certain confidences as a result of both state and federal laws, rules and regulations. However, a marriage counselor may be compelled to testify where one spouse has already testified about the counseling process and the advice received: Eichenberger v. Eichenberger, 82 Ohio App. 3d 809, 613 N.E.2d 678 (1992).



Motion in limine


Denial of a motion in limine to prevent psychological witnesses from testifying at a hearing was not a final appealable order: Henderson v. Henderson, 150 Ohio App. 3d 339, 2002-Ohio-6496, 780 N.E.2d 1072 (2002).



Motion to compel


An order granting a motion to compel production of the personnel file of a health care system doctor for an in-camera inspection was not a final appealable order: Ingram v. Adena Health Sys., 144 Ohio App. 3d 603, 761 N.E.2d 72 (2001).



Nurse and patient


This section, being in derogation of the common law, must be strictly construed, and consequently such section affords protection only to those relationships which are specifically named therein. The relationship of nurse and patient not being named in the statute, no privilege is extended to communications between a patient and his nurse: Weis v. Weis, 147 Ohio St. 416, 34 Ohio Op. 350, 72 N.E.2d 245 (1947).



Nurses


Court admitted testimony from the nurse of appellant's physician in child neglect action. The exception of RC § 2151.42.1 does not apply to the challenged testimony because the nurse's statements went beyond whether appellant kept her appointments to appellant's diagnosis, treatment and medication: In re Riddle, No. 96 CA 03 1996 Ohio App. LEXIS 2054 (5th Dist. 1996).

A physician may be held liable for the acts of a nurse-employee in violating a patient's right to confidentiality. Unauthorized disclosure of a patient's pregnancy to her family, resulting in strong expresssions of the family's disapproval, constitutes intentional infliction of emotional distress: Hobbs v. Lopez, 96 Ohio App. 3d 670, 645 N.E.2d 1261 (1994).



Objecting to testimony


Although RC § 2317.02 provides only testimony of conversations between husband and wife in the known presence or hearing of third persons is admissible, objection to such testimony cannot be raised for the first time on error proceedings: Finnegan v. Metropolitan Life Ins. Co., 81 Ohio L. Ab. 417, 162 N.E.2d 216 (App 1958).



Parent and social worker


An order requiring a parent who seeks to retain custody of her child to execute a waiver of her rights under RC § 2317.02 as to communications with her social worker is a final appealable order: Voss v. Voss, 62 Ohio App. 3d 200, 574 N.E.2d 1175 (1989).



Patient and nurse


Communications between patient and nurse are not privileged: Weis v. Weis, 147 Ohio St. 416, 34 Ohio Op. 350, 72 N.E.2d 245 (1947).

While the Ohio statute does not grant any privilege as to communications between a patient and a nurse, nevertheless if it appears that the latter is a private nurse employed by the physician, she is his agent and cannot disclose information she learns while acting in capacity of assistant: Humble v. John Hancock Life Ins. Co., 28 Ohio N.P. (n.s.) 481, 3 Ohio Supp. 373 (CP 1931).



Patient records


Revised Code § 2317.02(B) may not be used by a physician to prevent the State Medical Board from compelling production of patient records pursuant to RC § 4731.22(C)(1): Ohio State Medical Bd. v. Miller, 44 Ohio St. 3d 136, 541 N.E.2d 602 (1989).



Personal injury actions


A plaintiff in a personal injury action does not waive the physician-patient privilege provided in RC § 2317.02 by the commencement of this action, so as to empower the common pleas court to order him to turn over to the defendant hospital records and medical reports made by his attending physicians in relation to his injury: State ex rel. Lambdin v. Brenton, 21 Ohio St. 2d 21, 50 Ohio Op. 2d 44, 254 N.E.2d 681 (1970).



Physical examinations


Submission to a physical examination by a physician constitutes a communication from the patient to the physician within the meaning and inhibition of this section: McKee v. New Idea, Inc., 36 Ohio L. Ab. 563, 44 N.E.2d 697 (App 1942).



Physician-patient privilege


The employer had standing to assert the physician-patient privilege on behalf of its employees where an overly broad discovery order would have compelled disclosure of their medical records: Whitt v. ERB Lumber, 156 Oapped 3d 518 (2004).

RC § 3701.243, authorizing disclosure of HIV/AIDS information in certain circumstances, implicitly waives the physician-patient privilege: State v. Gonzalez, 154 Ohio App. 3d 9 (2003).

- Privileges

Trial court did not err by refusing to allow appellant to raise the issue of appellee's invocation of the physician-patient privilege and thus allow the jury to draw a negative inference from the invocation of the privilege: Jewell v. Holzer Hospital Foundation, Inc., 899 F.2d 1507, (6th Cir. 1990).

- Scope

The patient is the exclusive holder of a privilege under RC § 2317.02, and third parties generally cannot assert the privilege on the patient's behalf: State v. Orwick, 153 Ohio App. 3d 88 (2003).

Prior to ordering disclosure of the plaintiff's medical records in a medical malpractice action, the court should have conducted an in camera inspection and provided the parties an opportunity to present their positions on disclosure: Penwell v. Nanavati, 154 Ohio App. 3d 96 (2003).



Physicians


"Physician," as used in RC § 2317.02(B) is one who has been duly authorized and licensed by the state medical board to engage in the general practice of medicine: Belichick v. Belichick, 37 Ohio App. 2d 95, 66 Ohio Op. 2d 166, 307 N.E.2d 270 (1973).



Prescriptions


Where unrebutted evidence supports the contention that prescribed drugs far exceed the dosage levels generally accepted in the medical community, that circumstance takes the claimed communication outside the realm of privilege under RC § 2317.02: State v. Spencer, 126 Ohio App. 3d 335, 710 N.E.2d 352 (1998).



Presence of third person


The fact of the third person's presence is for the court and not for the jury, and will be presumed proved unless the contrary is shown: Westerman v. Westerman, 25 Ohio St. 500 (1874).



Presumption of admissibility


Where the record is silent as to the presence of a third person, there is a presumption of admissibility of testimony as to statements between husband and wife during coverture: F. A. Requarth Co. v. Holland, 78 Ohio App. 493, 34 Ohio Op. 231, 66 N.E.2d 329 (1946).



Privacy


An employee of a physician has no legal duty to refrain from divulging confidential medical information concerning a patient of that physician. Under a proper factual posture, the patient may have a claim for relief for invasion of her right to privacy: Knecht v. Vandalia Medical Center, Inc., 14 Ohio App. 3d 129, 14 Ohio B. 145, 470 N.E.2d 230 (1984).



Privileges


Revised Code § 2317.02(B) protects only communications, not the underlying facts. The names of drugs to which a party had been addicted and the names of the party's health care providers were not "communications": Ingram v. Adena Health Sys., 149 Ohio App. 3d 447, 2002-Ohio-4878, 777 N.E.2d 901 (2002).

A party objecting to discovery on the ground of privilege must present that objection in a timely and proper manner: McPherson v. Goodyear Tire & Rubber Co., 146 Ohio App. 3d 441, 2001-Ohio-1517, 766 N.E.2d 1015 (2001).

The employee's medical and psychological records were discoverable, even though she did make claims for physical or mental injuries, where the employer's defense was that the employee acted irrationally: Porter v. Litigation Mgt., Inc., 146 Ohio App. 3d 558, 2001-Ohio-4298, 767 N.E.2d 735 (2001).

Revised Code § 2317.02 does not prevent a physician from testifying under oath that he was consulted in a professional capacity by a person on a certain date. Since the statute only prohibits a physician or dentist from testifying, interrogatories directed to the patient about what prescribed medications she was taking at the time of the accident did not fall under RC § 2317.02(B): Binkley v. Allen, No. 2000CA00160 2001 Ohio App. LEXIS 421 (5th Dist. 2001).

The communications were not privileged pursuant to RC §§ 4732.19 and 2317.02(B) where the psychologist was not licensed: State v. Wood, 141 Ohio App. 3d 634, 752 N.E.2d 990 (2001).

The attorney-client privilege covers communications between government clients and their attorneys: Carver v. Deerfield Twp., 139 Ohio App. 3d 64, 742 N.E.2d 1182 (2000).

In an action between attorneys who formerly practiced together alleging breach of an agreement for division of fees, the attorney-client privilege belonged to the client, not to either attorney: Lightbody v. Rust, 137 Ohio App. 3d 658, 739 N.E.2d 840 (2000).

Revised Code § 2921.22(B) provides a statutory exception to the physician-patient privilege: State v. Jones, 90 Ohio St. 3d 403, 739 N.E.2d 300 (2000).

Plaintiff's psychiatric or psychological records remained privileged because they were not communications that related causally or historically to physical or mental injuries relevant to issues in the defamation suit. Plaintiff did not make a claim for emotional distress or mental anguish: McCoy v. Maxwell, 139 Ohio App. 3d 356, 743 N.E.2d 974 (2000).

Although RC § 2317.02(B)(1)(a)(iii) provides that the physician-patient privilege does not apply to a patient who has filed a civil action, RC § 2317.02(B)(3)(a) places a limit on what communications may be discovered: McCoy v. Maxwell, 139 Ohio App. 3d 356, 743 N.E.2d 974 (2000).

The applicability of the psychologist-patient privilege turns upon whether a statutory waiver or exception has been invoked; the issue of whether the psychological treatment was sought voluntarily or involuntarily is not controlling: In re Kyle, No. 2000-P-0014 2000 Ohio App. LEXIS 5619 (11th Dist. 2000).

The privilege against self-incrimination applies when testimony is compelled from a person claiming to be incriminated by disclosure. Where an attorney or the attorney's agent is being subpoenaed, only the attorney-client privilege and the work product doctrine may be invoked to protect the client. A court may hold an in camera hearing to review allegedly privileged material: State v. Hoop, 134 Ohio App. 3d 627, 731 N.E.2d 1177 (1999).

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: Biddle v. Warren Gen. Hosp., 86 Ohio St. 3d 395, 715 N.E.2d 518 (1999).

An order for substance abuse and psychological treatment for a parent in a custody determination is intended to benefit the parent directly by helping to resolve the problems requiring removal of the child from the home; the parent's treatment may ultimately benefit the child by permitting reunification, but that is an indirect benefit of the treatment, and is equally dependent upon the treatment's effectiveness, which the statutory privilege is intended to promote: In re Wieland, No. 17646 1999 Ohio App. LEXIS 3217 (2nd Dist. 1999).

The defendant's statement taken by his insurer's adjuster and then forwarded to the attorney for defendant was within the attorney-client privilege: Breech v. Turner, 127 Ohio App. 3d 243, 712 N.E.2d 776 (1998).

The term "communication" as defined by RC § 2317.02(B)(4)(a) is sufficiently broad to encompass a patient's communication with a nurse performing duties to assist a physician in the diagnosis and treatment of a patient; thus, the defendant's hospital records containing the nurse's notes and observations were privileged, and the admission of those records and the nurse's testimony regarding the defendant's statement contained in them was error: State v. Napier, No. C-970383 1998 Ohio App. LEXIS 3939 (1st Dist. 1998).

Where an intoxicated arrestee is involuntarily transported to a hospital by police officers, the privilege under RC § 2317.02 is applicable to observations made by medical personnel and communications made by the defendant: Cleveland v. Haffey, 94 Ohio Misc. 2d 79, 703 N.E.2d 380 (MC 1998).

The attorney-client privilege applied to communications between the coroner and a county prosecutor. The attorney-client privilege may be waived when the client and attorney deliberately place the contents of their communications in issue by presenting sworn statements and raising advice of counsel as a defense: Kremer v. Cox, 114 Ohio App. 3d 41, 682 N.E.2d 1006 (1996).

The physician-patient privilege did not apply to a psychiatrist who was retained by defense counsel to provide favorable testimony at a bindover proceeding: State v. Hopfer, 112 Ohio App. 3d 521, 679 N.E.2d 321 (1996).

Physicians may not shield themselves from criminal investigation by invoking the physician-patient privilege: State v. McGriff, 109 Ohio App. 3d 668, 672 N.E.2d 1074 (1996).

A public employee may not be discharged for exercising free speech rights on an issue of public concern. However, the attorney-client privilege is so strong that it prevails over the right of free speech: Edwards v. Buckley, 106 Ohio App. 3d 800, 667 N.E.2d 423 (1995).

The dentist-patient privilege cannot be invoked to prevent the state dental board from requiring a licensee under investigation to produce records: Ohio State Dental Bd. v. Rubin, 104 Ohio App. 3d 773, 663 N.E.2d 387 (1995).

Appellant waived the physician-patient privilege when he filed the divorce action and sought custody of his children: Whiteman v. Whiteman, No. CA94-12-229 1995 Ohio App. LEXIS 2700 (12th Dist. 1995).

Where an executor files a will for probate, the physician-patient privilege has been waived under RC § 2317.02: Verba v. Orum, No. 94-B-29 1995 Ohio App. LEXIS 1352 (7th Dist. 1995).

Revised Code § 2317.02 did not totally preclude the deposing of the decedent's attorney in a will contest action. The court should have conducted an in camera inspection of the decedent's medical records to determine if there were any privileged communications: Weierman v. Mardis, 101 Ohio App. 3d 774, 656 N.E.2d 734 (1994).

Where a motorist contacts an attorney about his involvement in an accident and the attorney then calls the highway patrol to discuss resolving the matter, it is a violation of the attorney-client privilege for the prosecution to introduce a tape of the call at trial: State v. Shipley, 94 Ohio App. 3d 771, 641 N.E.2d 822 (1994).

An attorney may not be compelled to disclose the identity of a person who has contacted him for legal advice about a possible hit-and-run accident: Miller v. Begley, 93 Ohio App. 3d 527, 639 N.E.2d 139 (1994).

A blood sample is lawfully obtained where it is taken by medical personnel at the direction of a police officer with a warrant for the sample. The physician-patient privilege does not apply to such a sample: State v. Kutz, 87 Ohio App. 3d 329, 622 N.E.2d 362 (1993).

The physician-patient privilege is not waived merely because the patient testifies: State v. Brown, 90 Ohio App. 3d 674, 630 N.E.2d 397 (1993).

The attorney-client privilege belongs to the client, and the only materials protected are those which involve communications with his attorney. The work-product doctrine, on the other hand, belongs to the attorney and assures him that his private files shall remain free from intrusions of opposing counsel in the absence of special circumstances. The work-product doctrine generally protects a broader range of materials than does the attorney-client privilege because the work-product doctrine protects all materials prepared in anticipation of trial. Whether work product prepared during prior litigation is protected by the work-product doctrine must be determined on a case-by-case basis: Frank W. Schaefer, Inc. v. C. Garfield Mitchell Agency, Inc., 82 Ohio App. 3d 322, 612 N.E.2d 442 (1992).

An order permitting discovery of information which is protected by the physician-patient privilege is a final appealable order: Talvan v. Siegel, 80 Ohio App. 3d 781, 610 N.E.2d 1120 (1992).

In order to protect the attorney-client and work product privilege, injunctive relief is appropriate, particularly where it is demonstrated that the attorney has already violated the privilege and threatens to continue such practice: American Motors Corp. v. Huffstutler, 61 Ohio St. 3d 343, 575 N.E.2d 116 (1991).

An attorney-client privilege does not apply to communications made to a person claiming to be a jailhouse lawyer: State v. Fair, No. 90AP-363 1991 Ohio App. LEXIS 3324 (10th Dist. 1991).

Conversations a client has with her attorney's secretary may be privileged under RC § 2317.02: Kler v. Mazzeo, Nos. 58310, 58311 1991 Ohio App. LEXIS 1204 (8th Dist. 1991).

Files and records containing a doctor's diagnosis of individuals performed within the context of a second opinion or independent medical examination constitute "communications" within the meaning of RC § 2317.02(B)(3) which potentially could affect the course of a patient's treatment and are therefore privileged. The risk of disclosing a patient's identity cannot be entirely eliminated by the masking of a patient's name or identifying personal data such as telephone or social security numbers: Wozniak v. Kombrink, No. C-890531 1991 Ohio App. LEXIS 606 (1st Dist. 1991).

Affidavit of appellant's counsel was admissible where it consisted essentially of communication between counsel for the parties: Carroll v. Carroll, No. 89-C-1 1990 Ohio App. LEXIS 1339 (7th Dist. 1990).

Courts may not create a public policy limitation upon the physician-patient privilege in order to allow otherwise clearly inadmissible evidence to be received in drunk driving cases: State v. Smorgala, 50 Ohio St. 3d 222, 553 N.E.2d 672 (1990).

Revised Code § 2317.02(B) does not prevent a non-party treating physician from testifying as to non-privileged matters: Berlinger v. Mt. Sinai Medical Ctr., 68 Ohio App. 3d 830, 589 N.E.2d 1378 (1990).

Where defendant was taken to a hospital following the accident and a medical technician took a blood sample for hospital purposes, the physician-patient privilege applies. Hospital's error in releasing the records to the state did not amount to a waiver by defendant: State v. Walsh, Nos. 90CA004802, 90CA004803 1990 Ohio App. LEXIS 4465 (9th Dist. 1990).

The physician-patient privilege set forth in RC § 2317.02(B) may be "activated" for discovery purposes by the plaintiff-patient filing a motion for a protective order pursuant to CivR 26: Baker v. Quick Stop Oil Change & Tune-Up, 61 Ohio Misc. 2d 526, 580 N.E.2d 528 (CP 1990).

Although refusing to waive the physician-patient privilege may be a basis for removing an executor, it is error to remove him without holding a hearing: In re Estate of Russolillo, 69 Ohio App. 3d 448, 590 N.E.2d 1324 (1990).

The address of a hospital patient who is a potential witness to a fall by another patient is not privileged information under RC § 2317.02: Hunter v. Hawkes Hosp. of Mt. Carmel, 62 Ohio App. 3d 155, 574 N.E.2d 1147 (1989).

The attorney-client privilege establishes an exclusion to disclosure under the Ohio Public Records Law, RC § 149.43, of records consisting of communications between attorneys and government clients, even when such records do not fall within the "trial preparation" exception set forth in RC § 149.43(A)(4), since the release of such records is "prohibited by state law": Woodman v. Lakewood, 44 Ohio App. 3d 118, 541 N.E.2d 1084 (1988).

An order allowing a party to depose an opposing party's physician, where the opposing party has attempted to invoke the physician-patient privilege, is a final, appealable order under RC § 2305.02: Brown v. Yothers, 56 Ohio App. 3d 29, 564 N.E.2d 714 (1988).

The physician-patient privilege embodied in RC § 2317.02(B) does not preclude disclosure to the grand jury of the medical records of a person under investigation: In re Grand Jury Investigation of Brink, 42 Ohio Misc. 2d 5, 536 N.E.2d 1202 (CP 1988).

The physician-patient privilege may not be invoked in the context of a drunk-driving action to exclude evidence tending to prove that a person was intoxicated: State v. Boysaw, 40 Ohio App. 3d 173, 532 N.E.2d 154 (1987).

When communications between a patient and his physician are predicated upon the patient's fraudulent misrepresentations, the physician-patient relationship is not properly established and the physician-patient privilege does not attach: State ex rel. Buchman v. Stokes, 36 Ohio App. 3d 109, 521 N.E.2d 515 (1987).

The evidentiary privilege of RC § 2317.02(B) extends to hospital records containing privileged communications: State v. McKinnon, 38 Ohio App. 3d 28, 525 N.E.2d 821 (1987).

A communication between client and attorney which is not intended to be confidential is not privileged: Cannell v. Rhodes, 31 Ohio App. 3d 183, 31 Ohio B. 349, 509 N.E.2d 963 (1986).

The physician-patient privilege provided by RC § 2317.02(B) is unavailable to a defendant charged with aggravated vehicular homicide, because the public policy of enforcing the prohibition against aggravated vehicular homicide outweighs the policy considerations in support of the privilege: State v. Kavlich, 33 Ohio App. 3d 240, 515 N.E.2d 652 (1986).

The specific mention in RC § 2317.02(B) of the right of a surviving spouse or administratrix to waive the deceased patient's physician-patient privilege, and its inclusion in the general evidentiary chapter of the Ohio Revised Code along with the legislature's failure to exempt wrongful death actions specifically, as it does medical malpractice actions from the scope of the statute indicates the applicability of RC § 2317.02 to wrongful death actions: Urseth v. City of Dayton, 653 F. Supp. 1057, (S.D. 1986).

A trial court order compelling disclosure of privileged hospital-patient information is an appealable order: Humphry v. Riverside Methodist Hosp., 22 Ohio St. 3d 94, 22 Ohio B. 129, 488 N.E.2d 877 (1986).

An attorney may testify about a communication made to him by his client in that relation or his advice to his client if the client voluntarily testifies about that communication or advice in any proceeding in which the client is a party: Walsh v. Barcelona Assoc., Inc., 16 Ohio App. 3d 470, 16 Ohio B. 553, 476 N.E.2d 1090 (1984).

The industrial commission may not require a claimant to waive his physician-patient privilege as a precondition to consideration of the claim: State ex rel. Holman v. Dayton Press, Inc., 11 Ohio St. 3d 66, 11 Ohio B. 256, 463 N.E.2d 1243 (1984).

Where an attorney assists in the illegal, private placement of a child for adoption, the client's name and address are not privileged: Lemley v. Kaiser, 6 Ohio St. 3d 258, 6 Ohio B. 324, 452 N.E.2d 1304 (1983).

As a practical matter, because of the existence of the attorney-client privilege, a plaintiff who sues an attorney for malicious prosecution on the basis of the attorney's conduct while representing a client, must establish the claim through the voluntary testimony of the client, or through evidence obtained after procuring the client's express waiver of the privilege: Woyczynski v. Wolf, 11 Ohio App. 3d 226, 11 Ohio B. 350, 464 N.E.2d 612 (1983).

Where a natural person makes contemporaneous communications to an attorney, on behalf of two corporations, which corporations later become opposite parties to a lawsuit, the attorney-client privilege does not preclude the attorney from testifying as to information pertaining solely to the corporation waiving the privilege: Knowlton Co. v. Knowlton, 10 Ohio App. 3d 82, 10 Ohio B. 104, 460 N.E.2d 632 (1983).

While the rule that psychiatric experts retained by the defense are shielded by the attorney-client privilege has been adopted in federal criminal proceedings and in the majority of states, the rule is not mandated by the U.S. Constitution; therefore, there is no entitlement to habeas corpus relief on the grounds that the privilege was violated in an Ohio criminal case when the prosecution called as its witness a defense-retained psychiatrist: Noggle v. Marshall, 706 F.2d 1408, (6th Cir. 1983).

A party's testifying in his own behalf as to his injuries, communications made to him by his physician and the physician's treatment of him waives his privilege against having the physician testify as to the same matters already disclosed by him, and in such cases the physician may be compelled to testify. Merely answering questions on cross-examination as to treatment from a physician does not waive the physician-patient privilege: York v. Roberts, 9 Ohio Misc. 2d 19, 9 Ohio B. 621, 460 N.E.2d 327 (CP 1983).

The physician-patient privilege set forth in RC § 2317.02(B) can be waived only by the methods provided for in that statute. Since RC § 2317.02(B) does not make reference to RC § 4511.19.1(A) (the implied consent statute), RC § 4511.19.1(A) may not be used to defeat the physician-patient privilege of RC § 2317.02(B): State v. Dress, 10 Ohio App. 3d 258, 10 Ohio B. 372, 461 N.E.2d 1312 (1982).

The physician-patient privilege set forth in RC § 2317.02(B) does not apply to involuntary commitment proceedings pursuant to RC §§ 5122.11 to 5122.15, because the privilege applies only when the patient has voluntarily sought treatment: In re Winstead, 67 Ohio App. 2d 111, 21 Ohio Op. 3d 422, 425 N.E.2d 943 (1980).

Under Ohio law, RC §§ 2317.02 and 4731.22, a physician may not disclose a patient's medical records without the patient's consent. The limited exception to this rule is found in RC § 3701.05 which permits disclosure of an "occupational disease" in reports to the Ohio Department of Health. Therefore, an employer is not required to submit medical records identified by name and address of employees to federal agencies without specific consent of the employee involved: General Motors v. Director of NIOSH, 459 F. Supp. 235, (S.D. 1978).

When the attorney-client privilege exists, the privilege has been held to encompass the protection of the address of the client. While Civil Rule 10(A) requires that every complaint should include the addresses of all the parties, the filing of the complaint does not constitute a waiver of the attorney-client privilege and an attorney may refuse to testify as to a subsequent address of his client: Waldmann v. Waldmann, 48 Ohio St. 2d 176, 2 Ohio Op. 3d 373, 358 N.E.2d 521 (1976).

In a criminal case involving the alteration of a prescription by the patient, the history and contents of the prescription are not privileged by the physician-patient privilege since the communication was not intended as a confidential communication and was not a communication between patient and physician: State v. Treadway, 69 Ohio Op. 2d 507, 328 N.E.2d 825 (App 1974).

Although an attorney may not testify about conversations considered confidential by him and his client, the privilege does not extend to subsequent acts by the client relating to the discussions: Hawgood v. Hawgood, 33 Ohio Misc. 227, 62 Ohio Op. 2d 427, 294 N.E.2d 681 (CP 1973).

Where there is a degree of common interest between joint defendants in any information, communication, or legal advice concerning a court action, such information, communication, or advice is not privileged from being divulged by one party to the other in a subsequent action between them: Netzley v. Nationwide Mut. Ins. Co., 34 Ohio App. 2d 65, 63 Ohio Op. 2d 127, 296 N.E.2d 550 (1971).

The privilege granted by RC § 2317.02 has no application to the patient when he brings an action in malpractice: Otto v. Miami Valley Hospital Society, 26 Ohio Misc. 72, 54 Ohio Op. 2d 219, 266 N.E.2d 270 (CP 1971).

The privilege accorded under the provisions of RC § 2317.02 to a husband and wife not to testify "concerning any communication made by one to the other, or an act done by either in the presence of the other" is personal to husband and wife and may not be invoked by a third party: Diehl v. Wilmot Castle Co., 26 Ohio St. 2d 249, 55 Ohio Op. 2d 484, 271 N.E.2d 261 (1971), [reversing 21 Ohio App. 2d 191, 50 Ohio Op. 2d 331, 256 N.E.2d 220.].

The activities of the husband and wife, in driving separate cars on a public street and in the driveway to a public hospital, were activities open to general observation by all those persons who may be, and conceivably were, in the area at the time of the experiment, and testimony of the husband and the wife regarding this experiment is not within the ambit of the statutorily protected communication accorded under the provisions of RC § 2317.02: Diehl v. Wilmot Castle Co., 26 Ohio St. 2d 249, 55 Ohio Op. 2d 484, 271 N.E.2d 261 (1971), [reversing 21 Ohio App. 2d 191, 50 Ohio Op. 2d 331, 256 N.E.2d 220.].

Only those relationships specifically named in RC § 2317.02 give rise to privileged communications and acts. A parolee and his parole officer do not occupy a confidential relationship: State v. Halleck, 24 Ohio App. 2d 74, 53 Ohio Op. 2d 195, 263 N.E.2d 917 (1970).

The right of a witness to lawfully refuse to give an answer on deposition may be based on two specific reasons: first, that the question asked is of a privileged nature such as privileged between client and attorney, a patient and doctor or a clergyman or priest as in confession, and second, those questions that are not relevant to the issue of the case: Nord v. McMillan, 6 Ohio Misc. 25, 35 Ohio Op. 2d 106, 215 N.E.2d 919 (CP 1966).

Even though a plaintiff does not waive the physician-patient privilege afforded by RC § 2317.02, his attending physician may be called as a witness by the defendant; and as such witness, the physician may testify to all competent matters other than communications made to him in his professional capacity by his patient, or his advice to his patient given in that capacity: Vincenzo v. Newhart, 7 Ohio App. 2d 97, 36 Ohio Op. 2d 213, 219 N.E.2d 212 (1966), [affirmed 11 Ohio St. 2d 63, 40 Ohio Op. 2d 67, 227 N.E.2d 627.].

It is an abuse of discretion for a trial court to refuse to allow a plaintiff's attending physician, subpoenaed by the defendant, to take the witness stand and to testify to matters not subject to the privileges afforded by this section: Vincenzo v. Newhart, 7 Ohio App. 2d 97, 36 Ohio Op. 2d 213, 219 N.E.2d 212 (1966), [affirmed 11 Ohio St. 2d 63, 40 Ohio Op. 2d 67, 227 N.E.2d 627.].

Plaintiff's statement taken by the defendant's insurer's claim representative and subsequently turned over to defendant's counsel after suit commencement, is not privileged from disclosure: Koller v. Plechaty, 6 Ohio Misc. 57, 35 Ohio Op. 2d 113, 216 N.E.2d 399 (MC 1965).

The provisions of RC § 2317.02 are in derogation of the common law and should be strictly construed; it does not anticipate and should not be extended to included prior statements made by witness and reduced to writing, so as to enable the holder thereof to claim privilege: Arnovitz v. Wozar, 9 Ohio App. 2d 16, 38 Ohio Op. 2d 27, 222 N.E.2d 660 (1964).

Where a physician is required by former RC § 2917.44 (see now RC § 2921.22) to report to a law-enforcement officer a gunshot wound or wound inflicted by a deadly weapon, the former may testify, without violating the physician-patient privilege, as to the description of the wounded person, as to his name and address, if known, and as to the description of the nature and location of such wound, obtained by examination, observation and treatment of the victim: State v. Antill, 176 Ohio St. 61, 26 Ohio Op. 2d 366, 197 N.E.2d 548 (1964).

There is no common-law rule of physician-patient privilege, and none has been accorded in the federal courts as a general evidentiary principle. However, the basic physician-patient privilege of the Ohio statute will be recognized by a federal district court sitting in Ohio, although the federal court will retain a free hand in defining the scope of such privilege: Mariner v. Great Lakes Dredge & Dock Co., 20 Ohio Op. 2d 341, 202 F. Supp. 430 (N.D. Ohio 1962).

The Ohio physician-patient privilege does not extend to hospital records, and therefore the production of hospital records will be ordered notwithstanding defendant's assertion of the privilege: Mariner v. Great Lakes Dredge & Dock Co., 20 Ohio Op. 2d 341, 202 F. Supp. 430 (N.D. Ohio 1962).

Where a person approaches an attorney with the view of retaining his services to act on the former's behalf, an attorney-client relationship is created, and communications made to such attorney during the preliminary conferences prior to the actual acceptance or rejection by the attorney of the employment are privileged communications: Taylor v. Sheldon, 172 Ohio St. 118, 15 Ohio Op. 2d 206, 173 N.E.2d 892 (1961).

The privilege as to communications between an attorney and client does not expire with the death of the client: Taylor v. Sheldon, 172 Ohio St. 118, 15 Ohio Op. 2d 206, 173 N.E.2d 892 (1961).

Knowledge communicated to an attorney by his client during the attorney-client relationship, which knowledge relates to the services for which he was employed, whether it is gained from words or merely by observations made by the attorney, falls within the rule relating to privileged communications: Taylor v. Sheldon, 172 Ohio St. 118, 15 Ohio Op. 2d 206, 173 N.E.2d 892 (1961).

If an attorney acts as a witness to an instrument, particularly where such witnessing is required by statute to render validity to the instrument, the "privilege" statute does not apply and he may be called to testify and may be examined and cross-examined as to the facts and circumstances, properly the subject of such examination: Sweeny v. Palus, 16 Ohio Op. 2d 373, 172 N.E.2d 925 (PC 1961).

Revised Code § 2317.02 does not prevent testimony by a physician as to the fact that he was consulted in a professional capacity by a person on a certain date: Jenkins v. Metropolitan Life Ins. Co., 171 Ohio St. 557, 15 Ohio Op. 2d 14, 173 N.E.2d 122 (1961).

Privileged communications between patient and physician may be by exhibition of the body to the physician for examination or treatment as well as by oral or written communications between physician and patient; and a physician may not testify in respect to either unless there is a waiver in reference thereto: In re Roberto, 106 Ohio App. 303, 7 Ohio Op. 2d 63, 151 N.E.2d 37 (1958).

The relationship of physician and patient was not created by an examination of decedent by physicians engaged by decedent's employer where such examination did not include treatment nor advice and clearly was not for the purpose of alleviating decedent's pain nor curing his malady: Suetta v. Carnegie-Illinois Steel Corp., 75 Ohio L. Ab. 487, 144 N.E.2d 292 (App 1955).

In an action, the purpose of which is to recover compensation or damages for a physical injury, a physician who has treated the plaintiff professionally for such injury is not thereby precluded by this section, relating to privileged communications, from giving expert testimony in response to proper hypothetical questions, provided that in answering the questions he disregards what he learned and observed while attending the patient and his own opinion formed therefrom: Strizak v. Industrial Comm., 159 Ohio St. 475, 50 Ohio Op. 394, 112 N.E.2d 537 (1953).

Where a physician was called by plaintiff and testified as to her physical condition, including some family history secured by the physician from her, and was, without objection on cross-examination and redirect, interrogated fully as to the subject matter in the case history, such procedure removed from plaintiff the privileged communications protection of the statute, RC § 2317.02, and it was not error to admit as an exhibit the written statement of such physician relating to the physical condition of the plaintiff including some family history which the doctor had secured from her: Vukovic v. Walnut Grove Country Club, Inc., 69 Ohio L. Ab. 197, 124 N.E.2d 463 (App 1953).

Under this section, communications between the testatrix and the attorney who was the legal advisor of the testatrix respecting the subject matter contained in, and the estate of, her last will and testament, which is involved in the proceedings, are privileged and therefore inadmissible: In re Barnes, 64 Ohio L. Ab. 28, 108 N.E.2d 101 (App 1952).

This section does not accord the employer or the employee any privilege as to a record: Parkhurst v. Cleveland, 36 Ohio Op. 321, 77 N.E.2d 735 (CP 1947).

Privileged communications between attorney and client under this section assume that the communications are made with the intention of the confidentiality. When confidence ceases, privilege ceases: Emley v. Selepchak, 76 Ohio App. 257, 31 Ohio Op. 558, 63 N.E.2d 919 (1945).

The statute which precludes a physician from testifying "concerning a communication made to him by his patient in that relation" should be strictly construed, in a will contest action, to apply only to the communication made to a physician in his professional capacity at the time: Meier v. Peirano, 76 Ohio App. 9, 31 Ohio Op. 342, 62 N.E.2d 920 (1945).

The burden of showing that testimony sought to be excluded under the doctrine of privileged attorney-client communications rests upon the party seeking to exclude it: In re Martin, 141 Ohio St. 87, 25 Ohio Op. 225, 47 N.E.2d 388 (1943).

When a workman, while in a semiconscious condition, was taken to a plant physician, who examined and treated him, the communication was held privileged: Malone v. Industrial Comm., 140 Ohio St. 292, 23 Ohio Op. 496, 43 N.E.2d 266 (1942).

A physician is not rendered incompetent by this section to testify that the relation of physician and patient existed and that treatment was administered: Willig v. Prudential Ins. Co., 71 Ohio App. 255, 26 Ohio Op. 89, 49 N.E.2d 421 (1942).

General Code § 12102-23 (RC § 2317.40) does not inferentially repeal this section nor may it be considered as an exception to the general provisions of such general privilege statute: Eikenberry v. McFall, 33 Ohio L. Ab. 525, 36 N.E.2d 27 (App 1941).

The general rule that communications between an attorney and his client in the presence of a third person are not privileged does not apply when such third person is the agent of either the client or the attorney: Foley v. Poschke, 137 Ohio St. 593, 19 Ohio Op. 350, 31 N.E.2d 845 (1941), [affirming 66 Ohio App. 227 (1940)], discussed in 23 Ohio Op. 419; Nicholl v. Bergner, 76 Ohio App. 245, 31 Ohio Op. 529, 63 N.E.2d 828 (1945).

An examination by a physician of a client at the instance of attorneys for the purpose of ascertaining conditions determinative of a fact essential to a cause of action would not qualify under the definition of privileged communication between physician and patient: McMillen v. Industrial Comm., 34 Ohio L. Ab. 435, 37 N.E.2d 632 (App 1941).

Testimony of a physician who had attended the deceased insured person, offered by defendant in an action on the policy in support of its claim that statements made by insured in his application for insurance relative to attendance by physicians were wilfully false and fraudulently made to induce the company to issue the policy, is within the inhibition of this section, regardless of who employed the physicians, if by the act of insured they were visited by him as his physicians. A beneficiary under the insurance policy cannot waive the privilege: Russell v. Penn Mut. Life Ins. Co., 70 Ohio App. 113, 24 Ohio Op. 440, 35 Ohio L. Ab. 516, 41 N.E.2d 251 (App 1941).

The beneficiary under a policy of insurance cannot waive the personal privilege of an insured from evidence as to her physical condition, when such evidence comes within the classification of privileged communications: Thompson v. National Life & Accident Ins. Co., 68 Ohio App. 439, 21 Ohio Op. 497, 37 N.E.2d 621 (1941).

When a testatrix, in the presence of her attorney who drew the will, asks a witness to look the will over and tell her what he thinks of it, and if it is all right, and the witness reads the will, the acquainting of the witness with all the subject matter of her will in the presence of her attorney constitutes an express waiver of the privilege of attorney and client otherwise assured to her under this section in so far as the contents of the will are concerned: In re Eliker, 32 Ohio L. Ab. 465 (App 1940).

When the attorney-client privilege exists, the privilege has been held to encompass the protection of the address of the client: In re Heile, 65 Ohio App. 45, 18 Ohio Op. 274, 29 N.E.2d 175 (1939).

The statutory rule as to privileged communications creates a substantive right which the industrial commission cannot compel claimants to waive as a condition precedent to the consideration by the commission of an application for workmen's compensation: State ex rel. Galloway v. Industrial Comm., 27 Ohio L. Ab. 697 (App 1938).

This section, relative to privileged communications, is not violated by an attorney answering in the affirmative the question whether he prepared the will handed to him on the witness stand: Platte v. Stephens, 27 Ohio L. Ab. 561 (App 1938).

Where plaintiff testifies as to the general physical condition of her husband, but does not testify to any communication between her husband and the physician, or to any advice given by the physician to his patient, such testimony by the widow of the patient does not constitute a waiver of the privilege: Gillen v. Industrial Comm., 59 Ohio App. 241, 12 Ohio Op. 353, 17 N.E.2d 663 (1938).

This section, prohibiting one spouse from testifying to communications or acts of other not made or done in the presence of a third person, does not exclude wife's testimony, in action on an accident and life policy, concerning what she observed immediately after husband's accident though no one else was present: Marsh v. Preferred Accident Ins. Co., 89 F.2d 932, (6th Cir. 1937).

The testimony of a physician is not subject to the objection that it is privileged where it relates to the mentality of a patient whom he treated solely for physical ailments: Olney v. Schurr, 21 Ohio L. Ab. 630 (App 1936).

A communication between an administratrix and an attorney, acting for her in her representative capacity, relative to the rejection of a claim against the estate and the authorization of the attorney to reject it, is not a privileged communication between attorney and client within meaning of this section: Buehner v. Knipper, 18 Ohio L. Ab. 556 (App 1935).

The testimony of an attorney as to a deceased client's sanity, based solely upon his general observation of the client, does not constitute a privileged communication within the meaning of this section: Heiselmann v. Franks, 48 Ohio App. 536, 2 Ohio Op. 123, 194 N.E. 604 (1934).

In an action by a physician, evidence to show employment and services performed was not inadmissible, as privileged: Petrucelli v. Steinharter, 24 Ohio App. 471, 157 N.E. 803 (1926).

The common law rule that confidential communications between attorney and client are privileged is modified by statute in Ohio: Spitzer v. Stillings, 109 Ohio St. 297, 142 N.E. 365 (1924).

It is not error to admit the testimony of a divorced wife when there is no objection that it is a privileged communication where the record fails to disclose the known presence of a third person: Losh v. Brunk, 18 Ohio App. 412, 2 Ohio L. Ab. 711 (1924).

This section disqualifies an attorney from testifying "concerning a communication made to him by his client in that relation, or his advice to his client," except by the express consent of the client, and when a testator procures his attorney as a subscribing witness to his will he, by that act, expressly consents that the attorney may testify as fully as any other subscribing witness touching the capacity of the testator or any other fact affecting the validity of the will. The object of requesting a person to witness a will is to assure to legal execution of the will and preserve the evidence thereof: Knepper v. Knepper, 103 Ohio St. 529, 134 N.E. 476 (1921); Baird v. Detrick, 8 Ohio App. 198, 28 Ohio Ct. App. 257 (1917), [affirming 20 Ohio N.P. (n.s.) 209, 28 Ohio Dec. 110; motion to certify record overruled, 15 Ohio L. 439, 62 Weekly L. Bull. 476 (1917).].

The fact that communications between attorney and client are held in the known presence of third parties, at a certain conference, does not prevent communications made later, during the same conference or at a different conference in the absence of such third parties, from being confidential: Haley v. Dempsey, 14 Ohio App. 326 (1921), [motion to certify record overruled, Dempsey v. Haley, 19 Ohio L. 155; judgment on retrial, sustaining will, affirmed by court of appeals; motion to certify record overruled, Haley v. Dempsey, 21 Ohio L. 300] (1923).

If a testator who is an attorney, prepares his own will and goes to attorneys to have it executed, it is said that the relation between the testator and such attorneys is not that of attorney and client; and accordingly, information which is given by the testator to such attorney is not privileged: Ewalt v. Ames, 6 Ohio App. 374, 27 Ohio Ct. App. 465, 29 Ohio Cir. Dec. 133, 62 Weekly L. Bull. 389 (1917).

A communication by a patient to a physician, under this section, may be not only by words but also by exhibiting the body of the patient or some part thereof to the physician for his information, examination, or diagnosis: Ausdenmoore v. Holzback, 89 Ohio St. 381, 106 N.E. 41 (1914); Baker v. Industrial Comm., 135 Ohio St. 491, 14 Ohio Op. 392, 21 N.E.2d 593 (1939).

A lawyer is not privileged from testifying in a case against his client, as to a conference between him and his client in which future wrongdoing of his client was discussed: Golner v. State, 19 Ohio C.C. (n.s.) 317, 29 Ohio Cir. Dec. 290 (1912), [for prosecution from which these contempt proceedings arose, see 19 Ohio C.C. (n.s.) 571, 26 Ohio Cir. Dec. 654 (1912); for disbarment proceedings growing out of the transaction, see In re Neff, 23 Ohio C.C. (n.s.) 318, 34 Ohio Cir. Dec. 261] (1912).

An attorney cannot testify as to a conversation with a client and his advice to such client in determining whether the act of such client in purchasing a money order amounted to a gift to the payee thereof, if such client died before the money order was delivered, and the question arises between the payee of the money order and the administrator of such decedent's estate: McKelvey v. McKelvey, 14 Ohio C.C. (n.s.) 331, 23 Ohio Cir. Dec. 117 (1911).

A statement by a physician to his patient that he is afflicted with a certain disease is advice within the meaning of this section: Brotherhood of Railroad Trainmen v. Daly, 11 Ohio C.C. (n.s.) 464, 21 Ohio Cir. Dec. 391 (1908).

A report of an accident made by street car crew to claim agent and turned over to company counsel after suit, was privileged: Ex parte Schoepf, 74 OS 1, 77 NE 276, 6 LRA(NS) 325; also report of accident by insured to insurer: In re Kleman, 132 Ohio St. 187, 7 Ohio Op. 273, 5 N.E.2d 492 (1936).

It is not competent to prove by a physician the communications made to him by his patient in that relation, but such physician may testify as to facts which are within his knowledge independent of such communications. He may testify as to the health of his patient, and the treatment prescribed by him: Metropolitan Ins. Co. v. Howle, 68 Ohio St. 614, 68 N.E. 4 (1903).

A wife was living with her parents separate from her husband, and the question, in an action by the husband against the parents, was whether she was there by the wrong of the husband or parents, and it was held that letters written by her during such separation in which she addressed him as her "dear husband" were competent to show the condition of her feelings towards him; and the husband was a competent witness to show that such letters were in the handwriting of his wife: Holtz v. Dick, 42 Ohio St. 23 (1884).

In an action by a married woman to establish, as against a third party, her title to property which she claimed in her own right, the plaintiff was a competent witness on her own behalf, but was not competent to testify concerning communications between herself and husband, made during coverture: Robinson v. Chadwick, 22 Ohio St. 527 (1872).

An attorney at law cannot be compelled, and will not be permitted, to give evidence of what his client confided to him; but as to matters, the knowledge of which he derived from outside sources, he must testify: Rogers v. Dare, W. 136, (1832).

A person may refuse to answer during a formal coroner's inquest under oath on the ground of privilege: OAG No. 75-011 (1975).

There is no authority in the law of Ohio for the treatment of information received by the state board for vocational education, bureau of vocational rehabilitation, as privileged communications: 1946 OAG No. 931 (1946).



Probating will


Under RC § 2317.02 as in effect prior to 1-5-88, filing an application to probate the decedent's will did not waive the privilege as to the decedent's communications with his physician: Hollis v. Finger, 69 Ohio App. 3d 286, 590 N.E.2d 784 (1990).



Psychiatrist's records


Admission of testimony of the mother's psychiatrist in violation of RC §§ 2317.02 and 4732.19 at the hearing on termination of parental rights was prejudicial: In re Brown, 98 Ohio App. 3d 337, 648 N.E.2d 576 (1994).



Psychologist privilege


Where adoptive parents brought a wrongful adoption action in their own capacity after the child had obtained the age of majority, the department of human services could not compel disclosure of the adoptee's medical and psychological records without the adoptee's consent: Sirca v. Medina Cty. Dept. of Human Serv., 145 Ohio App. 3d 182, 762 N.E.2d 407 (2001).



Records


Revised Code § 2317.02(B)(2)'s provisions regarding records that are causally or historically related to the injuries relevant to the civil action extends to discovery, not just to testimony; thus, the trial court erred as a matter of law in ordering the plaintiff to execute general medical records release authorizations: Ward v. Johnson's Indus. Caterers, No. 97APE11-1531 1998 Ohio App. LEXIS 2841 (10th Dist. 1998).

Civil Rule 16(6) permits a court to require pretrial disclosure of privileged medical information and records, even though RC § 2317.02(B) prohibits use of such information at trial unless the privilege is waived. In a personal injury action, such disclosure will enable the defendant to be prepared if the plaintiff waives the privilege by voluntarily testifying on the subject at trial. The scope of such disclosure must be as broad as possible: Floyd v. Copas, 9 Ohio Op. 3d 298 (CP 1977), [denying writ of prohibition, State ex rel. Floyd v. Court of Common Pleas, 55 Ohio St. 2d 27, 9 Ohio Op. 3d 16, 377 N.E.2d 794.].

Where hospital records include communications between the patient and his physician, such portions of the records are, in the absence of waiver of the privilege, inadmissible in evidence by virtue of the express provisions of this section: Weis v. Weis, 147 Ohio St. 416, 34 Ohio Op. 350, 72 N.E.2d 245 (1947).



Relationships not covered by privilege


One having custody and control of the records (chief of police) of a police department made in the detection and prevention of crime, is not generally privileged from disclosing the same in taking of depositions in a civil action: In re Story, 159 Ohio St. 144, 50 Ohio Op. 116, 111 N.E.2d 385 (1953).



Representing both spouses


Under RC §§ 2317.02 (125 v 313) and 2317.03, an attorney who represents both a husband and wife in a transaction may testify concerning such transaction, where, after the decease of one of the parties thereto, the surviving spouse gives his consent: Alliance First Nat. Bank v. Maus, 100 Ohio App. 433, 60 Ohio Op. 350, 137 N.E.2d 305 (1955).



Sanity


The testimony of a physician as to a deceased patient's sanity, based solely upon his general observation of the patient, does not constitute a privileged communication within the meaning of this section; the same rule applies to an attorney's testimony as to his deceased client: Heiselmann v. Franks, 48 Ohio App. 536, 2 Ohio Op. 123, 194 N.E. 604 (1934).



Separated spouses


A criminal defendant's privilege to exclude testimony by his spouse as to acts done in the presence of the spouse is, like the privilege to exclude testimony of confidential communications, inapplicable to spouses who are separated and not living as husband and wife: State v. Bradley, 30 Ohio App. 3d 181, 30 Ohio B. 323, 507 N.E.2d 396 (1986).



Separation and divorce issues


Communications between a husband and wife who have been living separate and apart for a considerable period of time with reference to an agreement for alimony, separation and the release of claims growing out of the marital relation, are not privileged communications: McEntire v. McEntire, 107 Ohio St. 510, 140 N.E. 328 (1923).



Slander


A husband or wife is a competent witness in slander for or against each other when the slanderous words are spoken in the presence of each other, in an action brought by husband and wife: Duval v. Davey, 32 Ohio St. 604, 7 Weekly L. Bull. 399 (1877).



Social workers


The only privilege applicable to a communication to a psychiatric social worker is the privilege established by RC § 2317.02(G)(1); communications indicating a clear and present danger to the client or other persons are excluded from this statutory privilege established for social workers: State v. Moore, No. 17361 1999 Ohio App. LEXIS 1644 (2nd Dist. 1999).

Where the mother of a minor releases to a county prosecutor the contents of records made by a social worker during counseling, the counselor-client relationship as to that minor is waived: State v. Cartee, No. 468 1992 Ohio App. LEXIS 6325 (4th Dist. 1992).



Subscribing witnesses


While an attorney cannot testify as to confidential communications made to him by testator, he may, if he is a subscribing witness, testify as any other subscribing witness may: Collins v. Collins, 110 Ohio St. 105, 143 N.E. 561, 38 A.L.R. 230 (1924); Whigham v. Bannon, 21 Ohio App. 496, 153 N.E. 252 (1926).



Taped conversations


The spousal privilege did not apply to the taped conversations, since the parties were separated and living apart: State v. Shaffer, 114 Ohio App. 3d 97, 682 N.E.2d 1040 (1996).



Testimony


When a patient testifies about (his or) her medical condition, (his or) her physician may testify concerning the same subject: Covington v. Sawyer, 9 Ohio App. 3d 40, 9 Ohio B. 43, 458 N.E.2d 465 (1983).

Where a son and two daughters, sole heirs at law and next of kin of the testatrix, are nominated as coexecutors in her will and are appointed to said offices by the probate court, are also beneficiaries under the will, as are their children, in a trust created by the will, and said coexecutors, as individuals, bring an action to contest the will, which if successful would cause the entire estate to pass to the plaintiffs under the statute of descent and distribution, and deny any interest to other beneficiaries named in the will, and furthermore, as such coexecutors, there being no surviving spouse of the testatrix, use the authority conferred upon them by RC § 2317.02, to their advantage during the trial, to grant or to refuse consent to the attorney of the testatrix or her physician, to testify relative to confidential communications of the testatrix when in the relationship of client and attorney, or patient and physician, and deny such privilege to other parties in interest, there is a conflict of interest created between plaintiffs, as individuals, and their obligations as coexecutors, and they may not maintain such will-contest action without resigning as executors: Allison v. Allison, 15 Ohio St. 2d 44, 44 Ohio Op. 2d 25, 238 N.E.2d 768 (1968).

Revised Code § 2317.02 providing that a physician shall not testify concerning communications made to him by his patient in that relation, or his advice to his patient, without the patient's express consent, and providing further that if the patient voluntarily testifies, the physician may be compelled to testify on the same subject, is in derogation of common law and hence must be strictly construed: In re Loewenthal, 101 Ohio App. 355, 1 Ohio Op. 2d 302, 134 N.E.2d 158 (1956).

Where a patient voluntarily testifies that his right leg was free from boils and scaly condition before a certain injury but that thereafter it was all swollen up, sore, and scabby, and that he was sent to a certain physician, a skin specialist, for treatment, there is a waiver in respect to the condition of his right leg and the physician may therefore testify on that subject: Baker v. Industrial Comm., 135 Ohio St. 491, 14 Ohio Op. 392, 21 N.E.2d 593 (1939).

Trial court's refusal to permit the attorney for an heir to testify as to conversation with heir, authorizing attorney to make a settlement with administrator is reversible error, after administrator has introduced evidence relative to such settlement and the heir voluntarily testified as to such authority: Shilling v. Ross, 16 Ohio L. Ab. 458 (App 1933).

A husband or wife called to testify as to such communication or act is competent to testify as to the known presence or hearing of such third person: McCague v. Miller, 36 Ohio St. 595, 5 Weekly L. Bull. 936 (1881).



Testimony about handwriting


Wife might testify as to whether writing in alleged book of account was in husband's handwriting without violating this section: Worland v. McGill, 26 Ohio App. 442, 160 N.E. 478 (1927).



Testimony about odor of alcohol


In a death action against a bus company arising from a traffic collision, admission of the testimony of a witness who at the time of the accident was the wife of bus driver, but who was divorced before trial, that immediately after the accident while talking to her husband she smelled beer on his breath, was prejudicial error, where no other person was present at the time, since she was not competent to testify: Community Traction Co. v. Neorr, 52 Ohio App. 190, 6 Ohio Op. 294, 3 N.E.2d 638 (1936).



Testimony by a spouse about his or her spouse


Since RC § 2317.02 provides that a husband or wife shall not testify to an act done by either in the presence of the other during coverture, unless the act was done in the known presence or hearing of a third person competent to be a witness, a married woman who has signed a note, and who contends that such note was altered after she signed it, cannot testify that such note was handed to her by her husband, no one else being present, that she examined such note before she signed it, and that the date which such note bore was altered thereafter: Dick v. Hyer, 94 Ohio St. 351, 114 N.E. 251 (1916).



Testimony by spouse


In an action by a married woman for assault and battery she cannot testify to instructions and advice given to her by her husband when no one was present: Stevenson v. Morris, 37 Ohio St. 10, 6 Weekly L. Bull. 208 (1881).



Testimony of physicians


Revised Code § 2317.02(B) does not make inadmissible the testimony of a physician regarding false statements made to said physician by a person seeking a prescription for an illegal drug where there is no evidence that the drug was obtained by said person for the treatment of any medical illness, disease or disorder: State v. Garrett, 8 Ohio App. 3d 244, 8 Ohio B. 318, 456 N.E.2d 1319 (1983).



Testimony of spouses


Subdivision 6 [now (D)] of RC § 2317.02, which provides that husband or wife shall not testify concerning communications made by one to the other or acts done by either in the presence of the other, where such communications or acts occur during coverture, does not disqualify a widow, donee of a gift inter vivos by her husband, from testifying during proceedings on exceptions to the inventory of the husband's estate as to conversations, incidents and acts preceding the gift and occurring prior to coverture: Bolen v. Humes, 94 Ohio App. 1, 51 Ohio Op. 249, 114 N.E.2d 281 (1951).

Husband and wife are competent witnesses for and against each other, except as to communications made by one to the other and acts done by one in the presence of the other during coverture, and not in the known presence of a third person: Westerman v. Westerman, 25 Ohio St. 500 (1874); Bean v. Green, 33 Ohio St. 444 (1878); Howard v. Bower, 37 Ohio St. 402 (1881).



Waiver


The attorney-client privilege was impliedly waived by the party asserting it where he filed an action which placed the protected information at issue by making it relevant to the case and where applying the privilege would deny the opposing party access to information vital to its defense: Ward v. Graydon, Head & Ritchey, 147 Ohio App. 3d 325, 2001-Ohio-8654, 770 N.E.2d 613 (2001).

The inmate had signed a waiver as to mental health services that not all communications were confidential: State v. Farthing, 146 Ohio App. 3d 720, 2001-Ohio-7077, 767 N.E.2d 1242 (2001).

A waiver of the attorney-client privilege did not occur as a result of a witness's deposition testimony during cross-examination because cross-examination testimony is not voluntary, since the client and his counsel do not have control of the questions or the information which is to be elicited: Carver v. Deerfield Twp., 139 Ohio App. 3d 64, 742 N.E.2d 1182 (2000).

A patient's waiver of the privilege under RC § 2317.02(B) by filing a civil action which puts the patient's physical or mental health at issue may operate, at least in some situations, as a waiver for purposes of another case: Menda v. Springfield Radiologists, Inc., 136 Ohio App. 3d 656, 737 N.E.2d 590 (2000).

Plaintiff waived the physician-patient privilege by filing a civil action. There was no evidence that a treating physician violated a duty of confidentiality: Wargo v. Buck, 123 Ohio App. 3d 110, 703 N.E.2d 811 (1997).

Any privilege under RC § 2317.02 or 4732.19 is automatically waived under RC § 2151.42.1(A)(3) in certain child abuse cases: State v. Stewart, 111 Ohio App. 3d 525, 676 N.E.2d 912 (1996).

Revised Code § 2317.02(B)(1) provides that the privilege is waived in accord with the discovery provisions of the Civil Rules. Those rules provide, however, that discovery is limited to matters which are not privileged. The privilege is not waived merely by filing suit or testifying: Dellenbach v. Robinson, 95 Ohio App. 3d 358, 642 N.E.2d 638 (1994).

Where plaintiff waived her privilege under RC § 2317.02 by filing the personal injury action, she could not sue the opposing party's counsel for invasion of privacy merely because counsel obtained medical records plaintiff considered embarrassing: Kahler v. Roetzel & Andress, No. 94APE01-4 1994 Ohio App. LEXIS 2477 (10th Dist. 1994).

Failure to object at trial to questions posed by the state to appellant's husband constituted a waiver of RC § 2317.02(D): State v. Simpson, No. 93-L-014 1994 Ohio App. LEXIS 4472 (11th Dist. 1994).

The employee waived the privilege under RC § 2317.02(B) in a wrongful discharge action to the extent that testimony of his psychiatrist was necessary to establish that he was handicapped and required medical attention: Hayes v. Cleveland Pneumatic Co., 92 Ohio App. 3d 36, 634 N.E.2d 228 (1993).

When a patient files a workers' compensation claim, that operates as a waiver of the physician-patient privilege for purposes of pursuing remedies under RC Chapter 4123.: Kokitka v. Ford Motor Co., No. 62410 1993 Ohio App. LEXIS 3075 (8th Dist. 1993).

Under the husband-wife privilege, the party seeking to introduce a privileged statement must secure a waiver from both spouses or, in the case of a holder's death, from the successor in interest (usually the executor or administrator) of the deceased: Merrill v. William E. Ward Ins., 87 Ohio App. 3d 583, 622 N.E.2d 743 (1993).

When a client brings a malpractice action against his former attorney, he waives the privilege as to any subject pertinent to his claim. DR 4-101(B) authorizes an attorney to reveal confidences as necessary to defend his associates against a claim of wrongful conduct: Surovec v. LaCouture, 82 Ohio App. 3d 416, 612 N.E.2d 501 (1992).

Waiver of the attorney-client privilege occurs when the client discloses communications that were made pursuant to the privilege to a third-party; any such disclosure that is inconsistent with the maintenance of the confidential nature of the attorney-client relationship waives the privilege: State v. McDermott, 79 Ohio App. 3d 772, 607 N.E.2d 1164 (1992).

Any physician-patient privilege was waived by defendant's failure to object to the testimony at trial. A motion to suppress which does not refer to the privilege does not preserve the objection; neither does the granting of a motion in limine. Information acquired by a hospital nurse may fall within the privilege: State v. Cherukuri, 79 Ohio App. 3d 228, 607 N.E.2d 56 (1992).

A court may not require an attorney to answer leading questions in order to determine whether a client waived the privilege by disclosing information to a third party: State v. McDermott, 73 Ohio App. 3d 689, 598 N.E.2d 147 (1991).

Revised Code § 2317.02(B)(2) pertains only to claims brought by or on behalf of the deceased for which waiver is applicable pursuant to RC § 2317.02(B)(1)(c). A court cannot create a public policy exception to the privilege: Cline v. Finney, 71 Ohio App. 3d 571, 594 N.E.2d 1100 (1991).

When a waiver of the physician-patient privilege by a party to a lawsuit is inevitable or reasonably probable to occur, the trial court may, within its discretion, order the physician to submit to a discovery deposition, upon the express proviso that information discovered or gained from such discovery not be used until such time as actual waiver occurs; the physician-patient privilege is waived when the party who owns the privilege takes the deposition of his own treating physician for use at trial; upon waiver of the physician-patient privilege, properly discovered testimony of the physician may be used to oppose a motion for summary judgment: Garrett v. Jeep Corp., 77 Ohio App. 3d 402, 602 N.E.2d 691 (1991).

Under Ohio law, physician-patient privilege may be waived by the express consent of the surviving spouse; initial agreement by plaintiff's counsel to make physician available to defense for deposition did not constitute "express consent" by surviving spouse to waive the privilege: Jewell v. Holzer Hosp. Foundation, Inc., 899 F.2d 1507, (6th Cir. 1990).

Waiver of the physician-patient privilege may occur, absent expressed consent, where the party asserting the privilege testifies as to the specifics of the physician's treatment, except where the party asserting the privilege did not attempt to benefit from the testimony: Jewell v. Holzer Hospital Foundation, Inc., 899 F.2d 1507, (6th Cir. 1990).

Pursuant to RC § 2317.02(B)(1)(c), when a person files a tort action for injuries received in an accident, he waives any physician-patient privilege for communications made to any treating physician or his advice to the plaintiff-patient to the extent the communication or advice is "related causally or historically to [the] physical or mental injuries that are relevant to issues in the * * * civil action" (RC § 2317.02[B][2]). Revised Code § 2317.02 (B)(2) contemplates actual testimony by the physician and not by a recordskeeper from his office or a hospital. Pursuant to RC § 2317.02(B)(4), hospital records are not included in the RC § 2317.02(B)(1)(c) waiver of the physician-patient waiver, except to the extent that the records are a "communication" as defined in RC § 2317.02(B)(3), as established through the physician's deposition testimony: Baker v. Quick Stop Oil Change & Tune-up, 61 Ohio Misc. 2d 526, 580 N.E.2d 528 (CP 1990).

Pursuant to RC § 2317.02(B), the patient-physician privilege is waived relating to a physician when suit is brought against him in a malpractice claim with regard to his care and treatment of the patient-plaintiff so that he may effectively defend himself: Long v. Isakov, 58 Ohio App. 3d 46, 568 N.E.2d 707 (1989).

Under RC § 2317.02(B), a patient may waive the patient-physician privilege by voluntarily testifying as to the privileged matter, which may consist of admitting into evidence records containing privileged communications: Long v. Isakov, 58 Ohio App. 3d 46, 568 N.E.2d 707 (1989).

A client's disclosure to a third party of communications made pursuant to the attorney-client privilege breaches the confidentiality underlying the privilege, and constitutes a waiver thereof: State v. Post, 32 Ohio St. 3d 380, 513 N.E.2d 754 (1987).

For purposes of RC § 2317.02, the guardian of an incompetent ward may expressly consent to waive the ward's physician-patient privilege: In re Guardianship of Escola, 41 Ohio App. 3d 42, 534 N.E.2d 866 (1987).

A waiver of privilege by the party being treated in regard to his hospital records may be either actual or implied, and, absent such waiver, the records may not be released even though a subpoena duces tecum has been properly served upon the custodian of the records: Pacheco v. Ortiz, 11 Ohio Misc. 2d 1, 11 Ohio B. 43, 463 N.E.2d 670 (CP 1983).

Civil Rule 35(B)(2) indicates that a party waives any physician-patient privilege when he requests and obtains a report of an examination that has either been ordered by the court or agreed to by the parties: York v. Roberts, 9 Ohio Misc. 2d 21, 9 Ohio B. 621, 460 N.E.2d 327 (CP 1983).

Under the following circumstances, the patient-physician privilege of RC § 2317.02(B) is waived and the physician's testimony about a woman's health (including an existing cancerous condition) may be received and considered in a suit against an insurer for life insurance after the woman's death: her husband signed both his name and hers to the insurance application, paid all premiums and was the sole beneficiary; the application specifically authorized release of information about the woman's (insured's) health; and the policy was issued on his information without a physical examination of the woman (insured): Evans v. Occidental Life Ins. Co. of North Carolina, 7 Ohio App. 3d 286, 7 Ohio B. 369, 455 N.E.2d 678 (1982).

Where a client authorizes the delivery of information revealed in an attorney-client relationship to a third person, the confidential nature of the communication no longer exists and the privilege against divulging such information may not be invoked: Hawgood v. Hawgood, 33 Ohio Misc. 227, 62 Ohio Op. 2d 427, 294 N.E.2d 681 (CP 1973).

The statutory physician-patient privilege is a substantive right; it can be waived and it is not against public policy to enforce such waiver: Woelfling v. Great-West Life Assur. Co., 30 Ohio App. 2d 211, 59 Ohio Op. 2d 351, 285 N.E.2d 61 (1972).

If the defendant in a criminal case voluntarily testifies, his attorney may be compelled to testify on the same subject unless barred by the constitutional rights of the defendant: State v. Crissman, 31 Ohio App. 2d 170, 60 Ohio Op. 2d 279, 287 N.E.2d 642 (1971).

A court will closely scrutinize an advance waiver of the physician-patient privilege in order to adequately protect the interests of the insured, and, where there is any doubt or ambiguity in the language of the insurance contract, it will be strictly construed against the insurer and in favor of the insured: Nationwide Mut. Ins. Co. v. Jackson, 10 Ohio App. 2d 137, 39 Ohio Op. 2d 242, 226 N.E.2d 760 (1967).

In order to make applicable the waiver provision of RC § 2317.02 that, "if the... patient voluntarily testifies, the... physician may be compelled to testify on the same subject," such patient's testimony in a negligence action must be voluntary (i.e., not given on cross-examination) and its subject must concern communications by the patient to the physician and advice by the physician to the patient (i.e., the subject matter of such communications and advice): Black v. Port, Inc., 120 Ohio App. 369, 29 Ohio Op. 2d 238, 202 N.E.2d 638 (1963).

An employee, who, following an alleged industrial injury and treatment therefor, voluntarily signs, as part of an application for adjustment of claim, a waiver of physician-patient privilege, is chargeable with knowledge of the contents thereof. Pursuant to the provisions of this section, the physician who treated such employee-claimant may testify about relevant matters which came to his knowledge by reason of such treatment: Ronald v. Young, 117 Ohio App. 362, 24 Ohio Op. 2d 137, 187 N.E.2d 74 (1963).

Under Ohio law, a plaintiff does not waive the physician-patient privilege in regard to certain medical records by his testimony on cross-examination at the taking of his deposition: Mariner v. Great Lakes Dredge & Dock Co., 20 Ohio Op. 2d 341, 202 F. Supp. 430 (N.D. Ohio 1962).

Under RC § 2317.02 there is no implied waiver of physician-patient privilege except that effected through the voluntary testifying of the patient himself, and a patient does not waive the privilege merely by answering questions as to treatment on cross-examination since such testimony is not "voluntary," within the purview of the statute: Jenkins v. Metropolitan Life Ins. Co., 113 Ohio App. 163, 15 Ohio Op. 2d 387, 168 N.E.2d 625 (1961).

By signing an instrument authorizing "any physician" to communicate to "bearer" any of his records pertaining to the illness of the decedent and at the same time authorizing the "bearer" to turn over to the insurer a copy of any records thus obtained, the decedent's widow expressly waived the privilege, and in her action on a policy insuring the decedent's life, the insurer was justified in calling as witnesses, physicians who had attended the decedent, and such witnesses could testify concerning the ailment or disability of which the patient had complained to them: Jenkins v. Metropolitan Life Ins. Co., 113 Ohio App. 163, 15 Ohio Op. 2d 387, 168 N.E.2d 625 (1961).

A person who voluntarily testifies, by deposition, as to his condition and treatment generally but does not testify as to his physician's findings upon examination and the diagnosis of his condition, waives the patient-physician privilege attaching thereto, whether such findings and diagnosis are within such person's knowledge or not; and such physician can be required to answer inquiries relating thereto: In re Roberto, 106 Ohio App. 303, 7 Ohio Op. 2d 63, 151 N.E.2d 37 (1958).

Under RC § 2317.02, where a plaintiff seeking damages for personal injuries testifies fully as to his physical condition and mentions a physician who treated him and the treatment administered, there is a waiver with respect thereto, and such physician may testify: Cuthbertson v. Cincinnati Union Terminal, 103 Ohio App. 385, 2 Ohio Op. 2d 411, 145 N.E.2d 467 (1957).

A person testifying for his own benefit as to his injuries and communications made by him to his physician and the physician's treatment and advice to him in a deposition hearing instituted by him for the purpose of perpetuating his testimony in his personal injury suit, thereby waives the privilege against the physician's testimony as to the same matters already disclosed by him, and in such case the physician may be compelled to testify by deposition at the instance of the defendant, on the same subject as provided by RC § 2317.02: In re Loewenthal, 101 Ohio App. 355, 1 Ohio Op. 2d 302, 134 N.E.2d 158 (1956).

In an action by a widow to recover compensation under the workmen's compensation act for the death of her husband resulting from injuries sustained by him in the course of his employment, the testimony of a physician who attended decedent in his illness resulting from such injuries, as to knowledge and information gained by such physician in his professional capacity, relating to decedent's physical condition, may be admitted in evidence where the widow waives the statutory physician-patient privilege; and objection of the industrial commission to the waiver of such privilege is properly overruled: Industrial Comm. v. Warnke, 131 Ohio St. 140, 5 Ohio Op. 505, 2 N.E.2d 248 (1936).

Where the insured voluntarily testifies as to physicians having examined him, it is error to refuse testimony of such physicians offered by the insurer, as examination of the insured's body is a communication to his physician, and the insured in testifying waived his privilege of the communication secured to him by this section: Metropolitan Life Ins. Co. v. McKim, 54 Ohio App. 66, 7 Ohio Op. 390, 6 N.E.2d 9 (1935).

A waiver in an application for insurance of the right to object to the testimony of physicians is not against public policy and binds all beneficiaries; and the insurer may require the testimony of physicians to show fraud: New York Life Ins. Co. v. Snyder, 116 Ohio St. 693, 158 N.E. 176, 54 A.L.R. 406 (1927).

If a claimant for workers' compensation voluntarily and knowingly signs an application form that includes a statement to the effect that the claimant waives all provisions of law forbidding any physician from disclosing information about claimant, a regional board of review has the power, pursuant to RC § 4123.51.8, to compel the claimant to authorize the employer's counsel to obtain the records of the claimant's attending physician, to the extent that such records are pertinent to identify the cause of the particular injury or occupational disease which forms the basis for the claim: OAG No. 79-047 (1979).

Any information contained in a workmen's compensation claim file which was gained through communication or observation by a physician from a claimant who has contacted him for treatment or for diagnosis looking toward treatment would generally be subject to the patient-physician privilege under RC § 2317.02(A) and may not be released except upon the authorization of the patient-claimant. However, the privilege attached to such information is waived if such information was obtained and placed in the claim file pursuant to a written medical waiver voluntarily signed by the claimant or if the claimant voluntarily testifies or introduces otherwise privileged information at a public hearing. Where the claimant has waived the patient-physician privilege, then pursuant to RC § 4123.88 a member of the industrial commission, the employer or the administrator of the bureau of workmen's compensation may authorize anyone to examine such medical records which may be contained in the claim file: OAG No. 75-062 (1975).



Waiver by testimony


Where, in an action to recover damages for personal injuries, the plaintiff voluntarily testifies on the subject of the arthritic condition of his right knee before and after the accident, there is a waiver of the privileged communications between patient and physician granted by this section, and the physician may testify on that subject: Ramey v. Mets, 3 Ohio App. 2d 329, 32 Ohio Op. 2d 434, 210 N.E.2d 449 (1964).



Waiver of privilege


Revised Code § 2317.02(A) provides the exclusive means by which privileged communications directly between an attorney and a client can be waived: State v. McDermott, 72 Ohio St. 3d 570, 651 N.E.2d 985 (1995).



Will contest


In a will contest action, it is not an invasion of the attorney-client privilege to require an attorney who had acted for the testator to testify as to whether he had found any other will of the testator than that offered for probate: Shaffer v. Liggett, 56 Ohio L. Ab. 157, 91 N.E.2d 273 (App 1949).



Will contests


In a proceeding to contest a will, a physician who, for many years, had been the family physician of the decedent and had treated her for physical ailments only, may testify as to her mental condition and capacity to make a will: Carson v. Beatley, 86 Ohio App. 173, 41 Ohio Op. 25, 82 N.E.2d 745 (1948).



Will drafting


An attorney who drew the will of a decedent, but who performed no other services for her, is not debarred from testifying as to conversations occurring between them other than in connection with the drawing of the will: Feltrup v. Schloemer, 13 Ohio C.C. (n.s.) 473, 23 Ohio Cir. Dec. 467 (1910).



Wills


In a proceeding to probate a will, the attorney who prepared it for the testatrix is a competent witness as to what took place and conversations had in the presence of the attesting witnesses at the time they signed the will: In re Fisher, 67 Ohio App. 6, 21 Ohio Op. 44, 35 N.E.2d 784 (1941).



Witnesses


A witness is not "unavailable" under EvR 804(A)(1) when he is ruled incompetent to testify under EvR 601(B): State v. Savage, 30 Ohio St. 3d 1, 30 Ohio B. 11, 506 N.E.2d 196 (1987).



Wrongful death actions


The mere act of plaintiff's filing a wrongful death action as the personal representative of her deceased son did not waive her privilege under RC §§ 2317.02 and 4732.19 as to counseling provided by her psychologist: Colling v. Franklin Cty. Children Serv., 76 Ohio App. 3d 736, 603 N.E.2d 338 (1991).

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