Pietrangelo v. Hudson

[Cite as Pietrangelo v. Hudson, 2019-Ohio-1988.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JAMES E. PIETRANGELO, II, :

Plaintiff-Appellant, :

No. 107344

v. :

CORRINNE HUDSON, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: May 23, 2019

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-17-884279

Appearances:

James E. Pietrangelo, II, pro se.

Collins, Roche, Utley & Garner, L.L.C., Beverly A.

Adams and Kurt D. Anderson, for appellee.

EILEEN A. GALLAGHER, J.:

Plaintiff-appellant James E. Pietrangelo, II was involved in a

motor vehicle collision with defendant-appellee Corrinne Hudson. Appearing

pro se, Pietrangelo brought a negligence action against Hudson alleging that she

caused injury to his head, neck and back. After learning that Pietrangelo had

previously suffered injuries to the same areas for which he now claimed harm,

Hudson sought Pietrangelo’s prior medical records. Pietrangelo refused to sign

the release authorizations which prevented Hudson from obtaining the records.

The trial court ordered him to sign the authorizations but Pietrangelo refused

to comply and now appeals from that order. For the reasons that follow, we

affirm.

Initially, we note that although it is not part of the record before

us, Pietrangelo revealed at oral argument that he is an attorney and is licensed

to practice law in Ohio.

We recognize that pro se litigants are not exempt from the rules

of procedure and the law and are generally held to the same standard as other

litigants. Lenard v. Miller, 8th Dist. Cuyahoga No. 99460, 2013-Ohio-4703, ¶ 19.

Nevertheless, in some instances, a court may afford a pro se litigant reasonable

latitude. See, e.g., Robb v. Smallwood, 165 Ohio App.3d 385, 2005-Ohio-5863,

846 N.E.2d 878, ¶ 5 (4th Dist.). This case is not one of them.

Procedural and Factual Background

During the course of discovery, in response to interrogatories,

Pietrangelo admitted that he had injured his head, neck and back prior to the

accident with Hudson. “[I]n around 2005” he fell, bruising his head and back

and “in around 2011” he pulled a muscle in his lower back. In 2014 he was

punched in the head.

Hudson attempted to obtain Pietrangelo’s prior medical records

from the time of those injuries. To that end, she provided Pietrangelo medical

release authorizations to sign. He refused to sign, thus preventing Hudson from

discovering the records. Hudson then moved to compel Pietrangelo to sign the

authorizations.

Pietrangelo opposed the motion, flatly asserting that the

authorizations, which would have released records dating back to 2005, were

overly broad and would lead to the discovery of information not causally or

historically related to his claims. However, he provided no factual basis in

support of this assertion. He included no affidavit or other evidence in support

of this claim upon which the trial court could have concluded the same.

Pietrangelo did not identify any particular record that should have been

shielded from discovery. Moreover, he did not seek a protective order from the

court and he did not request that the court conduct an in camera inspection to

determine whether a record was exempt from discovery. He merely refused to

comply.

Pietrangelo based his opposition to Hudson’s motion to compel on

a vague and unsupported assertion that, based on his purported (1) “recall” of

treatment and (2) “review” of records in his possession, signing the

authorizations would give Hudson records unrelated to the case.

The trial court did not immediately rule on the motion. It held the

motion in abeyance, stating in a journal entry that it would consider the motion

at the settlement conference. The court ordered Hudson to, at that time,

“present to the court for its review the actual authorizations which are the

subject matter of her motion to compel.”

The trial court’s App.R. 9 statement from the settlement

conference in relevant part reflects:

The Defendant sought [a] court order compelling Plaintiff to execute

specific medical authorizations which were requested by the

Defendant.

The court ordered the Plaintiff to sign the medical authorizations

which Counsel for the Defendant was in possession of and which

said Counsel handed to the Plaintiff for signature. Plaintiff refused

to sign the medical authorizations as ordered by the Court * * *.

Immediately thereafter * * * the court issued its order * * * which

states: “PLAINTIFF TO SIGN STANDARD MEDICAL

AUTHORIZATIONS BY JUNE 22, 2018, OTHERWISE THE CASE

WILL BE DISMISSED.” The in chambers settlement conference

was then adjourned.

The trial court did not attach or otherwise refer to the medical

authorizations in its App.R. 9 statement. Neither party made the

authorizations part of the record before the trial court. Moreover, we note that

neither party has supplemented the record on appeal with the authorizations.

Following the settlement conference, Pietrangelo did not seek a

protective order or request that the court conduct an in camera inspection of the

records. Instead, he maintained his refusal to sign the authorizations and

appealed from the trial court’s order directing him to do so.

Law and Analysis

Pietrangelo raises one assignment of error for our review:

The trial court erred and abused its discretion to the prejudice of

plaintiff in implicitly granting defendant’s motion to compel medical

authorizations and then in ordering, and/or in issuing its June 12,

2019 journal entry/order ordering, “plaintiff to sign standard

medical authorizations by June 22, 2018, otherwise the case will be

dismissed,” in contravention of R.C. 2317.02(B)(3)(a) and without

conducting an in camera review, thereby allowing defendant to

obtain privileged medical records that were not causally or

historically related to his claims.

In general, courts consider discovery orders to be interlocutory and

not immediately appealable. Gentile v. Duncan, 2013-Ohio-5540, 5 N.E.3d 100,

¶ 9 (10th Dist.). However, where a trial court orders a party to produce allegedly

privileged documents to an opposing party it is a final, appealable order. Pinnix

v. Marc Glassman, Inc., 8th Dist. Cuyahoga Nos. 97998 and 97999, 2012-Ohio-

3263, ¶ 8. Where a party claims that the discovery dispute involves privileged

documents it presents a question of law that we review de novo. Id.

R.C. 2317.02(B)(1) outlines the physician-patient privilege and

generally protects medical records from disclosure. Med. Mut. of Ohio v.

Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 14.

However, when a patient files a civil action and puts his or her physical or

mental condition at issue in the case the privilege generally does not apply.

Wooten v. Westfield Ins. Co., 181 Ohio App.3d 59, 62, 2009-Ohio-494, 907 N.E.2d

1219, ¶ 14 (8th Dist.). By filing such an action, the patient waives the physician-

patient privilege as to any such communication, including medical records, that

are related “causally or historically to physical or mental injuries that are

relevant to issues in the medical claim.” R.C. 2317.02(B)(3)(a); Hageman v. S.W.

Gen. Health Ctr., 8th Dist. Cuyahoga No. 87826, 2006-Ohio-6765, ¶ 22. A party

does not waive the privilege for records that are not causally or historically

related to the claim. See Wooten at ¶ 12, 14.

Pursuant to Civ.R. 26(B), a party is entitled to obtain discovery

regarding any matter relevant to the subject of the litigation so long as it is not

privileged. Pinnix at ¶ 9. The party opposing a discovery request bears the

burden of establishing that the information requested would not reasonably lead

to discovery of admissible evidence. Id. Moreover, because the physician-

patient privilege is a statutory creation and in derogation of the common law, a

court must strictly construe it against the party asserting it. Csonka-Cherney

v. Arcelormittal Cleveland, Inc., 2014-Ohio-836, 9 N.E.3d 515, ¶ 15 (8th Dist.).

Civ.R. 26(B)(6)(a) addresses a party seeking to assert a privilege

claim:

When information subject to discovery is withheld on a claim that

it is privileged * * * the claim shall be made expressly and shall be

supported by a description of the nature of the documents,

communications, or things not produced that is sufficient to enable

the demanding party to contest the claim.

This court has recognized that a party may maintain a claim of privilege in

compliance with the Civ.R. 26 by means of a “privilege log.” See, e.g., Pinnix,

8th Dist. Cuyahoga Nos. 97998 and 97999, 2012-Ohio-3263, at ¶ 16; see, e.g.,

Csonka-Cherney at ¶ 25.

Civ.R. 26(C) further provides:

Upon motion by any party or by the person from whom discovery is

sought, and for good cause show, the court in which the action is

pending may make any order that justice requires to protect a party

or person from annoyance, embarrassment, oppression, or undue

burden or expense * * *.

(Emphasis added.)

As noted, the party asserting the privilege bears the burden of

showing that the records sought are not causally or historically related to the

claims. Pinnix at ¶ 11 (noting that in camera inspection of records is not

necessary where there is no factual basis establishing need for such a review);

see also Lima Mem. Hosp. v. Almudallal, 2016-Ohio-5177, 69 N.E.3d 204, ¶ 57

(3d Dist.), citing Stout v. Remetronix, Inc., 298 F.R.D. 531, 534 (S.D.Ohio 2014)

(“To demonstrate good cause [for a protective order], the movant must articulate

specific facts showing clearly defined and serious injury resulting from the

discovery sought and cannot rely on mere conclusory statements.”)

Turning to this case, based on the record before us, it is not

entirely clear which medical authorizations the trial court ordered Pietrangelo

to sign and the scope those authorizations encompassed. The trial court’s App.R.

9 statement of the settlement conference makes clear that Hudson brought

certain authorizations to the conference and presented them to Pietrangelo. It

is similarly clear that the court ordered Pietrangelo to sign those specific

authorizations.

What is not clear is the contents of those authorizations or how

many of them there are. In his appellate brief, Pietrangelo refers to four

authorizations, but in his proposed App.R. 9(C) statement he claims there are

five. Nevertheless, as Pietrangelo notes, no authorizations were attached to

Hudson’s motion to compel. Further, and despite Pietrangelo’s indication that

he was in receipt of the authorizations in question, he did not include them in

his opposition to the motion to compel and he failed to otherwise make them

part of the record before the trial court.

Although Pietrangelo did attach certain medical authorizations to

his proposed App.R. 9(C) statement, Hudson objected to that proposed

statement. And, as previously discussed, the trial court’s App.R. 9 statement of

proceedings did not specifically identify or incorporate any medical

authorization, but instead it merely indicated that the court ordered Pietrangelo

to sign “standard” medical authorizations.

Pietrangelo complains that the medical authorizations are

impermissibly overbroad and will lead to the production of records that are not

related to his claims, but he did not make them part of the record or provide to

us any reason to conclude as much. It is the appellant’s duty to ensure that he

or she provides this court with all of the information needed to decide an

assignment of error. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199,

400 N.E.2d 384 (1980), citing State v. Scaggs, 53 Ohio St.2d 162, 372 N.E.2d

1355 (1978) (“[A]n appellant bears the burden of showing error by reference to

matters in the record.”). Pietrangelo failed to do that in this case. For this

reason we overrule Pietrangelo’s assignment of error.

Nevertheless, even addressing Pietrangelo’s claims and

arguments on appeal we find that the trial court did not commit the assigned

error. Pietrangelo never sought a protection order from the court and he never

requested an in camera inspection of any document. Compare Wooten, 181 Ohio

App.3d, 2009-Ohio-494, 907 N.E.2d 1219, at ¶ 10 (“[Plaintiff] filed a motion for

a protective order seeking not to have to execute the releases proposed by

[defendant].”); compare Csonka-Cherney, 2014-Ohio-836, 9 N.E.3d 515, at ¶ 6

(“[Plaintiff] moved for an in camera inspection of her medical records ‘to

determine which, if any, of the requested documents and/or information are

relevant and/or discoverable in this matter.’”); compare Pinnix, 8th Dist.

Cuyahoga Nos. 97998 and 97999, 2012-Ohio-3263, at ¶ 4-6 (plaintiff attempted

to have defendant sign a qualified protective order, supported opposition to

motion to compel with affidavit specifically listing multiple instances of care and

treatment for conditions not causally or historically related to injuries at issue,

and moved for in camera inspection); compare Groening v. Pitney Bowes, Inc.,

8th Dist. Cuyahoga No. 91394, 2009-Ohio-357, ¶ 6 (in response to motion to

compel, plaintiff filed “motion to strike, or, in the alternative, brief in opposition”

and requested in camera review).

Further, Pietrangelo failed to articulate a factual basis by which

the court could have concluded that a record was not properly discoverable. See

Chasteen v. Stone Transport, Inc., 6th Dist. Fulton No. F-09-012, 2010-Ohio-

1701, ¶ 26 (“[S]omething more than a mere recitation that documents are not

causally or historically related to a claimed injury must be set forth by the party

claiming privilege before any in camera inspection of the documents is

necessary.”); see also State v. Hoop, 134 Ohio App.3d 627, 639, 731 N.E.2d 1177

(12th Dist.1999), quoting United States v. Zolin, 491 U.S. 554, 572, 109 S.Ct.

2619, 2631, 105 L.Ed.2d 469 (1989) (“Before engaging in an in camera review to

determine whether privilege is applicable, ‘the judge should require a showing

of a factual basis adequate to support a good faith belief by a reasonable person’

that in camera review of the materials may reveal evidence establishing an

applicable privilege * * *.”).

Instead, Pietrangelo merely refused to sign the authorizations:

first after Hudson submitted them to him and then again after the court ordered

him to do so. Although he did oppose Hudson’s motion to compel, he failed to

articulate a basis by which the court could have justified preventing discovery

of any record. See, e.g., Pinnix at ¶ 14 (“[Plaintiff] submitted an affidavit * * *

stat[ing] she received medical care * * * for multiple conditions, including

gynecological care, which were unrelated to her back injury [she alleged in

complaint]. As such, [plaintiff] set forth a reasonable factual basis to establish

that the medical records include privileged information that are not causally or

historically related to the injuries at issue * * *.”). Here, Pietrangelo gave the

trial court no basis to conclude that Hudson’s authorizations would lead to

discovery of unrelated material.

With respect to Pietrangelo’s assertion that the authorizations are

overly broad, Pietrangelo admitted relevant injuries dating back to 2005, the

same year from which he complains Hudson seeks records. Beyond that, we

note that in his complaint, Pietrangelo alleged a broad range of injury including

“shock, pain, and suffering,” arguably putting both his physical and mental

health at issue in the case.

Finally, to the extent Pietrangelo complains that Hudson did not

make the authorizations part of the record herself, she was under no obligation

to do so. Hudson bears no responsibility to convince the court that a privilege

applies to the records she is seeking. Convincing the court that a privilege

applies to his records is Pietrangelo’s burden. See Pinnix, 8th Dist. Cuyahoga

Nos. 97998 and 97999, 2012-Ohio-3263, at ¶ 9. We overrule the assignment of

error.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

__________________________________

EILEEN A. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and

ANITA LASTER MAYS, J., CONCUR