finding that a dismissal without prejudice for failure to file a Civ.R. 10(D)(2) affidavit of merit in a medical malpractice action was an appealable order
How later courts described this case
- finding that a dismissal without prejudice for failure to file a Civ.R. 10(D)(2) affidavit of merit in a medical malpractice action was an appealable order
Written by the judges who cited it.
The opinion
Dickinson, Judge,
concurring.
{¶ 35} I agree with the majority because the physician-patient privilege is in derogation of the common law and “must be strictly construed against the party seeking to assert it.” State Med. Bd. of Ohio v. Miller (1989), 44 Ohio St.3d 136, 140 , 541 N.E.2d 602 . Unlike with the attorney-client privilege, the common law cannot be relied upon to supplement the statutory language chosen by the General Assembly. The privilege, as provided in Section 2317.02(B), is limited to prohibiting physicians from testifying about communications they receive from their patients and their advice back to those patients. As difficult as it is to believe, it does not protect the patient from being required to testify about those very same communications and that same advice.
{¶ 36} I understand that the outcome in this case may be shocking to the legal and medical communities and will likely lead to unanticipated and, possibly, unfortunate consequences. When a statute is clear on its face, however, it is not the role of this court to look beyond that face. “ ‘In such a case, we do not resort to rules of interpretation in an attempt to discern what the General Assembly could have conclusively meant or intended in * * * a particular statute — we rely only on what the General Assembly has actually said.’ ” State ex rel. Jones v. Conrad (2001), 92 Ohio St.3d 389, 392 , 750 N.E.2d 583 , quoting Muenchenbach v. Preble Cty. (2001), 91 Ohio St.3d 141, 149 , 742 N.E.2d 1128 (Moyer, C.J., dissenting). If, as I suspect, the General Assembly intends the physician-patient privilege to apply as broadly as the attorney-client privilege, it may wish to adopt language like that found in Rule 503(b) of the Uniform Rules of Evidence, which provides: “A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his [physical,] mental or emotional condition, including alcohol or drug addiction, among himself, [physician or] psychotherapist, and *269 persons who are participating in the diagnosis or treatment under the direction of the [physician or] psychotherapist, including members of the patient’s family.”