
    Lambdin v. Leopard et al.
    (No. 128854
    Decided December 16, 1968.)
    Common Pleas Court of Montgomery County.
    
      Messrs. Baggott & Ernst, for plaintiff.
    
      Messrs. Curtner, Selva, Parkin, Seller & Barnhart, for defendants.
   BreutoN, J.

On April 4, 1968, by entry, this cause was assigned for trial on its merits on July 1, 1968. At the same time, this court made an interlocutory order and on April 16, 1968, plaintiff appealed from said order. The appeal was pending on the aforesaid trial date and said date was, therefore, vacated. On July 13, 1968, the Court of Appeals dismissed the appeal and the cause is now before this court for further proceedings.

Wherefore, the court hereby assigns this cause for trial on its merits on August 4, 1969, at 9:30 a. m.

Further, there is still a burning issue at stake in this case which stems from comment set forth by the Court of Appeals in its decision of August 13, 1968, on plaintiff’s motion for reconsideration which has to do with the discovery ordered by this court in its entry of April 4, 1968.

The question has to do with how much sanctity should be accorded the provisions of Section 2317.02, Revised Code, with respect to the so-called privilege between patient and attending physician. In other words, is the statute an absolute bar to discovery prior to trial on the merits of the diagnosis, treatment and opinions as to the nature and extent of the injuries of the attending physician with respect to the injuries claimed by the plaintiff and for which he seeks damages.

The court has researched the problem in depth. First of all, public policy requires the streamlining of personal injury litigation. Our courts are bogged down with lengthy litigation in personal injury cases because of the wont of over-zealous practitioners to preserve the traditional status quo in the trial of such lawsuit and the antiquated procedures. It is this court’s belief that today, the utmost pre-trial discovery must be implemented.

There is ample authority for the court’s order of April 4, 1968. The District Court for the Northern District of Ohio in Mariner v. Great Lakes Dredge and Dock Co., 202 F. Supp. 430, said at page 434, “* * * although medical information may be privileged under the law, this privilege can and in all probability will be waived by the plaintiff at the time of trial. If it is going to be waived at that time, then there is no reason why the defendant should not have this information prior to trial. ’ ’ Also it was said in Awtry v. United States, 27 F. R. D. 399 (S. D., N. Y.), “But this does not mean that the plaintiff can take advantage of the physician-patient privilege to prevent defendant from inquiring in pretrial proceedings as to relevant and material matters necessary to the defense. If such matters were deferred to the trial the almost inevitable result would be an interruption of the trial when the privilege had been waived by the plaintiff so as to permit the defendant to prepare its defense.”

Further it has been held, “The institution of a suit for the compensatory value of personal injury will necessarily lead to the ultimate waiver of privilege but the accelerated disclosure of the treating physician’s opinion as to the extent of plaintiff’s injury does not permit a clandestine conference between the doctor and the lawyer for his patient’s adversary.” Hammonds v. Aetna Casualty and Surety Co., 243 Fed. Supp. 793.

Waiver of the privilege against the physican’s testimony as to the patient’s physical condition and the physician’s treatment thereof is implied from the patient’s conduct indicating a plain intention to abandon the privilege or placing the patient in such a position with reference to evidence that it would be unfair and inconsistent to permit retention of the privilege. In re Loewenthal, 101 Ohio App. 355. To the same effect see In re Roberto, 106 Ohio App. 303.

It seems to this court that where a legislative creation of a right must be strictly construed when in derrogation of the common law, then such court must also liberally construe any legislative exception to that right. Certainly it would therefore appear that it does not take a very liberal construction of the word, “testifies” found in Section 2317.02, Revised Code, to determine that the Legislature intended the same to include allegations of a plaintiff in his petition which are in effect that to which he will testify.

Furthermore, what reason is there in strictly construing that part of the statute which is not in derrogation of the common law. Weis v. Weis, 147 Ohio St. 416; Smith v. Barrick, 151 Ohio St. 201.

By upholding the privilege in this situation, it becomes an instrument of injustice rather than justice.

The faulty syllogism:

1. Purpose is to prevent embarassment and to promote disclosure.

2. When plaintiff voluntarily decides to file a petition stating injuries, lie discloses to the public all embarrassing matters.

The non-sequitur: Therefore—

3. To maintain the cloak of secrecy is within the purpose of the statute.

There just doesn’t seem to be any justification in holding that the statute is a bar to discovery. To do so encourages deception. An injured person, admittedly, may not fully disclose his past history if he knows that the doctor will be allowed to testify. Thus, is his reluctance justified? Aren’t we rewarding his attempt to attain a future unjust settlement by increasing his possibility to recover for injury incurred prior to the immediate tort? The revealing of the truth would only limit him to a just compensation. On the other side of the coin, it is indeed reasonable to assume that patients are not aware of the privilege when consulting a physician. So what effect does it have? It becomes a privilege of legal counsel for the doctor’s patient. 28 Cincinnati Law Rev. 534.

Ohio is in the shrinking minority of states in applying the physician-patient privilege to personal injury cases. The secrecy rights conferred by the privilege are always relinquished in the last analysis. Only in the state practice by virtue of the physician-patient privilege does discovery skid to a screeching halt when it approaches the medical core of a personal injury case.

Therefore, if waivers cannot be implied from the mere filing of a personal injury suit, they certainly can be implied from conduct. The privilege is not to be both a sword and a shield and a waiver may be predicated not only when the conduct of the plaintiff indicates a plain intention to abandon the privilege but also when the conduct, though not evincing that intention, places the plaintiff in such a position with reference to the evidence, that it would be unfair and inconsistent to permit the retention of the privilege. Such is a fair interpretation and conclusion to reach considering all that has occurred in the course of this pending cause of action.

The Alaska Supreme Court had occasion to consider this problem in 1966 in Mathis v. Hildebrand, Alaska, 416 P. 2d 8. We find that Alaska has a physician-patient privilege statute similar to Ohio and the court held that the plaintiffs waived the physician-patient privilege by commencement of a personal injury action to the extent that attending physicians could be required to testify on pretrial deposition with respect to injuries sued upon. This is a well considered opinion and this court commends its reading to able counsel in this cause. The Supreme Court of Alaska quoted with approval McCormick on Evidence, Section 101, note 5 and Section 108, note 2. Also 8 Wigmore, Evidence, Section 2380 (McNaughton Revision 1961). Furthermore, that same court quoted with approval the statement in Awtry v. United States, supra, to the effect that, “Whether the privilege was governed by the state or federal law, the plaintiff would not be permitted to continue his action and at the same time deny to defendant the right to avail itself of the pre-trial procedures neces-' sary to prepare its defenses.” To the same effect is Mariner v. Great Lakes Dredge Dock Company, supra.

Now, therefore, inasmuch as the plaintiff must at least testify generally as to his alleged injury claims, even if he doesn’t call any of his attending physicians as witnesses, otherwise he doesn’t have a case, the court, in view of all the authorities aforesaid, including In re Roberto, supra, hereby requires the plaintiff to disclose and deliver to the defendant such medical reports and such portions of hospital records as have been made by or caused to be made by his attending and treating physicians and surgeons with respect to injuries sued upon in this cause.

In passing, the court would further advise counsel to consider the fact that the new rules of civil procedure now being promulgated will undoubtedly become effective July 1, 1969, which will call for such discovery as is in this cause required. In fact, it will be more complete.

Motion granted,  