KATHLEEN McDONALD O'MALLEY, District Judge.
This matter is before the Court on Defendants', The Cleveland Clinic Foundation ("the Cleveland Clinic"), Victoria Vance, and Jamie Clemons (referred to collectively as the "Cleveland Clinic Defendants"), Motion for Judgment on the Pleadings as to the Amended Complaint (Doc. 20). This Motion has been fully briefed and is ripe for adjudication. For the reasons articulated below, the Cleveland Clinic Defendants' Motion for Judgment on the Pleadings is
Plaintiffs James and Marybeth Turk reside in Strongsville, Ohio. James Turk
The events precipitating this matter occurred on February 19, 2007, and began when Mr. Turk's vehicle ran out of gasoline in North Royalton while he was driving home to Strongsville. (Doc. 14 at ¶ 29.) At the time, Mr. Turk was working as a private investigator for the Cuyahoga County Court of Common Pleas. (Id.) As a result of his employment, and for safety purposes, Mr. Turk was carrying a gun he had purchased from Defendant Strongsville Police Chief Charles Goss in 1989. (Id.) Mr. Turk alleges that the gun was stored in his vehicle and was unloaded. (Id.)
Mr. Turk alleges that he sought the assistance of the North Royalton police department which, in turn, enlisted the help of the Strongsville police department. (Id. at ¶ 30.) When one of the officers began searching his vehicle without permission, Mr. Turk asked if he was under arrest. (Id. at ¶ 31.) Informed that he was not under arrest, Mr. Turk began walking away from his vehicle, at which point he alleges that he was attacked,
On March 27, 2007, the Cleveland Clinic's Office of General Counsel received a grand jury subpoena issued by the Cuyahoga County Court of Common Pleas. The subpoena requested that the Cleveland Clinic:
(Doc. 20-6.)
It is undisputed that the Cleveland Clinic Defendants provided medical records in response to the grand jury subpoena. (Doc. 16 at ¶ 36.) Plaintiffs allege that the requested records were provided directly to Defendant Oiler. In preparing its response, the Cleveland Clinic discovered that two of the three medical providers listed on the subpoena—Drs. Nicholas Davis and Fred Jorgensen—did not provide medical treatment to Mr. Turk. (Doc. 16-2.)
Several of the claims in the Amended Complaint stem from or relate to Defendant Oiler's alleged conduct. At all times relevant to the Amended Complaint, Defendant Brian Oiler was employed as a police officer with the Strongsville Police Department. Plaintiffs allege that, on or about July 25, 2005, their son was involved in an altercation with a personal friend of Defendant Oiler. (Doc. 14 at ¶ 27.) This altercation led to a lawsuit against Defendant Oiler's friend: James Turk, et al. v. Namar Fritz, Case No. CV 06 596949, in the Cuyahoga County Court of Common Pleas. (Id.)
In April 2007, after the grand jury issued the subpoena to the Cleveland Clinic, Mr. Turk discovered that Defendant Oiler had contacted one of Mr. Turk's medical providers. (Doc. 14 at ¶ 41.) Mr. Turk subsequently contacted Defendant Oiler to ascertain the reason why he was contacting his health care provider. (Id.) It appears, based on the allegations in the Amended Complaint, that Mr. Turk's conduct in contacting Defendant Oiler led to Mr. Turk's indictment, on or about September 18, 2007, on two counts of intimidation of Defendant Oiler. (Id. at ¶ 42.) This indictment initiated a separate and independent criminal case against Mr. Turk before the Cuyahoga County Court of Common Pleas. (Id.) It was not until sometime in April 2008 that Mr. Turk discovered the full extent of the medical records sought and obtained by Defendant Oiler. (Id.)
According to Plaintiffs, Defendant Oiler obtained the names of the three (3) specific medical providers included in the grand jury subpoena from the Cleveland Clinic
On June 6, 2007, James Turk was indicted, in connection with the February 19, 2007 incident, for carrying a concealed weapon in violation of O.R.C. § 2923.12 and for having a weapon while under disability in violation of O.R.C. § 2923.13. Section 2923.13 provides, in part, that "no person shall knowingly acquire, have, carry, or use any firearm" if "[t]he person is drug dependent, in danger of drug dependence, or a chronic alcoholic." O.R.C. § 2923.13(A)(4).
In the state court criminal action initiated in 2007 before Judge Jose A. Villanueva of the Cuyahoga County Court of Common Pleas, Mr. Turk filed a Motion for Treatment in Lieu of Conviction in which he indicated that he: (1) is drug dependent or in danger of becoming drug dependent; and (2) is presently participating in the Cleveland Clinic partial hospitalization treatment program (Mondays through Fridays 8 a.m. to 8 p.m.). (Doc. 20-5.)
On November 20, 2008, Mr. Turk filed a Motion to Dismiss; or in the Alternative, a Motion to Remove the Prosecutor for Misconduct and Appoint a Special Prosecutor. (Doc. 20-6.) In this Motion, which was directed primarily at the weapons under disability count, Mr. Turk argued that his privacy rights were violated when the Strongsville Police Department received illegally subpoenaed confidential medical records from the Cleveland Clinic. (Doc. 20-6 at 3-4.) In a Journal Entry dated November 21, 2008, Judge Villanueva denied Mr. Turk's Motion to Dismiss, and several other motions, without a written opinion. (Doc. 20-7.)
On or about November 21, 2008, the prosecutor dismissed the weapon under disability charge and Mr. Turk proceeded to trial on the sole remaining charge— carrying a concealed weapon. (Doc. 14 at ¶ 35.) On or about November 24, 2008, the jury found Mr. Turk not guilty of carrying a concealed weapon. (Id.)
On February 18, 2009, Plaintiffs James and Marybeth Turk filed a complaint against the City of Strongsville Defendants, the City of North Royalton Defendants, the Cuyahoga County Defendants, and the Cleveland Clinic Defendants alleging violations of Ohio common law, federal law, and their constitutional rights, stemming from Defendants' actions during the February 19, 2007 incident and subsequent conduct in obtaining privileged medical records in violation of Plaintiffs' privacy rights. (Doc. 1.) On March 26, 2009, the Cleveland Clinic Defendants filed an answer stating that all claims against them should be dismissed because the only allegations against them relate to their appropriate response to a valid state court grand jury subpoena. (Doc. 6.) Subsequently, on April 3, 2009, the Cleveland Clinic Defendants filed a Motion for Judgment on the Pleadings. (Doc. 9.)
At the Case Management Conference held on April 23, 2009, the Court ordered the Plaintiffs to file an Amended Complaint for purposes of clarifying the factual and legal bases of the claims against each
On May 22, 2009, Plaintiffs filed an Amended Complaint asserting seven (7) counts against the four groups of Defendants. (Doc. 14.) The primary allegations against the Cleveland Clinic Defendants are set forth in the Second and Third Counts of the Amended Complaint. Count Two alleges that the Cleveland Clinic Defendants violated 42 U.S.C. § 1983 when they "breached the threshold of state action" and conspired with other Defendants to release Plaintiffs' private medical records in violation of Plaintiffs' privacy rights under the First Amendment. (Doc. 14 at ¶¶ 23, 55, 75-76, 78-79.) Specifically, Plaintiffs allege that the Cleveland Clinic Defendants "are state actors by their willing participating in a joint action with the government Defendants or they were coerced by the government Defendants to invade Plaintiffs' privacy rights." (Doc. 36 at 2.) Count Three alleges that the Cleveland Clinic Defendants invaded Plaintiffs' privacy rights under Ohio common law and acted negligently in their unauthorized disclosure of Plaintiffs' medical information. (Doc. 14 at ¶¶ 91-92.)
After filing their Answer to the Amended Complaint (Doc. 16), the Cleveland Clinic Defendants filed a Motion for Judgment on the Pleadings as to the Amended Complaint (Doc. 20), arguing that: (1) they were required to respond to the grand jury subpoena and cannot be held liable for any claims arising from their response; and (2) Plaintiffs' arguments relating to the legality of the grand jury subpoena and the alleged violation of their privacy rights are barred by the doctrine of collateral estoppel because Mr. Turk litigated the exact same issues in his state criminal proceeding. (Doc. 20-1.)
The standard for a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure is the same as the standard applicable to a motion to dismiss under Rule 12(b)(6). E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir.2001). The purpose of a motion under either rule is to test the sufficiency of the complaint—not to decide the merits of the case.
It is well-established that a complaint need not set forth in detail all of the particularities of the plaintiff's claim. See Myers v. Delaware Co., No. 2:07-cv-844, 2009 WL 3446752, *2, 2009 U.S. Dist. LEXIS 98143, *6 (S.D.Ohio Oct. 22, 2009). Instead, Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8 does not, however, "unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). While legal conclusions can provide the framework for a complaint, all claims must be supported by factual allegations. Id. The Supreme Court has indicated that "[t]hreadbare recitals
To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must plead facts sufficient "to state a claim for relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955 (emphasis added). The requisite facial plausibility exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. The plausibility requirement is not the same as a "probability requirement" but instead "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Therefore, where a complaint pleads facts that are "merely consistent with" the defendant's liability, "its stops short of the line between possibility and plausibility of entitlement to relief." Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Examining whether a complaint states a plausible claim for relief is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.
A district court considering a motion for judgment on the pleadings must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded allegations in the complaint as true. See Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998); Iqbal, 129 S.Ct. at 1950 ("When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."). Where the well-pleaded facts "do not permit the court to infer more than the mere possibility of misconduct," the complaint fails to state a claim. Iqbal, 129 S.Ct. at 1950. In sum, the allegations in the complaint must "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
In ruling on a Rule 12(c) motion, the court considers all available pleadings, including the complaint and the answer. See Fed.R.Civ.P. 12(c). The court can also consider: (1) any documents attached to, incorporated by, or referred to in the pleadings; (2) documents attached to the motion for judgment on the pleadings that are referred to in the complaint and are central to the plaintiff's allegations, even if not explicitly incorporated by reference; (3) public records; and (4) matters of which the court may take judicial notice. Whittiker v. Deutsche Bank National Trust Co., 605 F.Supp.2d 914, 924-25 (N.D.Ohio 2009); Greenberg v. Life Ins. Co., 177 F.3d 507, 514 (6th Cir.1999); see also Fed.R.Civ.P. 10(c) ("A copy of a written instrument that is an exhibit to a pleading is part of the pleading for all purposes.").
In Counts Two and Three of the Amended Complaint, Plaintiffs allege that the Cleveland Clinic Defendants: (1) released Plaintiffs' confidential medical information in response to the grand jury subpoena in violation of their duties set forth in O.R.C. § 2317.02 and Plaintiffs' common law rights of privacy; and (2) conspired with the other Defendants in a variety of ways, including providing information to Defendant Oiler prior to the issuance of the subpoena.
The Cleveland Clinic Defendants present three primary arguments in support of dismissal pursuant to Rule 12(c). First, they argue that Plaintiffs' are barred from relitigating the validity of the grand jury subpoena and alleged violations of their privacy rights because the exact same issues
For the reasons discussed below, the Court finds that the doctrine of issue preclusion does not preclude Plaintiffs from asserting their invasion of privacy claims against the Cleveland Clinic Defendants because the relevant issues were not "actually litigated" in the prior state court proceeding. The Court further finds that, at this stage, the Cleveland Clinic Defendants are not entitled to judgment as a matter of law with respect to their conduct in responding to the grand jury subpoena because there is neither a statutory exception permitting disclosure nor a countervailing interest outweighing Plaintiffs' privacy rights. Finally, the Court finds that the Cleveland Clinic Defendants cannot be liable for disclosing the names of Plaintiffs' medical providers prior to issuance of the subpoena because the identity of medical providers, in and of itself, is not privileged.
The Cleveland Clinic Defendants devote a substantial portion of their briefing to arguing that Plaintiffs' claims are barred by the doctrine of collateral estoppel. Specifically, the Cleveland Clinic contends that, under Ohio's collateral estoppel law, Mr. Turk had a full and fair opportunity to litigate his claim regarding the legality of the grand jury subpoena and the alleged violation of his privacy rights in the form of his motion to dismiss in the state criminal action. (Doc. 20-1 at 9.) In the motion, which focused primarily on the weapon under disability charge, Mr. Turk argued that his medical records were illegally sought and obtained from the Cleveland Clinic via grand jury subpoena.
In response, Plaintiffs argue that application of issue preclusion would be inappropriate here because the prosecutor dismissed the weapon under disability charge prior to trial, rendering issues relating to the release of Mr. Turk's private medical records moot. Given this procedural posture in the state case, Plaintiffs argue that the issue Mr. Turk raises here was not actually litigated there. (Doc. 36 at 19-20.) Plaintiffs further argue that Mr. Turk could not assert his § 1983 claims and privacy claims against the Cleveland Clinic Defendants in the state court criminal proceeding, and that the issues raised in the state criminal trial, whether litigated or not, were simply not the same as those raised here.
It is well-established that a state court judgment must be given the same preclusive effect in federal court that it would be given in state court. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); see also 28 U.S.C. § 1738. The Supreme Court has held that issues decided in a state court criminal proceeding may preclude relitigation of the same issues in a subsequent § 1983 action. Allen v. McCurry, 449 U.S. 90, 102, 101 S.Ct. 411,
Courts distinguish between two types of preclusion claims: issue preclusion and claim preclusion.
When a party asks a federal court to give preclusive effect to a state court judgment, the federal court must apply the law of the state in which the prior judgment was rendered to determine if, and to what extent, the prior judgment should be given preclusive effect. In re Fordu, 201 F.3d 693, 703 (6th Cir.1999); McKinley v. City of Mansfield, 404 F.3d 418, 428 (6th Cir.2005) (citing Migra, 465 U.S. at 81, 104 S.Ct. 892). Because Mr. Turk's state criminal proceedings took place in Ohio, this court must consult Ohio's collateral estoppel law to determine whether the state court's decision has a preclusive effect.
In Ohio, collateral estoppel, or issue preclusion, precludes the relitigation of an issue which was fully litigated and determined in a prior suit. Thompson v. Wing, 70 Ohio St.3d 176, 637 N.E.2d 917, 923 (1994); MetroHealth Med. Ctr. v. Hoffmann-LaRoche, Inc., 80 Ohio St.3d 212, 685 N.E.2d 529, 533 (1997). Under Ohio law,
Knott v. Sullivan, 418 F.3d 561, 567-68 (6th Cir.2005) (quoting Boone v. Spurgess, 385 F.3d 923, 927 n. 4 (6th Cir.2004)); Glidden Co. v. Lumbermens Mut. Cas. Co., 112 Ohio St.3d 470, 861 N.E.2d 109, 118 (2006). The purpose of collateral estoppel is to conserve judicial resources, protect litigants from the expense of multiple lawsuits, and to foster certainty and reliance in legal actions. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980).
Therefore, contrary to Plaintiffs' assertions, an issue conclusively determined in a criminal proceeding may have a preclusive effect in a later civil case. See Frank v. Simon, No. L-06-1185, 2007-Ohio-1324, ¶ 14, 2007 WL 866998 (Ohio
A party asserting collateral estoppel must show that:
Monahan v. Eagle Picher Indus., Inc., 21 Ohio App.3d 179, 486 N.E.2d 1165, 1168 (1984); Dye v. City of Warren, 367 F.Supp.2d 1175, 1184 (N.D.Ohio 2005). The party asserting that issue preclusion should apply bears the burden of demonstrating that each element has been satisfied. Knott, 418 F.3d at 568 (citing Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193, 443 N.E.2d 978, 985 (1983)).
For the reasons discussed below, the Court finds that Plaintiffs' § 1983 invasion of privacy claims are not precluded by the denial of Mr. Turk's motion to dismiss in the state court criminal proceeding.
It is beyond dispute that the issues Mr. Turk raised in his state court criminal case relating to the grand jury subpoena and the unauthorized release of his medical records are identical to the issues raised in the present matter—i.e., that the Cleveland Clinic Defendants were not authorized to release his privileged medical records. In fact, Plaintiffs admit in their Memorandum in Opposition that the conduct relating to the grand jury subpoena in the state court action "is the same conduct alleged in the case before this Court." (Doc. 36 at 19.)
As previously indicated, in the state criminal proceeding, Mr. Turk filed a motion to dismiss, focused primarily on the weapon under disability charge, in which he alleged that privileged medical records were illegally sought and obtained from the Cleveland Clinic by grand jury subpoena. Specifically, Mr. Turk argued that all documents received from the Cleveland
Accordingly, the Court finds that the issue which is pivotal to a resolution of the Cleveland Clinic Defendants' current motion —whether Plaintiffs' privacy rights were violated by virtue of the Cleveland Clinic's response to the grand jury subpoena —is identical to the issue raised by Mr. Turk in his motion to dismiss in the state criminal case.
Plaintiffs argue that the issue of whether the medical records were obtained improperly and in violation of their privacy rights was not actually litigated in the state court action because the prosecutor dismissed the weapon under disability charge prior to trial. (Doc. 36 at 19-20.) Beyond making a blanket assertion that Mr. Turk had an opportunity to litigate this issue in the form of his motion to dismiss, the Cleveland Clinic Defendants do not provide any substantive analysis with respect to this element of the collateral estoppel test.
Ohio courts have indicated that a "prerequisite to the application of collateral estoppel is that the party asserting the preclusion must prove that the identical issue was actually litigated, directly determined, and essential to the judgment in the prior action." Goodson, 443 N.E.2d at 985. In other words, Ohio law requires that the rejected claim be "essential" to the state court's judgment. Fuller v. Cuyahoga Metro. Housing Auth., No. 1:06cv2093, 2008 WL 339464, *13, 2008 U.S. Dist. LEXIS 8730, *42 (N.D.Ohio Feb. 6, 2008) (citing McKinley, 404 F.3d at 429.) As long as a party had a "full and fair opportunity to litigate" the issue, a federal court can collaterally estop that party from relitigating a constitutional issue in a § 1983 action. Allen, 449 U.S. at 101, 103-04, 101 S.Ct. 411.
In certain circumstances, courts have found that a state court decision denying a motion to dismiss does not preclude a plaintiff from raising the same issue in a subsequent civil case asserting, among other things, § 1983 violations. See Dowell v. City of Troy, No. 91-CV-75408, 1993 U.S. Dist. LEXIS 6868, *7 (E.D.Mich. Jan. 22, 1993) (noting that "the state court's finding that the prosecution had made out a prima facie case is not necessarily a finding of probable cause" and therefore "plaintiff did not have a full and fair opportunity to litigate this issue"). Similarly, the Sixth Circuit has declined to give preclusive effect to a state court decision denying a motion to suppress. Knott, 418 F.3d at 568.
Moreover, as a general rule, an order denying a motion to dismiss is not a final appealable order. Polikoff v. Adam, 67 Ohio St.3d 100, 616 N.E.2d 213, 215 (1993). Nor is such an order a "judgment" which amounts to a disposition of the case. State v. Shaffer, No. 87552, 2006-Ohio-5563, 2006 WL 3028436, 2006 Ohio App. LEXIS 5550, ¶ 13. In Shaffer, the court noted that "an order denying a motion to dismiss does not determine the action, nor does it foreclose the possibility of relief in the future." Id. at ¶ 21. As a result, the court found that the trial court's orders denying a motion to dismiss did not conclusively
In the state court proceeding, Judge Villanueva denied Mr. Turk's motion to dismiss the two charges against him. (Doc. 20-7.) It is undisputed that the prosecutor in the state court case dismissed the weapon under disability charge prior to trial. Mr. Turk then proceeded to a jury trial on the only remaining count— carrying a concealed weapon in violation of O.R.C. § 2923.12. He was acquitted on or about November 24, 2008. Therefore, the final judgment on the merits in the prior criminal action was Mr. Turk's acquittal with respect to only the concealed weapon charge.
The issue of whether the medical records were illegally obtained was not actually litigated and was not essential to the jury's finding that Mr. Turk was not guilty with respect to the only remaining charge against him—carrying a concealed weapon. Indeed, because the weapon under disability claim had been dismissed, the court did not hear any evidence on the conduct of the Cleveland Clinic in responding to the grand jury subpoena nor did it render a final decision as to whether the subpoena violated Mr. Turk's privacy rights. It is clear that the state court did not make any final determination regarding whether Mr. Turk's privacy rights were violated.
In their briefing, the Cleveland Clinic Defendants fail to address whether a non-appealable state court ruling on a motion to dismiss can constitute a "full and fair opportunity to litigate" an issue. Similarly, they do not address whether a decision denying a motion to dismiss can be considered "essential" to an ultimate judgment of acquittal—particularly in light of the fact that the weapon under disability charge was dismissed prior to trial. See Fuller, 2008 WL 339464, *13-14, 2008 U.S. Dist. LEXIS 8730, *42-43 (declining to decide whether collateral estoppel applies where the defendants' brief "does not explain whether a decision denying a motion to suppress can be considered `essential' to an ultimate judgment of acquittal").
It is clear that Mr. Turk did not have an opportunity to appeal the state court's ruling on the motion to dismiss. As previously indicated, the denial of the motion to dismiss was not a final appealable order. Importantly, the mere denial of Mr. Turk's motion to dismiss did not conclusively determine that Mr. Turk's privacy rights were not violated with respect to the grand jury subpoena. After the final judgment was rendered, and Mr. Turk was acquitted, an appeal was rendered moot.
The Court finds that Mr. Turk did not have a full and fair opportunity to litigate the issue of whether his privacy rights were violated by virtue of the grand jury subpoena because the prosecutor dismissed the weapon under disability charge prior to trial. Because Mr. Turk's invasion of privacy claim was neither actually litigated nor essential to the final judgment in his state court criminal trial, the Court finds that Plaintiffs may raise their invasion of privacy claims in this action.
The Cleveland Clinic Defendants advance two primary arguments to support their conduct in responding to the grand jury subpoena. First, they contend that Ohio courts do not extend the privilege to records subpoenaed by the grand jury because disclosure to the grand jury is not a public disclosure. Second, they argue that disclosure was required because there is a countervailing interest in investigating criminal activity.
For the reasons set forth below, the Court finds that the Amended Complaint alleges sufficient facts to state a plausible claim against the Cleveland Clinic Defendants relating to their conduct in producing Plaintiffs' privileged medical records.
The Cleveland Clinic Defendants argue that the disclosure of medical records to a grand jury does not violate the physician-patient privilege because the grand jury is conducted in secret. (Doc. 45 at 7.)
It is well-established that grand jury proceedings are conducted in secret and information provided in the proceedings is kept confidential. See In re Klausmeyer, 24 Ohio St.2d 143, 265 N.E.2d 275, para. 4 of the syllabus (1970) ("The investigations and deliberations of a grand jury regarding the commission of offenses must be conducted in secret, and all such proceedings must be legally sealed against divulgence."). The purpose of the grand jury is to "investigate claims that crimes have been committed and to determine whether to charge an accused in a given case." State v. Asher, 112 Ohio App.3d 646, 679 N.E.2d 1147, 1150 (1996). While the grand jury can compel the production of documents, privileged materials are exempt from disclosure. In re Grand Jury Investigation of Brink, 42 Ohio Misc.2d 5, 6, 536 N.E.2d 1202 (Ohio C.P.1988).
As a general rule, an individual's medical records are confidential. Hageman v. Southwest General Health Center, 119 Ohio St.3d 185, 893 N.E.2d 153, 155 (2008). Under the Health Information Portability and Accountability Act of 1996 ("HIPAA"), a hospital's release of medical records to law enforcement is permitted under certain circumstances. Indeed, HIPAA specifically authorizes a hospital to release a patient's medical records in response to a grand jury subpoena. 45 C.F.R. § 164.512(f)(1)(ii)(B).
Ohio's physician-patient privilege, however, codified in O.R.C. § 2317.02(B)(1), provides that a physician shall not testify as to "a communication made to the physician ... by a patient in that relation or the physician's ... advice to a patient." The term "communication," as used in § 2317.02(B), includes hospital
Ohio courts have found that O.R.C. § 2317.02(B) is more stringent than HIPAA, and therefore is not preempted, because it "prohibits use or disclosure of health information when such use or disclosure would be allowed under HIPAA."
Thus, while HIPAA allows disclosure of protected health information in response to a grand jury subpoena, O.R.C. § 2317.02(B) permits disclosure only in certain limited circumstances. See May v. Northern Health Facilities, Inc., No. 2008-P-0054, 2009-Ohio-1442, 2009 WL 806927, 2009 Ohio App. LEXIS 1195, ¶ 12 (Ohio Ct.App. March 27, 2009) (contrasting HIPAA's privacy regulation, which "allows disclosure of protected health information in the course of any judicial or administrative proceeding in response to a court order * * * by subpoena, discovery request or by other lawful process" with R.C. 2317.02(B)(1) which permits disclosure in specific circumstances); Gress v. Coshocton Co. Memorial Hospital, No. 2:07-cv-434, 2009 WL 2914061, *1, 2009 U.S. Dist. LEXIS 86446, *4 (S.D.Ohio Sept. 8, 2009) (noting that Ohio law "contains stricter provisions concerning the disclosure of information in patient records" and that O.R.C. § 2317.02 allows for the disclosure of otherwise privileged medical information "only in five specific circumstances, none of which are present here"). As a result, HIPAA does not preempt O.R.C. § 2317.02(B).
There are certain limited exceptions to the physician-patient privilege set forth in O.R.C. § 2317.02(B). Specifically, Ohio's statute provides that the privilege does not apply in any criminal action: (1) concerning tests or results of tests that determine the presence of alcohol or controlled substances in the patient's blood; or (2) against the physician. See O.R.C. § 2317.02(B)(1)(c)-(d).
The Ohio Supreme Court has "repeatedly and consistently refused to engraft judicial waivers, exceptions, or limitations into the testimonial privilege statutes where the circumstances of the communication fall squarely within the reach of the statute." In re Wieland, 89 Ohio St.3d 535, 733 N.E.2d 1127, 1130 (2000). It is well-established that only the legislature, not the courts, has the authority to create additional exceptions to the privilege statute. Id. at 1130-31 (finding that "in the absence of a specific statutory waiver or exception, the testimonial privileges established under R.C. 2317.02(B)(1)" are applicable); State v. Gonzalez, 154 Ohio App.3d 9, 796 N.E.2d 12, 29 (2003).
Ohio courts have recognized that "[w]hen the legislature wishes to create an exception to the statutory doctor-patient privilege, it can and will do so." Gonzalez, 796 N.E.2d at 29 (citing State v. Smorgala, 50 Ohio St.3d 222, 553 N.E.2d 672 (1990)). For example, in Smorgala, the court declined to judicially create a public policy exception to the privilege statute "which would allow otherwise clearly inadmissible evidence to be received in `drunk driving' cases." 553 N.E.2d at 673-74 ("Judicial policy preferences may not be used to override valid legislative enactments, for the General Assembly should be the final arbiter of public policy."). In response to Smorgala, the legislature amended the privilege statute to include a specific exception permitting law enforcement to obtain test results for alcohol and drugs. See State v. Meyers, 146 Ohio App.3d 563, 767 N.E.2d 739, 747 (2001) ("In 1993, the General Assembly abrogated the physician-patient privilege in the context of criminal investigations, expressly superceding Smorgala. Pursuant to the current version of R.C. 2317.02(B)(1)(b), physicians may be compelled to testify as to the results of such [blood alcohol] tests.").
In a recent Ohio decision cited by Plaintiffs, the Fourth District Court of Appeals specifically declined "to judicially create a public policy exception to the privilege statute for grand jury subpoenas." In re Banks, No. 07CA3192, 2008-Ohio-2339, 2008 WL 2043231, 2008 Ohio App. LEXIS 1986 at ¶ 24. In Banks, a grand jury subpoena ordered a physician to produce medical records for over fifty patients. Id. at ¶ 2. The physician filed a motion to quash on grounds that producing such records would violate the physician-patient privilege contained in O.R.C. § 2317.02. Id. at ¶ 4. The court noted that none of the statutory exceptions relevant to criminal actions applied because: (1) the action did not involve tests to determine the presence of alcohol or drugs in a patient's blood;
The Cleveland Clinic Defendants argue that, rather than apply the analysis in Banks, the Court's analysis should be guided by an earlier decision rendered by the Cuyahoga County Common Pleas Court. See Brink, 42 Ohio Misc.2d 5, 536 N.E.2d 1202. In Brink, the court noted that the physician-patient privilege is not absolute, and "does not apply when the public interest supporting disclosure in a criminal case outweighs the interest in enforcing the privilege." 42 Ohio Misc.2d at 6, 536 N.E.2d 1202. The court noted that "society's interest in fair and effective law enforcement is best accomplished by allowing the grand jury to have access to medical records when investigating a criminal matter." Id. at 8, 536 N.E.2d 1202. This is particularly true, the court indicated, because the grand jury is secret in nature and, thus, the "patient's interest in preserving the confidentiality of his medical records is protected." Id. at 8-9, 536 N.E.2d 1202. The Brink court specifically held that "the physician-patient privilege does not extend to medical records subpoenaed pursuant to a grand jury investigation." Id. at 9, 536 N.E.2d 1202.
Plaintiffs argue that the Cleveland Clinic's reliance on Brink is misplaced because it dealt with blood tests and O.R.C. § 2317.02 was subsequently amended to carve out a specific exception permitting disclosure of otherwise privileged information to determine the presence of alcohol or controlled substances in the blood. (Doc. 46-1 at 3-4.) (citing O.R.C. § 2317.02(B)(1)(c)). Plaintiff further cites to Banks for the proposition that, in the wake of Brink, Ohio courts have refused to create an exception to Ohio's privilege statute for grand jury subpoenas. See Banks, 2008 WL 2043231, 2008 Ohio App. LEXIS 1986 at ¶ 24.
The Court agrees with Plaintiffs that Banks—rather than Brink—provides the applicable analysis. Absent convincing evidence to the contrary, the Court finds that it must apply Ohio's physician-patient privilege statute, which does not contain any exceptions permitting disclosure of otherwise privileged medical information simply because the information is sought via grand jury subpoena. As was the case in Banks, in the case sub judice, neither of the statutory exceptions set forth in O.R.C. § 2317.02(B) applies: the medical records at issue were not sought in an action involving tests to determine the presence of alcohol or drugs in Mr. Turk's blood and the underlying criminal action was not against a physician.
Because Ohio courts have refused to judicially create an exception to the privilege statute permitting disclosure in response to grand jury subpoenas, the Court finds that the Cleveland Clinic Defendants are not entitled to judgment as a matter of law on Plaintiffs' claims premised on that statute. See Banks, 2008 WL 2043231, 2008 Ohio App. LEXIS 1986, at ¶¶ 24-25; see also Jackson v. Greger, 110 Ohio St.3d 488, 854 N.E.2d 487, ¶¶ 12-13 (2006) (noting that the Ohio Supreme Court has "consistently rejected the adoption of judicially created waivers, exceptions, and limitations for testimonial privilege statutes"); Gonzalez, 796 N.E.2d at 30 (noting that "unless the legislature acts to waive the privilege, it is not for courts to create judicial waivers").
The Cleveland Clinic Defendants also assert that there is a countervailing public
Biddle v. Warren General Hosp., 86 Ohio St.3d 395, 715 N.E.2d 518, 524 (1999) (emphasis added). In Biddle, a hospital gave a law firm thousands of patient registration forms which contained information about the medical condition of each patient for the purpose of determining the patient's status as a potential Social Security claimant. Id. at 526-27. While the court noted that "there may be special situations where the interests of the patient will justify the creation of a privilege to disclose" generally "it is for the patient—not some medical practitioner, lawyer, or court—to determine what the patient's interests are with regard to personal confidential medical information." Id. at 528. The Biddle court held that a "third party can be held liable for inducing the unauthorized, unprivileged disclosure of nonpublic medical information that a physician or hospital has learned within a physician-patient relationship." Id. As a result, the court found that reasonable minds could conclude that the hospital breached its duty of confidentiality. Id.
Some Ohio courts have permitted discovery of otherwise confidential information to further a countervailing interest where the non-party patient's identity is sufficiently protected. See Richards v. Kerlakian, 162 Ohio App.3d 823, 835 N.E.2d 768, 769 (2005) (citing Fair v. St. Elizabeth Medical Center, 136 Ohio App.3d 522, 737 N.E.2d 106 (2000) (ordering disclosure of redacted non-party patient's medical records where such records were necessary to establish plaintiff's claim); State v. McGriff, 109 Ohio App.3d 668, 672 N.E.2d 1074 (1996) (allowing the use of redacted medical records of non-party patients in criminal proceedings against physician)). Where a non-party patient's anonymity and privacy cannot be preserved, those courts have found that disclosure of that person's medical information is inappropriate. See Grove, 844 N.E.2d at 407-08. Importantly, however, in a 2009 Ohio Supreme Court decision, the court disapproved of these prior court decisions which permitted discovery of nonparty patient records as long as redactions were made, noting that Biddle "did not create a litigant's right to discover the confidential medical records of nonparties in a private lawsuit." Roe v. Planned Parenthood Southwest Ohio Region, 122 Ohio St.3d 399, 912 N.E.2d 61, 70-71 (2009) (explaining that Biddle "addressed the defenses to the tort of unauthorized disclosure of confidential medical information —i.e., the circumstances under which a physician or hospital may release confidential medical records in the absence of a waiver without incurring tort liability").
Again, the Cleveland Clinic Defendants cite to the Cuyahoga Common Pleas Court's decision in Brink, which was decided prior to the Ohio Supreme Court's decision in Biddle, for the proposition that "society's interest in fair and effective law enforcement is best accomplished by allowing the grand jury to have access to medical records when investigating a criminal matter." (Doc. 45 at 6, citing Brink, 42 Ohio Misc.2d at 5, 8-9, 536 N.E.2d 1202). The Brink court cited to and relied upon a 1964 Ohio Supreme Court decision which held that "[a]gainst the interest of the patient in having his condition remain confidential, must be balanced the interest of the public in detecting crimes in order to protect society." Brink, 42 Ohio Misc.2d at 6, 536 N.E.2d 1202 (citing State v. Antill, 176 Ohio St. 61, 197 N.E.2d 548, 551 (1964)). In more recent decisions, Ohio courts have indicated that the balancing test employed in Antill—"where the public interest in detecting crime could outweigh the policy considerations of the doctor-patient privilege"—only applies where there are conflicting statutes, not where the balancing is between the privilege statute and a judicially-created policy limiting its application. See Gonzalez, 796 N.E.2d at 29-30 (citing Smorgala, 553 N.E.2d 672; State v. Jones, 90 Ohio St.3d 403, 739 N.E.2d 300, 309-10 (2000)).
As discussed previously, in this case, there is no statutory privilege permitting disclosure in response to a grand jury subpoena, and Ohio courts have declined to create public policy exceptions to the physician-patient privilege. In fact, in other contexts, Ohio courts have specifically refused to create a "law enforcement" exception to privilege statutes. See In re Grand Jury Subpoena Duces Tecum Directed to Keeper of Records of My Sister's Place, No. 01 CA55, 2002-Ohio-5600, 2002 WL 31341083, 2002 Ohio App. LEXIS 5607, ¶ 22 ("In light of our limited role in the public policy context and the Supreme Court's apparent lack of consistency in this arena, we leave creation of a law enforcement exception to the privilege created by R.C. 3113.40 [protecting certain confidential information in the domestic violence context] to others.").
The Cleveland Clinic Defendants argue that the State "had a countervailing interest in having The Cleveland Clinic cooperate with law enforcement by making sure that complete information was provided to the grand jury regarding Plaintiff James Turk's drug, alcohol and mental health related conditions." (Doc. 20-1 at 7.) The
The need for investigation of criminal activity and the need for confidentiality in medical records are both important interests to protect. Indeed, it is widely recognized that "individuals should be encouraged to seek treatment for medical or psychological conditions, and privacy is often essential to effective treatment." Hageman, 893 N.E.2d at 157. Maintaining confidentiality with respect to medical treatment is a significant interest and "[i]f the right to confidentiality is to mean anything, an individual must be able to direct the disclosure of his or her own private information." Id. As the court noted in Biddle, generally it is for the patient to decide what his interests are—not a physician, lawyer, or the court. Biddle, 715 N.E.2d at 528.
In this case, Mr. Turk was not given notice of the grand jury subpoena and therefore did not have a chance to file a motion to quash the subpoena based on the physician-patient privilege. In other words, Plaintiffs were deprived of the opportunity to "direct the disclosure" of their own confidential information. See Hageman, 893 N.E.2d at 157.
While it may be more efficient for a grand jury to be permitted to obtain an individual's medical records to determine whether he is "under disability" for purposes of a potential weapon under disability charge, giving law enforcement unbridled access to medical records could discourage patients from seeking medical treatment.
Given these conclusions, the Cleveland Clinic Defendants are not entitled to judgment on the pleadings on Plaintiffs' invasion of privacy claim.
In both Counts Two and Three of the Amended Complaint, Plaintiffs allege it is clear from the face of the subpoena that the Cleveland Clinic Defendants conspired with the other Defendants to violate Plaintiffs' privacy rights because the subpoena contains the names of three specific health care providers, indicating that the Cleveland Clinic disclosed those names to Oiler, or someone else, well before the subpoena issued. (Doc. 14 at ¶¶ 75, 91.) In response, the Cleveland Clinic Defendants do not deny that they communicated with one or more of the other defendants regarding the identity of Mr. Turk's physicians, but argue that inclusion of the names of the medical providers on the grand jury subpoena is of no consequence because the only information necessary to run the search for Mr. Turk's medical records is his date of birth and social security number—both of which were provided on the face of the subpoena. The Cleveland Clinic further argues that the identity of Plaintiffs' medical providers is not confidential, privileged information. Finally, the Cleveland Clinic points to the fact that it found no records indicating that two of the three providers listed in the subpoena ever provided treatment to Mr. Turk.
As previously indicated, Ohio's physician-patient privilege protects only "communications" between the health care provider and patient. See O.R.C. § 2317.02(B)(1). For purposes of the statute, "communication" means,
O.R.C. § 2317.02(B)(5)(a).
Ohio courts have specifically found that the names of health care providers are not subject to the physician-patient privilege because they do not qualify as "communications" for purposes of O.R.C. § 2317.02. Ingram v. Adena Health Sys., 149 Ohio App.3d 447, 777 N.E.2d 901, 904 (2002); see also May v. Northern Health Facilities, Inc., No. 2008-P-0054, 2009-Ohio-1442, 2009 WL 806927, 2009 Ohio App. LEXIS 1195, ¶ 17; Hudson v. United Services Auto. Assoc. Ins. Co., 150 Ohio Misc.2d 23, 34-35, 902 N.E.2d 101 (Ohio C.P.2008) ("While what was said between a physician and his patient may be confidential, the fact that the physician treated the patient is not protected by the confidentiality provisions of the Revised Code."). In Ingram, the court noted that a request seeking the identity of health care providers does not seek privileged communications
Thus, if Defendant Oiler did obtain the names of the three medical providers listed in the subpoena from the Cleveland Clinic Defendants prior to the issuance of the subpoena, that fact, standing alone, would not support an invasion of privacy claim. See Ingram, 777 N.E.2d at 904; May, 2009-Ohio-1442 at ¶ 17. Because the identity of health care providers is not privileged, the Court finds that Plaintiffs' attempts to hold the Cleveland Clinic Defendants liable for disclosing names of certain health providers fails as a matter of law.
This finding, however, does not justify dismissal of either claim asserted against the Cleveland Clinic Defendants because: (1) Count Two of the Amended Complaint asserts additional allegations against the Cleveland Clinic Defendants involving conspiracy, state action, and coercion—none of which are addressed in the Cleveland Clinic's briefing; and (2) as previously indicated, the Court finds that the Cleveland Clinic Defendants are not entitled to judgment as a matter of law with respect to Plaintiffs' state law privacy claims contained in Count Three. This finding also does not mean that evidence of any such pre-disclosure discussions would be irrelevant to Plaintiffs' conspiracy claim as it relates to the later disclosures of clearly privileged material, only that, standing alone, they do not support an invasion of privacy claim.
For the foregoing reasons, the Court finds that Plaintiffs' claims against the Cleveland Clinic Defendants are not barred by the doctrine of collateral estoppel. The Court further finds that the Amended Complaint alleges sufficient facts to state a plausible claim against the Cleveland Clinic Defendants for providing Plaintiff James Turk's privileged medical records in response to the grand jury subpoena, without authorization from Mr. Turk to do so.
Accordingly, the Cleveland Clinic Defendants' Motion for Judgment on the Pleadings as to the Amended Complaint (Doc. 20) is
(Doc. 14 at ¶ 1(A).)
The City of North Royalton Defendants include North Royalton police officers: John Trzaska, Kip MacDonald, Sergeant K. Tarase, Lt. John Elek, Captain Harry Kazmir; John Does North Royalton Nos. 1-4; and the City of North Royalton, Ohio. Plaintiffs claims against the City of North Royalton Defendants are similar to their claims against the City of Strongsville Defendants.
The Cuyahoga County Defendants include: Bill Mason, Cuyahoga County Prosecutor; and John Does County Nos. 1-4. Plaintiffs allege that the Cuyahoga County Defendants used their positions and office to invade Plaintiffs' privacy rights, "to maliciously prosecute James Turk for crimes that he did not commit, and to interfere with his right to free speech." (Doc. 14 at ¶ 4(A).)
The Cleveland Clinic Defendants include: Cleveland Clinic Foundation; Jamie Clemens; Vicky Vance; and Cleveland Clinic John Does Nos. 1-2. Plaintiffs allege that the Cleveland Clinic Defendants: (1) conspired with the other Defendants, and were joint actors or were coerced into releasing Plaintiffs' confidential medical information, making their conduct state action; and (2) violated Plaintiffs' privacy rights under Ohio when they responded to the grand jury subpoena.
45 C.F.R. § 160.203(b).
O.R.C. § 2317.02(B)(2)(a).
