testimonial privilege in Ohio

2002See, also, State v. Jones , 90 Ohio St.3d 403 , 2000-Ohio-187 , 739 N.E.2d 300 (reiterating the rule in Smorgala but finding the circumstances in Jones distinguishable because it involved the interplay between two statutes, not a statute and a judicially created public policy exception, which was at issue in Smorgala ); In re Wieland , 89 Ohio St.3d 535 , 2000-Ohio-233 , 733 N.E.2d 1127 (relying on Smorgala and In re Miller , infra, when stating "[t]his court has repeatedly and consistently refused to engraft judicial waivers, exceptions, or limitations into the testimonial privilege statutes"

2002See, also, State v. Jones , 90 Ohio St.3d 403 , 2000-Ohio-187 , 739 N.E.2d 300 (reiterating the rule in Smorgala but finding the circumstances in Jones distinguishable because it involved the interplay between two statutes, not a statute and a judicially created public policy exception, which was at issue in Smorgala ); In re Wieland , 89 Ohio St.3d 535 , 2000-Ohio-233 , 733 N.E.2d 1127 (relying on Smorgala and In re Miller , infra, when stating "[t]his court has repeatedly and consistently refused to engraft judicial waivers, exceptions, or limitations into the testimonial privilege statutes"

2023Addressing the significance of an “ongoing emergency” in determining whether a declarant’s statements are testimonial, the Court stated that although “the existence vel non of an ongoing emergency” is not “dispositive of the testimonial inquiry,” it is “among the most important circumstances” that “informs the ultimate inquiry regarding the ‘primary purpose’ of an interrogation.” Bryant, 562 U.S. at 361, 367, 374 , 131 S.Ct. 1143 , 179 L.Ed.2d 93 .20 The Court explained: The existence of an ongoing emergency is relevant to determining the primary purpose of the interrogation because an emergen

2023Addressing the significance of an “ongoing emergency” in determining whether a declarant’s statements are testimonial, the Court stated that although “the existence vel non of an ongoing emergency” is not “dispositive of the testimonial inquiry,” it is “among the most important circumstances” that “informs the ultimate inquiry regarding the ‘primary purpose’ of an interrogation.” Bryant, 562 U.S. at 361, 367, 374 , 131 S.Ct. 1143 , 179 L.Ed.2d 93 .20 The Court explained: The existence of an ongoing emergency is relevant to determining the primary purpose of the interrogation because an emergen

2023It argues that, although the section specifically provides a testimonial privilege, the Ohio Supreme Court held in Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161 , 2010-Ohio-4469 , that the privilege also protects “sought-after communications during the discovery process.” Id. at ¶ 18, quoting Jackson v. Greger, 110 Ohio St.3d 488 , 2006- Ohio-4968, ¶ 7 fn. 1. {¶19} In Givaudan Flavors, a law firm brought an action against a former client, alleging breach of contract and money due on an account.

2023It argues that, although the section specifically provides a testimonial privilege, the Ohio Supreme Court held in Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161 , 2010-Ohio-4469 , that the privilege also protects “sought-after communications during the discovery process.” Id. at ¶ 18, quoting Jackson v. Greger, 110 Ohio St.3d 488 , 2006- Ohio-4968, ¶ 7 fn. 1. {¶19} In Givaudan Flavors, a law firm brought an action against a former client, alleging breach of contract and money due on an account.

2015Id. {¶19} R.C. 2317.02(B) provides that physicians' records are generally privileged; however, the statute sets forth situations in which the patient has been deemed to have waived that privilege: 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

2014Appellees claim that appellant has waived that privilege pursuant to R.C. 2317.02(B)(3)(a): {¶9} “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

2013“Dinsio does not preclude questioning which may elicit the assertion of the Fifth Amendment privilege, but merely repeated questioning where reassertion of the privilege is assured.” (Emphasis sic.) Columbus v. Cooper, 49 Ohio St.3d 42, 45 , 550 N.E.2d 937 (1990). {¶25} Anderson relies on federal precedents for the proposition that reversible error may occur where, “based upon a concept of prosecutorial misconduct, * * * the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege,” or “inferences from a witness’ refusa

2013“Dinsio does not preclude questioning which may elicit the assertion of the Fifth Amendment privilege, but merely repeated questioning where reassertion of the privilege is assured.” (Emphasis sic.) Columbus v. Cooper, 49 Ohio St.3d 42, 45 , 550 N.E.2d 937 (1990). {¶25} Anderson relies on federal precedents for the proposition that reversible error may occur where, “based upon a concept of prosecutorial misconduct, * * * the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege,” or “inferences from a witness’ refusa

2004“The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court’s attitude is *311 unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219 , 5 OBR 481, 450 N.E.2d 1140 . {¶ 10} In Branzburg v. Hayes (1972), 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 , the United States Supreme Court declined “to grant newsmen a testimonial privilege that other citizens do not enjoy.” Id., 408 U.S. at 690 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 .

2004The Supreme Court of Ohio has stated that "[t]he term `abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217 , 219 , quoting State v. Adams (1980), 62 Ohio St.2d 151 , 157 . {¶ 11} R.C. 2317.02 creates a testimonial privilege for communications made between a physician and a patient.

2002See, also, State v. Jones , 90 Ohio St.3d 403 , 2000-Ohio-187 , 739 N.E.2d 300 (reiterating the rule in Smorgala but finding the circumstances in Jones distinguishable because it involved the interplay between two statutes, not a statute and a judicially created public policy exception, which was at issue in Smorgala ); In re Wieland , 89 Ohio St.3d 535 , 2000-Ohio-233 , 733 N.E.2d 1127 (relying on Smorgala and In re Miller , infra, when stating "[t]his court has repeatedly and consistently refused to engraft judicial waivers, exceptions, or limitations into the testimonial privilege statutes"

2002See, also, State v. Jones , 90 Ohio St.3d 403 , 2000-Ohio-187 , 739 N.E.2d 300 (reiterating the rule in Smorgala but finding the circumstances in Jones distinguishable because it involved the interplay between two statutes, not a statute and a judicially created public policy exception, which was at issue in Smorgala ); In re Wieland , 89 Ohio St.3d 535 , 2000-Ohio-233 , 733 N.E.2d 1127 (relying on Smorgala and In re Miller , infra, when stating "[t]his court has repeatedly and consistently refused to engraft judicial waivers, exceptions, or limitations into the testimonial privilege statutes"

2001In re Miller (1992), 63 Ohio St.3d 99 , 109 , citing Weis v. Weis (1947), 147 Ohio St. 416 , paragraph four of the syllabus.

1988Cf. Weis v. Weis (1947), 147 Ohio St. 416 , 34 O.O. 350 , 72 N.E. 2d 245 , 169 A.L.R. 668 , paragraph four of the syllabus.

2000In State v. Smorgala (1990), 50 Ohio St.3d 222, 223 , 553 N.E.2d 672, 673-674 , the court explained: “The question presented for review by this certification is whether the courts of Ohio should judicially create a public policy limitation upon the statutorily created physician-patient privilege which would allow otherwise clearly inadmissible evidence to be received in ‘drunk driving’ cases.

2000In State v. Smorgala (1990), 50 Ohio St.3d 222, 223 , 553 N.E.2d 672, 673-674 , the court explained: “The question presented for review by this certification is whether the courts of Ohio should judicially create a public policy limitation upon the statutorily created physician-patient privilege which would allow otherwise clearly inadmissible evidence to be received in ‘drunk driving’ cases.

2000Haley v. Dempsey (1921), 14 Ohio App. 326, 328-329 , referring to G.C. 11494, the predecessor of R.C. 2317.02. *664 In addition to the testimonial privilege afforded to a client, Canon 4 of the Ohio Code of Professional Responsibility places upon an attorney the duty to preserve the confidences and secrets of a client.

2000Haley v. Dempsey (1921), 14 Ohio App. 326 , 328-329 , referring to GC S 11494, the predecessor of R.C. 2317.02 .

2019Although the statute indicates that any type of civil action filed by the patient waives the physician-patient privilege, this writer stresses that Belinda’s mental and physical condition is not at issue here. 7 {¶30} When seeking custody, the parent’s mental and physical condition is called into question as it relates to their ability to parent the child/children, “but solely in regard to that issue.” (Emphasis added) Sweet, supra, at ¶10 .

2018Health Ctr., 119 Ohio St.3d 185 , 2008-Ohio- 3343, ¶ 49. {¶ 54} R.C. 2317.02 provides a testimonial privilege, stating that "[t]he following persons shall not testify in certain respects: * * * (B)(1) [a] physician * * * concerning a communication made to the physician * * * by a patient in that relation or the advice of a physician * * * given to a patient." The statute defines a communication as "acquiring, recording, or transmitting any information, in any manner, concerning any facts, opinions, No. 17AP-222 14 or statements necessary to enable a physician * * * to diagnose, treat, prescrib

2016The city counters that none of the identified statutes have any effect on citizens’ conduct. {¶ 29} In Canton, 95 Ohio St.3d 149 , 2002-Ohio-2005 , 766 N.E.2d 963 , at ¶ 36, the court determined that the statute at issue failed this element because it applied “to municipal legislative bodies, not to citizens generally.” We agree with the city that the same is true here.

2016However, if the discovery issue involves an alleged privilege, as in this case, it is a question of law that must be reviewed de novo.” (Citations omitted.) Ward v. Summa Health Sys., 128 Ohio St.3d 212 , 2010-Ohio-6275 , 943 N.E.2d 514 , ¶ 13. {¶ 9} “ ‘R.C. 2317.02(A) provides a testimonial privilege—i.e., it prevents an attorney from testifying concerning communications made to the attorney by a client or the attorney’s advice to a client.

2016However, if the discovery issue involves an alleged privilege, as in this case, it is a question of law that must be reviewed de novo.” (Citations omitted.) Ward v. Summa Health Sys., 128 Ohio St.3d 212 , 2010-Ohio-6275 , 943 N.E.2d 514 , ¶ 13. {¶ 9} “ ‘R.C. 2317.02(A) provides a testimonial privilege—i.e., it prevents an attorney from testifying concerning communications made to the attorney by a client or the attorney’s advice to a client.

2016Accordingly, the pursuit of a civil action wherein physical or mental injuries are causally or historically related to the issues that arise in that case is effectively treated as a waiver of privilege with regard to those conditions. {¶ 11} In Menda v. Springfield Radiologists, 136 Ohio App.3d 656 , 737 N.E.2d 590 (2d Dist.2000), we held that the effective waiver of the physician-patient privilege due to a civil action filed by the patient, that puts the plaintiff's mental or physical health at issue in that case, also extends that waiver of privilege to an unrelated prior and separate lawsui

2016Accordingly, the pursuit of a civil action wherein physical or mental injuries are causally or historically related to the issues that arise in that case is effectively treated as a waiver of privilege with regard to those conditions. {¶ 11} In Menda v. Springfield Radiologists, 136 Ohio App.3d 656 , 737 N.E.2d 590 (2d Dist.2000), we held that the effective waiver of the physician-patient privilege due to a civil action filed by the patient, that puts the plaintiff's mental or physical health at issue in that case, also extends that waiver of privilege to an unrelated prior and separate lawsui