Order Compelling Physical Examination is Not a Provisional Remedy as Patient-Physician Privilege is Not Implicated

This case arises out of a motor vehicle collision, in which defendant-appellee, Kelly Gray, drove her vehicle into the rear of Barker's vehicle. In his complaint, Barker alleged that as a result of the collision, he suffered significant injuries that caused him physical and mental distress/impairment, the inability to perform activities of daily living, and miscellaneous expenses. Gray filed a motion requesting that the trial court require Barker to submit to two medical examinations pursuant to Civ.R. 35(A). Barker agreed to submit to a one-hour orthopedic examination. However, he filed a motion for a protective order in which he opposed the four to eight hour neuropsychological examination that Gray requested. Barker asked that the trial court deny Gray's motion and grant his motion for a protective order, or set specific (but undefined) parameters for the neuropsychological examination.

The trial court granted Gray's motion for both the orthopedic and neuropsychological examinations and denied Barker's motion for a protective order, which Barker did not appeal. Gray moved pursuant to Civ.R. 37 for an order compelling Barker to comply with the trial court's earlier order to submit to a neuropsychological examination, which was granted by the court. Barker appealed, and Gray moved to dismiss for lack of subject-matter jurisdiction, arguing the order was not a final, appealable order. Barker argued that the trial court's July 1, 2025, decision and entry was a discovery order that would permit “unwarranted intrusion” into matters protected by the physician-patient privilege under R.C. 2317.02, and thus, the judgment constitutes a provisional remedy. A “provisional remedy” is a “proceeding ancillary to an action” and includes proceedings for the “discovery of a privileged matter.” R.C. 2505.02(A)(3). In Myers v. Toledo, 2006-Ohio-4353, the Supreme Court of Ohio determined that an order compelling “a physical examination under Civ.R. 35(A) is a discovery order that is not a provisional remedy and is not a final, appealable order under R.C. 2505.02(B)(4).” To establish that a discovery order satisfies the provisional-remedy requirement, the appellant must make a colorable claim that the order compels the disclosure of information protected by a privilege. State v. Glenn, 2021-Ohio-3369; Dineen v. Pelfrey, 2022-Ohio-2035, (10th Dist.).

The court found that Barker’s argument failed. Requiring a plaintiff to disclose information about himself or herself in an examination does not implicate the physician-patient privilege in R.C. 2317.02 because “nothing in the statute gives a patient the right to refuse to testify about his or her own medical information.” Ward v. Summa Health Sys., 2010-Ohio-6275.