Transferring a Plaintiff’s Burden to the Court: In-Camera Inspections Are a Necessary Burden for Most Courts in Ohio

Key Points:

• Upon request, an in-camera review of medical records is required in the majority of Ohio’s district courts.
• The minority view allows broad discovery without an in-camera inspection if the plaintiff cannot offer facts that demonstrate the privilege should not be waived.

The Eighth District has reaffirmed the requirement for an in-camera inspection when disputed medical records are sought by a defendant and the inspection is requested. In Deering v. Beatty, 2021 WL 4473164 (Ohio Ct. App. 8th Dist. Sept. 30, 2021), the plaintiff sued after she fell down stairs at an apartment complex. The parties agreed to execute authorizations dating back to 2012 and to revisit the need for additional records upon review by counsel. Upon review of the plaintiff’s medical records and expert report, the defendant discovered that additional records were needed. When the parties were unable to agree, the defendant filed a motion to compel. The trial court granted the defendants’ motion to compel, but the Eighth District reversed. In reversing the trial court order, the Deering court held that an in-camera inspection must be provided if a party makes the request. Based upon this ruling, it is advisable for movants to:

• Identify any privileges that may apply to the records;
• Indicate that the injured party has waived the privilege;
• Request an in-camera inspection/consent to an in-camera inspection; and
• Argue for the release of causally- and historically-related records, only.

Broad discovery requests for medical records are not traditionally a viable request. The majority opinion in Ohio embraces the requirement for in-camera reviews of medical records. However, there are valid arguments for allowing broad discovery into medical records to find pre-existing injuries.

The Second District of Ohio represents the minority view on discovery of privileged medical records and the broad waiver that results by filing a civil action. The minority view balances the following three considerations:

1. The confidentiality of privileged medical information;
2. A personal injury defendant’s right to effectively prepare for trial; and
3. Minimization of judicial involvement in pretrial discovery disputes.

In Bogart v. Blakely, 2010 WL 3722772 (Ohio Ct. App. 2nd Dist. Sept. 24, 2010), the Second District Appellate Court wrote a lengthy opinion analyzing these considerations and distinguishing case law. Ultimately, the Bogart court granted the defendant’s motion to compel without an in-camera inspection. The court found that, because the plaintiff (1) did not request an in-camera inspection, (2) admitted a history of related pain and (3) because the production contained more than 1,200 records for the court to review, the injured party had failed to preserve their privilege to their private medical records in the face of a personal injury complaint.

In making this determination, the Second District found that, “[g]iven Bogart’s extensive allegations, the information sought ‘to be disclosed might be within the ambit of his possible waiver of the physician-patient privilege.’” In a decision that opposes the majority view that an in-camera review is needed to protect privilege, the Second District holds that the party requesting the inspection must show a “factual basis” that the in-camera review “may reveal evidence establishing a privilege that should not be waived.” To support that holding, the Bogart court found that the burden is on the person resisting discovery to demonstrate why the information should not be released. In other words, the person requesting the in-camera inspection and resisting production must show why the requesting party is not entitled to discovery.

The Eighth District does not agree with the minority view presented by Bogart. Although the Eighth District, representing the majority position within Ohio, agrees that in-camera reviews can be burdensome, it found that allowing liberal discovery of privileged materials was inappropriate. The burden on the court can be balanced through application of the Civil Rules should the court enforce the use of privilege logs to put the onus back on the party resisting discovery. Csonka-Cherney v. ArcelorMittal Cleveland, Inc., 9 N.E.3d 515 (Ohio Ct. App. 8th Dist. Mar. 6, 2014); see also Moore v. Ferguson, 2012 WL 6689757 (Ohio Ct. App. 5th Dist. Dec. 10, 2012). Furthermore, the majority view finds that allowing liberal discovery in privileged items subverts the injured party’s confidentiality more so than ever intended by filing a civil suit.

Defense counsel seeking broad discovery into a plaintiff’s medical history face more and more pushback from the judiciary. Should one wish to circumvent the in-camera inspection requirement, one would be remiss to not review the Second District opinion in Bogart. Though a disfavored analysis, the Bogart court’s decision is based on classic discovery principles, such as the distinction between discoverable and admissible materials, and the burden resting on a party resisting discovery. These Bogart arguments may be persuasive in other appellate districts where an in-camera inspection is not formally requested and, thus, do not fall into the Deering line of cases.

*Jillian is an associate in our Cleveland, Ohio, office. She can be reached at 216.912.3823 or jldinehart@mdwcg.com.

_{Defense Digest, Vol. 27, No. 5, December 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}