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State v. Kavlich12/12/1986
while intoxicated case, the Dress court noted:
"`* * * The purpose of this [physician-patient] privilege is to encourage patients to make a full disclosure of their symptoms and condition to their physicians without fear that such matters will later become public. Against the interest of the patient in having his condition remain confidential, must be balanced the interest to the public in detecting crimes in order to protect society.' * * * [State v. Antill (1964), 174 Ohio St. 61, 64-65, 26 O.O. 2d 366, 368, 197 N.E.2d 548, 551.]
"* * *
"We concede that the law, to a reasonable degree, should encourage a frank and uninhibited flow of information between doctor and patient by protecting their private, confidential communications. However, the privilege is not absolute and must yield when the public interest outweighs the policy considerations supporting the privilege. This is especially so in the context of a prosecution for the offense of driving while intoxicated. To allow the privilege to be invoked so as to exclude evidence tending to prove that appellant was driving while intoxicated would be against the public interest and would not serve the purpose of R.C. 2317.02(B). The privilege was not designed to operate in this matter, nor will we sanction such use. See State v. District Court of Iowa, supra, at 644.
"* * *
"As we noted above, R.C. 2317.02(B), being in derogation of the common law, is to be given a strict construction. Weis v. Weis, supra. In balancing the public interest in prosecuting those charged with driving while intoxicated against the patient's interest in having his confidential communication protected from disclosure and use in a court of law, we conclude that the public interest is acute and the patient's interest, under the facts of this case, is marginal at best. Consequently, the policy considerations militate in favor of the sensible and efficient administration of criminal justice. The incidental burdens imposed on the physician-patient relationship in this case are far outweighed by the substantial benefits to the public in effectively enforcing R.C. 4511.19." (Emphasis sic.) Dress, supra, at 261-262, 10 OBR at 375-377, 461 N.E.2d at 1317-1318.
Similarly, in Tu, supra, where the defendant was charged with driving while intoxicated and vehicular homicide, the court held that the physician-patient privilege does not preclude the admission of blood-alcohol test results:
"Unlike the Dress case, appellant's intoxicated driving in this case proximately caused another person's death. Consciously inebriating oneself to the point where driving a car becomes as dangerous (and as deadly) as recklessly discharging a firearm on a public sidewalk is inexcusable conduct that cannot be tolerated. We can hardly give our tacit imprimatur to it by approving the use of an artificial evidentiary privilege that excludes probative evidence of illegality. State v. Dress, supra, at 261-262. Simply put, the privilege must yield to competent evidence of conduct the law defines as criminal . The overriding public policy favoring the sensible and effective enforcement of R.C. 4511.19 far outweighs the limited purpose of and narrow policy considerations supportinsOhio's physician-patient privilege." Tu, supra, at 163, 17 OBR at 295, 478 N.E.2d at 834.
We conclude that the public policy of sensibly enforcing R.C. 2903.06 (aggravated vehicular homicide) outweighs the narrow policy considerations offered in support of the physician-patient privilege. Appellant's first assignment of error is overruled.
"Defendant's conviction of aggravated vehicular homicide pursuant to Section 2903.06
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