 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Castro12/30/1999
nd appellant guilty of the offense charged and appellant filed a timely appeal.
Appellant asserts on appeal that the trial court erred by allowing the testimony of Kellogg and Merrick. Appellant argues that nurses fall under the privilege established by R.C. 2317.02 and that the "communications" between appellant and Merrick therefore are protected by the privilege. As to Kellogg, appellant asserts that emergency medical technicians receive training very similar to that received by nurses and, therefore, allowing communications between a patient and an emergency medical technician to be introduced at trial would defeat the purpose of the privilege.
R.C. 2317.02 establishes several testimonial privileges which operate to exclude communications made or acts done in the course of certain relationships specified in the statute. As to the physician-patient relationship, the statute provides in relevant part:
"The following persons shall not testify in certain respects:
" *
"(B)A physician concerning a communication made to him by his patient in that relation or his advice to his patient but the physician may testify by express consent of the patient *."
Because the privilege set forth in R.C. 2317.02(B) is in derogation of the common law, it must be strictly construed against the person asserting it. State v. Dress (1982), 10 Ohio App.3d 258, 360, citing Weis v. Weis (1947), 147 Ohio St. 416. Appellant's argument herein is two-fold: first, that the privilege applies to communications between a patient and a nurse or emergency medical technician; and second, that everything that transpired between appellant and Kellogg as well as between appellant and Merrick constituted "communication" as used in R.C. 2317.02(B).
It has been held that the party seeking to invoke this privilege must establish that the "communication" was extended to the physician as a private confidence, or was intended to be received in that manner. Dress, supra. The term "communication" as used in R.C. 2317.02(B) has been interpreted to include not only verbal exchanges of information, but also physical observations and physical examinations. Dress, supra.
The purpose of the physician-patient privilege is to encourage a patient to make a full disclosure of his medical condition and concerns without fear that his doctor will later reveal the patient's confidences. Such disclosure on a patient's part can help a physician properly diagnose and treat the patient. Emergency medical technician Kellogg testified that appellant yelled at him, told the emergency medical technicians to stay away from him and leave him alone, and yelled, "Just stay the fuck away from me." Nurse Merrick testified that appellant yelled at the hospital staff; struck out at them; "used fuck in every other word;" when asked questions, responded "Fuck you, I am not going to tell you;" and referred to Merrick as "you bitch."
After a thorough review of Kellogg's and Merrick's testimony, we are unable to find reference to any statements or other "communications" by appellant that could be construed as having been made as part of a disclosure of medical concerns or offered by appellant in confidence to Kellogg or Merrick. It is clear from the witnesses' testimony that appellant was yelling most of the time and that he was not alone with either Kellogg or Merrick at any time. Those circumstances do not indicate communications made as a private confidence and intended to be received in that manner.
Upon consideration of the foregoing, this court finds that there were no "communications" between appellant and Kellogg or appellant and Merrick giving rise to the
Page 1 2 3 Ohio DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|