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In re Washburn10/31/1990
e reason that said blood-alcohol tests were obtained by the state in violation of the physician-patient privilege [R.C. 2317.02(B)]."
R.C. 2317.02 as in effect at the time of the events here in issue provided that certain persons might not testify in certain respects, including a physician concerning a communication made to him by his patient in that relation or his advice to his patient, except as otherwise provided by statute or with express consent to the disclosure or waiver of the privilege by the patient or the patient's guardian or personal representative.
A "communication" was defined to include a hospital communication such as a laboratory test and results.
This statute, being in derogation of the common law, which recognized no such privilege, must be strictly construed. Weis v. Weis (1947), 147 Ohio St. 416, 34 O.O. 350, 72 N.E.2d 245. A medical laboratory technician is not one of those persons listed in R.C. 2317.02, communication to whom may be privileged, unless the technician is also a physician or other person listed in the statute. State v. McKinnon (1987), 38 Ohio App.3d 28, 525 N.E.2d 821.
The testimony of the medical laboratory technician, Linda Swihart, of which testimony appellant complains, is not, therefore, testimony within the physician-patient privilege afforded by R.C. 2317.02(B). Further, exclusion of such testimony by the extension of the privilege from physician to technician by agency principle has been rejected by the Supreme Court. Weis, 147 Ohio St. at 429, 34 O.O. at 356, 72 N.E.2d at 252.
It seems that the test documents, however, fall within the privileged category of communications, and were inadmissible in evidence unless otherwise excepted, as by consent or waiver.
At trial, counsel stipulated admission of the test documents. To the extent appellant's objection to their receipt, overruled on pretrial motion to suppress, may now be brought before this court on appeal, we hold it has been waived by stipulation in the absence of further objection at trial appearing in the record. Moreover, the documentary test evidence is merely cumulative tsthe testimony of Linda Swihart concerning the blood-alcohol test results and is not, therefore, unfairly prejudicial to appellant.
The second assignment of error is also overruled.
The judgments of the Court of Common Pleas of Wyandot County, Juvenile Division are affirmed.
Judgment affirmed.
MILLER and EVANS, JJ. concur.
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