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Cline v. Finney3/28/1991
WHITESIDE, Judge.
Defendants, Robert C. Finney, executor of the estate of Viola Robinson, et al., appeal from a judgment of the Franklin County Court of Common Pleas, Division of Probate, and raise a single assignment of error, as follows:
"The trial court erred in ordering defendant executor to respond to discovery requests for medical records notwithstanding the privilege set forth in O.R.C. 2317.02 on the basis of public policy and the pursuit of justice."
Plaintiff, Mary Edna Cline, commenced this action as a will contest of the purported last will and testament of the decedent, Viola Robinson, which has been admitted to probate by the trial court, and defendant Robert C. Finney ("defendant") has been appointed the executor of the estate. Plaintiff sought to utilize discovery means to obtain information concerning the medical history of the decedent through interrogatories, to some of which defendant objected. Plaintiff filed a motion seeking an order of the trial court to compel defendant to answer some fourteen interrogatories, to which objections have been interposed upon the ground of privilege. After hearings, the trial court entered what is labeled, "Judgment Entry," which also constitutes the decision of the court, which concludes with the statement that:
"* * * he Court grants Plaintiff's Motion and requires that all the medical and hospital records of the decedent be released to plaintiff and this order shall be a final appealable order within the dictates of Humphry v. Riverside."
Although the trial court has no jurisdiction to determine the finality or the appealability of an order, the parties do not contest the issue. Although the case is distinguishable, the reasons for immediate appealability is as cogent in this case as in the case cited by the trial court, Humphry v. Riverside Methodist Hosp. (1986), 22 Ohio St.3d 94, 22 OBR 129, 488 N.E.2d 877. Cf. State ex rel. Lambdin v. Brenton (1970), 21 Ohio St.2d 21, 50 O.O.2d 44, 254 N.E.2d 681.
The issue before us involves application of a statute which creates a substantive right of privilege against revealing communication to and between doctor and patient. R.C. 2317.02 provides in pertinent part:
"The following persons shall not testify in certain respects:
"* * *
"(B)(1) A physician * * * concerning a communication made to him by his patient in that relation or his advice to his patient, except as otherwise provided in this division and division (B)(2) of this section * * *.
"The testimonial privilege under this division is waived, and a physician or dentist may testify or may be compelled to testify in a civil action, in accordance with the discovery provisions of the Rules of Civil Procedure in connection with a civil action * * * under the following circumstances:
"* * *
"(b) If the patient is deceased, the spouse of the patient or his executor or administrator of his estate gives express consent;
"(c) If a medical claim, * * * an action for wrongful death, any other type of civil action, or a claim under Chapter 4123. of the Revised Code is filed bs* * * the personal representative of the estate of the patient if deceased * * *."
R.C. 2317.02(B)(2) pertains only to claims brought by or on behalf of the deceased for which waiver is applicable pursuant to R.C. 2317.02(B)(1)(c). Relying in part upon the decision of this court in Storey v. Russolillo (Feb. 7, 1989), Franklin App. No. 88AP-789, unreported, 1989 WL 10351, the trial court applied what is in effect a public policy exception to the statutory privilege, stating at pa
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