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Cline v. Finney3/28/1991
n a statute establishing a public policy and creating substantive rights and a procedural rule promulgated by the Supreme Court. Third, our decision in Storey is also in conflict with the decision of the Supreme Court in Lambdin, supra, in which the Supreme Court granted a writ of prohibition against an order similar to that of the trial court herein requiring a party to turn over to the adverse party hospital records and medical reports made in connection with an injury for which he was seeking damages. The Supreme Court stated at 21 Ohio St.2d at 24, 50 O.O.2d at 46, 254 N.E.2d at 683:
"It must be emphasized at this point that the extraordinary remedy of prohibition sought to be invoked in this proceeding is a high prerogative writ and may not be used as a substitute for appeal. However, because of the extreme and legally questionable nature of the order of the court below-that any failure to comply with that court's order would constitute `an unlawful interference' with the judicial process, and that anything relator failed to disclose will be excluded from evidence at the trial - damage to plaintiff's rights by such forced disclosure could not be avoided by an appeal. Undessuch circumstances, the court's order amounts to usurpation of judicial power, and appeal, under these circumstances, is not an adequate remedy at law."
In short, the Supreme Court found to the effect that a common pleas court lacks jurisdiction to order disclosure during discovery of medical records which are protected by the substantive privilege created by R.C. 2317.02(B). For these reasons, we decline to follow Storey in this case. See, also, Rule 2(G)(1) and (2) of the Supreme Court Rules for the Reporting of Opinions.
Plaintiff points out that answers to some of the interrogatories may not fall within the statutory privilege. However, the trial court did not reach that issue but, instead, issued a blanket order finding to the effect that the statutory privilege is superseded by public policy considerations lying within the discretion of the court, which, as indicated above, is expressly in conflict with the rationale of the Supreme Court in Smorgala, supra. Since the probate court did not reach the issue now urged by plaintiff herein as to the scope of the privilege with respect to the information actually sought, we do not determine that issue for the first time upon appeal. It may well be that some of the information sought by plaintiff is discoverable, but the medical and hospital records of the decedent are not discoverable to the extent of the applicability of the privilege created by R.C. 2317.02(B)(1) and further defined by R.C. 2317.02(B)(3) The assignment of error is well taken.
For the foregoing reasons, the assignment of error is sustained, the judgment of the Franklin County Court of Common Pleas, Division of Probate, is reversed, and this cause is remanded to that court for further proceedings in accordance with law consistent with this opinion.
Judgment reversed and cause remanded.
PEGGY BRYANT and GRIGSBY, JJ., concur.
JOSEPH B. GRIGSBY, J., of the Union County Court of Common Pleas, sitting by assignment.
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