• Medical Mutual of Ohio v. Schlotterer No. 2009-Ohio-2496 (Ohio 6/3/09)
  • July 9, 2009 | Authors: Arthur N. Lerner; Bruce O. Tavel
  • Law Firm: Crowell & Moring LLP - Washington Office
  • On June 3, 2009, the Ohio Supreme Court ruled that where a patient gives explicit consent, the doctor-patient privilege does not prohibit the release of a patient's medical records to a health insurer. The plaintiff insurer, Medical Mutual sought patient medical records in discovery in order to support its claim of fraud and breach of contract against a physician. Medical Mutual alleged that the doctor improperly applied patient billing codes, resulting in the insurer overpaying the doctor by $269,576. The trial court granted Medical Mutual's motion ordering the doctor to respond to discovery requests calling for the medical records of ten families.

    The court of appeals held that an order compelling discovery of the medical records would violate the physician-patient privilege. The Ohio Supreme Court sided with the trial court, holding that ordering discovery of medical records did not violate the privilege where the patients expressly waived it.

    The Court held that "consent to the release of medical information is valid, and waives the physician-patient privilege, if it is voluntary, express, and reasonably specific in identifying to whom the information is to be delivered." Where a waiver formexplicitly states a purpose for releasing medical records, the waiver does not apply for a disclosure inconsistent with said purpose. The relevant portion of the Medical Mutual form read "You consent to the release of medical information to Medical Mutual when you enroll and/or sign an Application."

    The defendant doctor argued that the waiver in Medical Mutual's forms did not include investigation into fraud. The Court rejected this and other arguments raised by the defendant, noting that the Medical Mutual consent statement contained no express purpose and that the insurer's goal of investigating prior claims and reimbursement fell "within the category of claim review." The Court further held that the consent statement could not prohibit disclosure of the medical records to Medical Mutual's attorneys because to do so would require insurers like Medical Mutual to seek waiver of privilege on a pro se basis.