Brant et al v. Summa Health Systems, Inc. et al

Filing 87

Opinion and Order: The Court orders that Dr. Zografakis may be deposed concerning the standard of care, causation, and the prior and subsequent treatment of Mr. Brant by others relative to the medical condition at issue in this case. (Related Doc # 78 ). Judge Sara Lioi on 4/23/2012. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

NATHAN BRANT, et al.,
PLAINTIFFS,
vs.

SUMMA HEALTH SYSTEM, et al.,

DEFENDANTS.

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CASE NO. 5:10CV1296

JUDGE SARA LIOI

OPINION AND ORDER

This is a medical malpractice case. Before the Court is non-party
physician John Zografakis’s motion (Doc. No. 78) for a protective order specifying the
appropriate scope of his deposition. Defendants physician Eric A. Espinal and
Cardiothoracic Surgery Specialists LLC (“Defendants”) have filed a response (Doc. No.
79) in support of Dr. Zografakis’s motion, and Plaintiffs Nathan and Kristi Brant
(collectively, “Plaintiffs”) have filed a response in opposition (Doc. No. 80). Defendants
have also filed a reply (Doc. No. 81) to Plaintiffs’ response in opposition.
Defendants seek to depose Dr. Zografakis. Prior to the date on which Dr.
Zografakis was originally scheduled to be deposed, Nathan Brant executed an
authorization allowing Dr. Zografakis to release Mr. Brant’s medical information as part
of his deposition. Also prior to the scheduled deposition—but subsequent to the
execution of the authorization—Plaintiffs informed the Defendants via letter of their
position that the authorization executed by Mr. Brant only permitted Dr. Zografakis to

“give a deposition for the purpose of relating his involvement in the care of Mr. Brant.”
(Doc. No. 78-2 at 1.) Dr. Zografakis was not permitted, Plaintiffs asserted, “to offer any
opinions regarding the standard of care, causation, or regarding the prior or subsequent
treatment of Mr. Brant by others.” (Id. at 2.) Receipt of the letter prompted Dr.
Zografakis’s counsel to postpone his client’s deposition and to file the instant motion for
a protective order setting forth the appropriate scope of Dr. Zografakis’s anticipated
deposition.
This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1332(b).
The cause of action arises under Ohio law and Ohio substantive law governs the
disposition of the case. In Ohio, there is no common law physician-patient privilege. See
Ward v. Summa Health Sys., 128 Ohio St. 3d 212, 215 (2010) (“The physician-patient
privilege did not exist at common law.”). Instead, the privilege is governed by statute. See
Ohio Rev. Code § 2317.02. Both Plaintiffs and Defendants, however, agree that the
physician-client privilege created by Ohio statute does not operate to limit the scope of
Dr. Zografakis’s deposition here. (See Doc. No. 79 at 4; Doc. No. 80 at 2.) Plaintiffs
nevertheless contend that case law provides for a physician duty of secrecy and loyalty
that is broader than the privilege contemplated by § 2317.02 and that does operate to limit
the scope of Zografakis’s deposition. In support of their argument, they rely on two cases:
Hammonds v. Aetna Casualty & Surety Co., 243 F. Supp. 793 (N.D. Ohio 1965), and
Miles v. Farrell, 549 F. Supp. 82 (N.D. Ill. 1982).
Plaintiffs’ attempt to rely on Hammond is certainly understandable. In one
passage, the court in Hammond stated that

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It cannot be questioned that part of a doctor's duty of total care requires him to
offer his medical testimony on behalf of his patient if the patient becomes
involved in litigation over the injury or illness which the doctor treated. Thus,
during the course of such litigation, in addition to the duty of secrecy, there arises
the duty of undivided loyalty.
Hammond, 243 F. Supp. at 799. But the facts of Hammond are readily distinguished from
the case at bar. In Hammond, the disclosing physician was still serving as the plaintiff’s
treating physician when he divulged the medical information in question. Id. at 795.
Further, the physician in Hammond divulged the information during “a clandestine
conference between [himself] and the lawyer for his patient’s adversary.” Id. at 800.
Miles, similar to Hammonds, posits that “it is . . . likely that a physician
owes a duty of loyalty to his patient which would prevent him from testifying as an
expert against his patient.” Miles, 549 F. Supp. at 84. But Miles, also like Hammonds, is
inapposite in that it involved a physician who was in a continuing physician-patient
relationship with plaintiff. Id. at 82. Even more important, Miles involved application of
Illinois—not Ohio—law.
Additionally, major changes in Ohio physician-patient privilege law have
taken place since early cases like Hammond were decided. The biggest of these changes
was the enactment the Ohio physician-patient privilege statute—the previouslymentioned § 2317.02. But significant changes in Ohio physician-patient privilege case
law have also occurred since 1965, when Hammonds was decided. More modern cases
indicate that a physician is not barred from discussing the standard of care, causation, and
like topics where, as here: the physician in question participated in the treatment at issue;
the plaintiff is suing regarding that treatment; and the physician will be divulging the

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information not surreptitiously, but through the normal process of discovery.
The Ohio Supreme Court has stated that “a non-defendant treating
physician is competent to appear as an expert witness in a personal injury action brought
by his patient . . . .” Moore v. Grandview Hosp., 25 Ohio St. 3d 194, 197 (Ohio 1986).
The court in Moore added the qualification that the physician may so-testify only “as
long as the physician avoids testimony as to privileged communications.” Id. But by
filing this suit Plaintiffs have already waived any such privilege here. See Ohio Rev.
Code § 2317.02(B)(1) (“The testimonial privilege . . . does not apply . . . if a medical
claim is filed by the patient . . . .”); Wargo v. Buck, 123 Ohio App. 3d 110, 121 (Ohio Ct.
App. 1997) (“[B]ecause [plaintiff-appellant] filed a civil action placing into issue the
extent of his injuries, . . . the privilege does not apply.”). Both sides agree that the
privilege does not apply. Moore thus supports allowing Dr. Zografakis to testify—and, by
extension, be deposed—as to the disputed topics here.
Humble v. Dobson, No. 95-CA-12, 1996 WL 629535 (Ohio Ct. App. Nov.
1, 1996), supports this interpretation of modern Ohio law. In Humble, the Ohio court of
appeals permitted a treating non-party physician (who had been deposed during
discovery) to testify as an expert at trial. Id. at *2, *5. Rejecting the plaintiff-appellant’s
argument that it was improper to permit the treating physician to testify, the court pointed
out that “what the Appellant [sought was] testimony from his own expert as to the
medical malpractice, but prohibition of testimony from another expert who was
intimately involved in the medical claim that [was] the subject of [the] litigation, simply
because the opinion of that doctor [was] not favorable to Appellant’s position.” Id. at *5.

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Other Ohio courts have reached similar results. See, e.g., Billman v. Hirth, No. 97APE121657, 1998 WL 514126, at *8 (Ohio Ct. App. Aug. 20, 1998) (relying on Moore in
holding that allowing non-party treating physician to testify as an expert where privilege
had been waived was not error); Conti v. Lynn, No. 75AP-591, 1976 WL 189724 (Ohio
Ct. App. May 20, 1976) (non-physician who participated in treatment of plaintiff patient
permitted to testify on behalf of defendant physician).
Allowing Dr. Zografakis to be deposed not only as to his involvement in
the care of Mr. Brant but also as to the standard of care, causation, and the treatment of
Mr. Brant by others will not undermine the physician-patient privilege enunciated in
§ 2317.02. The privilege “is designed to create an atmosphere of confidentiality, which
theoretically will encourage the patient to be completely candid with his or her physician,
thus enabling more complete treatment.” Ward v. Summa Health Sys., 128 Ohio St. 3d
212, 217 (Ohio 2010) (quoting State Medical Bd. of Ohio v. Miller, 44 Ohio St. 3d 136,
139 (Ohio 1989)). The privilege has already been waived by Plaintiffs as to disclosure of
treatment-specific information, and disclosure of information regarding standard of care
and the like does not threaten the “atmosphere of confidentiality” that enables “candid”
discussion and “more complete treatment.” Likewise, allowing Dr. Zografakis to disclose
information as to standard of care, causation, and treatment by others will not encourage
the improper, surreptitious interference with an ongoing physician-patient relationship
that the court in Hammonds sought to prevent.

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For all of these reasons, the Court ORDERS that Dr. Zografakis may be
deposed concerning the standard of care, causation, and the prior and subsequent
treatment of Mr. Brant by others relative to the medical condition at issue in this case.
IT IS SO ORDERED.

Dated: April 23, 2012
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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