Can You Get the Other Driver's Medical Records? A Dayton Crosswalk Case Draws the Line (Harvey v. Cincinnati Ins.)

Published December 29, 2017 · Ohio Appeals Courts

Just after 7:40 on a rainy June evening in 2014, Donald Hartman was stopped at the red light at the mid-block crosswalk on Main Street in downtown Dayton, between First and Second Streets by the Schuster Center. When the light turned green he pulled forward and, as the court of appeals put it, "Suddenly, he saw two pedestrians on his left." He braked too late. His car struck Carolyn Harvey and Barbara Petersen in the crosswalk.

Two months before he was deposed in the women's lawsuits, Hartman had surgery to remove cataracts. Their lawyers wanted to know what he could see that night. On December 22, the Second District Court of Appeals decided how far they could go. Harvey v. Cincinnati Ins. Co., 2017-Ohio-9226, is a discovery ruling, not a decision about who was at fault, but it answers a question we hear constantly from clients: can we find out whether the driver who hit me should have been driving at all?

The question the case raised

When Hartman was deposed, the plaintiffs' lawyer asked about his eyesight and medical history. His own lawyer instructed him not to answer. The trial court then ordered Hartman to sign authorizations releasing all of his medical records "for diagnosis and treatment of his eyesight" from July 2013 forward, and allowed further questioning once the records arrived.

Hartman appealed immediately. Ordinarily a discovery order cannot be appealed until the case is over, but an order that requires a party to turn over privileged material is different, because once the records are produced "the proverbial bell cannot be unrung." That exception let the Second District review the order now.

What the court decided

The physician-patient privilege, R.C. 2317.02(B)(1), prevents a physician, advanced practice registered nurse, or dentist from testifying about communications with a patient, and "communication" is defined to include medical records. A patient who files his own lawsuit for an injury waives the privilege as to that injury. But Hartman was the defendant. He had not put his eyesight at issue by suing anyone, so the privilege remained intact for records created by a privileged provider.

The court of appeals then drew a line that matters in every case like this one. The privilege statute, by its own terms in R.C. 2317.02(B)(6), applies only to doctors of medicine, doctors of osteopathic medicine, doctors of podiatry, advanced practice registered nurses, and dentists. An ophthalmologist is a medical doctor, so the records of the surgeon who removed Hartman's cataracts are protected. An optometrist or an optician is not on that list, so the court concluded that their records "do not appear" to be protected. The blanket order covering every vision record from 2013 forward was therefore overbroad, and the court vacated it. On remand, the trial court may compel release "only of non-privileged information or records."

The second half of the ruling is the more important one for injured people. The Supreme Court of Ohio held in Ward v. Summa Health System, 128 Ohio St.3d 212, 2010-Ohio-6275, a case we discussed in our 2011 post about an infected surgeon, that the privilege protects what a doctor says, not what a patient knows. In the Supreme Court's words, "nothing in the statute" gives a patient "the right to refuse to testify about his or her own medical information." Applying Ward, the Second District made clear that Hartman can be questioned about his own eyesight. It sent that issue back only because the deposition transcript was not in the record and the court could not tell exactly what had been asked.

Why this matters in pedestrian cases

A driver's defense in a crosswalk case is almost always some version of "I didn't see them." Sometimes that is true and the question becomes why. Rain, glare, dark clothing, and signal timing are the usual explanations. But the driver's own eyes are part of the picture. A driver with untreated cataracts, a known night-vision problem, a restricted license requiring corrective lenses he was not wearing, or a medication that impairs vision may have been negligent simply by driving, before anything happened at the intersection.

Harvey tells us how to pursue that evidence:

• Ask the driver directly, under oath. The driver must answer questions about his own vision, diagnoses, prescriptions, and whether he was wearing his glasses. Ward and Harvey leave no room for an instruction not to answer those questions.
• Request the non-privileged records. Optometrist and optician records, which in practice include most routine eye exams and eyeglass prescriptions, are not covered by the privilege under this decision. Neither are Bureau of Motor Vehicles records showing a corrective-lens restriction.
• Draft the request narrowly. The order in Harvey failed because it swept in every provider for a four-year period. A request aimed at specific, non-privileged sources and a defined time period around the crash is far more likely to survive.
• Use what the driver says to find the rest. If the driver testifies that his ophthalmologist told him months earlier that his cataracts had worsened, that testimony is admissible even though the ophthalmologist's chart is not.

None of this replaces the ordinary proof in a pedestrian case: the crash report, the signal timing, witness statements, scene photographs, and any downtown surveillance or traffic-camera footage, all of which we gather as soon as we are retained. We described the parallel process for a distracted driver's phone in how we get the other driver's phone records. A driver's physical fitness to drive is one more avenue, and this decision confirms it is open.

A word about privacy

Readers sometimes ask whether this cuts both ways. It does. When you bring a claim for your own injuries, you waive the privilege for records that relate to those injuries, and the defense will obtain them. But the waiver is limited to what is relevant to the injuries you claim, and we resist the blanket "all records from all providers for ten years" authorizations that insurers routinely send. Harvey is a useful reminder that overbroad requests can be challenged from either side of the case.

What this means for you

If you or a family member was struck in a crosswalk and the driver claims not to have seen you, the driver's eyesight and medical fitness are fair subjects of inquiry. Ohio's privilege statute protects the files of certain doctors, but it does not let the driver refuse to answer questions about his own condition, and it does not cover the eye-care professionals most people actually see. These are questions a lawyer asks in a deposition after suit is filed; they are not questions an insurance adjuster will ever put to its own insured on your behalf. The case against Hartman now goes back to the Montgomery County trial court, and nothing in the appellate ruling decides who will win it. What it decides is that the plaintiffs may keep asking.