Ohio Supreme Court Opens the Door to Discovery About an Infected Surgeon

Published January 5, 2011 · Ohio Supreme Court

Imagine going into the hospital for heart surgery, recovering, and then getting a letter five months later saying you may have been exposed to hepatitis B during your stay. You test positive. You ask the hospital who exposed you, and nobody will tell you. That is what happened to an Akron-area man named Donald Ward, and on December 27, 2010, the Supreme Court of Ohio ruled that the law does not let a surgeon hide behind the physician-patient privilege to avoid answering whether he carried the disease.

What happened in Ward v. Summa Health System

In May 2006, Mr. Ward had a heart valve replaced at Summa Health System. Months later, Summa notified him that he may have been exposed to hepatitis B while he was a patient. After he tested positive, he and his wife sued Summa for medical malpractice. Summa refused to identify the source of the exposure.

The Wards suspected the surgeon. They scheduled his deposition (sworn questioning outside of court) and told him they intended to ask three things: whether he had ever had hepatitis B, when he contracted it, and when he learned he had it. The surgeon asked the trial court for a protective order, arguing that his own medical information was shielded by Ohio's physician-patient privilege. The trial court agreed, blocked the questions, and eventually dismissed the Wards' case because they could not get the expert affidavit Ohio requires in malpractice suits without knowing where the infection came from.

The court of appeals reversed, and the Supreme Court of Ohio affirmed that reversal in Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275.

What the privilege actually protects

The physician-patient privilege is found in R.C. 2317.02(B). In plain terms, it stops a doctor from testifying about what a patient told the doctor, and about the advice the doctor gave, during treatment. The purpose is to let patients speak freely with their physicians without worrying that the conversation will end up in a courtroom.

The Supreme Court made two points that matter for injured patients.

First, the privilege did not exist at common law; the legislature created it. Because it is a creature of statute, the Court said it must be strictly construed against the person trying to use it and applied only in the situations the statute actually names.

Second, the statute restricts what a physician may testify to about a patient. It says nothing about a person refusing to answer questions about his own health. The surgeon in this case was not being asked about his patients. He was being asked, as a patient himself, about his own medical history. The Court concluded that R.C. 2317.02(B) "does not preclude discovery of medical information from a patient."

The Court also rejected the surgeon's argument that he was protected because he had not been named as a defendant. The only reason he was not a defendant, the Court observed, was that the Wards could not yet prove he was the source. A possible wrongdoer cannot use his status as a non-party to block the very discovery that would show whether he is the wrongdoer.

The limit: protective orders are still possible

This decision does not mean a surgeon's entire medical file is an open book. The Court sent the case back to the trial court to consider whether a narrower protective order is appropriate under Civil Rule 26(C), which lets a judge limit discovery to prevent "annoyance, embarrassment, oppression, or undue burden or expense." The trial court must weigh those concerns against the Wards' right to learn how Mr. Ward was infected.

One justice wrote separately to say he would have gone further and ordered discovery to begin immediately, calling the refusal to tell the patient who exposed him "shameful."

Why this matters for Dayton-area patients

Hospital-acquired infections are among the hardest injury cases to bring, not because the harm is small, but because the patient has no way of knowing what happened behind the scenes. The hospital controls the records, the staffing information, and the occurrence reports. If a provider's own health could be walled off by privilege, a patient infected during surgery would be stuck proving a case with no evidence.

Ward changes that calculation. A patient with an unexplained post-surgical infection can now ask the direct questions: Did you have this disease? When did you know? That evidence goes to the heart of whether the provider and the hospital met the standard of care, and, as the concurring justice noted, to whether punitive damages might be available if a hospital knew of the risk and stayed silent.

We have written before about how medical-negligence cases are proven and valued, including a Summit County surgery verdict of nearly $1 million. The common thread is that these cases are won on evidence that must be pried loose early. Ohio malpractice claims also carry a short filing deadline, generally one year from when the patient discovers the injury, which is even tighter than the two-year deadline for most injury claims.

What this means for you

• If you developed an infection after a hospital stay or procedure, you have the right to find out where it came from. A provider's claim of "privilege" is not the end of the conversation.
• Keep every letter, notification, and test result the hospital sends you. The notice Mr. Ward received five months after surgery became a critical piece of the timeline.
• Do not wait. Malpractice cases require an expert affidavit at the outset, and gathering the evidence to support one takes time. The clock is short.
• A hospital that will not tell you who exposed you is not looking out for you. You need someone on your side who can compel the answers.