What You Tell the ER Doctor After a Truck Crash Can Follow You Into Court (Leopold v. Ace Doran)

Published August 20, 2013 · Ohio Supreme Court

A tractor-trailer, two passenger cars, and a concrete barrier on Interstate 90. One of the drivers, bleeding and shaken, is wheeled into the emergency room and tells the nurse what she remembers: she hit the car in front of her, then the semi hit her from behind and pushed her into the wall. Five years later, that sentence from her chart is the subject of an Ohio Supreme Court decision. Leopold v. Ace Doran Hauling & Rigging Co., 136 Ohio St.3d 257, 2013-Ohio-3107, decided July 18, 2013, is a case about privilege and discovery, but the lesson for anyone hurt in a truck crash is practical: what you say to medical providers about how the crash happened is not a secret once you make a claim.

The crash and the two lawsuits

The collision occurred in March 2008 in Cleveland. Among the vehicles were a tractor-trailer hauling goods for Ace Doran, a car driven by Danielle Laurence, and a car driven by Todd Leopold. Ms. Laurence sued the truck driver and Ace Doran later that year. In discovery she produced her medical records, including the emergency-room note describing the sequence of impacts. After she was deposed, she voluntarily dismissed her case.

In 2009 the Leopolds sued the truck driver and Ace Doran, and then added Ms. Laurence as a defendant, claiming her negligence caused the crash. She filed a cross-claim against the trucking defendants for contribution or indemnification, arguing the truck driver caused it. The trucking defendants cross-claimed back. Ms. Laurence then asked for a protective order to keep anyone from using the ER records she had produced in her first case, arguing the physician-patient privilege protected them and that her earlier waiver applied only to her own dismissed lawsuit.

What the Court held

Ohio's physician-patient privilege is in R.C. 2317.02(B)(1). It generally bars a physician from testifying about communications from a patient. But the statute contains exceptions, and the Court found two provisions that together ended the privilege here.

First, R.C. 2317.02(B)(1)(a)(iii) says the privilege does not apply when "any other type of civil action" is filed by the patient. The Court read that language as all-inclusive. Ms. Laurence's cross-claim for contribution was a type of civil action she had filed, so the exception was triggered.

Second, R.C. 2317.02(B)(3)(a) limits what can be discovered once the exception applies: only communications that "related causally or historically" to the injuries relevant in the case. The Court held that the ER statement met that test because it was her own account of how the crash occurred, which relates to the cause of every injury at issue. The 4-3 majority affirmed the denial of the protective order.

Three justices dissented. They would have held that a cross-claim for indemnification, which does not put the patient's own medical condition at issue, is not the kind of civil action the statute means, and that a waiver of medical confidentiality in one case should not carry over to another. The dissent is thoughtful, but it is the dissent. Under Leopold, the majority's reading controls.

The practical lesson for crash victims

Our office represents injured people, not trucking companies, and we see two takeaways.

Your ER statements about the crash are evidence. Hospital staff routinely chart a short history: "patient states she was rear-ended by a semi." That history is written by a busy nurse, often from a patient in pain, sometimes before the patient has any idea what actually happened behind them. Once you file a claim, that line can be discovered, read to a jury, and compared word for word against your deposition and the crash report. If it is accurate, it helps you. If it is garbled, the defense will use it.

The advice is simple and the same we gave in an earlier post about honesty with your doctor: tell providers the truth, describe your symptoms fully, and do not guess about things you did not see. "I was hit from behind; I don't know by what" is better than a confident reconstruction you cannot support.

Multi-vehicle truck cases become a free-for-all. Look at the procedural history in Leopold. One driver sued, dismissed, was then sued by another driver, cross-claimed against the trucking company, and was cross-claimed in return. Every party is pointing at every other party, and the trucking company's insurer is happy to let the two car drivers fight. In that environment, statements you made early, to anyone, get used by everyone. This is one reason we wrote last year about why truck crash cases are different: the evidence that matters most, from driver logs to electronic data, is in the carrier's hands, and the carrier's investigators start within hours.

Recorded statements are an even bigger risk

If a charted sentence in an ER record can be discovered, imagine what a thirty-minute recorded statement to the trucking company's adjuster can do. Adjusters call within days, sound sympathetic, and ask open-ended questions about speed, distance, and what you saw. Those answers are locked in before you have seen the crash report or know what the truck's event data recorder shows. We addressed the recorded-statement question in detail a few years ago; the short answer is that you are not obligated to give one to the other side's insurer, and you should not do so without counsel.

How this fits into proving a truck case

The physician-patient privilege was never going to be a serious shield for a crash victim who files suit, and Leopold confirms that. What protects an injured person is a consistent, truthful account supported by physical evidence. In a Dayton-area truck case our office moves quickly to:

• Send preservation letters to the motor carrier covering driver logs, electronic control module data, dispatch records, and the tractor itself.
• Obtain the crash report, photographs, and any 911 or dash recordings.
• Identify every driver and every insurer involved, because multi-vehicle crashes often mean multiple liability policies plus your own UIM coverage.
• Review your medical records, including the ER history, before anyone else does, so we know what is in them.

Our truck accident page and our page on car and truck accidents describe this work in more detail.

What this means for you

If you were hurt in a collision involving a commercial truck, assume that everything you say about how it happened, to a nurse, a police officer, or an adjuster, will be read by the trucking company's lawyers. Be truthful, be careful, and do not give recorded statements to the other side. Then get a lawyer involved early enough to preserve the evidence that actually proves fault, which lives in the truck and in the carrier's files, not in your hospital chart.