[Cite as Gentile v. Duncan, 2013-Ohio-5540.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Rebecca R. Gentile, : 

 

 Plaintiff-Appellant, : No. 12AP-1023 (C.P.C. No. 11CVC-10-12421) 

v. : 

 (REGULAR CALENDAR)

David D. Duncan et al., : 

 

 Defendants-Appellees. : 

 

 

D E C I S I O N 

Rendered on December 17, 2013 

 

Scott Elliot Smith, LPA, and Scott Elliot Smith, for appellant. 

Marshall W. Guerin, for appellee David D. Duncan. 

 

APPEAL from the Franklin County Court of Common Pleas. 

BROWN, J. 

{¶ 1} This is an appeal by plaintiff-appellant, Rebecca R. Gentile, from an entry of 

the Franklin County Court of Common Pleas granting a motion to compel discovery filed 

by defendant-appellee, David D. Duncan. 

{¶ 2} On October 6, 2011, appellant filed a complaint against appellee and State 

Farm Fire & Casualty Company ("State Farm"). According to the complaint, appellant 

was operating a motor vehicle on October 13, 2009; while stopped in traffic, her vehicle 

was struck from behind by a vehicle driven by appellee, causing injuries to appellant's 

back and neck. At the time of the accident, appellant had an automobile liability 

insurance policy issued by State Farm. On October 18, 2011, appellant filed an amended 

complaint, alleging negligence on the part of appellee, and alleging claims against State 
No. 12AP-1023 2

Farm for breach of contract and declaratory judgment for medical payment subrogation. 

State Farm filed an answer and a cross-claim against appellee, asserting a right of 

subrogation. 

{¶ 3} On December 16, 2011, appellant filed a motion for summary judgment 

seeking a determination that appellee was negligent per se for violating Ohio's assured 

clear distance statute. On December 29, 2011, appellee filed a memorandum in 

opposition to the motion for summary judgment. Appellee did not dispute he owed a duty 

of care to appellant and that he breached that duty; he asserted, however, that jury issues 

remained as to causation and damages. On February 1, 2012, appellant filed a motion for 

summary judgment on the issue of whether her injuries, treatment, and medical bills were 

a proximate result of the automobile collision of October 13, 2009. Attached to the 

motion was the affidavit of Dr. Gladstone C. McDowell. Appellee filed a memorandum in 

opposition to the motion for summary judgment. 

{¶ 4} On February 12, 2012, appellee filed a motion to compel appellant to 

execute medical releases and for an in camera review of records. In the accompanying 

memorandum, appellee argued that appellant was claiming neck and back injuries caused 

by the accident and that a review of the records already produced by appellant showed 

degenerative disc space narrowing. Appellee requested that the court order appellant to 

execute three "medical authorization" release forms attached to the motion as exhibit 

No. 9. Two of the release forms specifically requested medical billing information. 

{¶ 5} On February 17, 2012, appellant filed a memorandum contra appellee's 

motion to compel the execution of medical releases and for an in camera inspection. 

Appellant argued she had provided all medical records and bills with respect to treatment 

she had received as a result of the collision, and had supplemented discovery responses to 

include all medical records of her treating physician related to neck and back treatment 

pre-dating the accident. 

{¶ 6} On November 13, 2012, the trial court filed a journal entry granting 

appellant's motion for summary judgment on the issue of duty and breach, but denying it 

on the issue of proximate cause. Further, the court granted appellee's motion to compel, 

ordering appellant to "execute the necessary medical releases if she has not already done 

so." The court denied the motion with respect to an in camera review of records. 
No. 12AP-1023 3

{¶ 7} On appeal, appellant sets forth the following four assignments of error for 

this court's review: 

I. The trial court erred in ordering the Plaintiff [to] execute 

medical authorizations for the Defendant to obtain all 

unrelated and related medical records of Plaintiff from 

Plaintiff's medical providers from birth to the present without 

ordering an in camera inspection. 

II. The trial court erred in requiring Plaintiff to produce all 

medical records from birth to present in contravention of R.C. 

2317.02(B)(3)(a). 

III. The trial court erred in failing to order an in camera 

inspection of Plaintiff's medical records which are privileged 

and are not causally or historically related to claimed injuries. 

IV. The trial court erred in ordering Plaintiff [to] execute 

medical authorizations for her medical records without 

limitation in time or breadth related to Plaintiff's claimed 

neck and back injuries, even though the Plaintiff had already 

provided medical records that pre-existed and were causally 

and historically related to the injuries claimed from the 

trauma producing incident. 

{¶ 8} Appellant's assignments of error, all addressing the trial court's order 

granting appellee's motion to compel appellant to execute medical release authorizations, 

are interrelated and will be considered together. Under these assignments of error, 

appellant challenges the motion to compel as overly broad and argues that the trial court 

erred in failing to conduct an in camera inspection to determine which of her medical 

records were related to her claim. 

{¶ 9} At the outset, we note the general rule that discovery orders are considered 

interlocutory and not immediately appealable. Legg v. Hallet, 10th Dist. No. 07AP-170, 

2007-Ohio-6595, ¶ 16. However, orders requiring the disclosure of privileged information 

"are final and appealable." Id. While discovery orders are not ordinarily subject to 

immediate appeal, this court has recognized an exception "where a discovery order 

requires the disclosure of communications between a physician and patient, 

communications that are ordinarily privileged pursuant to R.C. 2317.02(B)." Mason v. 

Booker, 185 Ohio App.3d 19, 2009-Ohio-6198, ¶ 11 (10th Dist.), citing Talvan v. Siegel,
No. 12AP-1023 4

80 Ohio App.3d 781, 784 (10th Dist.1992). Accordingly, "a trial court order compelling 

disclosure of information concerning physician-patient confidentiality constitutes a final, 

appealable order under R.C. 2505.02." Id. See also Pinnix v. Marc Glassman, Inc., 8th 

Dist. No. 97998, 2012-Ohio-3263, ¶ 8 ("An order compelling the production of allegedly 

privileged documents to an opposing party is a final appealable order"). 

{¶ 10} A trial court "possesses broad discretion over the discovery process," and 

therefore appellate courts "generally review a trial court's decision regarding a discovery 

matter only for an abuse of discretion." MA Equip. Leasing I, LLC v. Tilton, 10th Dist. 

No. 12AP-564, 2012-Ohio-4668, ¶ 13. Nevertheless, an abuse of discretion standard "is 

inappropriate for reviewing a judgment based upon a question of law, including an 

erroneous interpretation of the law." Id. In general, the issue as to "whether information 

sought in discovery is confidential and privileged 'is a question of law that is reviewed de 

novo.' " Id., quoting Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio2496, ¶ 13. This court has also recognized, however, "with respect to a privilege claim, the 

appropriate standard of review depends on whether the privilege claim presents a 

question of law or a question of fact." Randall v. Cantwell Mach. Co., 10th Dist. No. 

12AP-786, 2013-Ohio-2744, ¶ 9. Accordingly, "[w]hen it is necessary to interpret and 

apply statutory language to determine whether certain information is confidential and 

privileged, a de novo standard applies." Id. By contrast, "[w]hen a claim of privilege 

requires review of factual questions, such as whether an attorney-client relationship 

existed, an abuse-of-discretion standard applies." Id. 

{¶ 11} As noted under the facts, appellee filed a motion to compel appellant to 

execute medical release authorizations and for an in camera review of records; 

specifically, appellee requested that the court order appellant "to execute the medical 

releases which are attached as Exhibit 9." In the accompanying memorandum in support, 

appellee claimed that a magnetic resonance imaging ("MRI") test of appellant from 2010 

showed a variety of conditions, some of which were or could be degenerative. Appellee 

noted that appellant, in response to certain interrogatory requests, had answered that 

"[n]one of my pre-existing medical conditions were aggravated by the collision," and that 

"I continue to treat as necessary and needed." Appellee further claimed that appellant 

had failed to specifically identify what parts of her body were injured in response to 
No. 12AP-1023 5

interrogatory No. 5. Appellee argued that the motion was also supported by averments in 

an affidavit filed in support of appellant's motion for summary judgment on the issue of 

proximate cause and damages. Specifically, appellee cited a response by Dr. McDowell to 

an inquiry as to whether appellant's injury or condition involved a pre-existing condition, 

in which the physician responded: "This is unknown." 

{¶ 12} The medical authorization forms, attached to appellee's motion to compel, 

were directed to Integrated Pain Solutions, Mt. Carmel West/Mt. Carmel Health, and Dr. 

Soldano/American Health Network. The forms requested those entities/individuals to: 

[R]elease protected health information contained in my 

patient records, including information about communicable 

diseases, non-communicable and serious communicable 

diseases and infections (which include venereal disease "VD", 

tuberculosis "TB"), alcohol, drug abuse, and/or HIV-AIDS test 

results or diagnostic records protected under the regulations 

in 42 CFR, Part 2, and Ohio Revised Code §3701.243, if any; 

psychological or psychotherapy service records, if any; and 

social services records, if any, including communications 

made by me to a social worker or psychologist, to the 

individuals or organization listed below * * *, only under the 

conditions listed below. Further disclosure of any/all of these 

patient records by the Recipient to persons with need to know 

for all purposes related to claims processing and/or discovery 

before and during trial/arbitration is hereby expressly 

authorized. 

{¶ 13} The authorization form addressed to "Dr. Soldano/American Health 

Network" also requested the following "[s]pecific type of information to be disclosed: Any 

and all medical records including those from treatment by Dr. James Soldano." Further, 

the authorization forms addressed to Integrated Pain Solutions and Mt. Carmel West/Mt. 

Carmel Health also requested "any and all bills (that show the original amounts, 

insurance and non-insurance adjustments, credits, payments and write-offs) from 

treatment at [those entities]." 

{¶ 14} On appeal, appellant notes that she was treated by several medical 

providers for neck and back injuries following the collision involving appellee's vehicle. 

Specifically, appellant treated with the following individuals: Dr. McDowell, a pain care 

specialist, Dr. Soldano (her primary care physician), and Ryan Smith, D.C. According to 
No. 12AP-1023 6

appellant, her neck injuries and symptoms resolved but she continued to suffer back 

injuries which were diagnosed as chronic low back pain, disc herniation, sciatica, and 

lumbago. 

{¶ 15} Appellant contends she provided appellee with all medical records and bills 

for treatment she received subsequent to the collision, and that she supplemented the 

discovery responses and provided medical records of her treating physicians that predated the collision as related to neck and back treatment, including medical records of her 

primary care physician (Dr. Soldano) from 2002 through 2009. Appellant maintains that 

appellee has offered no reasonable basis why she should provide all of her medical records 

dating back to birth, especially in light of the fact that seven years of pre-existing records 

have already been provided to appellee. Appellant asserts that appellee's request for 

blanket authorization of medical records from birth to present was in contravention of 

R.C. 2317.02(B)(3)(a). 

{¶ 16} Civ.R. 26(B)(1) states in part: "Parties may obtain discovery regarding any 

matter, not privileged, which is relevant to the subject matter involved in the pending 

action." R.C. 2317.02(B) "governs the physician-patient privilege and any waiver of that 

privilege." Mason at ¶ 14. That statute "generally precludes a physician from testifying 

concerning a communication made by a patient to the physician or the physician's advice 

to the patient." Id. There exist circumstances, however, where the general privilege does 

not apply and a physician "may be compelled to testify or to submit to discovery in that 

action as to communications between the patient and physician 'that related causally or 

historically to physical or mental injuries that are relevant to issues' in the action." Id., 

citing R.C. 2317.02(B)(3)(a). 

{¶ 17} Both appellant and appellee cite to this court's decision in Mason in support 

of their arguments on appeal. Under the facts of Mason, appellee asked the injured party, 

appellant, to sign authorizations during discovery for the release of medical records. The 

appellant refused to sign the releases, contending that the appellee sought privileged 

records that were irrelevant to the action. The appellee then filed a motion to compel the 

appellant to execute the releases, which the trial court granted. The appellant had 

requested that the trial court conduct an in camera inspection of at least some disputed 

medical records, but the court refused. On appeal, this court reversed the trial court's 
No. 12AP-1023 7

order granting the motion to compel "[b]ecause the trial court did not determine, upon 

request, whether the records it ordered disclosed are causally or historically related to 

appellant's claimed injuries." Id. at ¶ 23. 

{¶ 18} This court's decision in Mason relied in part upon our earlier decision in 

Ward v. Johnson's Indus. Caterers, Inc., 10th Dist. No. 97APE11-1531 (June 25, 1998), in 

which we held that the trial court abused its discretion in ordering the appellant to 

execute general medical release authorizations without first conducting an in camera 

review. Under the facts of Ward, the appellant sued for injuries to her neck, shoulders, 

lower back, and left leg. While appellees "believed they needed all medical records," the 

appellant argued that "only medical records regarding her neck, shoulders, low back and 

left leg were discoverable." Id. This court held that, "[a]t this point, the trial court should 

have conducted an in camera review of appellant's medical records in order to ascertain 

what was causally or historically related." (Emphasis sic.) Id. 

{¶ 19} In the instant case, appellant's complaint alleged in part the following: 

Between October 16, 2009 and December 2, 2009, Ms. 

Gentile was treated by a chiropractor for back and neck pain. 

She also received treatment from a licensed massage therapist 

and acupuncturist. 

In July, 2010, Ms. Gentile experienced a significant loss of 

strength in her right leg. She sought treatment and was 

diagnosed with herniated L4 and L5 discs. These injuries 

were directly attributable to the car accident. Treatment for 

these injuries concluded in January, 2011. 

{¶ 20} Accordingly, appellant's pleading placed at issue medical conditions relating 

to her neck and back as a result of the collision. Appellee disputes whether all of the 

injuries claimed by appellant were caused by the accident, arguing that appellant's 

response to interrogatories, as well as the records that have been disclosed to date, raise a 

legitimate issue whether she has a pre-existing medical condition. Although appellee 

maintains the trial court did not err in requiring appellant to execute the medical releases 

at issue, appellee does not dispute the need for an in camera inspection of the medical 

records. While appellee frames the issue as one that can be resolved via an in camera 

review by the trial court of challenged materials, appellee acknowledges that the language 
No. 12AP-1023 8

of the medical releases he submitted is broad; appellee contends, however, that a 

defendant in a civil action must have the ability to access prior medical records when 

there is a legitimate issue as to whether or not a plaintiff has a pre-existing medical 

condition. 

{¶ 21} In challenging the breadth of the authorization request, appellant notes 

there is no claim in the instant case of an independent emotional or psychological injury, 

but argues the authorizations at issue are so broadly worded as to provide for disclosure of 

such records. Appellant also contends that, pursuant to the court's order, not only was 

appellee entitled to all of her medical records from birth to present, but also any 

information regarding routine PAP smears, menstrual cycles, birth control, menopause, 

and other similar privacy issues unrelated to her claimed injuries arising under the 

complaint. 

{¶ 22} Upon review, we find merit with appellant's argument that the 

authorizations submitted by appellee are essentially unlimited as to scope, as well as the 

time period for which the medical records are sought. The medical authorizations at issue 

request the release of "protected health information" contained in appellant's patient 

records, including "information about communicable diseases, non-communicable and 

aerloue communicable diseases and infections (which include venereal disease 'VD', 

tuberculosis 'TB'), alcohol, drug abuse, and/or HIV-AIDS test results or diagnostic 

records protected under the regulations in 42 CFR, Part 2, and Ohio Revised Code 

§3701.243," as well as "psychological or psychotherapy service records, if any; and social 

services records, if any, including communications made by me to a social worker or 

psychologist." 

{¶ 23} While appellee is entitled to discovery of matters causally or historically 

related to the injuries at issue, a plaintiff filing a personal injury claim does not open 

"herself up to exposure, without limitation, of all her medical records." (Emphasis sic.) 

Wooten v. Westfield Ins. Co., 181 Ohio App.3d 59, 2009-Ohio-494, ¶ 16 (8th Dist.). See 

also McCoy v. Maxwell, 139 Ohio App.3d 356, 359 (11th Dist.2000) reversing court's 

order granting motion to compel discovery on basis that "appellant's psychiatric or 

psychological records remain privileged because they are not communications that relate 
No. 12AP-1023 9

causally or historically to physical or mental injuries that are relevant to issues in the 

defamation suit filed by appellant"). 

{¶ 24} As noted above, this court has previously found that a trial court errs in 

ordering a plaintiff to execute "general medical records release authorizations" that are 

not tailored to physical or mental injuries relevant to the issues in the case. Ward. Here, 

the absence of any such limitations renders the trial court's order for a "blanket release" of 

appellant's medical records "unreasonable." Dubson v. The Montefiore Home, 8th Dist. 

No. 97104, 2012-Ohio-2384, ¶ 18. Under such circumstances, "the trial court should take 

measures to ensure that privileged medical records are protected from disclosure." 

Randall at ¶ 15. 

{¶ 25} For purposes of the instant case, we believe that appropriate measures 

include not only limitations in scope as to those medical conditions causally or historically 

related to the injuries relevant to the issues in the action, but also limitations as to a 

relevant time period for the medical authorizations. Courts in other jurisdictions have 

noted the risks posed by discovery requests for medical authorizations not limited in time. 

See, e.g., State ex rel. Jones v. Syler, 936 S.W.2d 805, 808 (Mo.1997), quoting State ex 

rel. Stecher v. Dowd, 912 S.W.2d 462, 465 (Mo.1995) ("because time limits and 

designations of health care providers 'tie the authorizations to [the] particular case and 

the injuries pleaded', an authorization lacking them is improper because it 'would entitle 

[defendants] to any and all of [plaintiff's] medical records, from any provider who has 

ever treated the plaintiff * * * from his birth to the present day' "). Thus, it has been 

observed, "although it might be the 'normal practice' for attorneys to draft blanket 

medical authorizations without time limits * * *, 'it is a practice that creates too great a 

risk that non-relevant and privileged information may be released to the defendants.' " 

Id., quoting Stecher. 

{¶ 26} Appellee's claim that the medical release forms are necessarily broad due to 

the possibility of a pre-existing injury does not justify a request for blanket authorizations 

without any limitations in scope and time. See St. John v. Napolitano, 274 F.R.D. 12, 17 

(D.D.C.2011) (defendant's claim that medical records request involving lengthy time 

period was necessary because latent medical conditions can manifest themselves in 

different ways over period of time "is a weak basis for seeking records over such a broad 
No. 12AP-1023 10

time period"; request of plaintiff's medical records from many years prior to the events 

alleged in the complaint are "highly unlikely to contain much relevant evidence," but "are 

likely to contain sensitive personal information"). Rather, a trial court must balance the 

privacy right of a plaintiff against a defendant's right to obtain information potentially 

relating to pre-existing conditions. 

{¶ 27} In the instant case, we conclude that the trial court erred in granting such a 

broad discovery order with respect to appellant's medical records, and in refusing to 

conduct an in camera review "in order to ascertain what was causally or historically 

related." Ward. Upon remand, we direct the trial court to determine a reasonable time 

period for the scope of the discovery request, i.e., the court should limit the authorizations 

to an appropriate number of years prior to the accident. The issue as to potential preexisting injuries relating to the causes of appellant's neck and back injuries can be 

adequately explored based upon a reasonable time period relative to the accident at issue. 

Once the court has established reasonable limitations as to scope and time, it "should 

implement appropriate measures to determine whether any of the records are covered by 

the physician-patient privilege and how to protect any records that are subject to that 

privilege." Randall at ¶ 15. 

{¶ 28} Appellant further contends the authorizations she was ordered to execute 

included a blanket request for her medical bills. Appellant maintains she provided all 

medical bills received from each medical provider for neck and back treatment 

subsequent to the collision, including bills from both medical providers and her health 

insuring corporation. 

{¶ 29} In response, appellee argues that certain medical billing and payment 

information submitted by appellant appears to be incorrect. Appellee further argues, 

however, that this court does not have jurisdiction to review issues arising from the trial 

court's order with respect to the releases for billing and payment records. Specifically, 

appellee contends that the only information he seeks with respect to the authorizations 

directed to Mt. Carmel West and Integrated Pain Solutions are billing and payment 

information, not medical records. Appellee argues that, in light of appellant's 

representations throughout the litigation that she has provided all of the medical billing 
No. 12AP-1023 11

information from the above providers, there are no existing privilege issues with respect 

to those materials. 

{¶ 30} This court has previously held, ''[t]o the extent an order pertains to matters 

other than those concerning discovery of privileged matters, the order is deemed 

interlocutory and therefore not final and appealable." Legg at ¶ 16. Upon review, we 

agree with appellee that this court lacks jurisdiction over the discovery issues relating to 

medical billing, as the dispute over these records appears to be based upon appellant's 

contention that the request is overbroad and that she has already turned over all relevant 

materials, not that the billing and payment records implicate privileged materials. See

Hope Academy Broadway Campus v. White Hat Mgmt., LLC, 10th Dist. No. 12AP-116, 

2013-Ohio-911, ¶ 43 (trial court ruling not a final appealable order; appellate courts have 

declined to consider arguments that materials to be produced under a discovery order are 

not relevant). Thus, to the extent appellant's assignments of error challenge the trial 

court's order as it relates to billing and payment records, such ruling is interlocutory and 

not ripe for this court's review at this time. 

{¶ 31} Based upon the foregoing, appellant's first, second, third, and fourth 

assignments of error are sustained to the extent provided above, the discovery order of the 

Franklin County Court of Common Pleas granting appellee's motion to compel is 

reversed, and this matter is remanded to that court for further proceedings in accordance 

with law, consistent with this decision. 

Order reversed and cause remanded. 

SADLER and CONNOR, JJ., concur. 

____________________