[Cite as Leopold v. Ace Doran Hauling & Rigging Co., 136 Ohio St.3d 257, 2013-Ohio-3107.] 

LEOPOLD ET AL., APPELLEES, v. ACE DORAN HAULING & RIGGING COMPANY 

ET AL., APPELLEES; LAURENCE, APPELLANT. 

[Cite as Leopold v. Ace Doran Hauling & Rigging Co., 136 Ohio St.3d 257, 

2013-Ohio-3107.] 

Evidence—Physician-patient privilege—R.C. 2317.02(B)(1)—Exception to 

privilege in R.C. 2317.02(B)(1)(a)(iii)—Statement to hospital personnel in 

previous case involving same accident admissible in subsequent case filed 

by different party—Physician may testify or be compelled to testify only as 

to communication that related causally or historically to physical or 

mental injuries relevant in the other civil action.

(No. 2012-0438—Submitted February 5, 2013—Decided July 18, 2013.) 

APPEAL from the Court of Appeals for Cuyahoga County, No. 97277, 

 2012-Ohio-497. 

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SYLLABUS OF THE COURT

1. R.C. 2317.02(B)(1) establishes the physician-patient testimonial privilege and 

prohibits a physician from testifying about a communication made to the 

physician by a patient. 

2. The General Assembly has carved out exceptions to the physician-patient 

privilege in certain instances and a physician may testify or be compelled 

to do so in any civil action if any type of civil action or claim under R.C. 

Chapter 4123 is filed by the patient. 

3. When the physician-patient privilege described in R.C. 2317.02(B)(1) does not 

apply as provided in R.C. 2317.02(B)(1)(a)(iii), a physician may testify or 

be compelled to do so only as to a communication that related causally or 

historically to physical or mental injuries relevant in the other civil action. 
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____________________ 

O’DONNELL, J. 

{¶ 1} Danielle Laurence appeals from a judgment of the Eighth District 

Court of Appeals affirming a decision of the trial court denying her request for a 

protective order seeking to prohibit Stephen Stillwagon and Ace Doran Hauling & 

Rigging Company from using statements she made to emergency room personnel 

that she had produced in a prior lawsuit she filed against Stillwagon and Ace 

Doran arising out of the same accident. The appellate court held that Laurence 

waived the physician-patient privilege by filing a personal injury action seeking 

recovery for her injuries and therefore the trial court correctly denied her request 

for a protective order. 

{¶ 2} In this circumstance, we need not reach the waiver issue to resolve 

this case. Pursuant to the statute establishing the physician-patient privilege, at 

least two separate provisions apply and specify that the statements made by 

Laurence are no longer privileged. For these reasons, we affirm the judgment of 

the appellate court. 

Facts and Procedural History 

{¶ 3} On March 6, 2008, a multivehicle accident occurred on Interstate 

90 in Cleveland, Ohio. Among the vehicles involved were a tractor-trailer driven 

by Stephen Stillwagon transporting goods for Ace Doran and two cars, one driven 

by Laurence and one driven by Todd Leopold. Emergency medical personnel 

transported Laurence to MetroHealth Medical Center for treatment as a result of 

the accident. At that time, she told emergency room personnel that she had hit a 

car in front of her and then was hit from behind by a semi and pushed into a 

concrete wall. 

{¶ 4} In November 2008, Laurence sued Stillwagon and Ace Doran, 

seeking recovery for personal injuries she suffered in the accident. In discovery, 
January Term, 2013 

3 

she produced her medical records, which defense counsel used when they deposed 

her; after that deposition, she voluntarily dismissed her case. 

{¶ 5} In October 2009, Todd Leopold and his wife, Linda, sued 

Stillwagon, Ace Doran, and Ace Doran Brokerage Company, seeking recovery 

for injuries sustained in the same accident. They dismissed the brokerage 

company and amended their complaint to add Laurence, asserting that her 

negligence had caused the accident. Laurence then cross-claimed against 

Stillwagon and Ace Doran for contribution or indemnification, claiming that 

Stillwagon had caused the collision. Stillwagon and Ace Doran thereafter crossclaimed against her for indemnification or contribution, contending that she had 

caused the accident. 

{¶ 6} On April 29, 2011, Laurence moved for a protective order, seeking 

to preclude counsel from using the medical records she produced in her 2008 

lawsuit. She claimed that the physician-patient privilege protected her medical 

records from disclosure and that her prior waiver of the privilege applied only to 

her 2008 lawsuit. The court denied her motion, and she appealed. The appellate 

court affirmed the denial, concluding that “Laurence’s decision to file a claim of 

personal injury against [Stillwagon and Ace Doran], which was based upon the 

same accident that underlies the basis for the claims and defenses posed by the 

parties herein, served to waive her physician-patient privilege with respect to that 

accident pursuant to R.C. 2371.02(B).” 2012-Ohio-497 at ¶ 15. 

{¶ 7} We accepted Laurence’s discretionary appeal, in which she claims 

that a patient’s production of medical records in discovery in a civil action does 

not waive the physician-patient privilege for all subsequent litigation. She asserts 

that the trial and appellate courts have created a judicial waiver of the statutory 

physician-patient privilege and maintains that Ohio citizens have a constitutional 

and statutory right to have Ohio courts enforce the physician-patient privilege. 

She further relies on Hageman v. Southwest Gen. Health Ctr., 119 Ohio St.3d 
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185, 2008-Ohio-3343, 893 N.E.2d 153, ¶ 17, for the proposition that “when the 

cloak of confidentiality that applies to medical records is waived for the purposes 

of litigation, the waiver is limited to that case.” 

{¶ 8} The Leopolds concur. They contend that Laurence’s emergency 

room records are inadmissible because her medical condition is not at issue in this 

case, and they maintain that she preserved the privilege by voluntarily dismissing 

her 2008 lawsuit, thereby preventing disclosure of her records to the public. They 

urge us to follow Hageman and hold that the privilege is not waived when a 

medical condition is not at issue in a subsequent civil action, the medical records 

have not been made public, and a timely objection has been raised. 

{¶ 9} Stillwagon and Ace Doran claim that Laurence waived the 

physician-patient privilege because she voluntarily produced her medical records 

in related litigation she filed against them, and upon dismissal, she neither 

requested that her testimony be sealed nor insisted that the medical records be 

destroyed or returned to her. They acknowledge that the purpose of the 

physician-patient privilege is to protect the privacy of the patient, but that purpose 

is not served when a litigant has previously disclosed medical information 

protected by the privilege in separate litigation involving the same defendants. 

They distinguish Hageman because it concerned the liability of an attorney for the 

unauthorized disclosure to a third party of medical information obtained through 

litigation that arose from a different and unrelated set of circumstances, while this 

case concerns the same accident and involves the same parties originally sued by 

Laurence. 

{¶ 10} Accordingly, the issue presented in this appeal is whether the 

physician-patient privilege protects medical records that a patient has previously 

disclosed in discovery to some of the same parties in previous litigation arising 

from the same accident. 

 
January Term, 2013 

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Law and Analysis 

{¶ 11} R.C. 2317.02 provides: 

The following persons shall not testify in certain respects: 

* * * 

(B)(1) A physician * * * concerning a communication 

made to the physician * * * by a patient in that relation or the 

physician’s * * * advice to a patient, except as otherwise provided 

in this division, division (B)(2), and division (B)(3) of this section, 

and except that, if the patient is deemed by section 2151.421 of the 

Revised Code to have waived any testimonial privilege under this 

division, the physician may be compelled to testify on the same 

subject. 

(Emphasis added.) 

{¶ 12} At issue in this case is a legislatively created exception to this 

privilege contained in R.C. 2317.02(B)(1)(a)(iii), which is further restricted by 

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

{¶ 13} R.C. 2317.02(B)(1)(a)(iii) provides: 

The testimonial privilege established under this division 

does not apply, and a physician * * * may testify or may be 

compelled to testify, in any of the following circumstances: 

(a) In any civil action, * * * or in connection with a claim 

under Chapter 4123. of the Revised Code, under any of the 

following circumstances: 

* * * 
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(iii) If a medical claim [or] * * * any other type of civil 

action, or a claim under Chapter 4123. of the Revised Code is filed 

by the patient * * *. 

(Emphasis added.) 

{¶ 14} This exception is all-inclusive as to the type of civil action that 

may be filed by the patient and does not contain any exclusion for or limitation of 

indemnification or contribution claims. Laurence filed a type of civil action in the 

instant litigation—one for indemnification or contribution—against Stillwagon 

and Ace Doran. Hence, because Laurence filed a cross-claim, the elements of the 

exception contained in R.C. 2317.02(B)(1)(a)(iii) are satisfied, with the result that 

the testimonial privilege does not apply and a physician may testify or may be 

compelled to testify to the communications. 

{¶ 15} The limitation at issue is contained in R.C. 2317.02(B)(3)(a): 

If the testimonial privilege described in division (B)(1) of 

this section does not apply as provided in division (B)(1)(a)(iii) of 

this section, a physician * * * may be compelled to testify or to 

submit to discovery under the Rules of Civil Procedure only as to a 

communication made to the physician * * * by the patient in 

question in that relation, or the physician’s * * * advice to the 

patient in question, that related causally or historically to physical 

or mental injuries that are relevant to issues in the * * * other civil 

action. 

(Emphasis added.) 

{¶ 16} This subsection applies because the elements are satisfied by the 

facts as demonstrated in this case. The original statement made by Laurence to 
January Term, 2013 

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emergency room personnel in the case she filed and later voluntarily dismissed 

relates causally and historically to injuries that are relevant to issues in her crossclaim because that statement is her own version of how the accident occurred. 

Since the statute provides that a physician may testify or be compelled to testify to 

communications that relate causally or historically to physical or mental injuries 

relevant to issues in the other civil action, her statement is not protected by the 

privilege. 

{¶ 17} Thus, pursuant to R.C. 2317.02(B)(3)(a) a physician may be 

compelled to testify or submit to discovery only as to a communication made by 

the patient that related causally or historically to physical or mental injuries 

relevant to issues in the other civil action. Laurence’s statement related both 

causally and historically to how the accident occurred and consequently to the 

injuries and damages that could be awarded as a result of it. Thus, the privilege 

does not apply. 

Conclusion

{¶ 18} R.C. 2317.02(B)(1) establishes the physician-patient testimonial 

privilege and prohibits a physician from testifying about a communication made 

to the physician by a patient. The General Assembly has carved out exceptions to 

this privilege in certain instances, and a physician may testify or be compelled to 

do so in any civil action if any type of civil action or claim under R.C. Chapter 

4123 is filed by the patient. When the physician-patient privilege described in 

R.C. 2317.02(B)(1) does not apply as provided in R.C. 2317.02(B)(1)(a)(iii), a 

physician may testify or be compelled to do so only as to a communication that 

related causally or historically to physical or mental injuries relevant in the other 

civil action. 

{¶ 19} Accordingly, we affirm the judgment of the court of appeals. 

Judgment affirmed. 

O’CONNOR, C.J., and KENNEDY and FRENCH, JJ., concur. 
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PFEIFER, LANZINGER, and O’NEILL, JJ., dissent. 

__________________ 

LANZINGER, J., dissenting. 

{¶ 20} I respectfully dissent and would reverse the judgment of the court 

of appeals. I would apply Hageman v. Southwest Gen. Health Ctr., 119 Ohio 

St.3d 185, 2008-Ohio-3343, 893 N.E.2d 153, to reaffirm that “waiver of medical 

confidentiality for litigation purposes is limited to the specific case for which the 

records are sought.” Id. at ¶ 20. The medical records in this case are protected by 

the physician-patient privilege, for although Laurence filed a cross-claim in this 

case, the cross-claim did not place Laurence’s medical condition at issue. 

Hageman v. Southwest Gen. Health Ctr. 

{¶ 21} In Hageman, we affirmed the judgment of the court of appeals that 

reversed the trial court's entry of summary judgment in favor of an attorney who 

had disclosed an opposing party’s medical records without authorization. We 

held that “[a]n attorney may be liable to an opposing party for the unauthorized 

disclosure of that party's medical information that was obtained through 

litigation.” Id. at syllabus. 

{¶ 22} The attorney, who represented the wife in a divorce and custody 

proceeding, obtained the husband’s medical records from his psychiatrist pursuant 

to a waiver. Later, the attorney gave a copy of those records to the prosecutor for 

use in a criminal proceeding against the husband. Writing for a plurality of the 

court, Chief Justice Moyer first set forth the basic policy of confidentiality 

established in Biddle v. Warren Gen. Hosp., 86 Ohio St.3d 395, 715 N.E.2d 518 

(1999). He observed, “If the right to confidentiality is to mean anything, an 

individual must be able to direct the disclosure of his or her own private 

information.” Hageman at ¶ 13. In rejecting the same expansive waiver for 

medical records that the appellees now urge in this case, Chief Justice Moyer 

stated that “there is neither a legal justification for nor a practical benefit to the 
January Term, 2013 

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proposition that a waiver for a specific, limited purpose is a waiver for another 

purpose.” Id. at ¶ 14. He explained that “[c]reating an expansive waiver would be 

inconsistent with the generally recognized confidentiality provisions in Ohio and 

federal law.” Id. at ¶ 15. Although the husband admitted that he had made his 

health an issue in the divorce action by filing a cross-claim seeking custody of his 

minor child, the waiver of the medical privilege was limited to that case and was 

not effective in the second. 

{¶ 23} The majority opinion in the instant case does not take a position on 

the application of Hageman, although it sets forth the parties’ arguments with 

respect to this earlier case. I believe that the reasoning expressed in Hageman

should apply here as well for the protection of the confidentiality of medical 

records. Laurence originally waived her privilege in a separate action that was 

eventually dismissed. She did not file this second case. She filed only a crossclaim for indemnification. 

{¶ 24} The filing of a cross-claim in an indemnification action is not “any 

other type of civil action” that provides an exception to the physician-patient 

privilege within the meaning of R.C. 2317.02(B)(1)(a)(iii). When read in context, 

that section relates to claims in which the patient has placed her medical condition 

at issue and states that the testimonial privilege will not apply if: 

a medical claim, dental claim, chiropractic claim, or optometric 

claim, as defined in section 2305.113 of the Revised Code, an 

action for wrongful death, any other type of civil action, or a claim 

under Chapter 4123. of the Revised Code is filed by the patient, the 

personal representative of the estate of the patient if deceased, or 

the patient's guardian or other legal representative. 

 
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{¶ 25} In Hageman, although the vote on the ultimate issue was split, all 

justices agreed that the husband had waived his physician-patient privilege when 

he filed a counterclaim that placed his medical condition at issue. See id. at ¶ 14 

(Moyer, C.J., joined by Pfeifer and Lanzinger, JJ.); ¶ 23 (Cupp, J., concurring in 

syllabus and judgment only, joined by O’Connor, J.); and ¶ 32 (O’Donnell, J., 

dissenting, joined by Lundberg Stratton, J.). That counterclaim is properly seen 

as an “other type of civil action” within the meaning of the statute. But I now 

respectfully disagree that the phrase “any other type of civil action” was meant to 

extend to every type of claim, particularly a claim such as the cross-claim in this 

case, which does not relate to a personal injury or other health issue but merely to 

indemnification or contribution. 

{¶ 26} Laurence’s medical condition is not at issue. Her medical records 

are protected by R.C. 2317.02(B)(1), and the privilege was not waived in this 

pending lawsuit. She is entitled to a protective order, and on these grounds, I 

dissent. 

PFEIFER and O’NEILL, JJ., concur in the foregoing opinion. 

____________________ 

 Smith Marshall, L.L.P., and Philip J. Weaver, for appellees Todd L. 

Leopold and Linda Leopold. 

 Ritter, Robinson, McCready & James, Ltd., and Shannon J. George; and 

Bruce S. Goldstein Co., L.P.A., and Bruce S. Goldstein, for appellant. 

 Reminger Co., L.P.A., and Brian D. Sullivan, Kenneth P. Abbarno, and 

Martin T. Galvin, for appellees Stephen L. Stillwagon, Ace Doran Rigging & 

Hauling Company, and Ace Doran Brokerage Company. 

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