[Cite as Karimian-Dominique v. Good Samaritan Hosp., 2019-Ohio-2750.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

RHONDA J. KARIMIAN-DOMINIQUE 

Plaintiff-Appellant 

v. 

GOOD SAMARITAN HOSPITAL, et al. 

Defendants-Appellees 

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Appellate Case No. 28256 

Trial Court Case No. 2016-CV-3623 

(Civil Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 5th day of July, 2019. 

. . . . . . . . . . . 

DWIGHT D. BRANNON, Atty. Reg. No. 0021657, MATTHEW C. SCHULTZ, Atty. Reg. 

No. 0080142, and ROBERT W. GURRY, Atty. Reg. No. 0079481, 130 W. Second Street, 

Suite 900, Dayton, Ohio 45402 

 

And 

MICHAEL L. WRIGHT, Atty. Reg. No. 0067698, 130 W. Second Street, Suite 1600, 

Dayton, Ohio 45402 

 Attorneys for Plaintiff-Appellant 

 

JOHN F. HAVILAND, Atty. Reg. No. 0029599 and ELIZABETH WILFONG, Atty. Reg. No. 

0088172, 6 N. Main Street, Suite 400, Dayton, Ohio 45402 

 Attorneys for Defendant-Appellee, Good Samaritan Hospital 

SUSAN BLASIK-MILLER, Atty. Reg. No. 0005248 and KEVIN C. QUINLAN, Atty. Reg. 

No. 0092999, One S. Main Street, Suite 1800, Dayton, Ohio 45402 

 Attorneys for Defendant-Appellee, Latit Goyal, M.D. 

THEODORE M. MUNSELL, Atty. Reg. No. 0022055 and KAREN M. CADIEUX, Atty. Reg. 

No. 0079240, 280 N. High Street, Suite 1300, Columbus, Ohio 43215 
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Attorneys for Defendants-Appellees, Premier Heart Associates, Abdul Wase, 

M.D., and Ahmad Abdul-Karim, M.D. 

. . . . . . . . . . . . . 

 

FROELICH, J. 

{¶ 1} Rhonda Karimian-Dominique appeals from an order of the Montgomery 

County Court of Common Pleas, which granted the motion of Dr. Latit Goyal to compel 

her to execute medical authorizations and denied her motions for a protective order and 

for an in camera review of her deceased husband’s psychotherapy notes. For the 

following reasons, the trial court’s order will be affirmed. 

I. Factual and Procedural History 

{¶ 2} According to the amended complaint, on February 21, 2015, Michael 

Dominique presented to the emergency room of Good Samaritan Hospital complaining of 

chest pain and shortness of breath. Although pulmonary embolism was a differential 

diagnosis, Dominique was not evaluated for that condition. Dominique underwent a 

cardiac catheterization on February 23. On February 24, 2015, Dominique suffered a 

massive pulmonary embolism and died. 

{¶ 3} On July 18, 2016, Karimian-Dominique, as Dominique’s surviving spouse 

and as administrator of Dominique’s estate, filed this action, asserting seven claims: 

(1) medical negligence, (2) wrongful death, (3) survivorship, (4) loss of consortium, 

(5) negligent/intentional infliction of emotional distress, (6) declaratory relief as to Anthem 

Blue Cross Blue Shield, and (7) disgorgement/unjust enrichment. The amended 

complaint named Good Samaritan Hospital, Dr. Abdul Wase, Dr. Ahmad Abdul-Karim, 
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Premier Heart Associates, Dr. Latit Goyal, Emergency Professional Services,1 Anthem 

Blue Cross and Blue Shield, and other John/Jane Does as defendants (collectively 

“Defendants”). 

{¶ 4} Upon Defendants’ motion, the trial court granted summary judgment to 

Defendants on Karimian-Dominique’s claims for infliction of emotional distress, 

declaratory relief, and disgorgement/unjust enrichment (Counts Five, Six, and Seven), 

and it limited her loss of consortium claim to the period between February 21 and 

February 24, 2017. 

{¶ 5} On October 23, 2018, Dr. Goyal moved to compel Karimian-Dominique to 

execute and deliver authorizations to disclose health information regarding Dominique, 

which her counsel had previously provided but later rescinded. Dr. Goyal’s motion stated 

that the basis for the rescission of all authorizations for the release of medical information 

was not a claim of privilege, but due to issues that arose at a recent trial in another case 

involving Karimian-Dominique’s counsel where the law firm now representing Dr. Goyal 

was defense counsel. Dr. Goyal attached to his motion correspondence from KarimianDominque’s counsel to his defense counsel in this case, in which Karimian-Dominique’s 

counsel alleged that the law firm had “trashed” the plaintiff in the prior case “as a sporting 

event.” (Ex. E.) Dr. Goyal’s motion sought to compel Karimian-Dominique to provide 

authorizations for records from the office of Antoinette Cordell & Associates and from Dr. 

Craig Olson, Psy.D. The records allegedly involved Dominique’s treatment for individual 

 

1 The amended complaint referred to this defendant as Team Health – Department of 

Emergency Medicine. Karimian-Dominique subsequently moved to substitute 

Emergency Professional Services as the correctly-named defendant. The trial court 

granted that motion on February 21, 2017. 
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and marital counseling. Dr. Goyal argued that disclosure of those records was required 

by Civ.R. 26, Civ.R. 37, and R.C. 2317.02(B). 

{¶ 6} Karimian-Dominique opposed Dr. Goyal’s motion and filed a motion for a 

protective order, seeking to prevent discovery of Dominique’s psychotherapy records. 

Karimian-Dominique claimed that the psychotherapy notes of Dr. Olson (and Dr. Brian 

Wood, Dominique’s prior psychologist) were subject to doctor-patient privilege, and that 

the privilege had not been waived by the filing of the lawsuit, because Dominique was 

deceased and his emotional condition was not a genuine issue in the case. KarimianDominique separately moved for an in-camera review of Dominique’s psychotherapy 

notes “to determine the relevance of the materials and the applicability of the doctorpatient privilege, and whether that privilege is subject to waiver.” 

{¶ 7} Good Samaritan Hospital filed a memorandum in support of Dr. Goyal’s 

motion and in opposition to Karimian-Dominique’s motions. 

{¶ 8} On December 28, 2018, the trial court granted the motion to compel and 

denied the motions for a protective order and for an in-camera review. The court 

reasoned: 

Having fully considered the parties’ arguments, the case law, and 

R.C. 2317.02, the court concludes that the psychotherapy/mental health 

records are not privileged. The records of that genre of treatment causally 

or historically relate to the wrongful death and associated damages claimed 

by Plaintiff. Hence, it would be inappropriate and unnecessary to issue a 

protective order barring the production of the records. Further, the court 

finds that in-camera review is unnecessary, as a screening for privilege is 
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unneeded, because R.C. 2317.02 renders the records non-privileged as a 

whole. 

{¶ 9} Karimian-Dominique appeals from the trial court’s ruling. 

II. Review of Trial Court’s Order 

{¶ 10} In her sole assignment of error, Karimian-Dominique claims that the trial 

court erred in granting the motion to compel and denying her motions for a protective 

order and for an in-camera review. She asserts that Dominique’s psychotherapy records 

are privileged, and that the privilege has not been waived by filing her lawsuit. She 

argues that privilege is preserved for medical records that are unrelated to the issues 

raised in the litigation, and she contends that Dominique’s mental health records are not 

“causally or historically” related to the physical or mental injuries involved in this case. 

Karimian-Dominique argues that the trial court should have held a hearing on whether the 

records were privileged, that the records were not discoverable due to the purpose for 

which they were sought, and that the court should have conducted an in-camera review 

before ordering disclosure. 

{¶ 11} Pursuant to Civ.R. 26(B)(1), parties may obtain discovery regarding any 

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

action. “It is not ground for objection that the information sought will be inadmissible at 

the trial if the information sought appears reasonably calculated to lead to the discovery 

of admissible evidence.” Civ.R. 26(B)(1). 

{¶ 12} “Medical records are generally privileged from disclosure under R.C. 

2317.02(B)(1).” Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 

909 N.E.2d 1237, ¶ 14. R.C. 2317.02(B)(1)(a)(iii) further provides, however, that a 
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“physician, advanced practice registered nurse, or dentist” may testify or be compelled to 

testify about communications by a patient if, among other circumstances, an action for 

wrongful death has been filed by the personal representative of the estate of the patient. 

The extent of the disclosure permitted under R.C. 2317.02(B)(1)(a)(iii) is limited by R.C. 

2317.02(B)(3)(a), which provides: 

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, 

advanced practice registered nurse, or dentist 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, advanced practice registered nurse, 

or dentist by the patient in question in that relation, or the advice of the 

physician, advanced practice registered nurse, or dentist given to the 

patient in question, that related causally or historically to physical or mental 

injuries that are relevant to issues in the * * * action for wrongful death * * *. 

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

{¶ 13} “Accordingly, the pursuit of a civil action wherein physical or mental injuries 

are causally or historically related to the issues that arise in that case is effectively treated 

as a waiver of privilege with regard to those conditions.” Montei v. Montei, 2d Dist. Clark 

No. 2016 CA 12, 2016-Ohio-8190, ¶ 10. Conversely, a party does not waive the privilege 

for records that are not causally or historically related to the claim. Pietrangelo v. 

Hudson, 8th Dist. Cuyahoga No. 107344, 2019-Ohio-1988, ¶ 14. “[T]he party asserting 

the privilege bears the burden of showing that the records sought are not causally or 

historically related to the claims.” Id. at ¶ 18; see also Marcum v. Miami Valley Hosp., 
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2015-Ohio-1582, 32 N.E.3d 974, ¶ 22 (2d Dist.). 

{¶ 14} The physician-patient privilege under R.C. 2317.02 has been extended to 

confidential relations and communications between a licensed psychologist and client. 

See R.C. 4732.19. Therefore, the pivotal question is whether Karimian-Dominique 

waived the privilege regarding the psychological records by filing her action for medical 

malpractice/wrongful death and related claims. 

{¶ 15} When a discovery dispute involves privilege, we are presented with a mixed 

question of law and fact. E.g., Marcum at ¶ 11; Higbee v. Higbee, 2d Dist. Clark No. 

2013-CA-81, 2014-Ohio-954, ¶ 11; Bogart v. Blakely, 2d Dist. Miami No. 2010-CA-13, 

2010-Ohio-4526, ¶ 24. Whether the privilege statute applies is a question of law, which 

we review de novo. Id. The parties do not dispute that Dominque’s psychotherapy 

records are privileged, and that by filing suit, Karimian-Dominique has waived the 

privilege as to information that is historically or causally related to the issues raised in the 

litigation. 

{¶ 16} However, whether specific medical records are “related causally or 

historically to physical or mental injuries that are relevant to the issues” in KarimianDominique’s action is a factual issue, which we review under an abuse of discretion 

standard. E.g., Bogart at ¶ 24; Marcum at ¶ 11. An abuse of discretion occurs when 

the decision of a court is unreasonable, arbitrary or unconscionable. Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 

{¶ 17} As stated above, Karimian-Dominique brought claims of medical 

negligence, wrongful death, survivorship, and loss of consortium. “In Ohio, it is well 

established that a wife has a cause of action for damages for loss of consortium against 
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a person who, either intentionally or negligently, injures her husband and thereby deprives 

her of the love, care and companionship of her husband. * * * ‘Consortium’ consists of 

society, services, sexual relations and conjugal affection, which includes companionship, 

comfort, love and solace.” Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 91, 585 N.E.2d 

384 (1992), citing Clouston v. Remlinger Oldsmobile Cadillac, Inc., 22 Ohio St.2d 65, 74, 

258 N.E.2d 230, 235 (1970). By asserting a claim for loss of consortium in both the 

survivorship and wrongful death claims, Karimian-Dominique placed her relationship with 

her husband directly at issue in this litigation. Accordingly, a request for Dominique’s 

psychological records related to marital counseling falls within the waiver of privilege 

under R.C. 2317.02. 

{¶ 18} The privilege related to Dominique’s individual counseling records presents 

a different factual question, given the broad range of topics that may be included in 

individual mental health counseling. Nevertheless, the privilege related to Dominique’s 

individual counseling is also waived to the extent that Dominique’s counseling records 

may contain communications related to his marital relationship (loss of consortium claim) 

or to matters affecting an evaluation of damages resulting from his hospitalization and 

death. 

{¶ 19} With the record before us, we cannot conclude that the trial court erred in 

ordering that Karimian-Dominique sign releases for all of Dominique’s records. The 

psychotherapy records were “within the ambit” of Karimian-Dominique’s claims, see

Higbee at ¶ 13, and we lack specific information that would identify specific records as 

not causally or historically related to the issues raised in the litigation. 

{¶ 20} We emphasize that the burden is on the party asserting the privilege to 
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establish that certain records are privileged. As we stated in Marcum, 2015-Ohio-1582, 

32 N.E.3d 974: 

We have been sensitive to the burden placed on trial courts to 

examine documents in camera to determine relevancy, when medical 

records can be voluminous and contain technical and scientific terminology 

not within the trial court’s expertise. Bogart[, 2d Dist. Miami No. 2010-CA13, 2010-Ohio-4526,] at ¶ 70. Although each case presents a different 

situation, the trial court does have the discretion to order full disclosure 

when it can be determined, based on the pleadings, that the records are 

relevant to the issues in the case. When appropriate, the trial court has the 

discretion to establish a procedure that will allow the court to review 

sufficient evidentiary support to enable the court to make a factual finding 

that the records are “causally or historically relevant,” so that the privilege 

waiver applies. This may or may not require the trial court’s in camera 

review. 

Some courts have recognized the procedure followed in this case, 

which included review of the records by plaintiff’s counsel and the 

preparation of a privilege log, may be sufficient to develop a factual record 

of the type and nature of the records claimed to be privileged. CsonkaCherney [v. ArcelorMittal Cleveland, Inc., 2014-Ohio-836, 9 N.E.3d 515, 

¶ 20 (8th Dist.)]; see also Hartzell v. Breneman, 7th Dist. Mahoning No. 10-

MA-67, 2011-Ohio-2472. However, the burden lies on the party seeking to 

protect the records from disclosure to present sufficient evidence to support 
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that party’s claim that the records are not causally or historically related to 

the claims in the case. Pinnix v. Marc Glassman, Inc., 8th Dist. Cuyahoga 

Nos. 97998, 97999, 2012-Ohio-3263. We agree with the Eighth District 

when it stated, “[w]e recognize that the discovery process should be kept 

as simple as possible and that a trial court does not need to conduct an in 

camera review in every instance that a privilege is asserted. Moreover, the 

party claiming the privilege has the burden to show that the records are not 

causally or historically related. Thus, an in camera inspection is not 

necessary when there is no ‘factual basis’ justifying the trial court’s in 

camera review.” Id. at ¶ 11. 

Marcum at ¶ 21-22. 

{¶ 21} Karimian-Dominique’s motion for a protective order sought to preclude all

of Dominique’s psychotherapy records from disclosure, and her motion for an in camera 

review asked the trial court to review all of the records of Dr. Olson2 to determine the 

records’ relevance and the applicability of privilege. Karimian-Dominique did not provide 

any information about the content of the psychotherapy records, other than that they 

involved individual and marital counseling; she did not argue that certain counseling 

records were privileged, while others were not. 

{¶ 22} On this record, the psychotherapy records, generally, were related to claims 

and issues in this case. Karimian-Dominique did not create a sufficient factual record of 

the type and nature of the records claimed to be privileged to warrant an in camera review 

 

2 The motion for in camera review did not specifically ask for an in camera review of the 

records of Dr. Wood or Antoinette Cordell and Associates. 
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to determine if specific records should retain physician-patient privilege as not historically 

or causally related to the claims. Accordingly, the trial court did not abuse its discretion 

in ordering the disclosure of Dominique’s psychotherapy records and denying KarimianDominique’s motions for a protective order and an in camera review. 

{¶ 23} Karimian-Dominique’s assignment of error is overruled. 

{¶ 24} We have commented that “discovery is an issue separate from the question 

of whether evidence may be admissible at trial or even if it can be disclosed outside the 

litigation. Those are matters properly reserved to the sound discretion of the trial court 

on appropriate motion which is not before us at this juncture.” Higbee at ¶ 13; Marcum

at ¶ 23. Pending that, we note that the record does not contain a protective order 

addressing the privacy and confidentiality of Dominique’s medical, including 

psychotherapy, records. 

Whenever any medical records are disclosed, it is the duty of the court to 

assure that the privacy and confidentiality of those records be carefully 

maintained until their admissibility is later determined at trial. When 

disclosure is ordered, it is appropriate for the parties to prepare and submit 

an agreed protective order outlining in detail how the records will be handled 

throughout the litigation process, who will have access, how access will be 

documented, how confidentiality will be maintained, and when the records 

will be returned or destroyed. “Trial courts may use protective orders to 

prevent confidential information, such as that contained in the medical 

records at issue, from being unnecessarily revealed.” Med. Mut. of Ohio v. 

Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 23. 
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An agreed protective order will also support the purpose of the privilege 

statute, “to create an atmosphere of confidentiality.” Wargo v. Buck, 123 

Ohio App.3d 110, 120, 703 N.E.2d 811 (7th Dist.1997). An appropriate 

agreed protective order in which the parties have agreed to treat the records 

as confidential should eliminate the need for an in camera inspection. 

Langenfeld v. Armstrong World Industries, Inc., 299 F.R.D. 547, 555 

(S.D.Ohio 2014). The appropriate order will depend on the particular facts 

of each case. 

Marcum at ¶ 24. The trial court and the parties may wish to address this concern. 

III. Conclusion 

{¶ 25} The trial court’s judgment will be affirmed. 

. . . . . . . . . . . . . 

WELBAUM, P.J. and TUCKER, J., concur. 

Copies sent to: 

Dwight D. Brannon 

Matthew C. Schultz 

Robert W. Gurry 

Michael L. Wright 

John F. Haviland 

Elizabeth Wilfong 

Susan Blasik-Miller 

Kevin C. Quinlan 

Theodore M. Munsell 

Karen M. Cadieux 

Timothy Ita 

Matthew Nakon 

Philip Truax 

Malorie Alverson 

Hon. Mary L. Wiseman