[Cite as Loparo v. Univ. Hosps. Health Sys., Inc., 2024-Ohio-663.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

TERRY LOPARO, :

Plaintiff-Appellee, :

No. 112765

v. :

UNIVERSITY HOSPITALS HEALTH :

SYSTEM, INC., ET AL.,

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,

 AND REMANDED

RELEASED AND JOURNALIZED: February 22, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-22-961541

Appearances:

Gioffre, Schroeder & Jansky Co., LPA, and Michael S. 

Schroeder, and David J. Jansky, for appellee. 

Hanna, Campbell & Powell, LLP, and Gregory T. Rossi,

and Rocco D. Potenza, for appellants. 

EMANUELLA D. GROVES, J.:

Defendants-appellants, University Hospitals Health System, Inc., and 

University Hospitals Lake West Medical Center (“Appellants”), appeal the trial 

court’s judgment ordering them to produce interrogatory responses to plaintiff-
appellee Terry Loparo (“Appellee”). For the reasons that follow, we affirm in part 

and reverse in part and remand the judgment of the trial court. 

Procedural History and Factual Background

Appellee initiated this wrongful death action against Appellants arising 

from the death of Phillip Loparo (“Loparo”) on October 1, 2021. Loparo arrived at 

the University Hospitals Lake West Medical Center’s emergency department on 

September 28, 2021, complaining of shortness of breath. Loparo was administered 

two COVID-19 tests, which were both negative. After waiting more than five hours 

to be treated, Loparo suffered respiratory arrest and subsequently died. Appellee’s 

wrongful death and negligence claims are based on Appellants’ alleged failure to 

treat Loparo timely. Appellants responded to the complaint with a motion for 

judgment on the pleadings, raising an affirmative immunity defense under H.B. 

606. 

In their motion for judgment on the pleadings, Appellants argued that 

immunity was proper because patients with more severe COVID-19 symptoms 

needed to be seen before Loparo. (See University Hospitals, et al., Appellants’ 

motion for judgment on the pleadings ¶ 9, October 31, 2022). The trial court denied 

the motion. 

Appellee propounded discovery, including interrogatories upon 

Appellants. These interrogatories requested information for every patient in the 

emergency department at University Hospitals Lake West Medical Center from 8:00 

p.m., on September 28, 2021, through 2:00 a.m., on September 29, 2021. 
Interrogatory 22 requested information from the registration forms for each 

patient’s age, sex, race, reason for visit/chief complaint, encounter start date and 

time, and encounter stop date and time. Interrogatory 23 requested information 

from the tracking board visit form for their arrival date and time, discharge date and 

time, patient complaint, treating complaint, disposition diagnosis, disposition, and 

dispositioning provider. Interrogatory 24 requested the patient’s triage start time, 

triage end time, person who performed triage, and triage level.

Appellants objected to interrogatories 22, 23, and 24. Their response 

to each of these interrogatories was:

Objection: This Interrogatory is vague, ambiguous, and unclear. It is 

also overly broad, unduly burdensome and is not proportional to the 

needs of the case. The Interrogatory seeks information that is not 

relevant and not reasonably calculated to lead to the discovery of 

admissible evidence. It also seeks information that is protected by 

HIPAA and the physician-patient privilege.

Due to Appellants’ response, Appellee filed a motion to compel 

responses to discovery. The trial court ordered Appellants to produce responses to 

the interrogatories under seal for the court to conduct an in camera inspection of the 

records. On April 20, 2023, Appellants produced three spreadsheets related to 

Appellee’s interrogatory Nos. 22, 23, and 24 for the court’s in camera review. In 

their notice of submission of documents for in camera inspection, Appellants noted 

they were not waiving any objections to producing the personal health information 

of nonparty patients, which was protected by the physician-patient privilege and 

HIPAA. Appellants also produced the affidavit of Suzanne Clemente (“Clemente”), 
which stated that 65 other patients were in the emergency department during the 

relevant time. Clemente also stated:

“No document existed within UH Lake West that listed this data in its 

entirety as requested by Plaintiff;” in order to provide the responses to 

these Interrogatories, it was necessary for me to access the protected 

health information/medical charts of the patients who were present in 

the ED during this timeframe” and “I manually entered the data into 

the spreadsheet.”

(Quoting Clemente Affidavit at ¶ 4-7.)

The trial court granted Appellee’s motion to compel discovery on April 

23, 2023. The court stated in its journal entry:

Upon a review of the answers, the claim of privilege is overruled, 

primarily because the information is not traceable to any particular 

patient other than the plaintiff’s decedent, where applicable. 

(J.E. Apr. 23, 2023.)

Appellants appeal, raising one assignment of error for review.

Assignment of Error

The trial court erred in granting the plaintiff’s motion to compel the 

defendants to produce personal medical information of nonparty 

patients as this order violates R.C. 2317.02(B)(1), Ohio’s physicianpatient privilege.

Standard of Review

The party seeking to exclude evidence as privileged bears the burden of 

establishing that requested information is protected from disclosure. Pietrangelo v.

Hudson, 2019-Ohio-1988, 136 N.E.3d 867, ¶ 15 (8th Dist.). A discovery dispute is 

generally reviewed for abuse of discretion; however, whether the information sought 

in discovery is a confidential communication and privileged is a question of law that 
is reviewed de novo. Id. See also Hance v. Cleveland Clinic, 2021-Ohio-1493, 172 

N.E.3d 478, ¶ 25 (8th Dist.). When the trial court’s order concerning privileged 

information would result in the disclosure of the disputed discovery, it is treated as 

a final appealable order. Humphry v. Riverside Methodist Hosp., 22 Ohio St.3d 94, 

97, 488 N.E.2d 877 (1986); Grove v. Northeast Ohio Nephrology Assocs., 164 Ohio 

App.3d 829, 2005-Ohio-6914, 844 N.E.2d 400, ¶ 9 (9th Dist.); Burnham v. 

Cleveland Clinic, 151 Ohio St.3d 356, 2016-Ohio-8000, 89 N.E.3d 536, ¶ 24. 

Law and Analysis

Appellants argue that the requested information is exempt from 

disclosure as privileged physician-patient records under R.C. 2317.02(B). 

Moreover, Appellants contend the trial court’s decision is inconsistent with the Ohio 

Supreme Court’s interpretation of R.C. 2317.02 in Roe v. Planned Parenthood 

Southwest Ohio Region, 122 Ohio St.3d 399, 2009-Ohio-2973, 912 N.E.2d 61, and

the provisions of the Health Insurance Portability and Accountability Act 

(“HIPAA”). Appellants assert that their interrogatory responses required the 

production of nonparty privileged patient communications and medical records.

Further, Appellants’ immunity claim is based on the number of 

nonparty COVID-19 patients treated in the emergency department with more severe 

symptoms than Loparo. Appellee requested evidence relevant to this defense in 

interrogatories 22, 23, and 24.

Appellee alleges that Appellants failed to establish that all of the 

interrogatory responses they produced were communications between the provider 
and patient “necessary to enable a physician to diagnose, treat, prescribe, or act for 

a patient.” R.C. 2317.02. We find Appellants’ argument persuasive, in part, where 

interrogatory responses would reveal privileged communications under 

R.C. 2317.02. On the other hand, we find Appellee’s argument persuasive regarding 

the remaining interrogatory requests. 

It is well settled that “parties may obtain discovery regarding any 

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

pending action, whether it relates to the claim or defense of the party seeking 

discovery.” Civ.R. 26(B)(1). However, physician-patient communications are 

generally privileged and subject to R.C. 2317.02. Leopold v. Ace Doran Hauling & 

Rigging Co., 136 Ohio St.3d 257, 2013-Ohio-3107, 994 N.E.2d 431, ¶ 18. 

R.C. 2317.02 states that the physician-patient privilege applies to:

(B)(1) A physician or a dentist concerning a communication made to 

the physician or dentist by a patient in that relation or the physician’s 

or dentist’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.

* * * 

(5) (a) As used in divisions (B)(1) to (4) of this section, 

“communication” means acquiring, recording, or transmitting any 

information, in any manner, concerning any facts, opinions, or 

statements necessary to enable a physician or dentist to diagnose, treat, 

prescribe, or act for a patient. A “communication” * * * may include, 

but is not limited to, any medical or dental, office, or hospital 

communication such as a record, chart, letter, memorandum, 

laboratory test and results, x-ray, photograph, financial statement, 

diagnosis, or prognosis. 

R.C. 2317.02
When parties cannot resolve a discovery issue concerning a claim of 

physician-privilege, we review the challenged documents in light of HIPAA and 

R.C. 2317.02. HIPAA’s patient privacy rules attempt to balance the interests of 

individuals in maintaining the privacy of their protected health information with the 

interests of society in obtaining, using, and disclosing health information to carry 

out various public and private activities. Menorah Park Ctr. for Senior Living v. 

Rolston, 164 Ohio St.3d 400, 2020-Ohio-6658, 173 N.E.3d 432, ¶ 19. The 

conclusion that protected health information is privileged depends on two factors: 

firstly, whether the information is a communication between a patient and their 

healthcare provider, and secondly, whether the purpose of the communication was 

for diagnosis or treatment. Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-

Ohio-6275, 943 N.E.2d 514, ¶ 25. 

Both state and federal laws are intended to ensure the privacy of 

confidential health information. See Med. Mut. of Ohio v. Schlotterer, 122 Ohio 

St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 14, citing Hageman v. Southwest

Gen. Health Ctr., 119 Ohio St.3d 185, 2008-Ohio-3343, 893 N.E.2d 153, ¶ 9. 

As a preliminary matter, a discussion of the terminology and relevant 

rules regarding the disclosure of health information is in order. Under 

R.C. 3798.01(B), Ohio’s HIPAA statute, the terms “covered entity,” “disclosure,” 

“health care provider,” “health information,” “individually identifiable health 

information,” and “protected health information” have the same meanings as in the 

federal HIPAA privacy rules under 45 C.F.R. 160.103.
“Health information” means any information, including genetic 

information, whether oral or recorded in any form or medium, that: 

(1) Is created or received by a health care provider, health plan, public 

health authority, employer, life insurer, school or university, or 

health care clearinghouse; and

(2) Relates to the past, present, or future physical or mental health or 

condition of an individual; the provision of health care to an 

individual; or the past, present, or future payment for the provision 

of health care to an individual.

45 C.F.R. 160.103

{¶ 18} “HIPAA regulates how ‘covered entities’ can use or disclose

individually identifiable health (medical) information (in whatever form)

concerning an individual.” OhioHealth Corp. v. Ryan, 10th Dist. Franklin No. 10

AP-937, 2012-Ohio-60, ¶ 14, quoting Stigall v. Univ. of Kentucky Hosp., E.D. Ky.

No. 5:09-CV-00224-KSF, 2009 U.S. Dist. LEXIS 103757, ¶ 2 (Nov. 6, 2009). See

also 45 C.F.R. 160 and 164. Under 45 C.F.R. 160.103, covered entities include

hospitals, healthcare providers, and public agencies. 

{¶ 19} R.C. 2317.02 provides an additional layer of protection by prohibiting 

the disclosure of protected health information that is also privileged communication 

between physician and patient in relation to treatment or diagnosis. State privacy 

laws generally preempt HIPAA provisions if the state law is more stringent1than 

1 “HIPAA contains a preemption provision found in 45 C.F.R. 160.203 that states 

in pertinent part: “A standard, requirement, or implementation specification adopted 

under this subchapter that is contrary to a provision of state law preempts the provision 

of state law. This general rule applies, except if one or more of the following conditions is 

met: * * * (b) The provision of state law relates to the privacy of individually identifiable 

health information and is more stringent than a standard, requirement, or 

implementation specification adopted under subpart E of part 164 of this subchapter.” 45 
HIPAA 45 C.F.R. 160.202. The overriding purpose of HIPAA privacy rules is to 

prevent covered entities from disclosing protected health information absent 

specific circumstances. Covered entities include public agencies and healthcare 

providers. Under Ohio law, protected health information has the same meaning 

defined in HIPAA 45 C.F.R. 160.103. R.C. 3798.01.

“Protected health information” is defined as information, in any form, 

including oral, written, electronic, visual, pictorial, or physical, that 

describes an individual’s past, present, or future physical or mental 

health status or condition, receipt of treatment or care, or purchase of 

health products, if either of the following applies: 

(a) The information reveals the identity of the individual who is the 

subject of the information.

(b) The information could be used to reveal the identity of the 

individual who is the subject of the information, either by using the 

information alone or with other information that is available to 

predictable recipients of the information.

HIPAA 45 C.F.R.160.103.

{¶ 20} Health information is not protected if it does not reveal or cannot be 

used to disclose the individual’s identity. Protected health information subsequently 

de-identified and compiled in summary, aggregate, or statistical form is 

not protected under HIPAA 45 C.F.R. 164.502. HIPAA privacy rules provide the 

standards for de-identifying individually identifiable health information. 45 C.F.R. 

164.502. 

C.F.R.160.203(b). May v. N. Health Facilities, Inc., 11th Dist. Portage No. 2008-P-0054, 

2009-Ohio-1442, ¶ 10.
(d) Standard: Uses and disclosures of de-identified protected health

information.

(1) Uses and disclosures to create de-identified information. A covered

entity may use protected health information to create information that

is not individually identifiable health information or disclose protected

health information only to a business associate for such purpose,

whether or not the de-identified information is to be used by the

covered entity.

(2) Uses and disclosures of de-identified information. Health

information that meets the standard and implementation

specifications for de-identification under 164.514(a) and (b) is

considered not to be individually identifiable health information, i.e.,

de-identified. The requirements of this subpart do not apply to

information that has been de-identified in accordance with the

applicable requirements of 164.514, provided that:

(i) Disclosure of a code or other means of record identification designed

to enable coded or otherwise de-identified information to be reidentified constitutes disclosure of protected health information; and

(ii) If de-identified information is re-identified, a covered entity may

use or disclose such re-identified information only as permitted or

required by this subpart.

45 C.F.R. 164.502.

HIPAA privacy rules define de-identified health information,

When the following identifiers of the individual or of relatives,

employers, or household members of the individual, are removed:

(A) Names;

(B) All geographic subdivisions smaller than a state, including street

address, city, county, precinct, zip code, and their equivalent geocodes,

except for the initial three digits of a zip code if, according to the current

publicly available data from the Bureau of the Census[.]

45 C.F.R. 164.514.
{¶ 22} To the extent that de-identified health information is provided in 

summary, statistical, or aggregate form and cannot be used to identify an individual, 

it is not protected health information. A trial court does not err in granting a motion 

to compel discovery when a party claiming privilege fails to demonstrate that the 

requested health information is a communication between a provider and patient 

for diagnosis or treatment or otherwise protected from disclosure.

Morawski v. Davis, 8th Dist. Cuyahoga No. 112033, 2023-Ohio-1898, ¶ 16. Zimpfer

v. Roach, 3d Dist. Shelby No. 17-16-03, 2016-Ohio-5176, ¶ 27.

{¶ 23} However, absent more stringent state protections, hospitals must 

comply with the privacy rules outlined in HIPAA when the discovery at issue is 

protected health information, as defined by 45 C.F.R. 160.103. OhioHealth Corp 

¶ 16. See 45 C.F.R. 160.203. 

{¶ 24} Notably, Ohio’s privacy laws are stricter than HIPAA concerning 

protected health information. May v. N. Health Facilities, Inc., 11th Dist. Portage 

No. 2008-P-0054, 2009-Ohio-1442, ¶ 12. The HIPAA privacy regulations found in 

45 C.F.R. 164.512 permit the disclosure of protected health information during 

judicial or administrative proceedings in response to a court order, whether through 

subpoena, discovery request, or other lawful processes. Grove v. Northeast Ohio 

Nephrology Assocs. Inc., 164 Ohio App.3d 829. 

{¶ 25} In contrast, R.C. 2317.02 imposes more stringent restrictions by 

prohibiting disclosure of protected health information that is also privileged, even 
in situations where such disclosure would be permitted under HIPAA. Id. Section 

45 C.F.R. 164.103.

{¶ 26} We will now discuss the Appellants’ argument that all the 

interrogatory responses are privileged and prohibited from disclosure, absent an 

exception. Appellants rely on Roe v. Planned Parenthood, 122 Ohio St. 399, to

support their claim that the requested records are privileged. Roe is inapposite to 

the facts presented here. In Roe, the parties stipulated that the disputed discovery 

included privileged communications within nonparty medical records. The 

plaintiffs sought patients’ actual medical records with the protected health 

information redacted. “Medical record” means data in any form pertaining to a 

patient’s medical history, diagnosis, prognosis, or medical condition generated and 

maintained by a health care provider in the process of the patient’s health care 

treatment. R.C. 3798.01 and 45 C.F.R. 160.103. Redaction cannot overcome a 

privilege protection; only a statutory exception can. Roe at ¶ 53. 

{¶ 27} A broad request for the entire medical record includes protected 

communications and is, therefore, privileged and subject to exceptions in 

R.C. 2317.02. Sullivan v. Smith, 11th Dist. Lake No. 2008-L-107, 2009-Ohio-289, 

¶ 29. However, “the fact that the requested information is retrieved from medical 

records does not, in itself, attach privilege.” Medina v. Medina Gen. Hosp., 8th Dist. 

Cuyahoga No. 96171, 2011-Ohio-3990 ¶ 14. Because the discovery request in Roe

was for patients’ actual medical records, the Ohio Supreme Court determined that 
no exception applied under R.C. 2317.02 and declined to create one not authorized 

by statute. 

{¶ 28} In this case, Appellee specifically requested interrogatory responses, 

not medical records. The disputed discovery for patient complaint, demographic, 

and diagnosis information will be addressed first. The responses to these preceding 

interrogatory requests are communications between the patient and provider for the 

purpose of diagnosis, treatment, prescribing, or acting for the patient. Therefore, 

this information is privileged. Appellants have claimed no applicable exception 

under R.C. 2317.02, regarding the interrogatory responses concerning sex, race, 

reason for visit/chief complaint, patient complaint, treating complaint, diagnosis,

and disposition, which are privileged and prohibited from disclosure. Accordingly, 

Appellants’ assignment of error is sustained in part. 

{¶ 29} Having identified those responses that are privileged, we now turn to 

the remaining discovery responses. Notably, the Ohio Supreme Court stated, “We 

have never held that the physician-patient privilege provides absolute protection 

against the disclosure of medical information.” Ward at ¶ 29. Under Ohio’s 

physician-patient privilege statute, a treating physician is only prohibited from 

disclosing matters communicated between the patient and physician in relation to 

treating, acting for, prescribing, or diagnosing the patient. State Med. Bd. of Ohio 

v. Miller, 44 Ohio St.3d 136, 140, 541 N.E.2d 602 (1989). Harris v. Belvoir Energy, 

Inc., 8th Dist. Cuyahoga No. 103460, 2017-Ohio-2851, ¶ 10. The physician-patient 

“privilege must be strictly construed against the party seeking to assert it and may 
be applied only to those circumstances specifically named in the statute.” Ward at 

¶ 15. 

{¶ 30} Courts have consistently held that health information, such as 

provider names, triage priority data, and time data (ex., triage times, discharge 

times, and treatment times), are not privileged because they do not involve 

communications as defined in R.C. 2317.02. Heimberger v. Heimberger, 11th Dist. 

Lake No. 2019-L-139, 2020-Ohio-3853, ¶ 31. See also In re Jones, 99 Ohio St.3d 

203, 2003-Ohio-3182, ¶ 13, 790 N.E.2d 321 (psychotherapy notes created for 

forensic analysis were not privileged communications under R.C. 2317.02, but 

psychotherapy records created for case plan services were privileged 

communications for diagnosis and treatment). See Turk v. Oiler, 732 F.Supp.2d 758 

(N.D. Ohio 2010), Medina at ¶ 13, citing Ingram v. Adena Health Sys., 149 Ohio

App.3d 447, 2002-Ohio-4878, 777 N.E.2d 901 (4th Dist.) (identity of the health care 

provider(s) that treated the patient is not protected information). 

{¶ 31} In this case, the requested time, triage, and provider data are 

comparable to the requested information (or discovery) sought in Medina. There 

the court found that the appellee’s requests for interrogatory responses regarding

the intervals and number of times the defendant charted end-tidal CO2 in nonparty 

care were not privileged. The court found that the records charting intervals of 

unidentified, nonparty patients were “time data” and not protected health 

information when provided as interrogatory responses. Id. at ¶ 16. Likewise in this 

case, the remaining responses include triage time data and provider names. These 
are not protected health information nor privileged communications. These 

responses are not communications between the provider and patient in relation to 

treatment or diagnosis. Consequently, the following time data is subject to 

disclosure: encounter start date and time, encounter stop date and time, arrival date 

and time, discharge date and time, triage start time, and triage end time. 

{¶ 32} In summary, Appellants’ assignment of error regarding interrogatory 

requests for the following data is sustained: sex, race, reason for visit/chief 

complaint, patient complaint, treating complaint, diagnosis, and disposition. We 

overrule the Appellants’ assignment of error regarding provider names, and the 

following time data: encounter start date and time, encounter stop date and time,

arrival date and time, discharge date and time, triage start time, and triage end time. 

{¶ 33} Judgment is reversed in part, affirmed in part, and remanded for 

further proceedings. 

It is ordered that appellee and appellants share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

_________________________

EMANUELLA D. GROVES, JUDGE

EILEEN T. GALLAGHER, P.J., and

MICHAEL JOHN RYAN, J., CONCUR