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Custody and Patient Privilege

There've been a number of interesting cases out of the 8th District recently that I'm going to touch on.  Today we'll take on two in the civil area. 

If you're handling a custody dispute, and the other party has, shall we say, several mental "issues,"  you'll want to take a look at Hageman v. Southwest General.  The wife subpoenaed records of the husband's treatment for bipolar disorder, and the husband then sued the shrink and hospital for releasing them. 

The court affirmed the trial judge's grant of summary judgment, holding that

the appellant's interests in confidentiality are far outweighed by the concerns surrounding the care of his daughter. * * *  In order for the domestic relations court to make an effective decision regarding appellant's ability to adequately care for his child, it was necessary for the court to evaluate his medical information and prognosis. Similarly, it was important for opposing counsel, as well as the guardian ad litem, to have access to the medical reports in order to make the most informed decisions regarding custody and visitation.

This was in line with the court's decision in Gill v. Gill, back in 2003, that the medical privilege statute provides that "the filing of any civil action by a patient waives the physician-patient privilege as to any communication that relates causally or historically to the physical or mental injuries put at issue by such civil action," and that by filing for custody a party "subjects him or herself to extensive investigation of all factors relevant to the permanent custody award."

That leaves a question, though:  in both cases, the court could easily conclude that the party had waived the privilege by filing a pleading asking for custody.  What about visitation?  Even in an uncontested divorce, the court will enter an order of visitation for the noncustodial parent.  Can the court consider mental issues even in the absence of some pleading which might be viewed to have waived the privilege?  Gill's citation of the custody statutes gives an ample argument for doing so:

Of major importance, as stated in R.C. 3109.04(F)(1)(e), is the mental and physical health of not only the child but also the parents. R.C. 3109.04 places the mental conditions of all family members squarely in issue.

The court also decided a case which added more substance to the claim that the rules on voluntary dismissal of a civil case are in need of a serious rewrite.  In Hutchison v. Beazer, the plaintiff had filed suit against numerous defendants, one of which was granted summary judgment.  Just prior to trial, the plaintiff voluntarily dismissed the case, then refiled against all the defendants, including the one who'd been summaried out.  The trial court ruled that the earlier grant of summary judgment was res judicata, but the appellate court disagreed, relying on earlier cases holding that unless 54(B) final judgment language in the entry granting SJ, it's merely an interlocutory order that's dissolved when the voluntary dismissal is filed.  I've talked about this before, and before you dismiss a case where SJ has been granted to one of the defendants, you'll want to read this and this.

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