When a Family Sues, Are a Loved One's Counseling Records Private? A Dayton Appeals Court Answers

Published July 23, 2019 · Ohio Court Decisions

Families who bring a wrongful death case are often surprised by how personal the process becomes. The case is about what the other side did wrong. But it is also about what the family lost, and proving that loss means talking about the relationship itself.

On July 5, 2019, the Second District Court of Appeals decided Karimian-Dominique v. Good Samaritan Hospital, 2019-Ohio-2750, a case from the Montgomery County Court of Common Pleas. The court held that a widow's wrongful death and loss of consortium claims opened her late husband's counseling records, including marital counseling, to discovery by the defense. The decision is not welcome news for families who value privacy, but it is important to understand before a case is filed.

What happened

According to the court's opinion, Michael Dominique went to the emergency room at Good Samaritan Hospital in Dayton in February 2015 with chest pain and shortness of breath. His wife's complaint alleged that, although pulmonary embolism was a possible diagnosis, he was not evaluated for it. He died of a massive pulmonary embolism three days later.

His wife, as surviving spouse and administrator of his estate, filed suit against the hospital and several physicians, asserting claims including medical negligence, wrongful death, survivorship, and loss of consortium. During discovery, one physician asked the court to order her to sign authorizations for the release of her husband's records from a psychologist and a counseling practice. Those records involved his individual counseling and the couple's marital counseling.

She objected, arguing that the records were privileged and that his emotional condition was not really at issue. She asked the court for a protective order or, at least, for the judge to review the records privately first. The trial court ordered the records produced and denied both requests. She appealed.

What the court of appeals decided

The Second District affirmed.

Privilege is waived for related records. Medical and psychological records are generally privileged in Ohio. But as the court explained, when a wrongful death action is filed, Ohio's privilege statute, R.C. 2317.02(B), allows discovery of communications that relate causally or historically to the physical or mental injuries relevant to the issues in the case. Filing a case in which those issues are raised is treated as a waiver of privilege for related records.

The marriage itself was at issue. The court noted that loss of consortium includes society, services, companionship, comfort, love, and solace. By claiming that loss, the court said, the widow placed her relationship with her husband directly at issue. Records of marital counseling therefore fell within the waiver.

Individual counseling, too, to the extent it is related. The court recognized that individual counseling can cover many topics. But it held that the privilege was also waived to the extent those records related to the marriage or to matters affecting damages from his hospitalization and death.

The family carries the burden. The party who claims privilege has to show that particular records are not related to the case. Here, the court said, the widow asked to protect all the records without identifying any specific records as unrelated, so the trial court did not abuse its discretion in refusing a private review by the judge.

Privacy can still be protected. The court pointed out that discovery is separate from whether records will be admitted at trial or disclosed outside the case, and that no protective order was in the record. It quoted its earlier guidance that when medical records are disclosed, the parties should consider an agreed protective order describing how the records will be handled, who may see them, and when they will be returned or destroyed.

What this means for families

We want to be candid. This decision shows that the defense in a wrongful death case can look closely at your loved one's private life, and at the family's relationships, when the family claims the losses Ohio law allows. Under R.C. 2125.02(B), those losses include loss of society, including companionship, care, and guidance, and the mental anguish of the surviving spouse, children, parents, and next of kin. Those are real and often the largest part of a family's loss. Our page on wrongful death compensation explains them. But claiming them invites questions.

That should not stop a family from seeking justice. It does mean a family should be prepared. Some practical lessons:

• Tell your lawyer early about sensitive history. Counseling, separations, addiction treatment, or family conflict are better discussed privately at the start than discovered later.
• Be specific when asserting privilege. The court faulted the request for being all or nothing. A careful review and a privilege log identifying records that truly are unrelated gives a court something to work with.
• Ask for a protective order. An agreed order can limit who sees sensitive records and require their return or destruction at the end of the case.
• Remember the difference between discovery and trial. Records the defense may see are not automatically records a jury will hear about.
• Keep your own words careful. What family members say to insurers and on social media can also become part of the record. Our post on recorded statements explains why.

If your loved one died after medical care and the family is still deciding whether to pursue a claim, our post on House Bill 595 explains a procedure that took effect in March 2019 for obtaining medical records through the probate court before an estate is opened. Our page on medical malpractice deaths explains how these cases are evaluated.

Deadlines still apply

Under R.C. 2125.02(D)(1), a wrongful death action generally must be filed within two years after the death, and it is brought by the personal representative for the benefit of the surviving spouse, children, parents, and other next of kin under R.C. 2125.02(A)(1). Claims arising from medical care can involve additional requirements and shorter deadlines for related claims. You can read more about how Ohio wrongful death law works.