Ohio Appellate Reports
Unpublished
HAGEMAN v. SOUTHWEST GEN. HEALTH CTR., Unpublished Decision
(12-21-2006) 2006-Ohio-6765 KENNETH C. HAGEMAN,
PLAINTIFF-APPELLANT v. SOUTHWEST GENERAL HEALTH CENTER, ET
AL., DEFENDANTS-APPELLEES. No. 87826. Court of Appeals of
Ohio, Eighth District, Cuyahoga County. Released: December
21, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Civil Appeal from the Cuyahoga County Court
of Common Pleas, Case No. CV-545116.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
For Appellant Kenneth C. Hageman.
James E. Boulas, Jim Petropouleas, James E. Boulas Co.,
L.P.A., Raintree Plaza, Broadview Heights, Ohio.
For Appellee Southwest General Health Center
Kate E. Ryan, Jeffrey W. Van Wagner, Jane F. Warner, Ulmer
& Berne, L.L.P., Cleveland, Ohio.
Anna S. Fister Gallagher Sharp Bulkley Building, Cleveland,
Ohio.
Kimberly A. Thomas, Bonezzi, Switzer, Murphy & Polito,
Cleveland, Ohio.
For Third-Party Claimant/Appellee Barbara A. Belovich
Jacob A. H. Kronenberg, Kronenberg & Kronenberg, Cleveland,
Ohio.
For Appellee Janice Galehouse-Hageman
Sheila A. McKeon Gallagher Sharp, Toledo, Ohio.
Kristie M. Weibling Collins & Scanlon, L.L.P., Cleveland,
Ohio.
For Appellee Oaktree Behavioral Health
Donald H. Switzer, Bonezzi, Switzer, Murphy & Polito,
Cleveland, Ohio.
For Appellee Thomas J. Thysseril, M.D.
Peter A. Holdsworth, Bonezzi, Switzer, Murphy & Polito,
Cleveland, Ohio.
BEFORE: CELEBREZZE, P.J., COONEY, J., and CORRIGAN, J.
JOURNAL ENTRY AND OPINION
FRANK D. CELEBREZZE, JR., P.J.
{¶ 1} Appellant, Kenneth Hageman, appeals the trial
court’s decision granting summary judgment in favor of
appellees. After a thorough review of the arguments and for
the reasons set forth below, we affirm.
{¶ 2} On October 12, 2004, appellant filed a civil
complaint against Oak Tree Physicians Inc. (“Oak Tree”);
Oak Tree’s employee, Thomas J. Thysseril, M.D.; Southwest
General Health Center (“Southwest”); Barbara A. Belovich
Esq.; and appellant’s ex-wife, Janice Galehouse-Hageman
(“Galehouse”). The complaint alleged that Dr. Thysseril and
Oak Tree improperly authorized the release of his medical
records during the course of his divorce proceedings. In
addition, appellant argued that Galehouse and Belovich
disclosed his medical records to third parties without his
permission.
{¶ 3} Appellant and Galehouse were parties to a
domestic relations case, and Belovich served as legal
counsel for Galehouse.
{¶ 4} On April 12, 2005, the trial court ordered
appellant to provide expert reports by August 15, 2005 and
scheduled trial for February 13, 2006. Dr. Thysseril and
Oak Tree responded by filing a joint motion for summary
judgment. Shortly thereafter, motions for summary judgment
were also filed by Southwest, Galehouse, Belovich and
Boules, and appellant filed a motion for summary judgment
in response to Belovich’s counterclaim.
{¶ 5} On February 3, 2006, the trial court granted
the motions for summary judgment of Dr. Thysseril, Oak
Tree, Southwest, Belovich and Galehouse. Appellant timely
appealed.
{¶ 6} The incident that gave rise to the present
case began on January 10, 2003, when appellant received
psychiatric treatment from Dr. Thysseril. During that
initial appointment, Dr. Thysseril diagnosed appellant as
having bipolar disorder and documented that he had
homicidal thoughts toward his wife. Galehouse was present
during that initial appointment. At the time appellant
began psychiatric treatment, he and Galehouse were living
in the same home with their young daughter.
{¶ 7} On February 19, 2003, Galehouse filed for
divorce against Hageman. Because of her husband’s erratic
and threatening behavior, Galehouse also requested a
restraining order, which was granted by the trial court. On
March 26, 2003, appellant filed a pro se answer and
counterclaim to Galehouse’s complaint. In the counterclaim,
appellant sought legal custody of their minor child.
{¶ 8} On July 4, 2003, appellant and Galehouse had
an altercation at their home during which appellant ran
over Galehouse with his truck, breaking her wrists. The
altercation occurred while their daughter was present. As a
result of this incident, appellant was charged with
aggravated vehicular assault. A jury found him not guilty on
March 9, 2004.
{¶ 9} Because of the July 4th incident, Galehouse
sought a domestic violence civil protection order on July
9, 2003, which the domestic relations court granted. In
that order, the court gave Galehouse temporary residential
legal custody of the couple’s minor child and suspended
appellant’s contact and visitation rights. The court
scheduled the matter for a full hearing on July 17, 2003;
however, it was continued until October 17, 2003.
{¶ 10} On July 21, 2003, appellant retained legal
counsel, and Boulas entered his first appearance on behalf
of appellant. Knowing that appellant was currently
receiving psychiatric treatment, Boulas determined that a
positive prognosis from Dr. Thysseril was essential to
appellant’s case. On July 23, 2003, appellant and Boulas met
with Dr. Thysseril. During their meeting, appellant
requested that Dr. Thysseril author a report indicating
that appellant’s prognosis was good, as long as he
continued with treatment, recommendations and follow-up
visits. The report was submitted to the trial court on July
29, 2003.
{¶ 11} In preparation for the civil protection order
hearing, Belovich issued a trial subpoena ordering Dr.
Thysseril to appear with appellant’s psychiatric records
for use during the hearing. Thysseril contacted Belovich
and informed her that, because of scheduling conflicts, he
would not be able to appear. Belovich requested that, in
lieu of appearing at the hearing, Dr. Thysseril send her a
copy of appellant’s psychiatric medical records. Appellant
filed no objection to the production of his medical
records, nor did he seek to exclude the records from the
proceedings.
{¶ 12} Prior to the civil protection hearing, the
parties had stipulated to an agreed order of protection,
which was adopted by the domestic relations court. Soon
after, the parties entered into a separation agreement and
agreed that Galehouse would be the residential parent, and
appellant would have visitation with his daughter for 60
days out of the year, supervised by either his father or
brother. In addition, appellant agreed to continue
psychiatric treatment and further agreed that he would only
be permitted unsupervised visitation with his daughter when
the guardian ad litem determined that he was fully
complying with his treatment plan.
{¶ 13} Less than one month later, appellant filed a
complaint in the common pleas court alleging unauthorized
disclosure of medical records. In his complaint, he argued
that his psychiatric records that were at issue during his
domestic relations matter were unlawfully released to the
prosecution during his domestic violence case. After the
parties filed numerous cross motions for summary judgment,
the common pleas court granted summary judgment in favor of
the defendants named in appellant’s complaint.
{¶ 14} Appellant brings this appeal asserting four
assignments of error.[fn1] Because the assignments of error
are substantially interrelated, they will be addressed
together.
{¶ 15} At the crux of appellant’s appeal is his
argument that the trial court erred when it granted summary
judgment in favor of the appellees. More specifically, he
asserts that because he did not waive his doctor-patient
privilege, genuine issues of material fact exist to be
litigated, making summary judgment improper in this
instance.
{¶ 16} “Civ.R. 56(C) specifically provides that
before summary judgment may be granted, it must be
determined that: (1) No genuine issue as to any material
fact remains to be litigated; (2) the moving party is
entitled to judgment as a matter of law; and (3) it appears
from the evidence that reasonable minds can come to but one
conclusion, and viewing such evidence most strongly in
favor of the party against whom the motion for summary
judgment is made, that conclusion is adverse to that
party.” Temple v. Wean United, Inc. (1977), 50 Ohio St.2d
317, 327, 364 N.E.2d 267.
{¶ 17} It is well established that the party seeking
summary judgment bears the burden of demonstrating that no
issues of material fact exist for trial. Celotex Corp. v.
Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91
L.Ed.2d 265; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112,
115, 526 N.E.2d 798. Doubts must be resolved in favor of
the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio
St.3d 356, 604 N.E.2d 138.
{¶ 18} In Dresher v. Burt, 75 Ohio St.3d 280,
1996-Ohio-107, 662 N.E.2d 264, the Ohio Supreme Court
modified and/or clarified the summary judgment standard as
applied in Wing v. Anchor Media, Ltd. of Texas (1991), 59
Ohio St.3d 108, 570 N.E.2d 1095. Under Dresher, “the
moving party bears the initial responsibility of informing
the trial court of the basis for the motion, and
identifying those portions of the record which demonstrate
the absence of a genuine issue of fact or material element
of the nonmoving party’s claim.” Id. at 296. (Emphasis in
original.) The nonmoving party has a reciprocal burden of
specificity and cannot rest on mere allegations or denials
in the pleadings. Id. at 293. The nonmoving party must set
forth “specific facts” by the means listed in Civ.R. 56(C)
showing a genuine issue for trial exists. Id.
{¶ 19} This court reviews the lower court’s granting
of summary judgment de novo. Brown v. Scioto Cty. Bd. of
Commrs. (1993), 87 Ohio App.3d 704, 622 N.E.2d 1153. An
appellate court reviewing the grant of summary judgment
must follow the standards set forth in Civ.R. 56(C). “The
reviewing court evaluates the record in a light most
favorable to the nonmoving party. [T]he motion must be
overruled if reasonable minds could find for the party
opposing the motion.” Saunders v. McFaul (1990), 71 Ohio
App.3d 46, 50, 593 N.E.2d 24; Link v. Leadworks Corp.
(1992), 79 Ohio App.3d 735, 741, 607 N.E.2d 1140.
{¶ 20} Appellant’s first, second and fourth
assignments of error assert that the trial court erred when
it granted summary judgment in favor of Dr. Thysseril, Oak
Tree, Southwest, and Galehouse. The record indicates that
appellant waived his doctor-patient privilege with respect
to his divorce action. In addition, the facts of this case
strongly suggest that the court’s interest in protecting the
safety of appellant’s minor child far outweighed his
patient confidentiality.
{¶ 21} This court’s holding in Gill v. Gill,
Cuyahoga App. No. 81463, 2003-Ohio-180, directly addresses
the doctor-patient privilege and how it is impacted by
child custody proceedings. Gill states:
{¶ 22} “Under this statute, 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. Whenever custody of children is
in dispute, the party seeking custodial authority subjects
him or herself to extensive investigation of all factors
relevant to the permanent custody award. 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.
{¶ 23} “We have also held that a party seeking
custody of a child in a divorce action makes his or her
mental and physical condition an issue to be considered by
the court in awarding custody and that the
physician-patient privilege does not apply.”
{¶ 24} Additionally, the Ohio Supreme Court’s
judgment in Biddle v. Warren General Hospital (1999), 86
Ohio St.3d 395, addresses countervailing interests versus
patient confidentiality during court proceedings. Biddle
provides in pertinent part:
{¶ 25} “In Ohio, an independent tort exists for the
unauthorized, unprivileged disclosure to a third party of
nonpublic medical information that a physician or hospital
has learned within a physician-patient relationship.
{¶ 26} “In the absence of prior authorization, a
physician or hospital is privileged to disclose otherwise
confidential medical information in those special
situations where disclosure is made in accordance with a
statutory mandate or common-law duty, or where disclosure is
necessary to protect or further a countervailing interest
that outweighs the patient’s interest in confidentiality.”
{¶ 27} Appellant waived his doctor-patient privilege
when he authorized his physician to submit a report
detailing his treatment to the domestic relations court and
when he filed an action seeking child custody. Appellant’s
hearing directly involved the care and custody of his minor
child. Knowing that the trial court’s determination
regarding custody would strongly hinge upon the state of
his mental health, appellant authorized his physician to
submit a report to the trial court detailing his condition,
treatment, and prognosis.
{¶ 28} It is important to note that at the time
appellant authorized the release of his medical information
to the domestic relations court, his counsel was present.
Appellant’s authorization waived the doctor-patient
privilege. Additionally, as held in Gill, when an
individual requests child custody, his mental health is
directly at issue, which waives the doctor-patient
privilege as well. It is clear from appellant’s actions
that he effectively waived his doctor-patient privilege.
{¶ 29} In addition, appellant’s interests in
confidentiality are far outweighed by the concerns
surrounding the care of his daughter. Appellant suffers
from bipolar disorder, yet was requesting custody of his
minor child. 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. It is clear that no
genuine issue of material fact remained to litigate at
trial. Not only did appellant effectively waive his
doctor-patient privilege, but the facts strongly indicate
that the safety of his daughter far outweighed his
confidentiality as a patient. Accordingly, the trial court
did not abuse its discretion when it granted summary
judgment in favor of Dr. Thysseril, Oak Tree, Southwest,
and Galehouse. Appellant’s first, second and fourth
assignments of error are overruled.
{¶ 30} With respect to appellant’s third assignment
of error, this court agrees with his argument that the
trial court erred in awarding summary judgment in favor of
attorney Barbara Belovich. Belovich represented Galehouse
in the divorce action. While their divorce action was
pending, appellant and Galehouse were involved in an
alleged domestic violence matter that was prosecuted in the
Cuyahoga County Court of Common Pleas. During that case,
Belovich forwarded information regarding appellant’s
psychiatric condition to the prosecution. Appellant waived
disclosure of his mental health information in the divorce
action; however, he did not assert the same waiver with
respect to the domestic violence matter. Although this
information could have aided the prosecution’s case, it was
the duty of the prosecution to conduct proper discovery in
order to gain access to it.
{¶ 31} Belovich overstepped her bounds as
Galehouse’s divorce attorney when she disseminated
information regarding appellant’s psychiatric condition to
the prosecution in the domestic violence matter. On the
basis of her actions, it is clear that a genuine issue of
material fact remains to be litigated at trial.
Accordingly, the trial court erred when it awarded summary
judgment in favor of Belovich, and we find merit in
appellant’s third assignment of error.
Judgment affirmed in part, reversed in part and remanded to
the lower court for further proceedings consistent with
this opinion.
It is ordered that appellant and appellees share the costs
herein taxed.
The court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate be sent to said 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.
COLLEEN CONWAY COONEY, J., CONCURS (WITH SEPARATE OPINION);
MICHAEL J. CORRIGAN, J.[fn*], CONCURS IN PART AND DISSENTS
IN PART (WITH SEPARATE OPINION).
APPENDIX A
Appellant’s four assignments of error:
I. The trial court abused its discretion and committed
prejudicial error in granting defendant-Appellee Thomas J.
Thysseril and Oak Tree Physicians, Inc.’s motion for
summary judgment.
II. The trial court abused its discretion and committed
prejudicial error in granting defendant-Appellee Southwest
General Health Center’s motion for summary judgment.
III. The trial court abused its discretion and committed
prejudicial error in granting defendant-Appellee Barbara A.
Belovich’s motion for summary judgment.
IV. The trial court abused its discretion and committed
prejudicial error in granting defendant Appellee Janice
Galehouse-Hageman’s motion for summary judgment.
[fn1] Appellant’s four assignments of error are included in
Appendix A of this Opinion.
[fn*]SITTING BY ASSIGNMENT: JUDGE MICHAEL J. CORRIGAN,
RETIRED, OF THE EIGHTH DISTRICT COURT OF APPEALS.)
COLLEEN CONWAY COONEY, J., CONCURRING:
{¶ 32} I concur with the majority opinion and write
separately to make the essential point that the records
were never submitted to the domestic relations court nor
admitted into evidence before that court. Therefore, I
disagree with the dissent’s conclusion that they became
public records, available to anyone.
MICHAEL J. CORRIGAN, J., CONCURRING IN PART AND DISSENTING
IN PART:
{¶ 33} I concur with the affirmation of the first,
second and fourth assignments of error. I disagree with the
reversal of the third assignment of error. Having concluded
that Hageman waived the disclosure of his mental health
records for purposes of the domestic relations action, it
cannot consistently be asserted that Hageman still retained
a right of privacy for any subsequent litigation. After the
records were requested pursuant to a subpoena, Hageman took
no action to quash the subpoena or otherwise limit the use
of the information. Moreover, having divulged the records,
Hageman took no action to have them sealed or otherwise
subjected to a confidentiality order. Since that
information became a public record, anyone could have
access to it, including the state. So it makes no
difference whether Belovich willingly forwarded that
information to the state or the state demanded it by
subpoena. Pandora’s box had been opened.