Boddie v. Van Steyn , 2014 Ohio 1069 ( 2014 )


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  • [Cite as Boddie v. Van Steyn, 2014-Ohio-1069.]
    
                                 IN THE COURT OF APPEALS OF OHIO
    
                                      TENTH APPELLATE DISTRICT
    
    
    
    Howard Boddie, Jr.,                              :
    
                    Plaintiff-Appellant,             :               No. 13AP-623
                                                                (C.P.C. No. 10CVH-15026)
    v.                                               :
                                                             (ACCELERATED CALENDAR)
    Dr. Scott J. Van Steyn,                          :
    
                    Defendant-Appellee.              :
    
    
    
    
                                             D E C I S I O N
    
                                        Rendered on March 20, 2014
    
    
                    Howard Boddie, Jr., pro se.
    
                    Roetzel & Andress, LPA, Thomas A. Dillon, and Jeremy S.
                    Young, for appellee.
    
                      APPEAL from the Franklin County Court of Common Pleas.
    
    BROWN, J.
            {¶ 1} Howard Boddie, Jr., plaintiff-appellant, appeals from the judgment of the
    Franklin County Court of Common Pleas which granted the motion for summary
    judgment filed by Dr. Scott J. Van Steyn, defendant-appellee.
            {¶ 2} Appellant was scheduled for a criminal jury trial on May 26, 2009, for
    felony offenses charged against him in 2008. Todd Barstow represented appellant. Leigh
    Bayer and Shontell Walker were prosecutors for the case. On April 27, 2009, appellee
    performed knee surgery on appellant. On April 29, 2009, appellant asked appellee if he
    would provide a doctor's note excusing him from attending court due to his medical
    No. 13AP-623                                                                                  2
    
    condition. Appellee wrote appellant a doctor's note, which indicated, "For Howard
    Boddie: Unable to attend court until July 1, 2009."
           {¶ 3} On May 16, 2009, Barstow faxed a letter to appellee dated May 15, 2009. In
    the letter, Barstow stated that he represented appellant in several felony matters set for
    jury trial on May 26, 2009, and prosecutor Bayer thought that either the doctor's note was
    forged or that appellee overstated the severity of appellant's condition. The fax included a
    subpoena requiring appellee's presence at a hearing on May 26, 2009, as well as
    production of appellant's medical records. Barstow invited appellee to call him to discuss
    the matter and further stated that it was "[p]ossibl[e] you have additional information
    that would satisfy the prosecutor. She can be reached at 462-3555 should you wish to
    communicate with her directly."
           {¶ 4} After receiving the letter, appellee telephoned Barstow. Barstow and
    appellee discussed appellee's court appearance on May 26, 2009, and Barstow told
    appellee to call Bayer to discuss his appearance and appellant's inability to attend trial.
           {¶ 5} Soon after the telephone conversation, appellee wrote a second note
    regarding appellant's medical condition and his inability to attend the May 26, 2009 trial,
    which provided: "To whom it may concern: Howard Boddie is currently under my care
    following surgery for a complex knee injury. He is on crutches and taking narcotic pain
    medication and in my opinion unable to attend trial."
           {¶ 6} After authoring the second note, appellee telephoned Bayer. Appellee avers
    that, during the telephone call with Bayer, he did not disclose any details regarding
    appellant's medical condition beyond that disclosed in the two letters.
           {¶ 7} On October 13, 2010, appellant filed an action against appellee, alleging
    breach of physician-patient confidentiality. Appellant claimed he did not authorize
    appellee to make any additional disclosures after the initial note to Barstow and Bayer
    regarding his medical condition. On April 2, 2013, appellee filed a motion for summary
    judgment. On April 12, 2013, appellant filed a motion for summary judgment. On
    June 27, 2013, the trial court issued a decision granting appellee's motion for summary
    judgment and denying appellant's motion for summary judgment. Appellant appeals the
    judgment of the trial court, asserting the following assignments of error:
                  [I.] The Trial Court erred as a matter of law and abused its
                  discretion by granting Defendant-Appellee's Motion for
    No. 13AP-623                                                                            3
    
                 Summary Judgment; when the issue of liability was based on
                 unauthorized disclosures of confidential medical information
                 and no signed authorizations were ever produced; and, in fact,
                 such breach of physician-patient confidentiality were made
                 without consent or privilege.
    
                 [II.] The Trial Court erred as a matter of law and abused its
                 discretion by Denying Plaintiff-Appellant's Motion for
                 Summary Judgment; when there were no genuine issues of
                 material fact and Plaintiff-Appellant was entitled to Summary
                 Judgment; as the issue of liability was based on the
                 Defendant-Appellee, Doctor's unauthorized disclosures
                 without any signed authorizations, consents or privilege.
    
          {¶ 8} We will address appellant's assignments of error together, as they both
    generally rely upon the same arguments. Appellant argues in his assignments of error that
    the trial court erred when it granted summary judgment in favor of appellee and denied
    summary judgment in his favor. Summary judgment is appropriate when the moving
    party demonstrates that: (1) there is no genuine issue of material fact, (2) the moving
    party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but
    one conclusion when viewing the evidence most strongly in favor of the non-moving
    party, and that conclusion is adverse to the non-moving party. Hudson v. Petrosurance,
    Inc., 
    127 Ohio St. 3d 54
    , 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 
    116 Ohio St. 3d 158
    , 2007-Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a motion for
    summary judgment is de novo. Hudson at ¶ 29. This means that an appellate court
    conducts an independent review, without deference to the trial court's determination.
    Zurz v. 770 W. Broad AGA, L.L.C., 
    192 Ohio App. 3d 521
    , 2011-Ohio-832, ¶ 5 (10th Dist.);
    White v. Westfall, 
    183 Ohio App. 3d 807
    , 2009-Ohio-4490, ¶ 6 (10th Dist.).
          {¶ 9} When seeking summary judgment on the ground that the non-moving party
    cannot prove its case, the moving party bears the initial burden of informing the trial
    court of the basis for the motion and identifying those portions of the record that
    demonstrate the absence of a genuine issue of material fact on an essential element of the
    non-moving party's claims. Dresher v. Burt, 
    75 Ohio St. 3d 280
    , 293 (1996). The moving
    party does not discharge this initial burden under Civ.R. 56 by simply making a
    conclusory allegation that the non-moving party has no evidence to prove its case. Id.
    Rather, the moving party must affirmatively demonstrate by affidavit or other evidence
    No. 13AP-623                                                                                     4
    
    allowed by Civ.R. 56(C) that the non-moving party has no evidence to support its claims.
    Id. If the moving party meets its burden, then the non-moving party has a reciprocal
    burden to set forth specific facts showing that there is a genuine issue for trial. Civ.R.
    56(E); Dresher at 293. If the non-moving party does not so respond, summary judgment,
    if appropriate, shall be entered against the non-moving party. Id.
           {¶ 10} In the present case, appellant's claim was for breach of doctor-patient
    confidentiality. "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." Biddle v. Warren Gen. Hosp., 
    86 Ohio St. 3d 395
     (1999), paragraph one of the syllabus. Thus, there can exist no tort, in this
    respect, for a disclosure that is authorized by the patient. See id.
           {¶ 11} Here, appellant argues that the trial court erred when it found he authorized
    appellee to reveal his medical condition to third parties after the first note. The trial court
    first concluded the evidence demonstrated that the only communication beyond the first
    note that appellee had with third parties was the second note. The court then found the
    second note was an "expansion" of the first note and was authorized by actual authority or
    authority implied from express authority given to appellee by appellant. The trial court
    further found that, even if the second note was not authorized by the express authority
    given for the first note, appellee had the legal authority to rely on the consent given to him
    by Barstow, because Barstow was appellant's attorney and had the express and/or
    apparent authority to act on behalf of appellant. The court reasoned that appellant did not
    want to appear at his trial and gave Barstow express authority to request a continuance
    based upon his medical condition, which would also entail any follow-up actions
    necessary to procure the continuance.
           {¶ 12} Appellant contends that, because he gave no express authority or signed
    authorization for appellee to disclose his medical information to third parties beyond the
    first note, there remained genuine issues of material fact. He maintains that the trial court
    improperly found an implied consent, when his request for the first note was limited to
    his desire for appellee to write a single note indicating only that he could not attend trial.
           {¶ 13} However, we find that we need not address whether appellee was granted
    actual authority by appellant to write the second note as an "expansion" of the first note
    No. 13AP-623                                                                             5
    
    because, even if we were to assume the second note was not authorized by the express
    authority given for the first note, appellee had authority to author the second note based
    upon the authority given to him from Barstow as appellant's attorney. It is undisputed
    that Barstow was appellant's legal representative from the outset of the criminal matters.
    It is well-settled that the relationship between an attorney and client is that of an agent
    and a principal. Gaines Reporting Serv. v. Mack, 
    4 Ohio App. 3d 234
     (6th Dist.1982). It is
    also a well-settled rule that a principal is bound by the acts of an agent acting within
    actual or apparent scope of the agent's authority. Weeks v. United States, 
    245 U.S. 618
    (1918).
           {¶ 14} As relied upon by the trial court, we also believe the legal notions
    expounded in Master Consol. Corp. v. BancOhio Natl. Bank, 
    61 Ohio St. 3d 570
     (1991), are
    applicable to the facts of this case. In Master Consol., the court defined "apparent
    authority" as " 'the power to affect the legal relations of another person by transactions
    with third persons * * * arising from * * * the other's manifestations to such third
    persons.' " Id. at 576, quoting 1 Restatement of the Law 2d, Agency, Section 8, at 30
    (1958). The court in Master Consol. further explained:
                  " '[w]here a principal has by his voluntary act placed an agent
                  in such a situation that a person of ordinary prudence,
                  conversant with business usages, and the nature of the
                  particular business, is justified in assuming that such agent is
                  authorized to perform on behalf of his principal a particular
                  act, such particular act having been performed the principal is
                  estopped as against such innocent third person from denying
                  the agent's authority to perform it.' * * * "
    
    Id., quoting Gen. Cartage & Storage Co. v. Cox, 
    74 Ohio St. 284
    , 294 (1906).
           {¶ 15} In the present case, appellant averred in his affidavit that he informed
    appellee of his pending court date and requested that he prepare a note for him to present
    to the trial court to excuse his absence from his criminal proceedings. Thus, appellant
    made it clearly apparent to appellee that appellant was going to give the note to third
    parties to excuse his absence, and, in fact, appellant gave the note to his attorney,
    Barstow. In his May 15, 2009 letter, Barstow informed appellee that he represented
    appellant as his attorney and appellant had given him the medical note. Thus, appellant,
    by his voluntary act of providing the medical excuse to his attorney, placed appellee in a
    No. 13AP-623                                                                                6
    
    situation that a person of ordinary prudence would be justified to assume Barstow was
    authorized to seek further information from appellee regarding appellant's medical
    condition in order to secure permission for his non-attendance. Having sought the first
    medical note and providing it to Barstow, appellant is estopped as against appellee from
    denying Barstow's authority to seek additional medical information. In other words, by
    requesting the first note and giving it to his attorney, appellant implied to appellee that he
    could further discuss appellant's medical reasons for being unable to attend trial, and
    appellee could have reasonably believed that Barstow's letter was granting him
    permission to discuss appellant's medical reasons for being unable to attend trial.
           {¶ 16} Furthermore, given our determination that appellant gave Barstow the
    apparent authority to seek further medical information regarding appellant's inability to
    attend trial and that appellee reasonably relied upon such authority in providing the
    second note, we must find that appellee's conversation with Bayer was proper. In his
    May 15, 2009 letter, Barstow invited appellee to call Bayer and discuss the matter, and he
    reiterated the same invitation in their subsequent telephone conversation. Appellee
    averred that he disclosed nothing more about appellant's medical condition to Bayer in
    their telephone conversation than appellee disclosed in the second note. Therefore,
    appellee's disclosure of medical information to Bayer was not improper. In addition,
    although appellant also claims that appellee made a disclosure to another prosecutor,
    Walker, there is no evidence of such in the record, other than appellant's affidavit
    averments, which are not based upon personal knowledge and are unsupported by other
    evidence. Therefore, we must reject these arguments.
           {¶ 17} Appellant also presents an argument that relies upon the allegation that
    appellee wrote the first and second notes at the same time, on April 29, 2009, and they
    were given to Barstow at the same time. Although this allegation relates to the issue of
    whether the second note was proper as an "expansion" of the first note, which is moot
    given our determination above, we, nevertheless, find that there is no evidence in the
    record that the first and second notes were both written on April 29, 2009. In his
    affidavit, appellee avers that he submitted the second note around the time of his phone
    conversation with Barstow and after he had received the letter and subpoena from
    Barstow. Therefore, this argument is without merit.
    No. 13AP-623                                                                              7
    
           {¶ 18} Appellant also argues that the Health Insurance Portability and
    Accountability Act ("HIPAA") required appellee to contact him before further disclosures
    in order to obtain a signed consent. The purpose of HIPAA is to prevent the disclosure of
    protected health information by health care providers, except under certain exemptions as
    required by law. 45 C.F.R. 164.502. However, HIPAA does not allow a private cause of
    action, according to Ohio law. OhioHealth Corp. v. Ryan, 10th Dist. No. 10AP-937, 2012-
    Ohio-60, ¶ 18, citing Henry v. Ohio Victims of Crime Comp. Program, S.D.Ohio No. 2:07-
    cv-0052 (Feb. 28, 2007) ("Congress neither expressly nor impliedly provided for any
    private rights of action to enforce HIPAA."); Shepherd v. Sheldon, N.D.Ohio No. 1:11 CV
    127 (July 21, 2011) (plaintiffs apparently conceded HIPAA did not create a private cause of
    action); Siegler v. Ohio State Univ., S.D.Ohio No. 2:11-cv-170 (May 23, 2011) (in creating
    HIPAA, Congress did not provide for any private right of action to enforce it); Wood v.
    Blyer, N.D.Ohio No. 5:06 CV 137 (Aug. 9, 2006) (HIPAA does not provide a private cause
    of action for improper disclosures of medical information but, rather, provides civil and
    criminal penalties which must be enforced by the Department of Health and Human
    Services). Thus, appellant's reliance upon HIPAA to support his claims is misguided. For
    the foregoing reasons, appellant's first and second assignments of error are overruled.
           {¶ 19} Accordingly, appellant's two assignments of error are overruled, and the
    judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                          Judgment affirmed.
    
                                 TYACK and KLATT, JJ., concur.
    
                                    __________________
    

Document Info

DocketNumber: 13AP-623

Citation Numbers: 2014 Ohio 1069

Judges: Brown

Filed Date: 3/20/2014

Precedential Status: Precedential

Modified Date: 10/30/2014