State v. Spencer , 126 Ohio App. 3d 335 ( 1998 )

I write separately to outline the procedures which must be employed to overcome the claim of physician-patient privilege and to set forth my reasoning as to why the medical records which relate to the prescriptions for steroids and estrogen blockers must be turned over to the trial court. In so doing, I wish to emphasize that the decision reached this day is but one hurdle which the state must clear; the trial court must conduct an in camera inspection of the documents to determine whether there is the possibility that some of them may fall outside the scope of the exception to the privilege.

Although state law is not well developed as to the manner in which a privilege may be vitiated by fraud, federal law is instructive on this issue. By analogous federal law:

"A party wishing to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime. This is a two-step process. First, the proposed factual basis must strike `a prudent person' as constituting `a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud, and that the communications were in furtherance thereof.' In re John Doe, 13 F.3d [633] at 637 [(2nd Cir. 1994)] (quoting In re Grand Jury, 731 F.2d [1032] at 1039 [(2nd Cir. 1984)]). Once there is a showing of a factual basis, the decision whether to engage in an in camera review, the district court exercises its discretion again to determine whether the facts are such that the exception applies. These factual determinations are governed by the clearly erroneous standard." United States v. Jacobs (C.A, 2, 1997),117 F.3d 82, 87. See, also, United States v. Zolin (1989),491 U.S. 554, 573, 109 S. Ct. 2619, 2631, 105 L. Ed. 2d 469, 491 (before engaging in an in camera review to determine the applicability of the crime-fraud exception, the trial judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person that there has been a crime or fraud); cf. United States v. Chen (C.A.9, 1996), 99 F.3d 1495,1503 ("The test for invoking the crime-fraud exception to the attorney-client privilege s whether there is `reasonable cause to believe that the attorney's services were utilized in furtherance of the ongoing unlawful scheme'").

In this matter, Frank Bodi, a compliance agent for the Ohio Board of Pharmacy, testified that during the course of a State Medical Board citation hearing against Dr. Spencer, he learned that Dr. Spencer had written several prescriptions for David Liberman for large amounts of anabolic steroids and estrogen blockers. The prescriptions were presented to several pharmacists who refused to fill them. Other pharmacists to whom the prescriptions were later presented questioned Dr. Spencer before filling them.

Bodi farther testified that Dr. Dimeff of the Cleveland Clinic formed the impression² that the prescriptions were for body building or enhancement and not for any other purpose. Dr. Dimeff stated that he needed to review Liberman's medical records in order to verify these suspicions, however.

Bodi also outlined for the trial court that Liberman had been the subject of investigations related to the illegal use of steroids in 1988, 1991, and 1992. Lieberman was convicted in federal court in connection with one of these investigations.

After the state finished, neither defendant nor Mr. Liberman presented evidence.

From the foregoing, there was a factual basis adequate to support a good faith belief by a reasonable person that the physician-patient privilege otherwise attending the prescriptions for steroids and estrogen blockers had been vitiated by fraud or crime. Therefore, these records should be turned over to the trial court for an in camera inspection.

With regard to our determination that the state's factual basis was unchallenged, the dissent raises the concern that in an effort to rebut the state's case and to preserve the privilege, the physician or patient will, paradoxically, be forced to reveal the privileged medical communications to the court, at this first step in the proceedings. The presentation of evidence by a party seeking to maintain the privilege need not derogate the privilege, however. On a rudimentary level, R.C. 2317.02 does not prevent the physician from testifying under oath that he was consulted in a professional capacity by a person on a certain date. See Jenkins v. Metro. Life Ins. Co. (1961), 171 Ohio St. 557, 15 O.O.2d 14, 173 N.E.2d 122, paragraph two of the syllabus. For substantive rebuttal, a physician may present expert testimony of a general nature which tends to show that the prescriptions, either singly or in tandem, could be used as viable treatment modality for any illness or condition. Alternatively, a physician whose prescriptions are under scrutiny may, without doing injury to the confidence which has been reposed, present expert testimony which categorizes all of the palhative effects of the drugs at issue. In any event, the Zolin court observed that if the matter proceeds to the second step of the inquiry, the in camera review, that "review does not destroy the privileged nature of the contested communications * * *."United States v. Zolin, supra, 491 U.S. at 569,109 S.Ct. at 2629, 105 L.Ed.2d at 489.

Moreover, the in camera review of the records provides the added safeguard of allowing the trial court to determine "if there is a possibility that some of them may fall outside the scope of the exception to the privilege." In re Grand JuryProceedings (Vargas) (C.A.10, 1983), 723 F.2d 1461, 1467. Additionally, the in camera review helps to ensure that the disclosure is narrowly tailored to the precise dimensions of the fraudulent communications.

² We note that hearsay may be admitted in grand jury proceedings. Evid.R. 101 (C); State v. Brown (1988), 38 Ohio St. 3d 305,308, 528 N.E.2d 523, 530-531.