Physician-Patient Privilege in Child Custody and Spousal Support Cases By: Laurel G. Stein, Esq.
The Ohio Supreme Court, in Friedenberg v. Friedenberg, 2020-Ohio-3345, 2020 WL 3272987 (Ohio 2020), recently addressed whether a request for child custody or spousal support constituted a waiver of or an exception to the physician-patient privilege.
During the parties’ divorce, Husband issued subpoenas for Wife’s mental health records. Wife filed a motion to quash those subpoenas, asserting the physician-patient privilege. Husband filed a motion to compel the records, arguing that Wife’s claims for custody and spousal support placed her physical and mental conditions at issue and prompted a statutory exception to the physician-patient privilege.
The magistrate granted Husband’s motion to compel and stated that child custody and spousal support determinations require the trial court to consider the parties’ mental and physical conditions. The records were to be submitted under seal to the court for an in camera determination of their relevance. The magistrate issued another order indicating that she had reviewed the records in camera and had determined that the records were relevant to the proceedings.
The trial court supported the magistrate’s decision and held that Wife’s requests for custody and spousal support put her mental and physical conditions at issue and waived the physician-patient privilege. Wife appealed the trial court’s decision.
The Eleventh District Court of Appeals affirmed the trial court’s order. The majority of the appellate court held that a party waives the physician-patient privilege when seeking custody and/or spousal support. A trial court is statutorily required to consider the mental and physical conditions of a parent seeking custody in order to determine the best interests of the child. A trial court is also required to consider the mental and physical conditions of the parties in determining whether spousal support is reasonable and appropriate. The dissenting judge stated that Wife’s mental and physical conditions were not at issue because Husband did not challenge Wife’s mental or physical ability to parent and neither party raised the issue of Wife’s inability to work.
The Ohio Supreme Court noted that Civ. R. 26(B)(1) provides a broad scope for discovery. Parties are permitted to obtain discovery on any matter not privileged which is relevant to the subject matter of the case. The Court stated that the issue was whether the physician-patient privilege, codified in O.R.C. 231702(B)(1), shielded Wife’s mental health records from discovery. O.R.C. 2317.02(B)(1)(a)(iii) provides that the patient waives the physician-patient privilege in civil actions filed by the patient. O.R.C. 2317.02(B)(1) states that “physician testimony may be had only in accordance with the discovery provisions of the Rules of Civil Procedure, which include the requirement of relevance.” When O.R.C. 2317.02(B)(1)(a)(iii) applies “a physician may testify or be compelled to do so only as to a communication that related casually or historically to physical or mental injuries relevant in the civil action filed by the patient.”
Wife did not contest that she triggered the O.R.C. 2317.02(B)(1)(a)(iii) exception to the physician-patient privilege by filing a lawsuit. Rather, she argued that her mental health records were not causally related to the issues of child custody or spousal support. She argued that Husband did not dispute her parenting ability or her ability to work and earn an income.
The Ohio Supreme Court, in affirming the court of appeals’ decision, held that physical and mental health considerations are relevant to the issues of child custody and spousal support. O.R.C. 3109.04 provides that in determining the best interests of the child, the mental and physical health of all persons involved must be considered. O.R.C. 3105.18 also requires a court to consider the parties’ physical, mental, and emotional conditions when determining whether spousal support is appropriate and reasonable. Contrary to Wife’s argument that Husband did not challenge her parenting ability or her ability to work, the Court stated that those considerations were not dependent upon whether Husband expressly raised a challenge to her mental health. There is nothing in either O.R.C. 3109.04(B) or O.R.C. 3105.18(C) that limits a court’s consideration to factors expressly challenged by the parties.
A dissenting opinion stated that “parties to a divorce do not subject themselves to a fishing expedition through all of their physical and mental health records simply by seeking custody of their children or financial support from their spouse.”
Given this most recent ruling from the Ohio Supreme Court of June 18, 2020, it is important for domestic relations practitioners to counsel their clients in divorce or post-decree cases that their medical and/or psychological records may be shared with opposing counsel and become part of the court record.