.

Defense Digest

Transferring a Plaintiff’s Burden to the Court: In-Camera Inspections Are a Necessary Burden for Most Courts in Ohio

Defense Digest, Vol. 27, No. 5, December 2021

December 1, 2021

by Jillian L. Dinehart

Key Points:

  • Upon request, an in-camera review of medical records is required in the majority of Ohio’s district courts.
  • The minority view allows broad discovery without an in-camera inspection if the plaintiff cannot offer facts that demonstrate the privilege should not be waived.

The Eighth District has reaffirmed the requirement for an in-camera inspection when disputed medical records are sought by a defendant and the inspection is requested. In Deering v. Beatty, 2021 WL 4473164 (Ohio Ct. App. 8th Dist. Sept. 30, 2021), the plaintiff sued after she fell down stairs at an apartment complex. The parties agreed to execute authorizations dating back to 2012 and to revisit the need for additional records upon review by counsel. Upon review of the plaintiff’s medical records and expert report, the defendant discovered that additional records were needed. When the parties were unable to agree, the defendant filed a motion to compel. The trial court granted the defendants’ motion to compel, but the Eighth District reversed. In reversing the trial court order, the Deering court held that an in-camera inspection must be provided if a party makes the request. Based upon this ruling, it is advisable for movants to:

  • Identify any privileges that may apply to the records;
  • Indicate that the injured party has waived the privilege;
  • Request an in-camera inspection/consent to an in-camera inspection; and
  • Argue for the release of causally- and historically-related records, only.

Broad discovery requests for medical records are not traditionally a viable request. The majority opinion in Ohio embraces the requirement for in-camera reviews of medical records. However, there are valid arguments for allowing broad discovery into medical records to find pre-existing injuries.

The Second District of Ohio represents the minority view on discovery of privileged medical records and the broad waiver that results by filing a civil action. The minority view balances the following three considerations:

  1. The confidentiality of privileged medical information;
  2. A personal injury defendant’s right to effectively prepare for trial; and
  3. Minimization of judicial involvement in pretrial discovery disputes.

In Bogart v. Blakely, 2010 WL 3722772 (Ohio Ct. App. 2nd Dist. Sept. 24, 2010), the Second District Appellate Court wrote a lengthy opinion analyzing these considerations and distinguishing case law. Ultimately, the Bogart court granted the defendant’s motion to compel without an in-camera inspection. The court found that, because the plaintiff (1) did not request an in-camera inspection, (2) admitted a history of related pain and (3) because the production contained more than 1,200 records for the court to review, the injured party had failed to preserve their privilege to their private medical records in the face of a personal injury complaint.

In making this determination, the Second District found that, “[g]iven Bogart’s extensive allegations, the information sought ‘to be disclosed might be within the ambit of his possible waiver of the physician-patient privilege.’” In a decision that opposes the majority view that an in-camera review is needed to protect privilege, the Second District holds that the party requesting the inspection must show a “factual basis” that the in-camera review “may reveal evidence establishing a privilege that should not be waived.” To support that holding, the Bogart court found that the burden is on the person resisting discovery to demonstrate why the information should not be released. In other words, the person requesting the in-camera inspection and resisting production must show why the requesting party is not entitled to discovery.

The Eighth District does not agree with the minority view presented by Bogart. Although the Eighth District, representing the majority position within Ohio, agrees that in-camera reviews can be burdensome, it found that allowing liberal discovery of privileged materials was inappropriate. The burden on the court can be balanced through application of the Civil Rules should the court enforce the use of privilege logs to put the onus back on the party resisting discovery. Csonka-Cherney v. ArcelorMittal Cleveland, Inc., 9 N.E.3d 515 (Ohio Ct. App. 8th Dist. Mar. 6, 2014); see also Moore v. Ferguson, 2012 WL 6689757 (Ohio Ct. App. 5th Dist. Dec. 10, 2012). Furthermore, the majority view finds that allowing liberal discovery in privileged items subverts the injured party’s confidentiality more so than ever intended by filing a civil suit.

Defense counsel seeking broad discovery into a plaintiff’s medical history face more and more pushback from the judiciary. Should one wish to circumvent the in-camera inspection requirement, one would be remiss to not review the Second District opinion in Bogart. Though a disfavored analysis, the Bogart court’s decision is based on classic discovery principles, such as the distinction between discoverable and admissible materials, and the burden resting on a party resisting discovery. These Bogart arguments may be persuasive in other appellate districts where an in-camera inspection is not formally requested and, thus, do not fall into the Deering line of cases.

*Jillian is an associate in our Cleveland, Ohio, office. She can be reached at 216.912.3823 or jldinehart@mdwcg.com.

 

Defense Digest, Vol. 27, No. 5, December 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.