In the Ohio case, Biddle v. Warren General Hospital, a number of patients brought a lawsuit against

Warren General Hospital and a law firm, alleging the hospital unlawfully disclosed patients’ confidential

medical information so that the law firm could search for potential Supplemental Security Income (SSI)

eligibility for the payment of the patients’ unpaid medical bills. The Supreme Court of Ohio, through the

opinion of Justice Resnick, held that 1. 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, and 2. a third party can be held liable for inducing such tortious

disclosure.

 

The facts of the case are as follows. Sometime before 1993, attorney Robert L. Heller, a shareholder in

the law firm of Elliott, Heller, Maas, Moro & Magill Co., L.P.A., attended a legal seminar, “where he got

the idea that the law firm could assist a hospital in determining whether unpaid medical bills could be

submitted to the Social Security Administration for payment.” (Biddle, 395-6). Heller subsequently

presented a proposal concerning this idea to Rush Elliott, president of the law firm and, at that time, a

trustee of Warren General Hospital Foundation and president of Warren General Hospital Health

Systems. Id.

 

As a result of a meeting, in early 1993, an agreement was reached, under which “[t]he law firm would

screen potential candidates for SSI [Supplemental Security Income] eligibility and contact those patients

on the hospital’s behalf as to their rights to apply for SSI Disability, thus having their medical claim

covered under SSI.” Id. at 396. The hospital could, in turn, “receive payment for services that it provided

that it would otherwise have to write-off [sic] as an uncollectible account, and in return for those

services, upon payment from SSI, the hospital would pay a contingency fee to Elliott, Heller & Maas.” Id.

 

Heller told the hospital that his law firm would need four pieces of information about each screened

patient: name, telephone number, age, and medical condition. Id. A decision was made for the hospital

to provide the law firm with patient registration forms. Id. Over the next two and one-half years, the

hospital “released all of its patient registration forms to the law firm without obtaining any prior consent

or authorization from its patients to do so, and without prescreening or sorting them in any way.” Id. The

law firm retrieved the forms on a weekly basis and brought them back to its office, where they were

reviewed by Heller and his legal assistant. They were then reviewed and noted according to potential SSI

eligibility. Id. The law firm then contacted patients and informed them that they “might be entitled to

Social Security benefits that might help them pay their medical bill.” Id. Those patients who showed

interest were referred to Heller.

 

Elliott had testified that it “was more or less the understood agreement between the firm and the

hospital that the hospital was the initial client of the law firm, but at some point in time the law firm may

come to represent individual patients with regard to their Social Security benefits.” Id. at 397.

 

On May 12, 1994, Melanie Sutton, a secretary at the law firm, learned that she was going to be

terminated and began photocopying patient registration forms. Id. at 397. Sutton eventually sent copies

of these registration forms to a radio station in Youngstown, which later confronted the law firm in June

1995, as part of an investigation into breach of patient confidentiality.

 

On July 10, 1995, Cheryl A. Biddle and Gary Ball filed a class action complaint, representing themselves

and others in the same situation, against the hospital, the law firm, Heller, and Kevin Andrews, who at all

pertinent times was the administrator, executive director, and chief executive officer of the hospital. The

complaint sought compensatory and punitive damages and injunctive relief on behalf of the plaintiffs

and approximately 12,000 other patients whose registration forms the hospital had provided to the law

firm without prior authorization. The plaintiffs brought the following claims: invasion of privacy,

intentional infliction of emotional distress, negligence against the hospital and Andrews, and similar

claims for inducement against the law firm and Heller. They also asserted claims for breach of implied

contract and various statutory violations against the hospital and Andrews, and an improper solicitation

claim against the law firm and Heller.

 

The trial court granted summary judgment (i.e., a decision based on the facts, without a trial) in favor of

the law firm and hospital on all claims and denied as moot, or irrelevant, the motion for class

certification. Id. at 398. The court of appeals reversed as to summary judgment and, therefore, as to the

mootness of class certification. The Plaintiff-Appellees adequately pleaded a claim for tortious breach of

confidentiality, which the court expressly recognized as a valid cause of action in Ohio.

 

The Supreme Court noted that the appeals presented five general issues for determination: (1) whether

a physician or hospital can be held liable for the unauthorized, out-of-court disclosure of confidential

information obtained in the course of the physician-patient relationship; (2) whether this court should

recognize an independent common-law tort of breach of confidence in the physician-patient setting; (3)

whether the duty to hold this patient information confidential is absolute, or, whether, and under what

circumstances the hospital may disclose the confidential information to others and for what purpose; (4)

whether the hospital did in fact obtain such consent; and (5) whether a third party can be held liable for

inducing the unauthorized, unprivileged disclosure of nonpublic medical information.

 

Ultimately, the Court ruled against the hospital and law firm on all five issues. In regard to the first

question, the Court held that “In Ohio, a physician can be held liable for unauthorized disclosures of

medical information.” Id. at 399. On the second issue, the Court held that 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. Id. at 401. On the third point,

the Court held that 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 which outweighs the patient’s interest in confidentiality,” Id. at 402,

but that the Court could “find no interest, public or private, that would justify the recognition of a

privilege under [the] circumstances [before it].” Id. at 405-6. On the fourth point, the Court ruled that

“the hospital’s general consent form did not provide the authority to release medical information to the

law firm and, therefore, the disclosures were unauthorized.” Id. at 407.

 

Regarding the fifth and last issue, the Court held “that a third party can be held liable for inducing the

unauthorized, unprivileged disclosure of nonpublic medical information that a physician or hospital has

learned within a physician–patient relationship.” Id. at 408. Further, to establish liability, the plaintiff

must prove that “(1) the defendant knew or reasonably should have known of the existence of the

physician-patient relationship; (2) the defendant intended to induce the physician to disclose

information about the patient or the defendant reasonably should have anticipated that his actions

would induce the physician to disclose such information; and (3) the defendant did not reasonably

believe that the physician could disclose that information to the defendant without violating the duty of

confidentiality that the physician owed the patient.” Id. at 408.

 

Ref: Biddle v. Warren General Hospital, 86 Ohio St. 3d 395 (1999).

 

1.  Should a hospital have the right to use whatever means necessary to collect for the services it provides?

Why or why not? What other means could the hospital have used to determine if patients were SSI

eligible?

2.  What do you think of the secretary’s action in this case? Did she have the right to make copies of patient

information and send it to a radio station? Should she have been held liable individually?

3.  Do you agree with the court or do you believe the hospital’s interest in

collecting on unpaid bills outweighed the patients’ interest in confidentiality?

4.  Under current law today, healthcare providers have the right to collect on unpaid bills. What could this

hospital have done to prevent the problem that arose?

5.  Do you think the law firm was engaged in a conflict of interest situation and if so, why?