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, and 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 and 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-a-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 pre-screening 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 (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).

Answer the following questions:

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. The court stated that it could find no interest (by the hospital) that justified the privilege to disclose confidential medical information. 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, 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?