The Mirror Image and the Physician-Patient Privilege

As Wikipedia explains, the physician-patient privilege is a rule of law that protects

communications between a patient and his or her doctor from being used against the patient in court. It is a part of the rules of evidence in many . . . jurisdictions. Almost every jurisdiction that recognizes physician-patient privilege not to testify in court, either by statute or though case law, limits the privilege to knowledge acquired during the course of providing medical services. In some jurisdictions, conversations between a patient and physician may be privileged in both criminal and civil courts.

This post is about a case in which Dr. Kresge and “his medical group” Northern Ohio Medical Specialists [“NOMS”] appealed a civil judgment against them that was entered by an Ohio Court of Common Pleas. The case is Cornwall v. N. Ohio Surgical Center, 185 Ohio App.3d 337, 923 N.E.2d 1233 (Ohio Court of Appeals 2009). Here, briefly, is how the case arose:

Mary Cornwall, a 55-year-old woman with a history of pulmonary hypertension, was referred to Dr. Kresge for an arthroscopic operation on her left knee. During the surgery . . . Mary developed tachycardia (an overly fast heartbeat). She was treated with Esmolol, which appeared to abate the problem. Twenty minutes later, however, Mary developed tachycardia, as well as pulmonary hypertension, which led to a full cardiac arrest. Cardiac resuscitation was successfully performed, but Mary never regained consciousness. She was transported to Firelands Hospital where she died six days later.

On August 23, 2007, . . . John Cornwall, Mary's husband, as next of kin and the administrator of her estate, filed the instant wrongful-death action against Dr. Kresge and. . . . [o]ther named defendants. . . .

Cornwall v. N. Ohio Surgical Center, supra. The opinion notes that the parties then “engaged in discovery”, which produced the following information:

In his deposition, Dr. Kresge claimed that he had no knowledge . . . that Mary had pulmonary hypertension until he arrived at Firelands Hospital. . . . Despite this assertion, an office note written by a Dr. Avendano dated March 16, 2006, was found in the chart compiled for Mary by Dr. Kresge and his staff and specified that she had pulmonary hypertension.

When [Cornwall] deposed Dr. Kresge's resident, Alireza Behboudi, he averred that on August 23, 2006, he performed an examination of Mary, took her medical history, and wrote down any of her physical conditions, as well as any medications that she was taking. . . . [H]e stated that he had listed Revatio as one of her medications. According to Dr. Behboudi, he dictated Mary's history and medications on a dictaphone for typing and placement in her chart and in Dr. Kresge's office note. Nevertheless, it is undisputed that Dr. Kresge's office note neither contained any mention of the fact that the decedent had pulmonary hypertension nor specified that Mary took Revatio for this condition. . . .

In her deposition . . . Gloria Gregory, a NOMS employee, stated that she transcribed Dr. Behboudi's dictation, saving it on Firelite, which she described as a `huge thumb drive’ attached to her desktop computer. According to Gregory, she then typed a letter dictated by Dr. Behboudi discussing Mary's medical history. This letter was sent to Dr. Oberer. Subsequently, she used the information in the letter to create Dr. Kresge's office note. When asked why Revatio appeared in the letter but not in the office note, Gregory opined that when she `cut and pasted’ from the letter, she might have unintentionally failed to cut and paste that medication. She also revealed that as of September 8, 2008, she was told not to use the computer upon which she transcribed Mary's medical history and medication in 2006, presumably because it was infected with a virus. . . .

Cornwall v. N. Ohio Surgical Center, supra. Based on this and other information he obtained during discovery, Mary’s husband filed an amended complaint in which he added “a claim for spoliation of evidence and a claim for fraud” against the defendants. Cornwall v. N. Ohio Surgical Center, supra.

The claim for spoliation was premised on an allegation that Dr. Kresge's office note was intentionally altered to delete any mention of Revatio and that . . . [defendants] permitted an information technologist access to the desktop computer upon which the office note was transcribed. According to [Cornwall] that computer was `rendered nonfunctional.’ In alleging fraud, [Cornwall claimed the defendants] `[w]illfully altered, destroyed, and/or concealed evidence [on the Firelite and desktop computer hard drives] with the purpose of disrupting Plaintiff's case.’

Cornwall v. N. Ohio Surgical Center, supra. This brings us to the mirror image: On September 24, 2008, Cornwall filed a motion for discovery in which he asked the court to let his “forensic computer examiner” create a mirror image of the hard drives on which Kresge’s August 23 and September 5, 2006 notes and August 23, 2006 letter to Oberer were created. Cornwall v. N. Ohio Surgical Center, supra. The defendants opposed the motion, claiming the “hard drives contained privileged health information of `hundreds of other patients’ dating back to August 2006.” Cornwall v. N. Ohio Surgical Center, supra.

After holding a hearing on the motion, the judge granted it. Cornwall v. N. Ohio Surgical Center, supra. The judge ordered the defendants to let Cornwall’s forensic expert, Gregory Kinsella, “examine the Firelite and desk-computer hard drives upon which the three documents in question were created” and “`make bit-by-bit ‘mirror images of the Firelite drive and the hard drive of the desktop computer’”. Cornwall v. N. Ohio Surgical Center, supra. (The judge also let Kinsella search the mirror images using “a limited number of terms” the judge found were related to “Mary Cornwall and her condition” and then give the defendants a disk that had the search terms and results of the searches on it. Cornwall v. N. Ohio Surgical Center, supra.)

The defendants filed an interlocutory appeal from this order, which brought the matter to the Ohio Court of Appeals. Cornwall v. N. Ohio Surgical Center, supra. The defendants raised the issue noted above, i.e., that letting Kinsella examine the hard drives because such an examination would reveal “privileged medical information” of other patients in violation of Ohio law. Cornwall v. N. Ohio Surgical Center, supra.

In reviewing the discovery order, the Court of Appeals first noted that under Ohio Revised Code § 2317.02(B)(1), neither Cornwall nor Kinsella could lawfully “view privileged communications” of any Kresge or NOMS patients other than Mary Cornwall. Cornwall v. N. Ohio Surgical Center, supra. The Court of Appeals did not, however, accept the defendants’ arguments that this barred Kinsella from making a mirror image of the hard drives at issue:

Kinsella, who specializes in computer forensics and electronic data discovery, testified that in the process of creating the mirror images of the hard drives, he will not be required to look at the contents of each of the separate files. Rather, after the mirror image is created, he will search only for the key words permitted by the trial judge in order to create an index of the specific files containing those terms. These would then be electrically transferred to a CD Rom and given to appellants so that they could create a privilege log consisting only of the index names.

When asked whether he could inadvertently see patients' medical information during the search for specific items on the Windows Event Log and Windows Registry, Kinsella replied that the event log simply contains activities, such as deleting a file, that occurred in the operating system and that there was no risk of viewing a patient's file. As to the Windows Registry, Kinsella explained that this program simply provides `information such as when the last time the computer was turned on, what kind of devices may have been plugged into the actual computer itself, [and] when those devices were plugged in.’ Based upon the foregoing review, we hold that Ohio Revised Code § 2317.02(B)(1) does not bar the mirror-imaging process in this case.

Cornwall v. N. Ohio Surgical Center, supra. The Court of Appeals then addressed the other issue the defendants raised, i.e., that “the search terms . . . are so broad, they will undoubtedly `pull up’ privileged information” and subject the defendants to “tort liability for the nonconsensual disclosure of patient information.” Cornwall v. N. Ohio Surgical Center, supra. One again, the defendants lost:

Kinsella testified that while the search words would list any files/reports using those terms, he would not view the reports themselves. He would simply turn his initial report over to defense counsel for the development of a privilege log pursuant to court order. Furthermore, it is obvious from the trial judge's order that [Cornwall’s] counsel will not view the contents of the listed files -- they are simply to create the privilege log using the list. Then, and only then, can [defendants] challenge in court any specific item on the log as being subject to privilege. Thereafter, the court . . . will determine whether the contents of any particular item on the log is privileged. . . . [The defendants’] second argument is without merit.

Cornwall v. N. Ohio Surgical Center, supra.

I found a few other civil cases that directly or indirectly address privilege (physician-patient or attorney-client) issues associated with mirror images of hard drives, but none that analyzed the technical aspects of creating or searching the image in the detail this court does.