A medical malpractice plaintiff was entitled to the disclosure of the medical records of a surgeon who may have been the source of his Hepatitis B infection, the Ohio Supreme Court has ruled in vacating a protective order.

The plaintiff tested positive for Hepatitis B after undergoing heart surgery at the defendant's hospital. After suing the defendant for medical malpractice, the plaintiff sought to depose his heart surgeon, who was not named as a defendant in the suit.

Because the plaintiff suspected that the surgeon might have been the source of his infection, he wanted to question the doctor about his personal medical history.

The doctor filed for a protective order, arguing that the physician-patient privilege protected his right to privacy with regard to his own medical information.

But the court concluded that the privilege "does not preclude discovery of medical information from a patient" - who in this case was also a doctor.

In strictly construing the privilege, the court observed that state law "does not protect a person from having to disclose his or her own medical information when that information is relevant to the subject matter involved in a pending civil action. The court of appeals is correct that the statute does not address whether medical information is discoverable from a patient himself. We are not permitted to read such language into the statute."

Ohio Supreme Court. In re Rodriguez, No. 09-2724. Dec. 23, 2010. Lawyers USA No. 993-2545.