Wallace v. Hospitals

Full title: WALLACE, APPELLANT v. UNIVERSITY HOSPITALS OF CLEVELAND, APPELLEE

Court: Supreme Court of Ohio

Date published: Feb 8, 1961

172 N.E.2d 459 (Ohio 1961)

172 N.E.2d 459

Opinion

No. 36621

Decided February 8, 1961.

Appeal — Dismissal — Moot case — Hospital records — Inspection of by patient or his attorney — Mandatory injunction.

APPEAL from the Court of Appeals for Cuyahoga County.

This is a mandatory injunction action instituted in the Court of Common Pleas of Cuyahoga County to require the defendant to permit plaintiff's attorney, pursuant to plaintiff's authorization therefor, to inspect the records of the defendant pertaining to plaintiff's stay and treatment at defendant's hospital and to furnish plaintiff or her attorney with a photostatic copy of such records.

The answer of defendant, after making certain admissions, sets up three defenses: (1) That defendant had offered to read its hospital records concerning plaintiff to her attorney and is still willing to do so; (2) that the defendant is willing to conform to the procedure prescribed by Rule 12 of the Common Pleas Court whereby records of any hospital in the county, so far as the same are not privileged, may be made available upon motion; and (3) that the records desired are the private property of the defendant, and, except as they are subject to judicial process, the disclosure of the contents thereof is not a matter of right but rather one of privilege to be determined by the exercise of a reasonable discretion on the part of the hospital management.

Both plaintiff and defendant moved for judgment on the pleadings. The trial court overruled defendant's motion, sustained the motion of plaintiff, and entered judgment for the plaintiff, which judgment requires the defendant forthwith to permit the attorney for plaintiff "to inspect any and all records of the defendant in its hospitals, pertaining to the hospital stay and treatment of the plaintiff, and to furnish plaintiff or her attorney with a photostatic copy of such records, at her expense."

Upon appeal by defendant to the Court of Appeals, that court modified the judgment of the Court of Common Pleas "to read that the appellant permit appellee or her counsel by her written permission to inspect her hospital records under the supervision of the appellant, and to have photostatic copies of such parts of such records, as in the discretion of the appellant is proper under the circumstances of the case, having in mind the beneficial interest of the appellee and the general purpose for which such records or any part thereof were kept and maintained."

An appeal as of right by the plaintiff was perfected to this court, and a motion to certify the record was allowed on October 19, 1960.

On December 23, 1960, defendant filed a motion to dismiss for the reason that the case had become moot. Attached to the motion is a photostatic copy of a letter dated November 23, 1960, from defendant to the attorney for plaintiff, stating that the defendant was forthwith mailing a complete photostatic copy of the defendant's record concerning plaintiff and granting permission to plaintiff's attorney to examine and inspect any and all records pertaining to plaintiff's hospital stay.

The letter recites that "the furnishing of the enclosed photostatic copy of the record and permission to inspect and examine the original record at the hospital are being done in the exercise of University Hospitals' discretion in the matter and in accordance with the order of the Court of Appeals of Cuyahoga County."

The matter was heard by this court on both the motion to dismiss and the merits.

Mr. John G. Pegg, Mr. John H. Bustamante and Mr. Walton C. Jackson, for appellant.

Messrs. Arter, Hadden, Wykoff Van Duzer and Mr. C.M. Horn, for appellee.

Per Curiam.

It is obvious that the plaintiff has obtained all that she asks for in this action and no order could be made by this court that would give her more than she already has. As between these parties, therefore, the case is moot.

Although the majority of the court feels bound to sustain the motion to dismiss, it does so reluctantly for the reason that a repetition of the procedure followed here may effectively prevent this court from ever reaching a question that it considers of public and great general interest.

In any other case, when a request therefor is made, a hospital may permit a former patient to see such of his records as the hospital deems to be in the beneficial interest of that patient. If unsatisfied with what he considers only half a loaf, that former patient may commence an action to require the furnishing of the entire record. The court in which such action is instituted, or a Court of Appeals, could well follow the decision of the Court of Appeals herein to deny a mandatory injunction. If this court then still believed there was a debatable constitutional question involved, and that there was in the case a question of public or great general interest, it would overrule a motion to dismiss the appeal as of right and allow the motion to certify the record. And again the case pending in this court could be rendered moot by the hospital's mere furnishing to the plaintiff of his complete hospital record.

In 132 A.L.R., 1186, it is stated:

"The proposition that an appellate court may retain an appeal for hearing and determination if it involves questions of public interest even though it has become moot so far as the parties of the particular action are concerned or though the parties desire that it be dismissed, is supported, either directly or by implication, by the great weight of authority."

Although the temptation may be great to indulge in the theory that a case may be "moot as to the parties" but not "moot as to the public," as did the court in Van DeVegt v. Larimer County, 98 Colo. 161, 55 P.2d 703, where the court said that "a case is not moot where interests of a public character are asserted under conditions that may be immediately repeated, merely because the time for a particular order has expired," the majority of this court are of the opinion that in this case we should follow the usual procedure of deciding cases only as they exist between the parties thereto and refrain from the giving of an advisory opinion.

The motion to dismiss is, therefore, sustained, and the appeal is dismissed.

Appeal dismissed.

WEYGANDT, C.J., ZIMMERMAN, GILLEN, MATTHIAS, BELL, HERBERT and O'NEILL, JJ., concur.

GILLEN, J., of the Fourth Appellate District, sitting by designation in the place and stead of TAFT, J.