Susana Tolentino, Associate Member, University of Cincinnati Law Review
It is crucial to trust in the confidentiality of mental health treatment sessions because “the mere possibility of disclosure of confidential communications may impede the development of the relationship necessary for successful treatment.” The Supreme Court of Ohio’s decision in Torres Friedenberg v. Friedenberg has weakened the trust of those seeking divorce and child custody or spousal support in the confidentiality of mental health treatment sessions by unnecessarily loosening the exception to the psychotherapist-patient privilege standard. This result goes against the public policy reasoning that supported the development of the privilege; it was determined that the mental health of our citizens is a “public good of transcendent importance,” and the privilege is therefore necessary because it facilitates appropriate treatment. The potential benefits of mental health treatment for families going through a divorce are diminished by chilling a parent’s desire to seek help.
Belinda Friedenberg’s mental health records were released to Keith Friedenberg in a divorce case with custody and spousal support claims. Keith never raised a concern about Belinda having a mental health condition that would affect her ability to parent or work. The trial court did not conclude there was a specific mental health injury relevant to either claim before releasing the records. Under these standards, individuals going through a divorce will be afraid to seek support during what is likely one of the most trying periods of their life for fear their highly private and personal information will be used as a tool for harassment in the divorce proceedings.
This article will discuss how the Supreme Court of Ohio misconstrued Ohio case law to support an incorrect rendition and application of an exception to Ohio’s physician-patient privilege statute in Torres Friedenberg v. Friedenberg. Part II of this article will give a brief overview of the case’s background. Part III summarizes the majority’s holding and the dissenting Justice’s argument. Part IV analyzes the majority’s opinion in detail by assessing the statutory language and the Ohio case law presented in support of the holding. Finally, Part V emphasizes that the Supreme Court of Ohio improperly summarized Ohio case law to support an incorrect rendition of the statutory exception to the physician-patient privilege. The Court then applied the incorrect standard to hold the trial court had not erred when it released a party’s mental health records in a divorce case with a claim for child custody and spousal support.
II. Case background
Belinda and Keith Friedenberg were married in June 1991 and, during their marriage, had four children. Belinda filed for divorce in March 2016. Keith’s counsel issued subpoenas to mental health professionals for Belinda’s mental health records. Belinda filed a Motion to Quash Subpoena Duces Tecum, arguing the records were protected by the physician-patient privilege. Keith claimed that because Belinda had initiated a claim for custody and spousal support, she had triggered an exception to the privilege. Keith had not raised any concerns about a physical or mental injury affecting Belinda’s ability to parent or work. Belinda had never been diagnosed with a mental health condition. Belinda was in training to become a psychoanalyst, and as a part of her training, she was required to participate in psychoanalysis. Keith sought records from these sessions.
The trial judge ordered the immediate release of Belinda’s mental health records, subject to a protective order limiting dissemination. The order stated that “the documents were relevant” and concluded both parties had waived their physician-patient privilege by requesting custody and that Belinda had waived her privilege by seeking spousal support.
Belinda appealed the release of her medical records and claimed the trial court erred as a matter of law and abused its discretion. The Eleventh District Court of Appeals affirmed the trial court’s order, finding “a review of Ohio statutory and case law indicate that parents seeking custody of their children waive the physician-patient privilege” and that Ohio custody and spousal support statutes require consideration of physical and mental health conditions even if no issues have been raised regarding a party’s health.
One judge dissented, finding the trial court abused its discretion in releasing all of Belinda’s records because the magistrate had concluded only the relevant records were to be released. The judge also believed Belinda’s mental and physical health had not been at issue in the proceedings because Keith had not raised a concern about her ability to parent or work, premised on a mental or physical health injury; the lower courts did not explain how the released documents were relevant; therefore, the documents should not have been released.
III. The Supreme Court of Ohio Accepts Friedenberg
A. The Majority
The Supreme Court of Ohio affirmed the appeals court decision and held that by claiming child custody or spousal support, the mental and physical health records of those involved in the dispute are placed at issue, and, therefore, the physician-patient privilege is waived. The Court interpreted the pertinent Ohio statutory language as requiring trial courts to consider the physical and mental conditions of the parties in every custody and spousal support claim. Under this understanding, the Court found the health records were placed at issue the moment the claim was filed; therefore, the records were relevant factors to be considered without an express challenge to a party’s ability to parent or to work based on a specific health condition. 
If a dispute arises regarding the connection between the physician-patient communications and the issues (custody and spousal support), the trial court orders an in-camera review to ensure the documents released are properly excepted from the privilege pursuant to R.C. 2317.03(B)(3)(a). In this case, the Ohio Supreme Court found the lower courts had correctly applied the law because the trial court had performed an in-camera review, and the review showed that any documents that had been released were either causally or historically related to the issues in the case.
B. The Dissent
The dissenting Justice argued Ohio law requires the trial court to consider certain factors when deciding the best interest of the child and for allocating spousal support. The trial court is required to “consider all relevant factors” which include the mental and physical health of the parties involved.
The orders by the lower courts can reasonably be read to stand for the propositions that (1) the parties’ mental and physical health records are always at issue in a child-custody or spousal support claim; (2) therefore, the records are always “relevant factors” to be considered; and (3) the subsequent release does not depend on the records being causally or historically related to a mental or physical injury that was also found relevant to an issue in the case. 
The dissenting Justice pointed out that the lead opinion directs trial courts to apply the correct statutory standard to properly waive privilege rights, but they then ended up applying a condensed version of the statute to the facts of this case. The majority determined the documents were found causally or historically relevant to the custody and spousal support issues in the divorce proceedings. The dissenting Justice would have reversed the appeals court’s judgment and remanded the case to ensure the documents released met the complete requirements of the statute: that the communications were “(1) causally or historically related to a physical or mental injury that [was] (2) relevant to the issues in this case.”
The majority opinion misconstrued Ohio case law and incorrectly applied the relevant exception to the physician-patient privilege statute to hold that in this case, under the cited case law and statutes, the mental health records were properly released.
The majority relied on Gill v. Gill, reasoning that a party seeking custody, “subjects him or herself to extensive investigation of all factors relevant to the permanent custody award.” Therefore, the party makes his or her mental and physical health relevant—without an express challenge—to be considered and triggers the exception to the privilege.
In Gill, the records sought pertained to the mother’s inpatient treatment for drug dependency. The majority opinion plucked the Gill quote out of a larger paragraph that began by saying when a patient files a civil action, the patient waives their physician-patient privilege “as to any communication that relates causally or historically to the physical or mental injuries put at issue by such civil action.” The majority then quoted that a party seeking custody “subjects him or herself to extensive investigation of all factors relevant” to the claim.
Here, the mother’s ability to parent was challenged based on a mental injury (her drug dependency); therefore, a mental injury had been put at issue in the civil proceeding, making the injury a relevant factor to be considered. Further, the Gill court stated that the patient had waived his or her privilege only as to those communications that related to the injury that had been put at issue. The court then went on to say the pertinent custody statute places importance on the mental and physical health of the parent and “places the mental conditions of all family members squarely at issue.” Reiterating the fact that drug dependency was a mental condition (in other words, injury) that had been put at issue and was therefore an important relevant factor to be considered. Therefore, Gill is not a strong case for the majority to cite to support the argument that an express challenge to a health condition is not needed to make health records relevant factors to consider in a custody claim. The majority does not support this argument with any case law when it comes to spousal support claims.
The lead opinion then asserted that not only are parent’s privileged health records a relevant factor in every child custody and spousal support claim, without an express challenge, but also that a parent’s medical information is excepted from the physician-patient privilege when a claim is filed because the information is causally or historically related to the issues in the claim. To support this understanding the majority again points to Gill, however, the Gill court had improperly summarized how the exception to the privilege statute had been applied in Ohio case law.
The Gill court had properly demonstrated the drug dependency was a mental injury that had been put at issue during the civil action; because the injury was relevant to the custody claim, the exception test had been met. The communications about that injury were therefore no longer privileged. Unfortunately, the Gill court then improperly summarized Neftzer v. Neftzer in the following statement: “we have also held a party seeking custody of a child in a divorce action makes his or her mental and physical condition an issue to be considered by the court in awarding custody and the physician-patient privilege does not apply.” However, the Neftzer court had specifically held an in-camera inspection of the medical records was required “to determine which documents were discoverable…[and] only those deemed to be causally or historically related to physical or mental injuries that [were] relevant to the issues in the case [would be] discoverable,” therefore, Neftzer did not hold that the physician-patient privilege was waived as soon as a party filed a claim for custody.
The Gill court then, under the improper summary of Neftzer, simply concluded that the “counterclaim seeking custody constituted a waiver of the physician-patient privilege.” Therefore, the majority relied on Gill to support the proposition that a party waives their privilege upon filing a custody or spousal support claim, and Gill had improperly summarized Neftzer where Neftzer had actually correctly stated the privilege would only be waived after applying the correct statutory test and meeting the requirements of the test.
Belinda Friedenberg relied on Sweet v. Sweet to support her argument that the records had never been found to causally or historically relate to a mental injury relevant to the claims and were therefore improperly released. The majority rejected the use of the case and incorrectly summarized the case as having held that the trial court had erred and released health records “without first… determin[ing] whether the information was casually or historically related to issues in the case.” However, the Sweet court actually said the records request had not made “…reference to any particular medical condition related to custody issues.” Therefore an in-camera hearing was necessary to determine which medical records were discoverable. The opinion then immediately cited Neftzer, again quoting the language missing from the majority’s summary of this case: “…only those [records] deemed to be causally or historically related to physical or mental injuries that are relevant to the issue in the case are discoverable.” The lead opinion summarized Sweet to support the claim that the records only need relate to the issues in the case to be excepted from the privilege, but the Sweet court clearly required that the records needed to be related to injuries that were also relevant to the issues in the case before the exception would be triggered.
The majority correctly held the trial court must apply R.C. 2317.02(B)(3)(a) when determining whether privileged physician-patient commutations can be excepted from the privilege and released in domestic relations claims for custody or spousal support. However, the majority did not then follow this statement with an analysis demonstrating how the lower courts had applied the correct statutory test and reached the conclusion that the documents could be appropriately released.
Immediately after telling the trial courts to follow R.C. 2317.02(B)(3)(a), which states the documents must “relate causally or historically to physical or mental injuries that are relevant to issues… in the civil action”, the Court then applied a different version of the statute to the facts of the case. Beginning with:
In recognition of the R.C. 2317.02(B)(3)(a) limitation of physician testimony to communications that relate causally or historically to issues in the divorce proceedings, the trial court ordered that the records…be submitted to the court for in camera inspection to determine whether the records were related to issues of custody or spousal support.
The majority incorrectly summarized the language of the statute, once again, and determined there was nothing in the record to demonstrate that the documents released were not “causally or historically related to the issues in this case”. The lower court’s orders stated there were documents relevant to the claims but never specified how the documents were relevant; the majority held the release of all of Belinda’s mental health records was appropriate because the lower courts had somehow found them relevant. The lead opinion does not conclude, as they instructed trial courts to do in their holding, that the documents released were ever found to be causally or historically related to mental injuries that were also related to the issues in the case.
The lead opinion went through a long analysis in support of two propositions: 1) that the Ohio custody and spousal support statutory language makes a parent’s mental and physical conditions relevant factors to be considered the moment they file either claim, and relevance does not depend on an express challenge to a party’s health condition which would limit their ability to parent or work, and 2) that a parent waives their physician-patient privilege right by filing either claim and as long as the records are deemed relevant to the issues, the custody or support claim, then the records can appropriately be released. The majority ignored the fact that the Ohio custody and support statutes tell the court to consider “relevant factors” and then list mental and physical conditions as possible relevant factors to be considered; mental and physical conditions are not always going to be relevant factors in every custody or spousal support claim.
The lead opinion then proceeded to use Ohio case law in support of both propositions. However, the cases the court relied on included situations where a party’s mental injury had been put at issue to expressly challenge the party’s ability to parent. Further, the cases concluded, based on the correct statutory language, that a parent would only lose their right to the physician-patient privilege as to communications that causally or historically related to a physical or mental injury that had been put at issue during the case and the injury was also found relevant to the claim. Even then only communications that related to the injury were discoverable. It remains a mystery how the majority failed to realize they argued, throughout the entire opinion, against the statutory language they ended up holding must be applied, and then failed to apply the correct language themselves when concluding the documents had been properly released in this case.
All of this leaves parents who wish to seek custody or spousal support in Ohio unsure of whether their personal, privileged communications with their physicians, unrelated to the proceedings, will be released inappropriately. When advocating for a client in a divorce case, with claims of custody or spousal support, the holding in Torres Friedenberg v. Friedenberg should be used to fight the unlawful release of privileged communications. By applying the statute, the inappropriate release of personal private privileged records can be prevented.
 Jaffee v. Redmond, 518 U.S. 1, 10 (1996).
 Torres Friedenberg v. Friedenberg, 161 Ohio St.3d 98, 2020-Ohio-3345, 161 N.E.3d 546 (2020).
 See Jaffee, 518 U.S. at 11.
 See generally id. at 11-12.
 See Friedenberg, 2020-Ohio-3345 at ¶15 (“R.C. 2317.02(B)(1) prohibits, except in limited circumstances, a physician from testifying ‘concerning a communication made to the physician * * * by a patient in that relation’ or concerning the physician’s advice to a patient. Communications between a licensed psychologist and a client are subject to the same protections as communications between a physician and a patient. R.C. 4732.19.”)
 Id. at ¶ 3.
 Id. at ¶ 4.
 Id. at ¶ 5.
 Id. at ¶¶ 5, 15.
 Id. at ¶¶ 5, 19-20 (“Here, we are concerned with R.C. 2317.02(B)(1)(a), which states that the privilege does not apply and that a physician may be compelled to testify [i]n any civil action [and] in accordance with the discovery provisions of the Rules of Civil Procedure in connection with a civil action * * *(iii) [i]f a medical claim, dental claim, chiropractic claim, or optometric claim, * * * an action for wrongful death, any other type of civil action, or a claim under Chapter 4123. of the Revised Code is filed by the patient * * *…triggering the statutory exception is not the end of the analysis. R.C. 2317.02(B)(1)(a) states that physician testimony may be had only ‘in accordance with the discovery provisions of the Rules of Civil Procedure,’ which include the requirement of relevance, see Civ.R. 26(B)(1). And when R.C. 2317.02(B)(1)(a)(iii) applies, ‘a physician may testify or be compelled to do so only as to a communication that related causally or historically to physical or mental injuries relevant’ in the civil action filed by the patient…;see also R.C. 2317.02(B)(3)(a).”)
 Id. at ¶¶ 30, 32 (O’toole, J., dissenting)
 Brief of Appellant at 15, Torres Friedenberg v. Friedenberg, 161 Ohio St.3d 98, 2020-Ohio-3345, 161 N.E.3d 546 (No. 2019-0416)
 Id. at ¶ 18.
 Id. at ¶ 9.
 Magistrate’s Order, Torres Friedenberg v. Friedenberg, 161 N.E.3d 546, 2020-Ohio-3345, 161 N.E.3d 546 (No.16DR136) (Nov. 1, 2017).
 Torres Friedenberg v. Friedenberg, 2020-Ohio-3345 (11th Dist. Lake, No. 2019-0416) ¶¶ 9-10.
 Id. at ¶¶ 13-14.
 Id. at ¶ 31 (O’toole, J., dissenting).
 Id. at ¶¶ 30-33.
 Id. at ¶28 (“When allocating parental rights and responsibilities, a trial court must take into account the best interests of the children, R.C. 3109.04(B)(1), and in doing so, it must consider ‘all relevant factors, including * * * (e) [t]he mental and physical health of all persons involved,’ R.C. 3109.04(F)(1). R.C. 3105.18(C)(1)(c) similarly requires a court to consider the parties’ ‘physical, mental, and emotional conditions’ when determining whether spousal support is appropriate and reasonable.”)
 Id. at ¶ 35.
 Id. at ¶ 35.; Ohio Rev. Code Ann. § 2317.02 (B)(3)(a) (West 2020) (“If the testimonial privilege described in division (B)(1) of this section does not apply as provided in division (B)(1)(a)(jjj) of this section, a physician, …may be compelled to testify or to submit to discovery…only as to communications made to the physician…by the patient in question… that related causally or historically to physical or mental injuries that are relevant to issues in the… civil action…”)
 Id. at ¶ 38-39.
 Id. at ¶ 48 (DeWine, J., dissenting); See supra note 20.
 See Friedenberg, 2020-Ohio-3345 at ¶ 48 (DeWine, J., dissenting); See supra note 20.
 Id. at ¶¶ 52-53 (DeWine, J., dissenting).
 Id. at ¶ 46 (DeWine, J., dissenting) (emphasis added).
 Id. at ¶ 54.
 Id. (quoting Gill v. Gill, 8th Dist. Cuyahoga No. 81463, 2003-Ohio-180 ¶ 18).
 Gill v. Gill, 8th Dist. Cuyahoga No. 81463, 2003-Ohio-180 ¶¶ 4, 8.
 Id. at ¶ 18 (emphasis added).
 Id. (emphasis added).
 See Friedenberg, 2020-Ohio-3345 at ¶ 29.
 Gill v. Gill, 8th Dist. Cuyahoga No. 81463, 2003-Ohio-180 ¶ 19 (citing Neftzer v. Neftzer, 140 Ohio App.3d 618, 748 N.E.2d 608 (2000)).
 Neftzer v. Neftzer, 140 Ohio App.3d 618, 622, 748 N.E.2d 608, 612 (2000) (quoting Nester v. Lima Mem. Hosp., 139 Ohio App.3d 883, 887, 2000-Ohio-1916, 745 N.E.2d. 1153, 1156).
 See Gill, 8th Dist. Cuyahoga No. 81463, 2003-Ohio-180 ¶ 21.
 See supra, text accompanying note 47.
 See Friedenberg, 2020-Ohio-3345 at ¶ 31 (citing Sweet v. Sweet, 11th Dist. Ashtabula No. 2004-A-0062, 2005-Ohio-7060 ¶ 16)).
 Sweet v. Sweet, 11th Dist. Ashtabula No. 2004-A-0062, 2005-Ohio-7060 ¶ 16 (emphasis added).
 Id. at ¶ 16 (quoting Neftzer v. Neftzer, 140 Ohio App.3d 618, 622, 748 N.E.2d 608, 612 (2000)).
 See Sweet, 2005-Ohio-7060 ¶ 16.
 See supra, note 23.
 See Friedenberg, 2020-Ohio-3345 at ¶¶ 35-36; See supra, note 23.
 Id. at ¶ 36.
 Id. at ¶ 38,
 See supra, notes 35-42 and accompanying text.
 See supra, 44-60 and accompanying text.
 See supra, 27-30 and accompanying text.
 See supra, note 44 and accompanying text.
 See supra, notes 45-54 and accompanying text.