Jason C. Snibbe, an orthopedic surgeon, has petitioned for a writ of mandate to compel the trial court to vacate a discovery order that required him to produce 160 postoperative orders in a wrongful death case. Petitioner contends the orders are irrelevant to the litigation, the physician-patient privilege and patient privacy rights preclude their discovery, and the discovery order is unduly burdensome. We grant the petition in part, limiting discovery to the pain management provisions of the orders, including the type of surgery, date and signature fields, and directing that all other information be redacted. We deny the petition in all other respects.
Mildred Gilbert passed away in January 2011 after a hip replacement surgery petitioner performed on her at Cedars Sinai Medical Center (Cedars). Mrs. Gilbert's sons, real parties in interest Bruce Gilbert and Scott Gilbert, sued Cedars,
The postoperative order in Mrs. Gilbert's case included, among other directions for her care, a provision for the administration of morphine, Dilaudid (hydromorphone), or other pain medication to be filled in by the physician. The form order left blank spaces for the doses and intervals at which the chosen medication was to be administered for mild, moderate, and severe pain. Handwritten notations provided for the administration of a maximum dose of two milligrams of hydromorphone every two hours for severe pain. Mrs. Gilbert was found unresponsive several hours after a nurse administered a two-milligram dose by IV push.
Hydromorphone is a schedule II controlled substance. (Health & Saf. Code, § 11055, subd. (b)(1)(J).) In a declaration, an expert for real parties in interest stated that hydromorphone presents a high risk of fatal respiratory depression. The expert opined that the order of a maximum of two milligrams of
At his deposition, petitioner testified that the postoperative order was filled out and signed by his physician assistant Jennifer Cabrera.
In another part of the deposition cited by real parties in interest's expert, petitioner testified he did not remember whether he consulted with the anesthesiologist about the maximum dose of hydromorphone to be administered in Mrs. Gilbert's case. The expert also cited the anesthesiologist's deposition testimony that he would not have recommended the two-milligram maximum had petitioner dictated the drug order to Ms. Cabrera in the anesthesiologist's presence. The expert opined that making postoperative orders after a major surgery was not included in the delegation of services agreement between petitioner and Ms. Cabrera, and even if it were, a physician assistant would be "totally unqualified to make the medical decisions" regarding Mrs. Gilbert's postoperative care.
In requests for production Nos. 23 and 24, real parties in interest sought to discover all postoperative orders signed by petitioner between June 2010 and June 2011 and by Ms. Cabrera between June 2009 and June 2011 that provided for the administration of opioids, including hydromorphone. The requests allowed for the redaction of patients' names and personal identifying information. Petitioner objected to these requests as overbroad, irrelevant, and
On petitioner's request, we issued an alternative writ directing the trial court to vacate its order granting the motion to compel as to requests for production Nos. 23 and 24 and to deny the motion as to those requests, or show cause for not doing so. We also stayed the discovery order.
Petitioner argues the discovery order violates the physician-patient privilege and third party privacy rights, seeks production of irrelevant evidence, and is unduly burdensome. We generally review discovery orders for abuse of discretion, but we independently review issues of law, such as those involving statutory interpretation. (Pomona Valley Hospital Medical Center v. Superior Court (2012) 209 Cal.App.4th 687, 692-693 [147 Cal.Rptr.3d 376].)
We begin with relevance. "Unless otherwise limited by order of the court ... any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." (Code Civ. Proc., § 2017.010.) In the trial court, the parties disagreed whether the entire postoperative orders or only the provisions for the administration of opioids were subject to the discovery order. In response to petitioner's request for clarification, real parties in interest argued in a conclusory fashion that other provisions in the orders, such as whether a patient is ordered returned to the orthopedic floor or how often vital signs are to be checked, are highly relevant to the litigation. The trial court apparently agreed since it directed petitioner to produce the entire postoperative orders, even though real parties in interest's separate statement supporting the motion to compel and the court's findings on the motion were limited only to the relevance of provisions for the administration of opioids.
In their return, real parties in interest argue that discovery of other patients' postoperative orders is relevant to "whether the Dilaudid Order arose from
Petitioner relies on Bowen v. Ryan (2008) 163 Cal.App.4th 916 [78 Cal.Rptr.3d 128] (Bowen) to argue that his treatment of other patients is irrelevant to whether his treatment of Mrs. Gilbert fell below the standard of care and that real parties in interest essentially seek to discover inadmissible character evidence. In Bowen, supra, 163 Cal.App.4th 916, a dentist was sued for choking and shoving a difficult child against a wall during an appointment. At trial, evidence was introduced of nine other incidents of alleged mistreatment of difficult children by the defendant during appointments. (Id. at p. 918.) The Court of Appeal rejected the plaintiff's argument that evidence of the unrelated incidents was admissible to demonstrate that the defendant acted in accordance with his usual custom or habit. The court explained that "[c]ustom or habit involves a consistent, semiautomatic response to a repeated situation. [Citations.]" (Id. at p. 926.) The court concluded that the defendant's mistreatment of "nine of some 45,000 patients," in different ways and under different circumstances, did not qualify as custom or habit; it was, rather, improper character evidence. (Ibid.)
Bowen is distinguishable because, here, petitioner himself placed at issue his custom and practice of preparing postoperative orders. "Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a
Real parties in interest, in turn, seek to rebut petitioner's testimony with evidence showing that petitioner routinely allowed Ms. Cabrera to fill out postoperative orders with "boilerplate" provisions for the administration of opioids. Such evidence of custom and practice is not improper character evidence even though it might also reflect poorly on petitioner's character. (Cf. Marshall v. Brown (1983) 141 Cal.App.3d 408, 416 [190 Cal.Rptr. 392] [evidence of the defendants' policy of giving employees bad recommendations admissible to prove conduct on particular occasion].) Petitioner is incorrect that real parties in interest would need to prove the other patients' cases are medically similar to Mrs. Gilbert's, which would require a review of each patient's entire medical file. The only similarity needed to show petitioner's custom and practice would be in the substance of the pain management provisions in the postoperative orders. If all or substantially all postoperative orders include substantially similar provisions for opioids, the orders would tend to show that those provisions were indeed "boilerplate," rather than patient specific.
We next consider whether the limited production of the pain management provisions of otherwise redacted postoperative orders violates the physician-patient privilege or the patients' right to privacy.
The postoperative orders at issue in this case do not implicate the concerns in Binder, supra, 196 Cal.App.3d 893 because there is no indication they contain photographs. If Mrs. Gilbert's order is any indication, postoperative orders are multipage form orders that provide standard options for patient postoperative care, including pain management options, to be checked off or filled in as needed. In the top left corner of each page, Mrs. Gilbert's order identifies "total hip replacement" as the type of surgery performed at Cedars's Department of Surgery. Her personal identifying information is stamped in the upper right-hand corner of the page. At the bottom, every page contains a signature-and-date block. The pain management section appears on page 2 of the order. It includes the names of the pain medications ordered, their doses, frequency and means of administration. This section makes no reference to Mrs. Gilbert's medical history. The page on which it appears can be easily redacted by whiting out the patient identifying information and orders unrelated to pain management. Petitioner has not shown that any other format is used in postoperative orders subject to discovery.
Petitioner appears to argue that the physician-patient privilege is absolute and applies even if the patient is "deidentified." The non-California cases the parties cite indicate a split of authority on the issue. Several courts have expressly approved the dictum in Rudnick, supra, 11 Cal.3d 924 that disclosure of the ailment without a disclosure of the patient's identity does not violate the physician-patient privilege. (See Terre Haute Regional Hospital, Inc. v. Trueblood (Ind. 1992) 600 N.E.2d 1358, 1360; Ziegler v. Superior Court in and for Pima County (Ct.App. 1982) 134 Ariz. 390 [656 P.2d 1251, 1255]; Community Hospital Assn. v. District Court In and For Boulder County (1977) 194 Colo. 98 [570 P.2d 243, 245].) Other courts have applied the physician-patient privilege out of concern that the patient's identity may be recognized from information about the patient's health history included in the medical records. (See, e.g., People ex rel. Dept. of Professional Regulation v. Manos (2002) 202 Ill.2d 563 [246, 270 Ill.Dec. 43, 782 N.E.2d 237], quoting Parkson v. Central DuPage Hospital (1982) 105 Ill.App.3d 850 [61 Ill.Dec. 651, 435 N.E.2d 140, 144] [history of patients' prior and present medical conditions included in "`admit and discharge summaries'" made possibility of patient recognition very high].) Here, real parties in interest do not request production of the patients' entire medical records, and the possibility of patient recognition from the disclosure of deidentified postoperative orders is
Additionally, while some states generally prohibit disclosure of patient records even after redaction of personal information (see, e.g., Roe v. Planned Parenthood Southwest Ohio Region (2009) 122 Ohio St.3d 399 [2009 Ohio 2973, 912 N.E.2d 61, 71]; In re Columbia Valley Regional Medical Center (Tex.App. 2001) 41 S.W.3d 797, 802), others recognize that whether redaction is sufficient depends on the circumstances of each case (see Staley v. Northern Utah Healthcare Corp. (2010) 2010 UT 19 [230 P.3d 1007, 1012]). Neither Rudnick, supra, 11 Cal.3d 924, nor Binder, supra, 196 Cal.App.3d 893 suggests that a blanket prohibition against disclosure of redacted patient medical records exists or should exist in California. The physician-patient privilege does not prevent the disclosure of portions of redacted postoperative orders in this case.
Petitioner argues the trial court failed to balance third party privacy rights against real parties in interest's need for discovery. The court denied real parties in interest's request for production of all postoperative orders "regardless of whether they involved administration of opioids" because it "could infringe the privacy rights of third parties without compelling need." But it found good cause for the limited production of postoperative orders providing for the administration of opioids in other patients' cases because those orders could show petitioner allowed Ms. Cabrera to issue "boilerplate" opioid orders. The court's findings indicate the court balanced real parties in interest's need for discovery of opioid orders against nonparties' privacy right in their medical records.
To require balancing at all, an intrusion into privacy rights must be "serious in nature, scope, and actual or potential impact. [Citation.]" (Los Angeles Gay & Lesbian Center, supra, 194 Cal.App.4th at p. 307.) But
Most recently, in Sander v. State Bar of California (2013) 58 Cal.4th 300, 326 [165 Cal.Rptr.3d 250, 314 P.3d 488], our Supreme Court declined to hold "as a matter of law that bar applicants' constitutional rights of privacy preclude disclosure" of information included in the State Bar admissions database (such as the applicant's race, ethnicity, law school, bar exam results, and grade point averages) "even in a deidentified form." The court did not reach the factual dispute whether it is possible to successfully deidentify information obtained from government databases.
Petitioner argues generally that patients have substantial privacy interests in their medical records, but does not explain how any patient can be identified from the limited information included in the redacted postoperative orders at issue in these proceedings. The suggestion that redacted orders would disclose the patients' age, gender, weight and other personal information is unsupported because none of this information appears in the body of Mrs. Gilbert's postoperative order and the stamp bearing personal identifying information will be redacted.
The additional suggestion that improving reidentification techniques would pose actual danger to personal health information is speculative. It is based on the successful reidentification experiment a data specialist performed on an anonymized cancer patient database, which the Illinois Supreme Court rejected as definite proof of actual danger of reidentification. (Southern Illinoisan v. Illinois Dept. of Public Health (2006) 218 Ill.2d 390 [300 Ill.Dec. 329, 844 N.E.2d 1]; see generally Yakowitz, Tragedy of The Data Commons (2011) 25 Harv. J.L. & Tech. 1, 41 [arguing that hypothetical danger of reidentification is no greater than other information-based risks, such as hacking].)
Petitioner has made no showing that the postoperative orders in this case cannot successfully be redacted. To the extent he argues that disclosure of redacted orders nevertheless violates the patients' privacy rights as a matter
Petitioner suggests that deposing real parties in interest's expert would show he can render an opinion without reference to orders in other patients' cases. In his declaration, the expert already has rendered an opinion that the opioid order in Mrs. Gilbert's case fell below the standard of care whether it was prepared by petitioner or Ms. Cabrera, for whose acts petitioner is responsible. The reason real parties in interest seek to discover other patients' orders is not that the expert could not render an opinion on the standard of care without them, but that petitioner has not conceded he breached that standard. In his deposition, petitioner testified he and Ms. Cabrera together decided what postoperative relief to order for Mrs. Gilbert based on various factors specific to her case, suggesting that petitioner exercised his medical judgment. Real parties in interest's theory is that Ms. Cabrera filled the postoperative order without any input from petitioner and without consideration of Mrs. Gilbert's condition. They admittedly have not deposed Ms. Cabrera because they do not expect she would be willing to confirm their theory and thus jeopardize her physician assistant license. But if postoperative orders
Petitioner argues that, even as limited to production of 160 postoperative orders, the discovery order still is unduly burdensome because he needs to expend valuable time identifying, reviewing, and redacting those orders. According to real parties in interest, the undue burden argument was untimely because petitioner raised it in his supplemental papers. But the trial court agreed with petitioner that reviewing over 900 charts and 600 surgeries would pose an undue burden, and limited the number of discoverable orders to alleviate that burden. Under the abuse of discretion standard, we cannot say that the limited discovery order is unreasonable. (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881-882 [94 Cal.Rptr.2d 505].)
The petition for writ of mandate is granted in part and denied in part. Let a peremptory writ of mandate issue directing the trial court to set aside its order of August 20, 2013, as clarified on October 24, 2013, which granted real parties in interest's requests for production Nos. 23 and 24 and required production of 160 postoperative orders in their entirety. The trial court is directed to issue a new order, requiring production of the pain management provisions of the 160 postoperative orders. Patients' personal identifying information must be redacted, so that the redacted orders include only information about the type of surgery, the medication ordered, and the dates and signatures on the order. In all other respects the petition is denied.
The parties are to bear their own costs.
Willhite, J., and Manella, J., concurred.