106 F.R.D. 187 (N.D.Ill. 1985), 84 C 4770, Schachar v. American Academy of Ophthalmology, Inc.

• Citation: 106 F.R.D. 187
• Opinion Judge: GETZENDANNER, District Judge:
• Party Name: Ronald A. SCHACHAR, M.D., et al., Plaintiffs, v. AMERICAN ACADEMY OF OPHTHALMOLOGY, INC., et al., Defendants.
• Attorney: James E. Elliott, Witherspoon, Aikin & Langley, Hereford, Tex., Terry M. Grimm, Robert G. Foster, Winston & Strawn, Chicago, Ill., for plaintiffs. Peter S. Hendrixson, James B. Lynch, John S. Hibbs, Dorsey & Whitney, Minneapolis, Minn., William F. Conlon, Chicago, Ill., for defendants.
• Case Date: April 08, 1985
• Court: United States District Courts, 7th Circuit, U.S. District Court — Northern District of Illinois

Page 187

106 F.R.D. 187 (N.D.Ill. 1985)

Ronald A. SCHACHAR, M.D., et al., Plaintiffs,

v.

AMERICAN ACADEMY OF OPHTHALMOLOGY, INC., et al., Defendants.

No. 84 C 4770.

United States District Court, N.D. Illinois, Eastern Division.

April 8, 1985

Defendants in antitrust suit brought motion to compel plaintiffs to answer interrogatory and to produce certain records. The District Court, Getzendanner, J., held that: (1) there was no physician-patient privilege under federal common law that would protect plaintiffs, who had brought suit alleging anticompetitive attempt to limit availability of surgical procedure, from complying with discovery request for medical records of patients who had undergone such procedure; (2) such discovery would not be improper as invasion of patient's privacy; (3) there was sufficient mutuality of interest between instant action in Illinois and similar action pending in federal district court in Georgia to allow plaintiffs in Illinois action to invoke attorney-client and attorney work-product privileges as against attempt by defendants in Illinois action to discover communications made, and documents exchanged, between plaintiffs' attorneys and attorneys in Georgia suit; and (4) defendants were not entitled to award of costs and attorney fees as sanction for plaintiffs' failure to comply with discovery requests.

Order accordingly.

Page 188

James E. Elliott, Witherspoon, Aikin & Langley, Hereford, Tex., Terry M. Grimm,

Page 189

Robert G. Foster, Winston & Strawn, Chicago, Ill., for plaintiffs.

Peter S. Hendrixson, James B. Lynch, John S. Hibbs, Dorsey & Whitney, Minneapolis, Minn., William F. Conlon, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This antitrust case arises out of an allegedly anticompetitive attempt to limit the availability of a surgical procedure for correcting myopia known as radial keratotomy. Defendants American Academy of Ophthalmology, Inc. and others have brought a motion to compel plaintiffs to answer an interrogatory regarding communications concerning a similar action captioned Vest v. Waring, Civ. No. 82-325A currently pending in the Northern District of Georgia, Atlanta Division, before Judge Robert H. Hall, and to produce medical records for all radial keratotomy patients. Plaintiffs have claimed attorney-client privilege, work product immunity under Fed.R.Civ.P. 26(b)(3), physician-patient privilege, privacy interests, and undue burdensomeness. For the reasons stated below, the court rejects most but not all of these claims, and the motion to compel is therefore granted in part.

I. Physician-Patient Records

In Document Request # 23, defendants requested each individual plaintiff physician to turn over all documents and records concerning radial keratotomy patients in his possession. Plaintiffs refused to comply, and offered instead " standardized information sheets" giving condensed information about the surgery and patients in question with the patients' names redacted. Defendants maintained that this information was insufficient to evaluate the plaintiff physicians' surgical experiences, and therefore requested that plaintiffs produce the original records with the names and other identifying features of the patients blocked out and replaced by control numbers. Plaintiffs again refused to comply, and this motion followed.

Plaintiffs first argue that the documents requested are shielded by a physician-patient privilege, and cite statutory privileges recognized by the various states where the named plaintiffs have performed radial keratotomies. This case is a federal question case, however, and federal common law rather than state law governs the question of privilege. Fed.R.Evid. 501. The physician-patient privilege is not recognized by federal common law. United States v. Mancuso, 444 F.2d 691, 695 (5th Cir.1971); Robinson v. Magovern, 83 F.R.D. 79, 90 (W.D.Pa.1979); In re Grand Jury Subpoena, 460 F.Supp. 150, 151 (W.D.Mo.1978). Plaintiffs' blanket assertion of physician-patient privilege is therefore without merit.

Although the physician-patient privilege is not recognized under federal common law, at least one district judge has suggested that federal courts should nonetheless recognize state-created expectations of privacy where to do so would pose no substantial cost to the federal interests involved. Lora v. Board of Education, 74 F.R.D. 565 (E.D.N.Y.1977) (Weinstein, J.). Given defendants' agreement to eliminate all identifying information from the patient records, however, the court finds any intrusions into privacy expectations outweighed by the federal policies supporting free and full discovery.

Plaintiffs also assert that their patients' rights to privacy prevents them from tendering patient records. For support they cite Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). That case involved a challenge to a New York State statute that required copies of prescriptions of all drugs with a lawful and unlawful market to be filed with the State Health Department. The prescriptions included the names, ages, and addresses of the patients. The court recognized that there is a constitutionally protected zone of privacy in avoiding disclosure of personal matters, but found no violation of those interests. Id. at 599-600, 97 S.Ct. at 876.

Page 190

The Court held that the state interest in eradicating drug abuse outweighed the minimal intrusion into the users' privacy interests, and pointed to the state's security precautions against disclosure as further protection of the users' privacy. Id. at 600-601, 97 S.Ct. at 876-877.

In the present case, given the total redaction of patient identities from the records, there is less of an intrusion into privacy interests than existed in Whalen, where all of the identifying information was transmitted. Plaintiffs' argument that producing these records will have a " chilling effect" on the willingness of their patients to see them does not dictate a different result. In Whalen, the court addressed the argument that concern over disclosure might cause some patients to refuse needed medication, and found that possibility insufficient to outweigh the state's interest. In the present case, the lack of identifying information in the requested records makes the possibility of a chilling effect even more remote. The plaintiffs' privacy argument is therefore rejected.

Plaintiffs finally argue that production of the documents requested should be disallowed because of the undue burden production would place on plaintiffs. The party objecting to a discovery request bears the burden of showing that the request is unduly burdensome. FTC v. Texaco, Inc., 555 F.2d 862, 882 (D.C.Cir.), cert. denied 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977). Plaintiffs have made no factual showing that discovery here is any more burdensome than is typical in responding to discovery requests in complex cases. The documents requested all relate to a particular surgical procedure, and many of these records were already separately filed for transmittal to the Keratorefractive Society (KRS) for study. Plaintiffs' suggestion that the information would be better sought by deposition is without merit. As noted by another court in response to the same argument, " providing ... information by interrogatories may effect judicial economy and economic savings to the parties. [Parties] will know whom they have to depose; unnecessary depositions may be avoided; ... important conversations, communications and documents may be highlighted; delay may be avoided; and the issues for trial may be narrowed." In re Shopping Carts Antitrust Litigation, 95 F.R.D. 299, 307-308 (S.D.N.Y.1982). The court agrees with this reasoning, and concludes that the requested medical records should be disclosed.

Defendants have also requested the plaintiff Keratorefractive...