Brende v. Hara
| Decision Date | 25 January 2007 |
| Docket Number | No. 27964.,27964. |
| Citation | 153 P.3d 1109 |
| Court | Hawaii Supreme Court |
| Parties | Phillip A. BRENDE; Dolores L. Brende, Petitioners, v. The Honorable Glenn S. HARA, Judge of the Circuit Court of the Third Circuit, State of Hawai`i, Respondent. Kuulei K. Kualii; John Does 1-10; Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; Roe "Non-Profit" Corporations 1-10; and Roe Governmental Entities 1-10, Respondents, Real Parties in Interest. |
Arthur Y. Park, Vernon Yu, Laurent J. Remillard, Jr., John C. McLaren (of Park Park Yu & Remillard), Honolulu, and Lionel D. Meyer, Hilo, for petitioners.
Randall Y.S. Chung and Melanie S. Matsui (of Matsui Chung), Honolulu, for respondent Kuulei K. Kualii.
Russell A. Suzuki, Deputy Attorney General, for respondent judge.
In this original proceeding, petitioners Phillip Brende and Dolores Brende (petitioners), as plaintiffs in Civil No. 05-1-0108 (the underlying litigation), petition this court for a writ of mandamus directing Glenn S. Hara, judge of the third circuit court (the respondent judge), to revise a medical information protective order to prohibit any person or entity from disclosing, for purposes outside the underlying litigation and without petitioners' consent, petitioners' health information produced in discovery. Petitioners contend that the privacy provision of the Hawaii Constitution, article I, section 6 protects the disclosure, outside the underlying litigation, of petitioners' health information produced in discovery. Respondent Kuulei Kualii (respondent) counters that privacy protections have been waived.
Based on the following, we hold that petitioners are entitled to mandamus relief because there is no present legitimate need for disclosure of petitioners' health information unrelated to the underlying litigation, and disclosure outside the litigation of petitioners' health information produced in discovery will violate petitioners' informational privacy right under article I, section 6.
The underlying litigation arises out of a motor vehicle tort case filed by petitioners against respondent. The case is pending in the third circuit court. Before and after the filing of the complaint, petitioners attempted to secure from respondent a stipulated order that protected the disclosure and use of petitioners' health information produced in discovery. Petitioners sought an order protecting their privacy rights, asserted under federal and state law, regarding their health information produced in discovery. Their proposed stipulated order contained provisions patterned after the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) regulation, 45 C.F.R. § 164.512 (2005),1 that: (1) prohibited respondent from using or disclosing — outside the underlying litigation and without petitioners' consent — petitioners' health information obtained in discovery from a health plan, health care clearinghouse, or health care provider that electronically transmits health information [hereinafter, health care entities]; and (2) required petitioners' health information obtained in discovery be returned to health care entities or be destroyed at the end of the litigation. The proposed stipulated order also contained a provision grounded in Hawai`i law — article I, section 6 of the Hawai`i Constitution,2 Hawai`i Rules of Evidence (HRE) Rule 504,3 and Hawai`i Rules of Civil Procedure (HRCP) Rule 26(c)4 — that prohibited respondent and all other persons and entities from using or disclosing, outside the underlying litigation and without petitioners' consent, petitioners' health information obtained in discovery from any source.
Petitioners contended that the provision grounded in Hawaii law was necessary because, absent such provision, respondent and/or her insurer, State Farm Mutual Automobile Insurance Company (respondent's insurer) and its employees and agents could use petitioners' health information produced in discovery for purposes beyond the evaluation of petitioners' tort claim asserted in the underlying litigation. Respondent, through counsel retained by respondent's insurer, contended that a stipulated protective order was not necessary. Nonetheless, respondent agreed to stipulate to the proposed provisions patterned after the HIPAA, but refused to stipulate to the proposed provision grounded in Hawai`i law.
Thereafter, petitioners made no further attempts to secure a stipulated protective order from respondent. Instead, they moved the circuit court for the issuance of a protective order, pursuant to HRCP Rule 26(c) and the HIPAA, in the form rejected by respondent (motion for protective order). Petitioners asserted that, absent entry of their proposed protective order providing extended protection under Hawai`i law, respondent, respondent's counsel, and respondent's insurer and its employees and agents could use petitioners' health information produced in discovery for purposes beyond the evaluation of petitioners' tort claim asserted in the underlying litigation.
Respondent opposed the motion for protective order. She countered that a protective order was not necessary, but argued, alternatively that such order, if issued, should be limited to the protections of the HIPAA and that petitioners had failed to show good cause, as required under HRCP Rule 26(c), for a protective order that exceeded the protections of the HIPAA.
Petitioners' motion for protective order was heard by the respondent judge, who determined that petitioners had failed to show "good cause or any other basis for [a protective order] in excess of what is required by [the HIPAA]" and granted the motion as to a protective order that "track[ed, in] scope and terms, the language of [the HIPAA]." The ruling was reduced to a "HIPAA Qualified Protective Order" that was entered on February 7, 2006. The order specifically:
• prohibits the parties to the underlying litigation from using or disclosing, for purposes outside of the litigation, petitioners' health information obtained in discovery directly from health care entities;
• requires petitioners' health information obtained in discovery to be returned to health care entities or be destroyed at the end of the litigation; and
• clarifies that "[t]his order shall not limit the use of any health information that has come, or which might come, into the possession of any party or any party's attorney from a source other than a [health care entity]."
Petitioners moved for reconsideration of the February 7, 2006 qualified protective order on the ground that it was "deficient and ineffectual [and] tantamount to not having a protective order at all" because "it is [respondent's insurer] and not [respondent] which is interested in improperly using [petitioners'] private health information [produced in discovery] beyond [the underlying litigation]." Petitioners argued that "[respondent's insurer] clearly seeks unrestricted access to [petitioners'] medical and health information [produced in discovery]" inasmuch as "[respondent's] counsel [retained by respondent's insurer] has given no assurances to [petitioners'] counsel that [petitioners'] medical information produced [in discovery] in [the underlying litigation] will not be used by anyone for any purpose outside [of the underlying litigation] proceeding" and that respondent's insurer, in another case, engaged in "outrageous health information privacy abuse."
Regarding respondent insurer's "abuse" of health information privacy rights in another case, petitioners cited to a Colorado case, A.T. v. State Farm Mut. Auto. Ins. Co., 989 P.2d 219 (Colo.App.1999), wherein respondent's insurer discredited a witness by using health information about the witness that respondent's insurer had obtained in prior litigation with the witness. Petitioners described respondent insurer's conduct in the Colorado case as "appalling and reprehensible" and "a shocking example of [respondent] insurer's abusive, unethical use of patient medical information obtained in a prior proceeding which could have been prevented by a comprehensive qualified protective order." Petitioners argued that the February 7, 2006 qualified protective order must be reconsidered because respondent's counsel and respondent's insurer and its employees and agents "simply cannot be trusted to voluntarily not use [petitioners'] protected health information [produced in discovery] for purposes beyond [the underlying litigation][.]" The respondent judge denied the motion for reconsideration.
Petitioners thereupon filed the instant petition for a writ of mandamus. They seek an order directing the respondent judge to revise the February 7, 2006 qualified protected order by deleting the provision that states the order "shall not limit the use of any health information that has come, or which might come, into the possession of any party or any party's attorney from a source other than a [health care entity]" and replacing it with a provision that states "none of [petitioners'] protected health information and/or medical information obtained from any source in [the underlying litigation] shall be disclosed or used for any purpose by anyone or by any entity outside of [the underlying litigation] without [petitioners'] explicit written consent thereto."
A writ of mandamus is an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action. Kema v. Gaddis, 91 Hawai`i 200, 204, 982 P.2d 334, 338 (1999) (citation omitted). Such writs are not intended to supersede the legal discretionary authority of the trial courts, nor are they intended to serve as legal remedies in lieu of normal appellate procedures. Id. Where a court has discretion to act, mandamus will not lie to...
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