Doe v. American Nat. Red Cross, Civ. A. No. 3:91-0039-19

• Decision Date: 31 March 1992
• Docket Number: 3:91-0040-19.,Civ. A. No. 3:91-0039-19
• Citation: 788 F. Supp. 884
• Court: U.S. District Court — District of South Carolina
• Parties: Jane DOE (whose true name is confidential), Personal Representative of the Estate of John Doe (whose true name is confidential), deceased, Plaintiff, v. The AMERICAN NATIONAL RED CROSS, d/b/a American Red Cross Central South Carolina Chapter S.C. Regional Blood Services, Defendant.

788 F. Supp. 884

Jane DOE (whose true name is confidential), Personal Representative of the Estate of John Doe (whose true name is confidential), deceased, Plaintiff, v. The AMERICAN NATIONAL RED CROSS, d/b/a American Red Cross Central South Carolina Chapter S.C. Regional Blood Services, Defendant.

Civ. A. Nos. 3:91-0039-19, 3:91-0040-19.

United States District Court, D. South Carolina, Columbia Division.

March 31, 1992.

Charles L. Henshaw, Jr., Benjamin M. Mabry, Columbia, S.C., for plaintiff.

Stephen G. Morrison, Stuart M. Andrews, Jr., James F. Rogers, Columbia, S.C., for defendant.

MEMORANDUM OPINION AND ORDER

SHEDD, District Judge.

These are companion blood contamination cases.¹ In both cases, plaintiff alleges that her husband received a transfusion of HIV-contaminated blood in 1984 during surgery at Baptist Medical Center in Columbia. The blood was processed and supplied to the hospital by defendant. Plaintiff's husband died in December 1987 and an autopsy revealed that plaintiff's husband had the AIDS virus. Plaintiff contends that defendant was negligent in its processing of the blood used for the transfusion.

Currently before the Court are plaintiff's motion to compel defendants to respond to interrogatories and defendant's motion for a protective order safeguarding it from disclosing the identity of the blood donor suspected of transmitting the AIDS virus to plaintiff's husband. After carefully reviewing the arguments presented and the controlling legal authorities, the Court finds that defendant's motion should be granted and plaintiff's motion should be denied.

I

During discovery plaintiff served upon defendant written interrogatories, four of which are as follows:

1. Identify the blood donor whose blood donation was labeled blood number 36K04689, who is known to have tested positive for HIV.

3. If the donor referred to in interrogatory 1 above is alive, or is not known to be dead, and the defendant does not know the current address of said donor, identify all persons who know or may have reason to know the current address of said donor.

4. State the name and addresses of all persons known to you to be witnesses concerning the facts of this case and indicate whether or not written or recorded statements have been taken from the witnesses and indicate who has possession of such statements.

5. Set forth a list of photographs, plats, sketches, or other prepared documents in your possession or the possession of your attorneys or attorney that relate to the claims or defense in this case.

Defendant objected to Interrogatories 1 and 3² asserting:

The Red Cross objects to this interrogatory on the grounds of undue burden, annoyance, embarrassment, and oppression, as well as on grounds that the request is not reasonably calculated to lead to the discovery of admissible evidence. The Red Cross also objects to this interrogatory on the grounds that the identity of the implicated blood donor is protected by rights of privacy under the United States and South Carolina constitutions, state statutory privileges, and public policy interests.

Defendant responded in part to Interrogatories 4 and 5, but objected in part asserting that the interrogatories called for it to speculate as to what all of the facts, claims, and defenses involved in the case are or may be.

In response to defendant's objections, plaintiff moved to compel defendant to respond to these interrogatories. Defendant responded by moving for a protective order to safeguard the identity of the implicated blood donor ("the Donor")³ based essentially on the grounds set forth in its objection to Interrogatories 1 and 3. Defendant also restated its objections to Interrogatories 4 and 5 in its motion.

Two separate discovery issues are before the Court: whether defendant should be required to disclose the identity of the Donor, which will resolve the motions with respect to Interrogatories 1 and 3; and whether defendant should be required to further respond to Interrogatories 4 and 5. The Court will address each issue separately below.

II

Initially, the Court will address whether defendant must disclose the identity of the Donor. Defendant has raised several grounds in support of its position that it should not be required to disclose the Donor's identity. The Court need not reach each of these grounds, however, because the Court finds that defendant's assertion that the Donor's identity is privileged information under S.C.Code Ann. § 44-29-135 is dispositive. Based on this privilege, the Court will deny the motion to compel and grant the motion for a protective order.

A.

The pertinent facts concerning this motion may be summarized as follows.⁴ In January 1988, defendant was notified by Baptist Medical Center that plaintiff's husband developed AIDS and died following transfusions of blood provided by defendant. Defendant conducted a "lookback" investigation and determined that the blood components of twenty-four donors were transfused into plaintiff's husband. Under defendant's standard operating procedure for conducting lookback investigations, defendant examined its records to determine whether any of the twenty-four donors whose blood or blood components were implicated in the transfusion had tested HIV negative more than six months following the implicated donation. Of these donors, sixteen had tested HIV negative when subsequently donating blood to defendant. Again, pursuant to its standard operating procedures, defendant attempted to contact by mail (last known address) the remaining eight donors who had not been tested for HIV and to have them report to Ms. Covington for an HIV test. Of these eight donors, seven subsequently reported and tested negative for HIV. The Donor did not respond to this letter.

After receiving no response from the Donor, whose HIV status was unknown at that time, Ms. Covington attempted to contact the Donor by calling the phone number he had provided during his 1984 implicated donation. Ms. Covington learned during this call that the Donor no longer resided at the address that he had given to defendant and that he had not given any forwarding address, telephone number, or other means by which defendant could locate him. Ms. Covington then requested the assistance of DHEC. On August 25, 1988, DHEC officials confirmed that it had tested the Donor for HIV and that the test results were positive. DHEC released this information to defendant based on its belief that the release was justified under Section 44-29-135(c) and (d) because it would not be released to third parties, and because it would be used exclusively to ensure the control and treatment of a sexually transmitted disease and to protect the health of recipients of the Donor. DHEC would not have released any information concerning the Donor for purposes other than those set forth in Section 44-29-135.

DHEC has historically taken the position that information and records pertaining to sexually transmitted diseases, whether in DHEC's control or released pursuant to Section 44-29-135, cannot be disclosed in personal injury proceedings because such a release is not authorized by the statute. Defendant has not communicated with the Donor since August 1984 and defendant did not learn, from DHEC or otherwise, the Donor's address or any specific information concerning his whereabouts.

B.

In 1978, the South Carolina General Assembly, finding that "an emergency situation exists requiring the protection of the confidentiality of venereal disease records and further that failure to protect such confidentiality threatens the continued effectiveness of the venereal disease control program in the State," enacted Section 44-29-135. See 1978 S.C. Acts No. 542. Section 44-29-135, which is part of the State's overall legislative program relating to contagious and infectious diseases, specifically sexually transmitted diseases, provides:

All information and records held by the Department of Health and Environmental Control and its agents relating to a known or suspected case of a sexually transmitted disease are strictly confidential except as provided in this section. The information must not be released or made public, upon subpoena or otherwise, except under the following circumstances:

(a) release is made of medical or epidemiological information for statistical purposes in a manner that no individual person can be identified: or

(b) release is made of medical or epidemiological information with the consent of all persons identified in the information released;

(c) release is made of medical or epidemiological information to the extent necessary to enforce the provisions of this chapter and related regulations concerning the control and treatment of a sexually transmitted disease;

(d) release is made of medical or epidemiological information to medical personnel to the extent necessary to protect the health or life of any person; or

(e) in cases involving a minor, the name of the minor and medical information concerning the minor must be reported to appropriate agents if a report is required by the Child Protection Act of 1977. No further information is required to be released by the department. If a minor has acquired Immunodeficiency Syndrome (AIDS) or is infected with Human Immunodeficiency Syndrome (HIV), the virus that causes AIDS, and is attending the public schools, the superintendent of the school district assigned to the school the minor attends must be notified.

The General Assembly has statutorily vested DHEC with the authority to promulgate regulations to carry out the purposes of Section 44-29-135 and other laws dealing with sexually transmitted diseases. S.C.Code Ann. § 44-29-130 (1990).⁵ Pursuant to its statutory authority, DHEC has promulgated Regulation 61-21G(2)(d) which provides:

If a person infected with HIV, Hepatitis B or syphilis informs the Department DHEC, or the Department learns, that he/she has, during a period of probable

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