Doe v. Puget Sound Blood Center

• Decision Date: 14 November 1991
• Docket Number: No. 56236-9,56236-9
• Citation: 117 Wn.2d 772,819 P.2d 370
• Parties: , 60 USLW 2351 John DOE and Jane Doe, husband and wife, and the marital community composed thereof, Respondents, v. PUGET SOUND BLOOD CENTER, Petitioner.
• Court: Washington Supreme Court

Page 772

117 Wn.2d 772

819 P.2d 370, 60 USLW 2351

John DOE and Jane Doe, husband and wife, and the marital community composed thereof, Respondents, v. PUGET SOUND BLOOD CENTER, Petitioner.

No. 56236-9.

Supreme Court of Washington,

En Banc.

Nov. 14, 1991.

Reconsideration Denied Feb. 6, 1992.

Sloan & Bobrick, Sandra B. Bobrick, Tacoma, for petitioner

Markovich & Talcott, P.C., Stanley Merritt Talcott, Tacoma, for John and Jane Donor.

Day, Herman & Recor, Steven P. Recor, Robert B. Jackson, Bellevue, for respondents.

Bryan P. Harnetiaux, Robert H. Whaley, Spokane, amicus curiae for petitioner on Behalf of Washington State Trial Lawyers Ass'n.

Heather Houston, Sam Pailca, Seattle, amicus curiae for the Blood Banks on Behalf of Washington Defense Trial Lawyers Ass'n.

Kenneth A. Letzler, Karen S. Wagner, Karen Shoos Lipton, American National Red Cross, Washington, D.C., Steven Labensky, Phoenix, Ariz., David M. Jacobi, Seattle, amicus curiae for the Blood Banks on Behalf of the American Nat. Red Cross, American Ass'n of Blood Banks and Council of Community Blood Banks.

Robert J. Rohan, Seattle, amicus curiae for the Blood Banks on Behalf of the Northwest Aids Foundation.

Stephen K. Causseaux, Jr., Tacoma, amicus curiae for the Blood Banks on Behalf of Tacoma-Pierce County Health Dept.

Andrew K. Dolan, Seattle, amicus curiae for the Blood Banks on Behalf of the Washington State Medical Ass'n.

BRACHTENBACH, Judge.

This case involves a discovery order which directed defendant Puget Sound Blood Center (hereafter Blood Center) to disclose the name of the person (Donor X) who donated blood to the Blood Center; that blood was later transfused to plaintiff during emergency surgery.

Plaintiff alleges that the blood he received was "contaminated with the Acquired Immune Deficiency Syndrome Plaintiff died in June 1988, allegedly as a result of his AIDS condition. The record discloses that the donor died from complications associated with AIDS. The actual names of the plaintiff-blood recipient and his wife were disclosed in the original pleadings. Those names have been changed to John and Jane Doe and John Doe's estate substituted for the deceased blood recipient. The file was sealed pursuant to stipulation. The donor is not a party to this suit, and has not been named as a "John Doe" defendant.

                (AIDS) virus." 1  Clerk's Papers, at 163.   Plaintiff alleges, as one of several liability theories, that the Blood Center "failed to design and implement reasonable screening and/or testing procedures which would have prevented the dissemination and administration of blood contaminated with the AIDS virus to the plaintiff."   Clerk's Papers, at 164
                

The blood transfusion to plaintiff Doe occurred in August 1984. Almost a year later, Donor X, who had donated before, planned to donate blood to the Blood Center. However, Donor X tested positive to a test (ELISA) which indicated the presence of the human immunodeficiency virus. The Blood Bank later determined that Donor X was the source of the blood earlier transfused to plaintiff. Two years after Donor X tested positive, the Blood Center advised plaintiff that the blood he had received may have been HIV contaminated.

Plaintiff contends the identity of Donor X is necessary to investigate the Blood Center's "contention that thorough screening had occurred," and "to pursue his claims against the blood bank, and if the circumstances warrant, an independent negligence action against the donor." Brief of Respondent, at 4, 35. Plaintiff sought an order compelling identity of the donor, or alternatively, an order prohibiting The trial court entered the following order (in relevant part):

                the Blood Center from asserting a defense that its testing/screening procedures complied with the applicable standard of care.   Clerk's Papers, at 181, 189
                

1. The defendant blood center shall ... disclose to plaintiff in writing identifying information which it may possess concerning the blood donor including his or her name, address, telephone number and social security number. Such information shall be kept confidential until such time as the donor is named a defendant herein. The donor shall not be joined as a defendant w/out prior court approval....

Clerk's Papers, at 231.

The Blood Center seeks reversal of the discovery order, contending that the order is an abuse of the trial court's discretion. Brief of Petitioner, at 1. The Blood Center appeals in its own right (Clerk's Papers, at 232), but asserts rights and privileges of Donor X. Brief of Petitioner, at 16. We emphasize that Donor X, now deceased, is not a party to this suit, no action by plaintiff is pending against Donor X or his estate; indeed, there has been no disclosure of the identity of Donor X. We affirm.

The ultimate issue is whether the trial court abused its discretion by ordering disclosure of the identity of Donor X, subject to the conditions and limitations of the order, upon the record before the court. To decide the ultimate issue we must (1) consider the standard of review, (2) determine whether the identity of Donor X is privileged, (3) determine whether nondisclosure is justified under CR 26(c), and (4) determine whether to consider the Blood Center's assertion of Donor X's claimed right of privacy.

In summary, we hold: (1) the statutory physician-patient privilege does not apply; (2) we will not consider whether there is a common law privilege because this argument was not presented to the trial court; (3) the interests of plaintiffs, defendant, and Donor X are competing and conflicting interests, but after identifying and weighing those interests,

we do not find an abuse of discretion by the trial court; and (4) on this record we cannot decide the claim of privacy asserted on behalf of the deceased donor.

I. THE SCOPE OF DISCOVERY AND REVIEW OF A DISCOVERY ORDER

The fundamental principle of discovery is that a party "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...." CR 26(b)(1). The first limitation, privilege, is not applicable, as discussed hereafter. The second limitation, relevancy, is not questioned.

However, a measure of protection to litigants and others is provided by CR 26(c) which permits a variety of restrictions when, for good cause shown, "justice requires [an order] to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense...." (Italics ours.) It is to be noted that the limitations or restrictions contemplated by CR 26(c) are dependent upon (1) a showing of good cause, and (2) that justice requires the limitation or restriction. The reasons for protecting a party or person must be found to exist and be stated as such.

Within the generalities of the rule, it is the proper function of the trial court to exercise its discretion in the control of litigation before it. Marine Power & Equip. Co. v. Department of Transp., 107 Wash.2d 872, 875-76, 734 P.2d 480 (1987) (citing and quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984)). Exercise of that discretion will not be interfered with by an appellate court unless there has been an abuse of discretion which caused prejudice to a party or person. Weber v. Biddle, 72 Wash.2d 22, 29, 431 P.2d 705 (1967); Barfield v. Seattle, 100 Wash.2d 878, 887, 676 P.2d 438 (1984); 4 J. Moore & J. Lucas, Federal Practice 26.02 (2d ed. 1989); 8 C. Wright & A. Miller, Federal Practice § 2006 (1970).

The relevant principles involved in the exercise of discretion were well stated in State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971):

Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. State ex rel. Clark v. Hogan, 49 Wash.2d 457, 303 P.2d 290 (1956). Where the decision or order of the trial court is a matter of discretion, it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. MacKay v. MacKay, 55 Wash.2d 344, 347 P.2d 1062 (1959); State ex rel. Nielsen v. Superior Court, 7 Wash.2d 562, 110 P.2d 645, 115 P.2d 142 (1941).

To obtain reversal of the discovery order, absent privilege or irrelevancy, defendant here must demonstrate good cause such that justice requires a denial for the reasons stated in CR 26(c). Given the latitude of discretion accorded the trial court, defendant must show that the trial court abused that discretion. The components of review are contained in State ex rel. Carroll v. Junker, supra at 26, 482 P.2d 775:

Whether this discretion is based on untenable grounds, or is manifestly unreasonable, or is arbitrarily exercised, depends upon the comparative and compelling public or private interests of those affected by the order or decision and the comparative weight of the reasons for and against the decision one way or the other.

To apply that test to the exercise of discretion by the trial court in granting this discovery order, with its protective elements, thus requires this court to identify and weigh the comparative and compelling public and private interests of plaintiff, defendant and the donor. See Rhinehart v. Seattle Times Co., 98 Wash.2d 226, 256, 654 P.2d 673 (1982), aff'd, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984); Boutte v. Blood Systems, Inc., 127 F.R.D. 122, 125-26 (W.D.La.1989). First, however, we consider the privilege issue.

II. PRIVILEGE

CR 26(b)(1) provides that a party "may obtain discovery regarding any matter, not privileged...." The Blood Center asserts two privileges.

A. Physician-Patient Privilege

The Blood Center argues that it has standing to assert the physician-patient privilege on...