Doe v. University of Cincinnati

• Decision Date: 22 December 1988
• Docket Number: No. 88AP-553,88AP-553
• Parties: , 53 Ed. Law Rep. 980 DOE et al., Appellees, v. UNIVERSITY OF CINCINNATI, d.b.a. Paul I. Hoxworth Blood Center, et al., Appellants.
• Court: Ohio Court of Appeals

Page 227

42 Ohio App.3d 227

538 N.E.2d 419, 53 Ed. Law Rep. 980

DOE et al., Appellees, v. UNIVERSITY OF CINCINNATI, d.b.a. Paul I. Hoxworth Blood Center, et al., Appellants.

No. 88AP-553.

Court of Appeals of Ohio, Tenth District, Franklin County.

Dec. 22, 1988.

Syllabus by the Court

1. A discovery order may be a final appealable order if the potential damage from the order is incapable of later correction.

2. A blood donor is not a "patient" for purposes of the physician-patient privilege of R.C. 2317.02(B)(1), nor is information he supplies with his blood donation a "communication" as defined in R.C. 2317.02(B)(3).

3. A blood donor has a constitutional right to privacy which includes the right not to be identified as a donor of blood that contains Human Immunodeficiency Virus antibodies.

4. The purpose of R.C. Chapter 1347 (Ohio's Privacy Act) is to limit public dissemination of personal information collected by a state agency, not to prevent discovery in civil litigation.

Rawlings & Associates, George R. Rawlings, Henry V. Sanders and Robert J. Stauble, Louisville, Ky., for appellees.

Anthony J. Celebrezze, Jr., Atty. Gen., and William J. McDonald, Columbus, for appellant University of Cincinnati, d.b.a. Paul I. Hoxworth Blood Center.

Arnold & Porter, Bruce M. Chadwick, Fern P. O'Brien and Karen S. Wagner, Washington, D.C., for amici curiae American Nat. Red Cross, American Ass'n of Blood Banks, and Council of Community Blood Centers.

PER CURIAM.

Defendants appeal from a discovery ruling granted on plaintiffs' motion by the Court of Claims. The discovery order from which defendants appeal requires the disclosure of the name, address and telephone number of the person who donated blood allegedly infected with Acquired Immune Deficiency Syndrome ("AIDS") which was subsequently transfused into plaintiff Jane Doe.

In July 1984, plaintiff Jane Doe was admitted to defendant University of Cincinnati Hospital for surgery to remove a malignant brain tumor. On July 30, 1984, the scheduled surgery took place during which plaintiff required the transfusion of blood. The blood which plaintiff received was supplied by defendant Paul I. Hoxworth Blood Center ("Hoxworth"), which collects blood only on a voluntary-donation basis.

At the time of plaintiff's blood transfusion in July 1984, no test had been developed to determine the existence of AIDS antibodies in blood. In the absence of a test and upon recommendation of the American Association of Blood Banks, the Council of Community Blood Centers and the American Red Cross, blood centers instituted more extensive medical history evaluations and guidelines for screening blood donors. Defendant Hoxworth provided potential donors with a form requiring them to disclose their name, address, social security number and health background. In addition to the form which the potential donor was required to complete, an AIDS information brochure was distributed describing the symptoms exhibited by a person infected with the AIDS virus and setting forth certain high risk groups more likely to have contracted the virus.

After May 27, 1986, all donors were tested for the presence of Human Immunodeficiency Virus ("HIV") antibodies in their blood, which in turn often leads to AIDS. When donors having HIV antibodies in their blood were identified as repeat donors, defendant Hoxworth, through a "look-back program," tracked that donor's previously donated blood and determined where that blood was distributed. The donee's primary physician would then be contacted informing him that his patient had received a blood product from a donor who later tested positive for HIV antibodies. The donee would be notified and tested in order to determine if HIV antibodies were present in his blood.

In 1985, it was determined that a donor who tested positive for HIV antibodies had previously given blood at defendant Hoxworth in July 1984 and that plaintiff was the recipient of that blood. Plaintiff's primary physician was contacted and subsequent testing indicated that plaintiff had HIV antibodies in her blood. The plaintiff's physician informed plaintiff's parents who, due to plaintiff's age and mental disability, filed the present lawsuit.

In preparation for trial, plaintiffs initiated discovery in which one of the plaintiffs' requests was for defendants to identify the name, address and telephone number of the donor of the HIV-contaminated blood which plaintiff had received. Defendant objected to supplying any personal identification information of the donor, but did supply plaintiffs with a copy of the donor form with the personal identification of the donor deleted.

Plaintiffs thereafter filed a motion to compel defendants to provide the identification of the donor. On May 9, 1988, the trial court entered its order compelling defendants to supply plaintiffs with the name, address and telephone number of the donor. The trial court entry further ordered plaintiffs and their counsel not to divulge the donor's identity to anyone else, not to directly or indirectly contact the donor, and not to institute any action against the donor until permitted to do so by further order of the trial court. Finally, each party, if it so desired, was allowed to submit a plan to the trial court for future discovery of information relating to the donor.

Defendants now appeal the trial court's order and set forth four assignments of error for our review:

"I. The trial court erred in failing to find that the identity of the donor is protected by the statutory privilege of R.C. 2317.02.

"II. The trial court erred in failing to find that disclosure of the identity of the donor and any further discovery from the donor is barred by a constitutional right to privacy, and/or by the donor's otherwise legitimate expectations of privacy.

"III. The trial court erred in failing to find that the privacy interests of the donor, and the interests of the defendants and society in maintaining an adequate and effective volunteer blood supply, outweigh the interest of the plaintiff in identifying the donor or in engaging in further discovery from the donor.

"IV. The trial court erred in failing to find that disclosure of the identity of the donor is barred by R.C. Ch. 1347."

Before we may address those assignments of error which defendants have raised, we must first determine whether defendants' appeal is properly before this court. In Humphry v. Riverside Methodist Hosp. (1986), 22 Ohio St.3d 94, 22 OBR 129, 488 N.E.2d 877, the Supreme Court noted that in order for a party to be able to seek immediate review of a trial court's order, a two-prong test must first be met. The party seeking the immediate review must show first that a substantial right has been affected and second that the trial court's order was made during a special review.

To assist in the determination of whether a substantial right is affected, the court in Humphry stated:

" * * * In Amato v. General Motors Corp. (1981), 67 Ohio St.2d 253 [21 O.O.3d 158, 423 N.E.2d 452], we stated at 258 that the court must weigh 'the harm to the "prompt and orderly disposition of litigation," and the consequent waste of judicial resources, resulting from the allowance of an appeal, with the need for immediate review because appeal after final judgment is not practicable.' " Id. 22 Ohio St.3d at 96, 22 OBR at 131, 488 N.E.2d at 878-879.

Clearly, under this standard the rights affected in the present case are substantial. Plaintiffs are already in possession of the nonparty blood donor's medical information and absent an immediate review of the trial court's order, the donor's rights of privacy and confidentiality as to medical diagnosis will be compromised, a wrong which cannot be cured by a subsequent review.

It is equally clear that the second prong of Humphrey is met in the present case. As the Humphrey court pointed out, while a discovery order may not ordinarily constitute a special proceeding, a discovery order is to be considered a final appealable order where the potential damage is incapable of later correction since a later determination is impracticable. As noted above, plaintiffs are currently aware of the donor's medical diagnosis. If disclosure of the donor's identity is allowed, a subsequent review of that decision would provide an inadequate remedy. Therefore, we find the trial court's order releasing the identity of the donor to be capable of review as a final appealable order.

In their first assignment of error, defendants argue that the trial court erred in failing to find that the identity of the donor is protected by the physician-patient privilege codified in R.C. 2317.02(B).

The May 4, 1988 entry of the referee was fully adopted by the trial court in its entry dated June 6, 1988. The referee specifically concluded that:

" * * * [T]he court is unaware of a statutory or common law privilege, including the physician-patient privilege, applicable to these facts."

We begin our review of the physician-patient privilege by setting forth R.C. 2317.02, which provides, in pertinent part:

"The following persons shall not testify in certain respects:

" * * *

"(B)(1) A physician concerning a communication made to him by his patient in that relation or his advice to his patient * * *."

Our analysis of the privilege must necessarily encompass the three essential elements of which the physician-patient relationship is composed: physician, patient and communication. R.C. 2317.02, being in derogation of the common law, must be strictly construed; consequently, only the relationship specifically named therein is protected. Weis v. Weis (1947), 147 Ohio St. 416, 428-429, 34 O.O. 350, 355, 72 N.E.2d 245, 252.

With regard to the first element, defendants contend that although the donor's blood is drawn by a person other than a physician, nevertheless, the procedure involves the physician-patient privilege. In Weis, supra, the Ohio Supreme Court...