Heartview Foundation v. Glaser, 10849

• Decision Date: 18 January 1985
• Docket Number: No. 10849,10849
• Parties: HEARTVIEW FOUNDATION, a corporation, and Sherman Sandbo, Petitioners, v. Gerald G. GLASER, Judge of the District Court, South Central Judicial District, and Keith Conrad, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 232

361 N.W.2d 232

HEARTVIEW FOUNDATION, a corporation, and Sherman Sandbo, Petitioners, v. Gerald G. GLASER, Judge of the District Court, South Central

Judicial District, and Keith Conrad, Respondents.

Civ. No. 10849.

Supreme Court of North Dakota.

Jan. 18, 1985.

Howard D. Swanson, of Letnes, Marshall, Fiedler & Clapp, Ltd., Grand Forks, for petitioners.

George T. Dynes, of Freed, Dynes, Reichert & Buresh, P.C., Dickinson, for respondents.

Margaret K. Brooks, New York, N.Y., for Legal Action Center of the City of New York, Inc., amicus curiae.

VANDE WALLE, Justice.

Heartview Foundation and Sherman Sandbo petitioned this court to exercise its jurisdiction to issue a supervisory writ directing a district court judge to vacate his order compelling petitioners to answer an interrogatory. The petition is granted.

Heartview Foundation is an alcohol- and drug-treatment facility at which Sandbo was a counselor. Keith Conrad, respondent, was a patient at Heartview where he received counseling from Sandbo. On July 27, 1983, Conrad brought suit against Heartview and Sandbo alleging professional malpractice.

During discovery Heartview and Sandbo objected to and refused to answer one interrogatory requested by Conrad which read:

"Identify fully each person in Keith Conrad's group, as of July 26, 1982, and as to such person, state the following:

"(a) Name;

"(b) Present address or last known address;

"(c) The dates that such person entered and departed from Heartview Foundation."

Heartview and Sandbo declined to answer this interrogatory on the ground the information sought was privileged and confidential under both State and Federal law. Conrad then filed a motion in district court to compel Heartview and Sandbo to answer the interrogatory.

The district court concluded that although the patients' identities were confidential under North Dakota law, the patients had waived their privilege to confidentiality by not utilizing pseudonyms to conceal their real identities while undergoing treatment at Heartview.

Furthermore, the district court determined that if relevant Federal statutes and regulations governing the disclosure of patient information were applicable, they were satisfied because there existed "good cause" for disclosure to Conrad of the patients' identities.

The district court ordered Heartview and Sandbo to answer the interrogatory ¹ and this petition requesting a supervisory writ was subsequently filed.

Initially, it is important to note none of the parties' briefs contained a statement outlining this court's jurisdiction to issue a supervisory writ. The first step and sine qua non of pleading is to demonstrate jurisdiction to the court. In this instance it appeared it was assumed this court would perfunctorily exercise its original jurisdiction.

It is an understatement to observe there is an abundance of case law elucidating the factors we consider when deciding whether or not to employ our supervisory authority. Our jurisdiction to grant a supervisory writ will be invoked only to rectify error and prevent injustice [Malony v. Cass Cty. Court of Increased Juris., 301 N.W.2d 112 (N.D.1980) ] and when no adequate alternative remedies exist [Lang v. Glaser, 359 N.W.2d 884 (N.D.1985); Grand Forks Herald v. District Court, Etc., 322 N.W.2d 850 (N.D.1982) ].

The parties are not entitled to a supervisory writ as a matter of right; rather, the issuing of the writ is entirely discretionary with this court [Lang, supra ] to be determined case by case [Lang, supra; Marmon v. Hodny, 287 N.W.2d 470 (N.D.1980) ] and is done rarely and with caution [Lang, supra; Malony, supra ].

In this instance the petitioners have no viable alternative remedy to a supervisory writ. The district court order compelling petitioners to answer the interrogatory is not appealable [see Sec. 28-27-02, N.D.C.C.; Northwest Airlines v. State, Through Bd. of Equal., 244 N.W.2d 708 (N.D.1976) ], and they have no recourse but to answer the interrogatory or be held in contempt [see Rule 37(d), N.D.R.Civ.P.]. Consequently, the only feasible remedy available to petitioners is to seek a supervisory writ. See Marmon, supra.

We will exercise our supervisory jurisdiction and review the order of the district court requiring Heartview Foundation to answer the interrogatory.

In compelling discovery the district court judge did not determine if various Federal statutes governing confidentiality of patient information applied to Heartview. ² Instead, he assumed that if Federal law was applicable, disclosure of the patients' identities was warranted.

The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970, 42 U.S.C. Sec. 290dd-3 (1976), and the Drug Abuse Office and Treatment Act of 1972, 42 U.S.C. Sec. 290ee-3 (1976), and the complementary regulations, 42 C.F.R. Part 2 (1983), govern the disclosure of information acquired in connection with alcohol and drug treatment. The Federal statutes and regulations prohibit disclosing certain patient information unless the patient waives the right of confidentiality or the disclosure is ordered by a court of competent jurisdiction.

The pertinent Federal regulations require a patient's written consent for disclosure of information sought by Conrad's interrogatory. 42 C.F.R. Sec. 2.31. No written consent by any patient was obtained in this instance and therefore disclosure could be had only by a court order, the requirements for which are set forth in 42 C.F.R. Sec. 2.64:

"(b) Notice. In any proceeding [for a court order to authorize disclosure] ... in which the patient or the program has not been made a party, each shall be given appropriate notice and an opportunity to appear in person or to file a responsive statement, deposition or other form of response consistent with local rules of procedure. The court shall give due consideration to any such statement, deposition or other response in exercising its discretion as to the existence of good cause [to order disclosure] ..."

In this instance Heartview--but none of the patients--was a party to the litigation in which Conrad sought disclosure of patients' identities. None of the patients whose names were ordered released by the district court were given any notice or opportunity to be heard. Nevertheless, Conrad contends the notice requirement of 42 C.F.R. Sec. 2.64 was not activated because Heartview was a party to the proceeding where court-ordered disclosure was sought. Conrad argues that 42 C.F.R. Sec. 2.64 requires notice only when both the program, here Heartview, and the patients are not parties to the proceeding. Conrad claims the use of the disjunctive term "or" in Sec. 2.64 signifies that if either the program or the patient is a party, notice is not mandatory.

While use of the disjunctive "or" usually denotes the existence of alternatives [see, generally, 1A Sutherland, Statutory Construction, Sec. 21.13 (1972) ], this rule is not followed when the legislative intent is clearly contrary. See George Hyman Const. Co. v. Occupational Safety, 582 F.2d 834 (4th Cir.1978). Here, the legislative histories of the enabling statutes of 42 C.F.R. Sec. 2.64, the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970, 42 U.S.C. Sec. 290dd-3 (1976), and the Drug Abuse Office and Treatment Act of 1972, 42 U.S.C. Sec. 290ee-3 (1976), patently indicate that unless both the program and the patient are parties to the disclosure proceeding notice is required.

The interpretation of statutes and, here, administrative regulations, must be reasonable and consistent with legislative intent [In Interest of Nyflot, 340 N.W.2d 178 (N.D.1983); Storbeck v. Oriska Sch. Dist. # 13, 277 N.W.2d 130 (N.D.1979) ], and done in a manner which will accomplish the policy goals and objectives of the statute or regulation [Bartels v. City of Williston, 276 N.W.2d 113 (N.D.1979) ].

Here, the legislative histories of the relevant statutes clearly demonstrate their primary...