Jane H. v. Rothe

• Decision Date: 21 August 1992
• Docket Number: No. 920101,920101
• Citation: 488 N.W.2d 879
• Parties: JANE H., Petitioner, v. The Honorable Cynthia A. ROTHE, Judge of the District Court, Cass County, East Central Judicial District, Thomas L. Herzog, Jerry J. Baldwin, and Fargo Clinic, Ltd., a.k.a. MeritCare, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 879

488 N.W.2d 879

JANE H., Petitioner, v. The Honorable Cynthia A. ROTHE, Judge of the District Court,

Cass County, East Central Judicial District,

Thomas L. Herzog, Jerry J. Baldwin, and

Fargo Clinic, Ltd., a.k.a.

MeritCare,

Respondents.

Civ. No. 920101.

Supreme Court of North Dakota.

Aug. 21, 1992.

Robert Vogel Law Office, P.C., Grand Forks, for petitioner; argued by Roger R. Sundling.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, for respondents; argued by Wayne W. Carlson.

MESCHKE, Justice.

Jane H. (a pseudonym) petitioned this court for a supervisory writ directing the trial court to vacate a discovery order that compels Jane to disclose her chemical dependency treatment records. Because we conclude that the trial court must conduct an in camera inspection before ordering even limited disclosure of treatment records that are privileged under federal law, we grant the petition, order the court to vacate the discovery order, and remand for further proceedings.

Jane and her husband sued Dr. Thomas Herzog, Dr. Jerry Baldwin, and the Fargo Clinic, Ltd. for medical malpractice, alleging that Dr. Herzog negligently performed gynecological surgery. They claim that Dr. Herzog failed to remove Jane's entire ovary at the time of the original surgery, necessitating a second surgery for removal of an ovarian remnant, and that Dr. Baldwin failed to properly interpret the removed tissue. Jane asserts that she suffered physical pain, emotional distress, and mental anguish as a result of the malpractice.

During discovery, Jane sought a protective order to prohibit disclosure of chemical dependency records about her treatment at three separate facilities. The defendants requested these records to determine if Jane's alleged pain and emotional distress were caused by her chemical dependency problem rather than by the alleged malpractice.

The trial court found that the three facilities where Jane received treatment are covered by the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970, 42 USC Sec. 290dd-3 (1991), and The Drug Abuse Office and Treatment Act of 1972, 42 USC Sec. 290ee-3 (1991). These acts contain a detailed scheme for restricting disclosure of a patient's records about drug and alcohol abuse treatment at federally assisted facilities. The trial court found good cause for disclosure of Jane's treatment records, and ordered Jane to provide "complete records" to the defendants for the limited purpose "of discovery for this particular litigation." The court limited disclosure to the defendants, the defendants' legal counsel and staff, and the defendants' expert witnesses. Jane then petitioned this court for a supervisory writ to vacate the trial court's order.

Exercise of our original, supervisory jurisdiction is discretionary with this court, and that jurisdiction is exercised rarely and cautiously. Polum v. North Dakota District Court, 450 N.W.2d 761 (N.D.1990). Generally, we will grant a supervisory writ only to rectify errors or to prevent injustice when no adequate alternative remedy exists. City of Fargo v. Dawson, 466 N.W.2d 584 (N.D.1991). In this case the discovery order compels Jane to disclose treatment records that she contends are protected under federal law. The discovery order is not appealable, and she has no recourse but to comply by disclosing the records or risk being held in contempt. Heartview Foundation v. Glaser, 361 N.W.2d 232 (N.D.1985). See also Marmon v. Hodny, 287 N.W.2d 470 (N.D.1980). We conclude that this is an appropriate case to exercise our supervisory jurisdiction.

The defendants argue that Jane, by bringing this malpractice action and by pleading that her physical and mental health was affected, waived the physician-patient privilege under NDREv 503(d)(3), as applied in Sagmiller v. Carlsen, 219 N.W.2d 885 (N.D.1974). This evidence rule declares:

Condition an Element of Claim or Defense. There is no privilege under this rule as to a communication relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense....

Jane responds that, if she has waived protection of state law for disclosing these medical records, the protection of the federal law still applies. We agree.

The need to keep a patient's records of alcohol and drug treatment confidential is recognized under both federal and state law; they co-exist to regulate the disclosure of a patient's records about drug and alcohol abuse treatment. However, state law cannot allow disclosures that federal law prohibits.

If a disclosure permitted under these regulations is prohibited under State law, neither these regulations nor the authorizing statutes may be construed to authorize any violation of that State law. However, no State law may either authorize or compel any disclosure prohibited by these regulations.

42 CFR Sec. 2.20 (1991). [Emphasis added] This federal regulation clearly declares that state law may offer more, but not less, disclosure protection than the federal law. We must, therefore, determine if the trial court's disclosure order complies with the federal law.

Jane relies upon 42 USC Sec. 290ee-3:

Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any drug abuse prevention function ... shall ... be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section.

In this case, the referenced subsection (b) in the federal statute allows disclosure of the content of patient records only by court order showing "good cause" for the disclosure.

The federal regulations delineate the scope and breadth of the protected records. 42 CFR Sec. 2.11 (1991) says:

Records means any information, whether recorded or not, relating to a patient received or acquired by a federally assisted alcohol or drug program.

42 CFR Sec. 2.12 (1991) says:

(a) General--(1) Restrictions on disclosure. The restrictions on disclosure in these regulations apply to any information, whether or not recorded, which:

(i) Would identify a patient as an alcohol or drug abuser ... and

(ii) Is drug abuse information obtained by a federally assisted drug abuse program ... for the purpose of treating alcohol or drug abuse, making a diagnosis for that treatment, or making a referral for that treatment.

* * * * * *

(e) Explanation of applicability--(1) Coverage. These regulations cover any information (including information on referral and intake) about alcohol and drug abuse patients obtained by a program....

The scope of the information protected by these regulations is thus very broad.

The broad scope of this protection is illustrated by Commissioner of Social Services v. David R. S., 55 N.Y.2d 588, 451 N.Y.S.2d 1, 436 N.E.2d 451 (1982). In David, the New York Court of Appeals held that patient medical information acquired by a drug treatment facility, even though unrelated to the patient's drug abuse or treatment, was protected under the federal law from disclosure, absent good cause. In David, a putative father defending a paternity action attempted to obtain medical records of the child's mother about her prior pregnancy and abortion. The mother received these services at a federally assisted facility that also performed drug and alcohol abuse counseling. The father intended to use the medical records to impeach the mother's credibility by showing that she was sexually promiscuous. Although the mother first visited the facility for pregnancy evaluation, the facility "expanded its assistance to her, providing diagnostic service with respect to drug abuse." She was therefore a "patient" under 42 CFR Sec. 2.11 (1991), whose records at the facility were protected by the federal regulations. The court concluded that, under the federal regulations, all information in the mother's treatment records was confidential and could not be disclosed without a good cause order:

The alleged father asserts however that the protection of confidentiality afforded by the statute does not extend to records maintained by [the facility] with respect to any pregnancy or abortion of [the mother] but is limited only to those pertaining to drug abuse diagnosis or treatment.

Such a narrow interpretation of the statute is not mandated by its language....

* * * * * *

[T]he operation of [the facility] is a "drug abuse prevention function" within the language of the statute and ... the records it kept with respect to this patient's diagnosis, prognosis and treatment, whether for a drug-related condition or otherwise, are records "maintained in connection with the performance of" its drug abuse prevention function.... Broad interpretation furthers the objectives of the Federal statute addressing drug and alcohol abuse prevention, treatment and rehabilitation by not chilling the willingness or discouraging the readiness of individuals to come to facilities operated under the statute....

David, 451 N.Y.S.2d at 4, 436 N.E.2d at 454. So, all information in a patient's records at a treatment facility is protected from disclosure unless the court, upon proper application, finds...