L.A. Gay & Lesbian Ctr. v. Superior Court of L.A. Cnty., B228853.

• Decision Date: 13 April 2011
• Docket Number: No. B228853.,B228853.
• Citation: 2011 Daily Journal D.A.R. 5321,194 Cal.App.4th 288,125 Cal.Rptr.3d 169,11 Cal. Daily Op. Serv. 4434
• Court: California Court of Appeals Court of Appeals
• Parties: LOS ANGELES GAY AND LESBIAN CENTER, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; George Bomersheim et al., Real Parties in Interest.

194 Cal.App.4th 288

125 Cal.Rptr.3d 169

11 Cal. Daily Op. Serv. 4434

2011 Daily Journal D.A.R. 5321

LOS ANGELES GAY AND LESBIAN CENTER, Petitioner,

v. The SUPERIOR COURT of Los Angeles County, Respondent;George Bomersheim et al., Real Parties in Interest.

No. B228853.

Court of Appeal, Second District, Division 1, California.

April 13, 2011.

Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson, Pasadena; Carroll, Kelly, Trotter, Franzen & McKenna and David P. Pruett, Long Beach, for Petitioner Los Angeles Gay and Lesbian Center.

No appearance for Respondent.

Law Office of Nicholas A. Boylan, Nicholas A. Boylan and Anika S. Padhiar for George Bomersheim, Rox Brassfield, Raymundo Aguilar, and Odie Rauch, Real Parties in Interest.

JOHNSON, J.

In this class action, defendant Los Angeles Gay & Lesbian Center (the Center) petitions this court to order the trial court to set aside a class notice that provides for opt-out notice to patients of the Center who mistakenly received from the Center the wrong medication for syphilis. The Center argues that in order to protect the privacy rights of these unnamed class members, and due to the physician-patient privilege, the class should be opt-in because such a mechanism would protect those rights—only those patients who agreed to opt-in would be subject to disclosure and discovery of their names, medical records and condition. The Center also contends the trial court's subsequently entered protective order insufficiently protects the patients' privacy rights.

We conclude that the trial court did not err in establishing an opt-out class, but that it erred in ordering the Center to disclose the class members' names and addresses to plaintiffs' counsel. We therefore grant the petition in part and deny in part.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

1. Background Facts.

(a) Treatment of Class Members for Syphilis.

The Center is a nonprofit organization that provides medical services in Los Angeles County to the gay, lesbian, bisexual and transgender communities. The Center provides free testing and treatment services for sexually transmitted diseasesto this community. From January 1999 to March 2004 the Center administered Bicillin C–R to approximately 663 patients who had confirmed or suspected syphilis infections, although Bicillin C–R is not recommended for such use. The proper formulation for treating syphilis is Bicillin L–A. Both medications contain the same amount of penicillin, however, Bicillin C–R is a mixture of short and long-acting penicillin, while Bicillin L–A is composed wholly of long-acting penicillin.

The Center learned of the mistake in March 2004, and in coordination with the Los Angeles County Health Department and Centers for Disease Control and Prevention, the Center drafted and issued press releases to advise the public of the error and attempted directly to contact every patient, either by telephone or with a letter, to offer retreatment and retesting to those patients who had received improper medication. The Center offered retesting and retreatment regardless of whether there was evidence of treatment failure. The Center used a standard protocol to retest and retreat; no distinction was made based on possible reinfection, reexposure, HIV status, or other individual circumstance. As a result, approximately 442 patients returned to the Center and were offered retesting and retreatment regardless of their medical condition or the retesting results. Retesting involved a blood draw and, in 19 cases, a lumbar puncture; retreatment involved receiving between one and three intramuscular injections of Bicillin L–A. The Center was not able to locate all of the patients given the wrong medication.

Class plaintiffs George Bomersheim, Rox Brassfield, Raymundo Aguilar, and Odie Rauch were treated with Bicillin C–R and retested and retreated with Bicillin L–A.¹ They filed their complaint on March 11, 2005 as representative plaintiffs, seeking to represent “[a]ll California residents who, from 1999 to 2004, received from CENTER an improper dosage of penicillin for the treatment of syphilis, specifically Bicillin C–R, rather than Bicillin L–A, and who therefore underwent the retreatment process, whether at [the Center] or elsewhere.” The operative Fifth Amended Complaint seeks damages for negligence and breach of implied warranty.

(b) February 22, 2006 Order Re Notice to Putative Class Members.

During discovery, class plaintiffs sought production of documents from the Center, but the Center objected on the grounds of physician-patient privilege, privacy grounds, and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (45 C.F.R. § 164.500 et seq. (2010)).

In February 2006, the court entered an order permitting class plaintiffs to obtain medical information from the Center. Class plaintiffs sought the complete medical records of those patients who were treated for syphilis with the wrong medication; some of these patients were HIV positive or had other sexually transmitted diseases. The Center had objected to discovery on the basis of the patients' privacy rights under both California and federal law. In order to balance the patients' privacy rights with the class members need for discovery, the court ordered that:

(1) The Center prepare an alphabetized list of all those who may be putative class members, and provide the name, last known address, date on which they were first identified as having syphilis, the date they first received treatment for syphilis at the Center with any formulation of Bicillin, the date of any retesting for syphilis, whether they tested positive, and the date or dates of retreatment for syphilis. The information in response to these items was not to be limited to retesting and treatment, but was to include any data in their medical records as maintained by the Center. In addition, the Center was ordered to prepare an identical list that omitted the name and address of the patient, but which contained a four-digit identifying number.

(2) The Center was to send a letter to the putative class members advising them that they may be members of a class proposed to be certified by the court, advised them of the nature of the claims asserted and remedies sought, and advised them that the class plaintiffs were seeking a release of their medical records. The letter should offer the putative members the following options:

(a) Each class members could refuse to permit disclosure of his or her medical information, in which case they would be excluded from the class;

(b) Each class member could consent to the release of his or her name and address, in which case he or she might be contacted by the parties' counsel, and membership in the class was unclear; (c) Each class members could consent to the release of his or her medical records, limited to information relating to the diagnosis and treatment of syphilis, in which case he or she would be considered for inclusion in the class; or

(d) Each class member could consent to release of his or her respective full medical records, in which case he or she would be included in the class and might be able to demonstrate additional damages particular to their case.

The letter would advise the putative class members that if they were included in the class, their names and the fact they had syphilis might become part of the public record. The letter would further advise the putative class members that while the parties would attempt to keep confidential prior to trial any released medical information, at trial such information may be disclosed. The letters were to contain a form that the putative class members could return to the Center and which would remain in the Center's custody. The Center would maintain separate lists (one with identifying information and one without) indicating those class members who had returned the form.

On September 15, 2006, the court issued a second order to clarify ambiguities in the February 2006 Order, noting that compliance with the first order had been minimal.

Class plaintiffs moved for class certification in August 2007. ( Bomersheim v. Los Angeles Gay & Lesbian Center (2010) 184 Cal.App.4th 1471, 1478, 109 Cal.Rptr.3d 832( Bomersheim I ).)

The trial court denied the certification motion on April 16, 2008, finding no community of interest existed because individual issues of causation and damages predominated over common issues of duty and breach, and held that the class action vehicle was not a superior method of resolving the claims of putative class members. We reversed the order denying class certification, finding that there were common issues of proof on duty, breach and causation. The case was remanded to the trial court with directions to certify the class. ( Bomersheim I, supra, 184 Cal.App.4th at pp. 1488–1489, 109 Cal.Rptr.3d 832.)

2. Opt-out Class Certification Order and Protective Order.

On remand, on or about September 30, 2010, class plaintiffs filed a proposed order regarding class certification. The order proposed an opt-out class and ordered the defendant to compile and provide to class counsel within 10 days a master list consistingof the most current, known names, addresses, phone numbers, and e-mail addresses of class members.

The Center objected to class plaintiffs' proposed order, arguing that an opt-out mechanism and disclosure of its patient information would violate the physician-patient privilege (Evid.Code, §§ 990–1007) and would also independently violate the patients' constitutional right of privacy (Cal. Const., art. I, § 1), a privacy right heightened by the nature of the patient information at issue (syphilis exposure, HIV status, and treatment at the Center). Instead, the Center argued that the class notice should utilize an opt-in mechanism requiring class members to affirmatively consent to join the action. According to the Center, the opt-in mechanism would comport with statutory and constitutional privacy...