Milton S. Hershey Medical Center of Pennsylvania State University, Application of

• Decision Date: 30 July 1991
• Citation: 407 Pa.Super. 565,595 A.2d 1290
• Parties: , 56 Empl. Prac. Dec. P 40,904, 60 USLW 2113, 70 Ed. Law Rep. 524, 2 NDLR P 31 In re Application of the MILTON S. HERSHEY MEDICAL CENTER OF the PENNSYLVANIA STATE UNIVERSITY. Appeal of John DOE, M.D. In re Application of the HARRISBURG HOSPITAL. Appeal of John DOE, M.D.
• Court: Pennsylvania Superior Court

Page 1290

595 A.2d 1290

407 Pa.Super. 565, 56 Empl. Prac. Dec. P

40,904, 60 USLW 2113,

70 Ed. Law Rep. 524, 2 NDLR P 31

In re Application of the MILTON S. HERSHEY MEDICAL CENTER OF the PENNSYLVANIA STATE UNIVERSITY Appeal of John DOE, M.D In re Application of the HARRISBURG HOSPITAL Appeal of John DOE, M.D.

Superior Court of Pennsylvania.

Argued July 10, 1991.

Decided July 30, 1991.

Bruce E. Cooper, Harrisburg, for appellant.

Richard M. Faulkner, State College, and Thomas B. Schmidt, III, Harrisburg, for appellee.

Scott Burris, Philadelphia, amicus curiae.

Before CAVANAUGH, WIEAND and POPOVICH, JJ.

POPOVICH, Judge:

This appeal involves a delicate issue of first impression in this Commonwealth. We are asked to decide whether the trial court correctly permitted two hospitals to disclose the identity of a member of their staffs who tested positive for the Human Immunodeficiency Virus (HIV). The physician, whose pseudonym John Doe has become familiar to this Court, ¹ was an obstetrics/gynecology resident working alternately between the Milton S. Hershey Medical Center to the Pennsylvania State University ("Hershey Medical Center") and the Harrisburg Hospital. Dr. Doe, during an invasive, internal procedure, sustained a cut through his surgical glove and exposed a patient to his infected blood. Reproduced Record ("R."), at 195a. Although the risk that the patient contracted the HIV infection was minimal, the possibility was there, and, thus, litigation ensued. The outcome was the trial court's order compelling disclosure of Dr. Doe's name and certain medical information to a limited populace. This appeal followed.

Because the specific facts of this case are so important to our discussion, we take this opportunity to detail its history more fully. Dr. Doe was a resident physician participating in a four year program involving obstetrics and gynecology. On May 19, 1991, during the course of an invasive operative procedure, Dr. Doe was accidentally cut by the attending physician. The record does not indicate whether there was an actual transfer of blood between Dr. Doe and the patient. It appears that there was not, although no one can be certain. ²

The following day, Dr. Doe voluntarily submitted to blood testing for the HIV virus. On May 21, 1991, Dr. Doe was informed that the test results were positive. At that time, Dr. Doe voluntarily withdrew from participation in further surgical procedures. An additional test called the Western Blot was performed on Dr. Doe's blood. The results, which were returned on May 28, 1991, confirmed that Dr. Doe was HIV positive. Dr. Doe informed the appropriate officials of his condition and pursued a voluntary leave of absence.

After investigation, Hershey Medical Center identified 279 patients who had been involved to some degree with Dr. Doe in the course of their medical treatment. ³ Likewise, Harrisburg Hospital identified 168 patients who had been in contact with Dr. Doe since the time of his joint residency. As Dr. Doe points out, the nature and degree of his participation in the medical treatments were not presented to either the trial court or this Court. See Appellant's brief, at 5. Unfortunately, as has been explained to this Court during oral arguments the hospital records do not necessarily reflect each time a physician is cut; nor do they particularize the distinct role played by each physician during a surgical procedure. See also R. at 42a; 56a; 97a-99a; 156a; 180a-181a; 184a; 206a. Thus, every patient who reasonably may have been exposed to Dr. Doe's condition was included in the statistics outlined above.

Both Hershey Medical Center and Harrisburg Hospital filed petitions alleging that there was a "compelling need" to disclose information regarding Dr. Doe's condition to the patients potentially affected by contact with him, as well as to certain staff members. The hospitals proceeded under The Confidentiality of HIV-Related Information Act ("The Act"), 35 P.S. §§ 7601-7612 (Purdon Supp.1991), particularly § 7608(a)(2). They argued, inter alia, that disclosure of Dr. Doe's identity was necessary to prevent the spread of the AIDS disease. Most basically, the hospitals felt it their duty to inform the possibly affected individuals of their potential exposure to HIV and to offer them treatment, testing and counseling.

In addition, the hospitals believed that there was a compelling need to disclose Dr. Doe's name to the other treating physicians in the department, so that those physicians could contact their patients in the event that Dr. Doe assisted in any invasive procedures which involved them. ⁴ Finally, the hospitals felt that a limited disclosure was necessary to protect the other health professionals from stigmatism and to alleviate any "mass hysteria" that could result from a general disclosure. By providing the patients with adequate and sound information, at least those who were not involved with the obstetrics/gynecology division could be assured that they were not at risk to contract the HIV virus. In response, Dr. Doe asserted his right to privacy and argued that a compelling need did not exist tantamount to justifying the disclosure of his HIV-related information.

The petitions were filed in the Dauphin County Court of Common Pleas on June 10, 1991. An expedited in camera hearing was held before the Honorable Warren G. Morgan on June 10, 1991, and June 11, 1991. See 35 P.S. § 7608(f). The trial court issued an order allowing limited disclosure on June 14, 1991. The order was accompanied by an opinion. That day, Dr. Doe filed a notice of appeal to this Court.

The trial court granted a temporary stay of the June 14, 1991 order, which expired at 4:00 p.m. on June 17, 1991. This Court entered an order on June 17, 1991, extending the trial court's stay order until 4:00 p.m. on June 18, 1991. Dr. Doe's application for supersedeas filed with this Court was denied on June 18, 1991. On June 19, 1991, the hospitals began notifying their patients of Dr. Doe's status. thereafter, the parties filed briefs with this Court, and on July 10, 1991, we heard oral arguments. Our decision follows.

Although this Court certainly is cognizant of the many ramifications inherent in the disposition of this case, we nevertheless are confined to resolving one issue: whether the trial court abused its discretion in issuing its order. The questions that were raised during oral arguments were thoughtful and thought-provoking, and the concerns were, and still are, real. However, this Court may not issue advisory opinions. See Okkerse v. Howe, 521 Pa. 509, 520, 556 A.2d 827, 833 (1989) (advisory opinions are without legal effect); Courtney v. Ryan Homes, Inc., 345 Pa.Super. 109, 119, 497 A.2d 938, 942 (1985) ("courts are not instituted to render advisory opinions"); In re Condemnation by Commw. Dep't of Transp., 100 Pa.Commw. 546, 554, 515 A.2d 102, 106 (1986) ("advisory opinions are not within the purview of an appellate court's jurisdiction"). Thus, while we recognize the immense public interest in this case and its resolution, we are confined on appeal to an abuse of discretion standard. See John M. v. Paula T., 524 Pa. 306, 311- 312, 571 A.2d 1380, 1383 (1990). After review, we must find that the trial court neither abused its discretion nor violated The Confidentiality of HIV-Related Information Act in advancing its determinations. ⁵

The issue presented for our review is whether the hospitals sustained their burden of demonstrating a "compelling need" for the disclosure of Dr. Doe's HIV status in light of the strong proscriptions against disclosure under the Act. The trial court, after weighing the competing needs of public disclosure versus the doctor's privacy interest, found that the hospitals had met the test and ordered that Dr. Doe's identity and his HIV-related information be revealed, selectively.

The trial court's order reads:

AND NOW, this 14th day of June, 1991, Petitioners are hereby authorized to disclose the identity of Dr. Doe, M.D. as follows and only as thus authorized:

1. By providing the name of Dr. Doe to the physicians in the Obstetrics and Gynecology Departments including the physicians in the residency program.

2. By providing the name of Dr. Doe to a physician authorized in writing by a patient for whom Dr. Doe participated in a surgical procedure or obstetrical care.

3. By describing Dr. Doe in letters to patients and in media releases as "a physician in our joint Obstetrics and Gynecology residency program" and by setting forth the relevant period of such service.

Each physician to whom the name of Dr. Doe is provided under 1. and 2. above shall be reminded that the Act prohibits further disclosure of such information.

Inasmuch as the trial court's order was effectuated, the issue before us on appeal is, technically, moot. Still, this case falls well within the exception to the rule that this Court may not entertain moot appeals. Commonwealth v. Smith, 336 Pa.Super. 636, 640-41, 486 A.2d 445, 448 (1984). The instant situation is one which is capable of repetition, yet it evades review. Id. However unfortunate, doubtless we will be confronted with this case scenario again. Thus, we will proceed to discuss the merits of Dr. Doe's appeal. See Petition of Daily Item, 310 Pa.Super. 222, 456 A.2d 580 (1983). See also Meyer v. Strouse, 422 Pa. 136, 221 A.2d 191 (1966) (discussing the "great public importance" exception to the mootness doctrine); Graziano Construction Co., Inc. v. Lee, 298 Pa.Super. 311, 444 A.2d 1190 (1982) (same).

The Confidentiality of HIV-Related Information Act, 35 P.S. §§ 7601-7612 (Purdon Supp.1991), was promulgated to promote voluntary blood testing to limit the spread of the Acquired Immune Deficiency Syndrome (AIDS). 35 P.S. § 7602. In the interest of furthering public health, the Act assures that information gained as a result of the HIV testing will remain confidential. Id. See 35 P.S. § 7602(c) (...