EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, April 5, 2010

Applying The Scalpel To The Physician-Patient Privilege: Supreme Court Of Utah Finds Redacted Patient Records Admissible

Utah Rule of Evidence 506(b), Utah's physician-patient privilege, provides that

If the information is communicated in confidence and for the purpose of diagnosing or treating the patient, a patient has a privilege, during the patient's life, to refuse to disclose and to prevent any other person from disclosing (1) diagnoses made, treatment provided, or advice given, by a physician or mental health therapist, (2) information obtained by examination of the patient, and (3) information transmitted among a patient, a physician or mental health therapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or mental health therapist, including guardians or members of the patient's family who are present to further the interest of the patient because they are reasonably necessary for the transmission of the communications, or participation in the diagnosis and treatment under the direction of the physician or mental health therapist. 

In its recent opinion in Staley v. Jolles, 2010 WL 1133335 (Utah 2010), the Supreme Court of Utah had to address the issue of whether redacted patient records implicate this physician-patient privilege. And, as several other courts had previously found, the Utah Supremes concluded that the answer is "not usually."

In Jolles,

On April 10, 2003,...Denise Staley underwent a hysterectomy at St. Mark's Hospital....During the evening of April 11, and while on the floor  Four West, Ms. Staley was cared for by registered nurse Angela Stallings. Ms. Stallings had an additional six patients assigned to her during that same evening....

St. Mark's nursing guidelines suggest a minimum of six registered nurses be on duty if there are thirty-four patients to a floor. These guidelines also provide that if a patient's systolic blood pressure drops below 90 points, the patient's assigned nurse should report that drop to the patient's physician. Four West was staffed with only five registered nurses and had a total of thirty-four patients from the evening of April 11, at 11:00 p.m., until April 12, at 7:00 a.m. During the same evening, Ms. Staley's systolic blood pressure dropped from 132 to 86 points between the hours of 6:15 p.m. and 2:00 a.m. Ms. Staley's physician was never notified.

Ms. Staley claim[ed] Ms. Stallings was negligent and that St. Mark's knowingly and recklessly understaffed floor Four West. Ms. Staley claim[ed] that because of this understaffing Ms. Stallings was unable to adequately monitor and prevent permanent damage to Ms. Staley's kidneys, which resulted from the low blood pressure. To support her negligent staffing claim, Ms. Staley requested documentation reflecting the acuity of the other patients assigned to Ms. Stallings during the evening following Ms. Staley's surgery. Patient acuity refers to the amount of nursing care a patient requires. After a series of discovery motions, St. Mark's was ordered to produce either a chart reflecting the acuity of Ms. Stallings' patients or a statement discussing how patient acuity is assessed and communicated on floor Four West. St. Mark's chose the latter.

In response to the order, St. Mark's produced an affidavit of registered nurse How-Su Chen, the nursing manager for floor Four West....Ms. Chen...indicated that she had personally reviewed the six patient charts assigned to Ms. Stallings during the evening of April 11, and that in her opinion, Ms. Stallings' assignment was an appropriate staffing decision.

Ms. Staley then requested the six patient charts. Ms. Staley argued that it would be unfair and contrary to discovery for Ms. Chen to have access to the six patient charts without providing Ms. Staley an opportunity to review the records herself. St. Mark's refused to produce the six patient charts, arguing that they fall under the physician-patient privilege found in Utah Rule of Evidence 506(b). To overcome this physician-patient privilege, Ms. Staley...stipulated to redaction of all personal identifying information from the six patient charts as well as limiting review of the records to only attorneys and experts.  

St. Mark's rejected Staley's stipulation, and the district court sided with Staley, prompting St. Mark's interlocutory appeal to the Supreme Court of Utah. According to the Utah Supremes, the physician-patient privilege

requires two actors-a patient and a physician, and an exchange of confidential information concerning a particular subject matter-diagnosis and treatment. All of these elements must be present for the privilege to be activated; mere descriptions of diagnoses and treatments that make no reference to a patient are ineligible for protection under rule 506. Indeed, the presence of identifying information and the orders of the court are what make the information privileged. Without an identified individual connected to a diagnosis, the diagnosis contains nothing more than medical terminology.

Accordingly, the court sided with other courts in finding that the physician-patient privilege does not apply to redacted patient records, assuming that the redactions did indeed make it so that the patient could not be identified through the records produced. The court did "note that in some cases the prospect of preserving anonymity through redaction may be too uncertain to permit the production of redacted records," but found that the case before it was not one of those cases and thus affirmed the district court's ruling.



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