#29021-r-DG 2020 S.D. 69
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
**** ALYSSA FERGUSON, Plaintiff and Appellee,
v.
BRADLEY C. THAEMERT, M.D., Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA
THE HONORABLE CAMELA THEELER Judge
DANIEL K. BRENDTRO ROBERT D. TRZYNKA of Hovland, Rasmus, Brendtro, & Trzynka, Prof. LLC Sioux Falls, South Dakota Attorneys for plaintiff and appellee.
MARK W. HAIGH TYLER W. HAIGH of Evans, Haigh & Hinton, LLP Sioux Falls, South Dakota Attorneys for defendant and appellant.
**** ARGUED APRIL 22, 2020 OPINION FILED 12/09/20 #29021
GILBERTSON, Chief Justice
[¶1.] Dr. Bradley Thaemert performed the incision for an anterior spinal
surgery on Alyssa Ferguson. Ferguson sued Dr. Thaemert for lack of informed
consent after he performed a vertical incision rather than her requested horizontal
incision. Ferguson brought a motion to compel the production of medical records of
Dr. Thaemert’s non-party patients. The circuit court granted the motion in part.
Dr. Thaemert brings this intermediate appeal arguing the circuit court abused its
discretion. We reverse the circuit court’s decision.
Facts and Procedural History
[¶2.] Alyssa Ferguson (Ferguson) underwent an anterior spinal surgery
with Dr. Walter Carlson (Dr. Carlson), a spine surgeon, and Dr. Bradley Thaemert
(Dr. Thaemert), a general surgeon, to relieve lower back pain. The surgery was
elective, but is a major surgery, involving an incision through the abdominal
muscles into the peritoneal cavity to reach the spine through the front of the body.
Dr. Thaemert was tasked with making the incision allowing access to the spine, so
Dr. Carlson could perform the spinal surgery.
[¶3.] When Ferguson met with Dr. Thaemert for a pre-operation evaluation,
they discussed her desire to have a horizontal incision below the bikini line, rather
than a vertical incision, “if at all possible.” Ferguson wanted the horizontal incision
for cosmetic reasons as well as for ease of having a caesarian section in the future.
Ferguson claims that at the meeting Dr. Thaemert promised to do the surgery with
a horizontal incision, and that she relied on that promise in undergoing the surgery.
Dr. Thaemert testified at his deposition that, while he cannot specifically recall the
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conversation, he would never make a promise to perform any particular type of
incision. He testified that he always advises his patients in the pre-operative
discussion that he must use the safest incision during the surgery. That
determination is made, according to Dr. Thaemert, by assessing the fat on the
abdomen and where an incision would need to be placed under the fat.
[¶4.] Ferguson signed an informed consent form before the surgery, which
provided consent for any procedures necessitated by changed conditions during the
surgery. Dr. Thaemert claims that in the operating room, after Ferguson was under
anesthesia, he assessed her abdomen and determined a vertical incision would be
the safest way to allow Dr. Carlson access to the spine, so he made the vertical
incision. A radiology technician who is a friend of Ferguson testified that he was in
the surgical suite while anesthesia was being administered to Ferguson and heard
Dr. Thaemert, as he entered the operating room, ask if this was his horizontal
incision case and if anyone had notes on that.
[¶5.] When Ferguson learned after the surgery that Dr. Thaemert had made
a vertical incision, she was upset and asked her nurses and Dr. Carlson if
something had gone wrong in the surgery to necessitate the vertical incision. No
one knew of any complication in the surgery. Ferguson was unable to contact Dr.
Thaemert to ask about the incision. Finally, Dr. Thaemert called Ferguson at Dr.
Carlson’s behest. Ferguson claims Dr. Thaemert told her that nobody informed him
that she was the horizontal incision case that day, and then told her the scar should
not be too bad and that his daughter’s appendix scar was not bad. He advised
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Ferguson to keep the scar out of sunlight for a year and apply zinc oxide to it. Dr.
Thaemert testified that he does not remember the specifics of the phone call.
[¶6.] While the surgery was successful, Ferguson maintains that she would
not have gone through with the surgery on that day if she had known Dr. Thaemert
would not perform a horizontal incision. Dr. Thaemert asserts that he always
makes clear to his patients that he will use whichever incision will be safest,
assessed at the time of surgery.
[¶7.] Ferguson sued Dr. Thaemert alleging that he performed the vertical
incision without Ferguson’s informed consent. Dr. Thaemert denied Ferguson’s
allegations. Ferguson’s counsel requested discovery of “all medical records of any
patients on whom [Dr. Thaemert] performed incisions, for anterior spinal fusions at
or below the L4 level, during the past 5 years without identifying the patient
consistent with . . . Wipf v. Al[t]stiel[.]” Dr. Thaemert objected to the request as
being irrelevant, not reasonably calculated to lead to the discovery of admissible
evidence, vague, violating HIPAA, and otherwise seeking protected health
information that could not be disclosed under South Dakota law. After some back
and forth between the parties’ counsel, Ferguson brought a motion to compel those
non-party patients’ medical records.
[¶8.] The motion to compel was considered at a hearing along with other
motions not at issue here. Ferguson argued that the records are relevant because
Dr. Thaemert’s credibility is at issue, and a jury needs to be able to gauge the
credibility of his testimony that his general practice is to discuss and document
things the way he did with Ferguson. Ferguson argued that the records “would
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allow us to figure out how he proceeds with horizontal incisions, how they’re
conducted, why they’re performed, which patient receives them, their body types,
the notes he makes about them, [and] how often he changes his mind while on the
operating table.” She asserted that the records would reveal Dr. Thaemert’s typical
procedure for obtaining informed consent and would allow a jury to check that
credibility. Finally, Ferguson argued that Wipf v. Altstiel, 2016 S.D. 97, 888 N.W.2d
790, provides “the solution for how we deal with sensitive health information.”
[¶9.] Dr. Thaemert argued that Ferguson’s request to review non-party
patient medical records was made simply to burden him into settling the case and
was based on Ferguson’s belief that if she is allowed to see the records, it is possible
something helpful may be found. Dr. Thaemert also asserted that this case is solely
about his treatment of Ferguson and whether he failed to obtain her informed
consent. He argued that other patients’ records are entirely irrelevant to the
question of whether Ferguson gave informed consent. Finally, Dr. Thaemert
asserted that there is “no relevant evidence that can be gotten from these records
that would support the burden that plaintiff wants to place on us.”
[¶10.] The circuit court granted the motion to compel in part and denied it in
part. The court found the records were relevant because Dr. Thaemert has no
specific recollection of his conversation with Ferguson and relies entirely on his
general practice. However, the circuit court limited the scope of the discoverable
records to pre-operation and operation notes, consult notes, age, gender, and body
mass index (BMI) of patients who had anterior spinal fusion incisions at or below
L4 level in the last three years, finding the five-year time frame to be unreasonably
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cumulative. Dr. Thaemert filed a petition for allowance of appeal from an
intermediate order, which we granted. He raises one issue restated as follows:
whether the circuit court abused its discretion in determining that confidential,
non-party patient records are relevant to this case and discoverable when patient
identifiers are redacted from the documents.
Standard of Review
[¶11.] A circuit court’s discovery orders are reviewed for an abuse of
discretion. Andrews v. Ridco, Inc., 2015 S.D. 24, ¶ 14, 863 N.W.2d 540, 546. “An
abuse of discretion ‘is a fundamental error of judgment, a choice outside the range of
permissible choices, a decision, which on full consideration, is arbitrary or
unreasonable.’” Id. (quoting In re Jarman, 2015 S.D. 8, ¶ 19, 860 N.W.2d 1, 9).
When determining whether a discovery order violated a statute, “it raises a
question of statutory interpretation requiring de novo review.” Id. (quoting Dakota,
Minn. & E. R.R. Corp. v. Acuity, 2009 S.D. 69, ¶ 47, 771 N.W.2d 623, 636).
Analysis and Decision
Relevance
[¶12.] Pretrial discovery has a broad scope. Kaarup v. St. Paul Fire &
Marine Ins. Co., 436 N.W.2d 17, 19 (S.D. 1989). The broad scope ensures the
purposes of discovery—“(1) narrow[ing] the issues; (2) obtain[ing] evidence for use
at trial; (3) secur[ing] information that may lead to admissible evidence”—are
satisfied. Id. “Parties may obtain discovery regarding any matter, not privileged,
which is relevant to the subject matter involved in the pending action[.]” SDCL 15-
6-26(b). “Evidence is relevant if: (a) [i]t has any tendency to make a fact more or
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less probable than it would be without the evidence; and (b) [t]he fact is of
consequence in determining the action.” SDCL 19-19-401. But the definition of
relevance at the discovery stage is broad so that it allows for discovery of
“information that may lead to admissible evidence at trial.” Kaarup, 436 N.W.2d at
20. “It is not ground[s] for objection that the information sought will be
inadmissible at the trial if the information sought appears reasonably calculated to
lead to the discovery of admissible evidence.” SDCL 15-6-26(b).
[¶13.] Dr. Thaemert argues that the requested records are irrelevant to the
central issue of the case: whether Ferguson gave informed consent. He claims that
there is no basis of comparison between Ferguson and other patients because every
body type is different, and the decision to perform a particular type of incision
depends on each patient’s particular circumstance. He therefore asserts that there
has been no showing that the records are relevant to whether Ferguson gave
informed consent here and further contends that any need to impeach his credibility
at trial is not a sufficient reason to compel the pretrial production of confidential
records.
[¶14.] Ferguson responds that Dr. Thaemert made the records relevant by
asserting what he generally does (his pattern, habit, and general practice in
informed consent conversations with patients) as his main defense. Ferguson
asserts that because the scope of discovery is broad, the records are discoverable
because they may show Dr. Thaemert’s habit in how he responds to a patient’s
incision preference and documents the process. According to Ferguson,
documentary evidence is proper evidence for showing whether a pattern claim is
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even a viable defense for Dr. Thaemert, and these non-party records are the only
evidence available. However, Dr. Thaemert explained that it is not his general
practice to write down detailed summaries of his pre-operation conversations with
patients, so a detailed recitation of the conversations would not be in the records if
produced. The records would merely look like Ferguson’s record and be just as
unhelpful. 1
[¶15.] Dr. Thaemert relies on Milstead v. Smith (Milstead I), 2016 S.D. 55,
883 N.W.2d 711, and the Nixon test for production of documents adopted therein.
Both Milstead I and Milstead v. Johnson (Milstead II), 2016 S.D. 56, 883 N.W.2d
725, decided the same day, involved criminal defendants attempting to subpoena
police officer disciplinary records and complaints from the arresting officers’
personnel files. The Minnehaha County Sheriff filed motions to quash those
subpoenas arguing the records were confidential and the subpoenas were
unreasonable. Milstead I, 2016 S.D. 55, ¶ 3, 883 N.W.2d at 715; Milstead II, 2016
S.D. 56, ¶ 3, 883 N.W.2d at 728. The circuit court ordered portions of the
1. Ferguson’s pre-operation record contains only the following relevant notes:
Assessment/Plan 1. Chronic back pain. 2. The plan is for anterior exposure. If at all possible she would prefer to have a Pfannenstiel [horizontal] incision. 3. I told her it is a little longer incision and she may have a little bit of numbness. The main issue would be that it is cosmetically below the bikini line which she wishes for. 4. The risk of seromas, bleeding, DVTs, bowel injury, nerve injury discussed and she would like to proceed.
The only reference to the incision location in the operation notes for Ferguson was “[t]he abdomen was prepped and draped in normal sterile fashion. A low midline incision was made.”
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disciplinary records produced for in-camera review. Milstead I, 2016 S.D. 55, ¶ 4,
883 N.W.2d at 715; Milstead II, 2016 S.D. 56, ¶ 4, 883 N.W.2d at 729.
[¶16.] In the Milstead cases, this Court adopted the test for allowing
production of documents laid out by the United States Supreme Court in United
States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). This Court
acknowledged that
[c]ourts . . . routinely order production of confidential and even statutorily privileged documents for in camera review in civil and criminal proceedings. And courts are authorized to impose necessary, effective, and strict restrictions on the use of the records.
Milstead I, 2016 S.D. 55, ¶ 33, 883 N.W.2d at 724. It ultimately determined that
before such production can be allowed the Nixon test must be satisfied. That test
“obligates the requesting party to establish that the desired evidence is (1) relevant,
(2) admissible, and (3) requested with adequate specificity.” Id. ¶ 20, 883 N.W.2d at
720. For the relevance element, the Court required that the defendant “establish a
factual predicate showing that it is reasonably likely that the requested file will
bear information both relevant and material to her defense.” Id. ¶ 25, 883 N.W.2d
at 722. See also Milstead II, 2016 S.D. 56, ¶ 25, 883 N.W.2d at 735. All three
elements of the Nixon test were unsatisfied in both Milstead cases, and the Court
held that the circuit court erred in ordering in-camera review of the personnel files.
Milstead I, 2016 S.D. 55, ¶ 33, 883 N.W.2d at 723; Milstead II, 2016 S.D. 56, ¶ 33,
883 N.W.2d at 737.
[¶17.] Ferguson argues that the Milstead cases and the Nixon test are not
applicable here because the Milstead cases dealt only with subpoenas in criminal
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cases. She also argues that the cases allow for confidential records to be produced
when the circuit court can properly protect the information. Dr. Thaemert responds
that nothing in either Milstead case limited its holding to criminal subpoenas.
[¶18.] Although Ferguson’s request for civil discovery does not implicate the
same criminal procedural statutes at issue in the Milstead cases, the relevance
standard from these cases is nevertheless instructive here given that Ferguson is
requesting medical records which may contain statutorily privileged information.
Accounting for the broader definition of relevance in the scope of discovery,
Ferguson must show with adequate specificity that the records are reasonably likely
to contain relevant evidence or lead to the discovery of relevant and admissible
evidence.
[¶19.] Ferguson asserts that she wants the records to search for evidence of
Dr. Thaemert’s general practice in talking to patients and performing this type of
surgery to assess the credibility of his testimony. However, “the need for evidence
to impeach witnesses is [generally] insufficient to require its production in advance
of trial.” Milstead I, 2016 S.D. 55, ¶ 26, 883 N.W.2d at 722 (quoting Nixon, 418 U.S.
at 701, 94 S. Ct. at 3104) (alteration in original). Other than attacking Dr.
Thaemert’s credibility, Ferguson has not identified a specific use for the records
other than a cursory explanation that there could be something helpful in the
records. Allowing a fishing expedition through confidential non-party patient
records cannot be permitted where there has not been a sufficient showing that they
are reasonably likely to contain or lead to evidence relevant to the issues of the case.
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[¶20.] Dr. Thaemert argues that Federal Rule of Evidence 406 does not
require corroborating evidence for him to testify about routine practice, whereas
Ferguson argues that specific evidence of a sufficient number of instances is
required to demonstrate a routine. See Smith v. United States, 583 A.2d 975, 980
(D.C. 1990). However, testimony of general practice is admissible to show
conformity with that routine under Federal Rule of Evidence 406, which is identical
to SDCL 19-19-406, 2 “regardless of whether it is corroborated or whether there was
an eyewitness.” Dr. Thaemert’s testimony concerning his habit in obtaining
informed consent may well be weak evidence, but a jury will be able to weigh it
against Ferguson’s conflicting testimony and determine whether Dr. Thaemert
obtained Ferguson’s informed consent. See Hoffart v. Hodge, 609 N.W.2d 397, 405
(Neb. Ct. App. 2000).
[¶21.] Further, Ferguson acknowledges that she is not seeking to prove Dr.
Thaemert’s claimed habit, but rather to disprove it. Ferguson hopes to find
something in the cache of other patients’ records that “could be used to gauge [Dr.
Thaemert’s] credibility” or cast some doubt on the claim that Dr. Thaemert would
never promise a patient that he would perform a particular incision in this type of
surgery. Emphasis added. However, Ferguson’s theory of liability is very specific to
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
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her individual care. While Ferguson maintains that Dr. Thaemert breached a duty
of care by failing to make the incision she requested and consented to, she does not
claim that Dr. Thaemert violated the standard of care for this type of procedure by
performing a vertical incision rather than a horizontal incision. Ferguson has not
identified how information relating to other patients undergoing the same surgical
procedure, if found, would support a determination of whether she gave informed
consent.
[¶22.] Discovery of the records requested here does not appear reasonably
calculated to lead to the discovery of relevant and admissible evidence. A request to
forage through other patients’ medical records in the hope of finding some possible
basis for impeachment is not a proper basis to allow discovery of the medical records
in this case. Without a showing of relevance, the non-party patient records are not
discoverable under SDCL 15-6-26(b). The circuit court violated that statute in
granting Ferguson’s motion to compel and thus abused its discretion by making “a
choice outside the range of permissible choices.” See Andrews, 2015 S.D. 24, ¶ 14,
863 N.W.2d at 546.
[¶23.] While we have already determined the records are not subject to
production in this case, the circuit court’s order also exceeds the boundaries
described in Wipf, 2016 S.D. 97, 888 N.W.2d 790. Therefore, we address the parties’
further arguments regarding the applicability of Wipf. In particular, its holding
that any medical records produced may not include personal identifying
information, the disclosure of which would violate the statutory privilege protecting
confidential communications between a doctor and patient.
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Patient Confidentiality
[¶24.] Dr. Thaemert argues that the circuit court erred by failing to balance
the burden on the non-party patients’ confidentiality against any limited relevance
of the requested records. He asserts that redacting identifying information cannot
fully protect other patients’ confidentiality. He relies on the dissent in Wipf to
support the argument that allowing discovery of these records would create a
“slippery slope” leading to the proffer of evidence on irrelevant issues and a
resulting “breach of non-party patients’ confidentiality.” See 2016 S.D. 97, ¶ 22, 888
N.W.2d at 799 (Gilbertson, C.J., dissenting). The risks of confusion, delay, and
misleading the jury, he claims, outweigh any probative value.
[¶25.] Ferguson responds that Wipf determined that redacted patient records
do not infringe on patient privacy. She asserts that only confidential
communications within those records are protected by SDCL 19-19-503’s physician-
patient privilege, and when reasonable safeguards ensure anonymity the rest of the
record is not privileged. Ferguson relies on the statement in Wipf that “there is no
patient once [identifying] information is redacted.” 2016 S.D. 97, ¶ 10, 888 N.W.2d
at 794. She finally argues that Thaemert’s slippery slope argument is false and
that he cited no authority to support that allegation.
[¶26.] The physician-patient privilege protects “confidential communications”
between a patient and doctor “made for the purpose of diagnosis or treatment[.]”
SDCL 19-19-503(b). “The public has an interest in protecting [privileged]
information as it encourages patients to be open and candid with their counselors[,
doctors, etc.].” State v. Karlen, 1999 S.D. 12, ¶ 39, 589 N.W.2d 594, 602. Public
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policy encourages “uninhibited communication between a physician and his patient
. . . to insure the free flow of health care, absent any fears on the patient’s part that
anything he says might later be used against him.” People ex rel. D.K., 245 N.W.2d
644, 648 (S.D. 1976). The disadvantage of limiting available evidence through
privileges is balanced against the public policy favoring the privilege. Maynard v.
Heeren, 1997 S.D. 60, ¶ 8, 563 N.W.2d 830, 833, abrogated on other grounds,
Milstead II, 2016 S.D. 56, ¶¶ 34-35, 883 N.W.2d at 737-38.
[¶27.] In Wipf, a patient sued a surgeon for medical malpractice after two
perforations were found in his small bowel after a laparoscopic hernia repair. 2016
S.D. 97, ¶¶ 4-5, 888 N.W.2d at 791. The surgeon had not noted his claimed
inspection for perforations during the surgery in his operative notes, and his expert
testified that to show a violation of the standard of care the patient “would have to
show an unacceptably high complication rate in similar procedures with different
patients.” Id. ¶ 5, 888 N.W.2d at 791. The expert testified that the surgeon’s
records from the past 200-300 laparoscopic hernia repairs would be relevant to that
question. Id. The circuit court ordered the surgeon and clinic to produce those
records with personal identifiers for each patient redacted. Id. Crucially, the
surgeon conceded the records’ relevance on intermediate appeal but argued the
records were not discoverable under SDCL 19-19-503(b). Id. ¶ 6, 888 N.W.2d at
792.
[¶28.] A majority of this Court agreed with the circuit court’s discovery order
in a 3-2 decision and remanded the case for further consideration of whether
adequate safeguards were in place for ensuring patient anonymity. Id. ¶ 12, 888
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N.W.2d at 795. Those safeguards would include removing, in addition to “name,
address, phone number, date of birth, and social security number[,]” any other
information such as medical history or family members that could also lead to
identifying the patient. Id. The circuit court was also instructed to consider the
population size of the area served by the hospital and to issue a protective order for
the records. Id.
[¶29.] The majority held that “anonymous, nonidentifying medical
information is not privileged per se.” Id. ¶ 10, 888 N.W.2d at 795. It stated that
“confidential communications,” as used in the physician-patient privilege context,
does not include the entire medical record, but only the parts that are confidential
communications. Id. ¶ 8, 888 N.W.2d at 792. The majority found persuasive other
state courts’ decisions holding “when adequate safeguards ensure the anonymity of
the patient, relevant, nonidentifying information is not privileged.” Id. Its
determination, that a lack of identifying information means there is no longer a
patient, was based on the Utah Supreme Court’s explanation that
mere descriptions of diagnoses and treatments that make no reference to a patient are ineligible for protection. . . . [T]he 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.
Id. ¶ 10, 888 N.W.2d at 794 (quoting Staley v. N. Utah Healthcare Corp., 230 P.3d
1007, 1011 (Utah 2010)).
[¶30.] Ferguson argues that Wipf mirrors this case factually and procedurally
because Dr. Thaemert put his prior procedures at issue by asserting that he
followed his general practice with Ferguson. However, a doctor’s inability to recall
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a conversation with a patient about a specific aspect of the patient’s care does not
suddenly make other patients’ medical records relevant and open for discovery on a
claim involving a particular plaintiff’s informed consent. This is particularly true
where Dr. Thaemert has not referred to other medical records in support of his
defense and Ferguson has failed to adequately articulate the specific relevant
information the non-party patient records may contain. Wipf does not control the
issue here because its holding is limited by the fact that relevance was not at issue.
In fact, the Court, in Wipf, specifically noted that former patients’ records “would
not be discoverable in many malpractice cases because they would not be relevant.”
Id. ¶ 6 n.2, 888 N.W.2d at 792 n.2.
[¶31.] Moreover, even though relevance was conceded in Wipf, the Court
remanded the circuit court’s order to “require redaction of other information that
could identify the patient” and to consider “whether identification of the patient
could occur because of the size of the community.” Id. ¶ 12, 888 N.W.2d at 795. In
comparison, the circuit court here allowed discovery of “pre-operative notes,
operative notes, consult notes, age, gender, and body mass index (BMI) of any
patient on whom [Dr. Thaemert] has performed incisions, for anterior spinal fusions
at or below L4 level, during the past 3 years.” But a patient’s age, gender, and BMI
fall within the realm of personal identifying information deemed to be part of the
confidential communications protected by SDCL 19-19-503. In addition, a patient’s
pre-operative notes often include a wealth of personal information, including the
patient’s medical history, the very type of record the Court noted in Wipf that would
require redaction because it could identify the patient. See id.
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[¶32.] It is hard to conceive of how information from another patient’s record
could be used at trial without one party or the other seeking to use personal
identifying information (e.g., medical history, body composition, communicated
preferences) to explain or defend the type of incision made on a patient. This type
of information goes well beyond “mere descriptions of diagnoses and treatments
that make no reference to a patient.” Id. ¶ 10, 888 N.W.2d at 794. Instead, one
would need to delve into the specifics of each patient’s record to make legitimate
comparisons, much of which would be encompassed in the “exchange of confidential
information” between doctor and patient that is privileged under SDCL 19-19-503.
See id. The circuit court made no effort to determine whether the hundreds of pre-
operative, operative, and consult notes it ordered Dr. Thaemert to produce
contained personal identifying information. It was improper for the circuit court to
order the en masse production of records containing personal identifying
information without determining whether the information sought was privileged.
[¶33.] In cases where a circuit court determines that an adequate showing of
relevance has been made for the production of medical records which may contain
confidential communications, the proper method of receiving those records is by in-
camera review. See Maynard, 1997 S.D. 60, ¶ 30, 563 N.W.2d at 841 (Konenkamp,
J., concurring in part and dissenting in part). In such cases, the circuit court must
conduct an in-camera review to determine whether privileged documents have been
properly redacted. Andrews, 2015 S.D. 24, ¶ 32, 863 N.W.2d at 552. In this process,
the court can also determine, after looking at the records thoroughly, if they are
truly relevant, preventing overbroad production of communications or records. See
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Maynard, 1997 S.D. 60, ¶ 18, 563 N.W.2d at 837. Only after such an in-camera
review should the records be released to the parties.
[¶34.] Dr. Thaemert raised an additional issue concerning the undue burden
on his clinic if he were required to produce the records, but we need not address
that issue to reach the outcome of this case.
Conclusion
[¶35.] The central issue in this case, whether Ferguson gave informed
consent, comes down to what was discussed pre-operation between Ferguson and
Dr. Thaemert. Ferguson has not shown that the requested records are relevant to
that issue or reasonably likely to lead to the discovery of relevant and admissible
evidence. Authorizing Ferguson to access private patient files creates too great a
risk that privileged information will be released when the only justification for that
release is that it might provide something helpful.
[¶36.] Because the records Ferguson requests are irrelevant and therefore
not discoverable, Wipf is distinguishable from this case and does not control the
outcome. The circuit court’s order compelling production of the redacted non-party
patient records is reversed.
[¶37.] JENSEN and DEVANEY, Justices, and SEVERSON, Retired Justice,
concur.
[¶38.] KERN, Justice, dissents.
[¶39.] SEVERSON, Retired Justice, sitting for SALTER, Justice, disqualified.
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KERN, Justice (dissenting)
[¶40.] The majority opinion reverses the circuit court’s order compelling
production of certain redacted patient records. In announcing this decision, it
misapplies the discovery and relevancy standards and inappropriately employs the
Nixon and Milstead tests. Therefore, I respectfully dissent.
[¶41.] At issue is whether Ferguson is entitled to discovery of third-party
medical records. Ferguson moved to compel discovery regarding “all medical
records of any patients on whom [Dr. Thaemert] performed incisions[] for anterior
spinal fusions at or below the L4 level, during the past 5 years without identifying
the patient consistent with Wipf v. Al[t]stiel[.]” 2016 S.D. 97, 888 N.W.2d 790
(emphasis added). Dr. Thaemert had indicated that he had performed
approximately 300 surgeries within the preceding five years. The circuit court
granted the motion in part, limiting production of the redacted documents, to “pre-
operative notes, operative notes, consult notes, age, gender, and body mass index
(BMI) of any patient on whom [Dr. Thaemert] has performed incisions for anterior
spinal fusions at or below the L4 level, during the past 3 years.” In addition, the
court ordered that the documents be released under the provisions of a mutually
agreed upon protective order, or if the parties were unable to agree, by an order
issued from the court.
[¶42.] The majority opinion reverses the circuit court, reasoning that
Ferguson is not entitled to discovery of the evidence because Ferguson has failed to
establish that the records are sufficiently relevant. To support this position, it cites
Milstead v. Smith and its companion case, Milstead v. Johnson, as well as United
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States v. Nixon. See Milstead v. Smith (Milstead I), 2016 S.D. 55, 883 N.W.2d 711;
Milstead v. Johnson (Milstead II), 2016 S.D. 56, 883 N.W.2d 725; United States v.
Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974).
[¶43.] But the Milstead duology and the Nixon decision do not apply here.
The Milstead cases involved the production of statutorily privileged documents
requested for impeachment purposes in a criminal proceeding. In both decisions,
the defendant sought—and the circuit court partially upheld—a subpoena duces
tecum requiring production of certain law enforcement personnel records for use at
trial. On appeal, this Court reviewed whether the circuit court erred when it held
that the personnel file was discoverable under the applicable rules of criminal
procedure.
[¶44.] Although the Milstead decisions allow defendants to subpoena
personnel records under certain circumstances (and when a constitutional right is
implicated), this Court ultimately held that the requesting party did not meet his
burden and reversed with orders to quash the subpoena. In ordering reversal, this
Court specifically observed that a defendant’s use of a subpoena duces tecum in
criminal cases for production of documents from the Government was not intended
“as a generalized tool for discovery[.]” Milstead II, 2016 S.D. 56, ¶ 17, 883 N.W.2d
at 733. See also SDCL 23A-14-5 (authorizing a subpoena duces tecum in criminal
proceedings).
[¶45.] This case, in contrast, involves discovery of confidential
communications in a civil action, a practice that is governed by the general rules of
discovery rather than the rules of criminal procedure. Instead of attempting to use
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a subpoena duces tecum (as in the Milstead cases), Ferguson properly filed a motion
to compel discovery to ascertain the existence of the relevant information. Because
Milstead is entirely inapplicable here, the Court should apply our well-established
rules regarding discovery to determine whether Ferguson’s request is “relevant to
the subject matter involved in the pending action,” and whether “the information
sought appears reasonably calculated to lead to the discovery of admissible
evidence.” See SDCL 15-6-26(b). These standards are easily met.
[¶46.] “Evidence is relevant if: (a) [i]t has any tendency to make a fact more
or less probable than it would be without the evidence; and (b) [t]he fact is of
consequence in determining the action.” SDCL 19-19-401. This benchmark is low,
especially at the discovery stage. See Kaarup v. St. Paul Fire & Marine Ins. Co.,
436 N.W.2d 17, 19 (S.D. 1989) (noting the broad scope of pretrial discovery). Even
inadmissible evidence is discoverable “if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.” SDCL 15-6-26(b).
[¶47.] In rejecting Ferguson’s relevancy argument, the majority opinion holds
that the documents requested in this case are entirely irrelevant and declares that
permitting discovery “does not appear reasonably calculated to lead to the discovery
of relevant and admissible evidence.” Majority Opinion ¶ 22. But this conclusory
statement assumes that the requested evidence is, in fact, irrelevant, a conclusion
that directly contradicts the circuit court’s evidentiary holding that “the information
sought [was] relevant because [Dr. Thaemert had] no specific recollection of his
discussions or assessments of [Ferguson] and relies entirely on what [Dr. Thaemert]
considers to be his general practice.”
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[¶48.] Appearances and reasonable calculations play no role in the initial
relevancy analysis. The question before us is not whether the desired evidence is
admissible at trial. See Majority Opinion ¶ 22. Rather, the question we must first
ask is whether the evidence has “any tendency to make a fact more or less
probable[.]” SDCL 19-19-401 (emphasis added). “Rule 401 provides a lenient
standard for relevance under which evidence need not conclusively prove the
ultimate fact in issue[.]” Knecht v. Evridge, 2020 S.D. 9, ¶ 21, 940 N.W.2d 318, 326
(emphasis added).
[¶49.] Dr. Thaemert made his record-keeping practices relevant when he
relied on them as a central tenant in his defense. He maintains that he makes the
same general representations to each patient when obtaining informed consent
prior to performing anterior spinal fusions. Although he admits that he cannot
remember his exact conversation with Ferguson, he asserts that his representations
to this Court regarding his ordinary practices are sufficient to establish that he did
not violate the standard of care.
[¶50.] These representations, taken alone, do not control our analysis with
respect to relevancy. Without an opportunity to review documents that likely shed
light on Dr. Thaemert’s patient consultation practices, Ferguson has no meaningful
way to refute Dr. Thaemert’s defense. And while the medical records of other
patients “would not be discoverable in many medical malpractice cases because they
would not be relevant[,]” this may not be the case here. Wipf, 2016 S.D. 97, ¶ 6 n.2,
888 N.W.2d at 792 n.2. See also Majority Opinion ¶ 29. Testimony from a party’s
expert, as was the case in Wipf, or the particulars of a party’s theory or defense, as
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is the case here, might render otherwise irrelevant evidence relevant to a particular
dispute.
[¶51.] Categorically prohibiting discovery of the redacted documents strips
the opposing party of its opportunity to make an independent determination
regarding the true nature of the records, leaving it and subsequently the court to
adopt the position of one party or the other as a gauge for the relevancy inquiry.
The majority opinion’s decision restricts the circuit court’s ability to preside over the
discovery process by foreclosing Ferguson’s ability to challenge the veracity of Dr.
Thaemert’s statements regarding his general practices, a position that is contrary to
the purpose of discovery itself.
[¶52.] The majority opinion also incorrectly assumes that the information
Ferguson seeks would be introduced exclusively for impeachment purposes when it
states that “[a] request to forage through other patients’ medical records in the hope
of finding some possible basis for impeachment is not a proper basis to allow
discovery of the medical records in this case.” Majority Opinion ¶ 22. But this is
not the case. The evidence is relevant not just for impeachment, but as evidence of
Dr. Thaemert’s purported habit of discussing the procedure during patient
consultations. See Arthur v. Zearley, 992 S.W.2d 67, 75 (Ark. 1999) (holding that
the issue of informed consent was a “central issue in th[e] case” and therefore
relevant not only for impeachment, but also as part of the plaintiff doctor’s case-in-
chief). The majority opinion also claims that “Dr. Thaemert’s testimony concerning
his habit in obtaining informed consent may well be weak evidence, but a jury will
be able to weigh it against Ferguson’s conflicting testimony and determine whether
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Dr. Thaemert obtained Ferguson’s informed consent.” Majority Opinion ¶ 20. But
without discovery of his consultation practices this evidence is not subject to cross-
examination. It is not the job of this Court at this initial phase of the proceedings to
limit the scope of the potential evidence to the testimony of the parties.
[¶53.] A reviewing appellate court should not overturn a circuit court’s
relevancy determination without evidence of an abuse of discretion. This standard
requires “a fundamental error of judgment, a choice outside the range of permissible
choices, a decision, which on full consideration, is arbitrary or unreasonable.”
Andrews v. Ridco, Inc., 2015 S.D. 24, ¶ 14, 863 N.W.2d 540, 546.
[¶54.] Implying that the requested documents were categorically irrelevant
and exceeded the scope of discovery under SDCL 15-6-26(b), see Majority Opinion ¶
22, the majority opinion does not articulate how the circuit court abused its
discretion or how its ruling constituted “a choice outside the range of permissible
choices” or is “arbitrary or unreasonable.” Andrews, 2015 S.D. 24, ¶ 14, 863 N.W.2d
at 546. It appears, based on this statement, that the only potential abuse lies in the
document’s perceived irrelevancy. At this stage of the proceedings, the threshold
test for relevancy was met due to the nature of Dr. Thaemert’s defense.
[¶55.] Because the information is, in fact, relevant, the next step is to
determine whether the information sought falls outside the physician–patient
privilege. The primary authority regarding discovery of third-party medical
information in our jurisdiction is Wipf v. Altstiel, 2016 S.D. 97, 888 N.W.2d 790.
Our holding in Wipf, which is consistent with the privilege rules in an
overwhelming majority of jurisdictions, allows for admission of non-identifying
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third-party medical information subject to certain conditions. Id. ¶ 8, 888 N.W.2d
at 792-93 (listing jurisdictions that have held that non-identifying “confidential
communications” are not privileged).
[¶56.] In Wipf, a doctor performed a laparoscopic hernia repair on the
plaintiff that resulted in a medical malpractice action. Id. ¶¶ 2, 5, 888 N.W.2d at
791. During the discovery stage of the litigation, the plaintiff requested production
of Dr. Altstiel’s notes involving the same procedure for the previous five years. Id. ¶
5, 888 N.W.2d at 791. A dispute arose regarding whether the plaintiff was entitled
to the medical records subject to redactions protecting the identities of the third
parties. Id. The circuit court ordered production of the documents with certain
identifying information redacted. Id.
[¶57.] On intermediate appeal, we upheld the circuit court’s determination
that the documents were subject to discovery if “adequate safeguards” are present
to “ensure patient anonymity.” Id. ¶¶ 8, 12, 888 N.W.2d at 792–93, 795. Our
reasoning for allowing discovery centered on the language of SDCL 19-19-503,
which protects only “confidential communications contained in medical records” and
not the medical records themselves. Id. ¶ 8, 888 N.W.2d at 792-93 (emphasis
added). We, however, reversed with instructions that the circuit court take
additional measures to protect the identities of the patients. Id. ¶¶ 12, 13, 888
N.W.2d at 795.
[¶58.] Wipf requires that all information that could reveal the patients’
identities be redacted and that additional safeguards might be appropriate,
including “sealing documents; prohibiting the attorneys and parties from
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attempting to learn the identities of the patients or making contact with them; and
prohibiting any person that viewed the information from disclosing any of the
information.” Id. ¶ 11, 888 N.W.2d at 795. The size of the community is also
relevant when determining whether the circuit court is capable of adequately
shielding the third party’s identity. Id. ¶ 12, 888 N.W.2d at 795.
[¶59.] The majority opinion attempts to bypass Wipf by limiting it to cases in
which relevancy is not at issue. But the holding in Wipf does not call for such a
limited application. It is the circuit court’s role to make the initial determination of
discoverability, scope, and relevancy to “ensure that the information to be disclosed
is nonidentifying.” Id. ¶ 11, 888 N.W.2d at 795. Upon a careful review of the
specific nature of the documents involved in the case, the circuit court is fully
capable of determining the measures necessary to protect the identities of the
patients. The size of the community should play a role in the analysis. Id. ¶ 12, 888
N.W.2d at 795. Notably, because Ferguson’s treatment took place in a hospital in
Sioux Falls, the largest city in the state, community size is less of an issue than it
was in Wipf, which involved an area with a smaller population.
[¶60.] Instead of letting the circuit court perform its function, the majority
opinion classifies certain items in the records as identifying information without
adequate authority to support these declarations. For instance, the majority
opinion observes that “[i]t is hard to conceive of how information from another
patient’s record could be used at trial without one party or the other seeking to use
personal identifying information (e.g., medical history, body composition,
communicated preferences) to explain or defend the type of incision made on a
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patient.” Majority Opinion ¶ 32. It states that “a patient’s age, gender, and BMI
fall within the realm of personal identifying information deemed to be part of the
confidential communications protected by SDCL 19-19-503.” Majority Opinion ¶ 31.
What the majority opinion fails to explain is how this information (e.g. age, gender,
stated preference, or BMI), redacted to remove all information tying it to an
individual patient, somehow becomes identifying.
[¶61.] To support its broad statement, the majority opinion restates the rule
from Wipf that requires redaction of information from a “patient’s medical history”
that “could identify the patient.” 2016 S.D. 97, ¶ 12, 888 N.W.2d at 795 (emphasis
added). Wipf did not provide a definitive list of medical information that must be
redacted in order to protect a patient’s confidential communications—nor could it.
All that our holding in Wipf requires is that “[n]o third-party patient can be
associated with the information.” Id. ¶ 11, 888 N.W.2d at 795. And once properly
redacted, “this type of anonymous, non-identifying information is not protected by
the physician-patient privilege because there is no patient once the information” is
removed. Id. ¶ 10, 888 N.W.2d at 794 (emphasis omitted).
[¶62.] Whether the information is ultimately admissible is, of course, a
separate consideration. The authority the majority opinion relies upon is
distinguishable from this case. Hoffart v. Hodge, for instance, addresses the
admissibility of evidence rather than its discoverability. 609 N.W.2d 397, 405 (Neb.
Ct. App. 2000). And rather than supporting the majority opinion’s conclusion that
the evidence is irrelevant, it actually advances the conclusion that the information
might, indeed, be relevant. As the court in Hoffart observed, “[h]abit evidence is
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relevant because such evidence makes it more probable that the person acted in a
manner consistent with that habit.” Id. at 404 (emphasis added). Because the
evidence challenged herein is relevant, and because the Wipf decision allows
discovery of non-identifying medical information, I would hold that the third-party
medical records are discoverable.
[¶63.] The circuit court did not abuse its discretion by granting the motion to
compel discovery. It ordered a specific, redacted, protected, and limited production
of Dr. Thaemert’s surgical records involving anterior spinal fusions in order to show
his general practice (habit), or lack thereof, for obtaining informed consent during
his patient consultations for these surgeries. The information that the circuit court
ordered be released as part of discovery was—at a minimum—reasonably calculated
to lead to the discovery of admissible evidence.
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