Tarrant County Hospital District v. Hughes

734 S.W.2d 675, 1987 Tex. App. LEXIS 8221

• Court: Court of Appeals of Texas
• Decided: April 9, 1987
• Docket: 2-86-231-CV
• Status: Published

Opinions

FARRIS, Justice.

Relator, Tarrant County Hospital District, seeks the issuance of a writ of mandamus to compel the Hon. William L. Hughes, Jr., Judge of the 48th District Court of Tarrant County, Texas, to rescind his order of October 16, 1986, entered in cause number 48-95022-86, styled Belinda C. Jackson, in behalf of the estate of Tris-tianne 0. Jackson, deceased v. Tarrant County Hospital District, d/b/a John Peter Smith Hospital, which order compels relator as defendant to produce and make available to the plaintiff certain documents identifying blood donors.

We grant relator’s motion for leave to file the petition, but deny the relief requested herein.

The cause of action giving rise to the matter in controversy is a suit for wrongful death brought by the plaintiff, individually and in behalf of the estate of the plaintiff’s deceased daughter, against the relator. Plaintiff’s original petition alleges that the deceased was given blood transfusions by relator which resulted in her contracting Acquired Immune Deficiency Syndrome (AIDS), and in the death of the deceased. Plaintiff accuses relator of failing to exercise the degree of care and the skill and treatment that is ordinarily exercised by and expected of the defendant (medical malpractice) as well as a failure to provide a wholesome blood product (implied warranty). The relator as defendant answered by general denial. Plaintiff served the defendant with a request for production of documents requesting, in relevant part, the production of information pertaining to the names and addresses of blood donors. Relator filed its objection to the production of the information relating to blood donors and sought protective orders of the trial court. The trial court overruled the discovery objection and ordered that the relator disclose the identities and addresses of the blood donors. The court also ordered the plaintiff to not directly or indirectly contact any donor nor undertake further discovery regarding such donors until permitted to do so by further order of the court.

The scope of discovery largely rests within the discretion of the trial court. Jordan v. Ct. of App. for Fourth Sup. Jud. Dist., 701 S.W.2d 644, 648-49 (Tex.1985). A party opposing discovery bears the burden of establishing a discovery privilege. Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex.1986); Jordan, 701 S.W.2d at 649; Peeples v. Hon. Fourth Supreme Judicial Dist., 701 S.W.2d 685, 637 (Tex.1985).

In its petition for/writ of mandamus, relator contends that the order complained of violates TEX.R.EVID. 509, that it violates the blood donors’ constitutional right to privacy, and that the societal interest in maintaining a healthy and effective blood donor program clearly overrides any legitimate interest of the plaintiff in the disclosure of the blood donors’ identities.

We hold that the physician-patient privilege expressed in TEX.R.EVID. 509 is not applicable. Under rule 509, a “patient” is defined to mean any person who consults or is seen by a physician to receive medical care. A “physician” is defined as a person licensed to practice medicine. Nothing in the record reflects that the blood donors were seen by a physician or received medical care when they donated blood.

In support of its contentions that the discovery order violates the donor’s right to privacy and adversely affects the interest of society in maintaining a healthy and effective blood donor program, relator cites South Florida Blood Serv. v. Rasmussen, 467 So.2d 798 (Fla.App.—3d Dist.1985);¹ aff'd, 500 So.2d 533 (Fla.1987). Rasmussen received 51 units of blood in the treatment of injuries incurred in an automobile accident. Subsequently, Rasmussen was diagnosed as having AIDS. Rasmussen sued the owner and operator of the other motor vehicle involved in the accident and served subpoena duces tecum on South Florida Blood Services, Inc., seeking “any and all records, documents, and other material indicating the names and addresses of the blood donors.” South Florida Blood Services, not a party to the lawsuit, moved to quash the subpoena on the grounds that Rasmussen had failed to show good cause or justifiable reason for the invasion of the private confidential records of the blood service and its volunteer donors. The majority of the District Court of Appeals of Florida, 3rd District, held that the subpoena violated the donors’ privacy interest and society’s interest in a strong and healthy volunteer blood donation program and quashed plaintiff’s subpoena.

The District Court of Appeals in Rasmussen acknowledged that the plaintiff had a legitimate interest in determining the identities of the blood donors because he could recover additional damages from the defendants if it could be shown that his AIDS was caused by blood transfusions necessitated by the injuries he suffered in the automobile accident, but his interest in the information was held slight when compared with the opposing interests. See South Florida Blood Serv. v. Rasmussen, 467 So.2d at 801. The District Court of Appeals in Rasmussen characterized its decision as one establishing that the Federal and State Constitutions² are sources of privacy interest which must be scrutinized when raised in challenge of a discovery order. Id. at 803. In arriving at its decision, the District Court of Appeals determined that the blood donors’ privacy interests were constitutionally based, that court orders which compel, restrict or prohibit discovery constitute State action subject to constitutional limitations, and that the court would apply a balancing test comparing the interest served by the State action with interests encroached upon by that action. Id.

The District Court of Appeals in Rasmussen also held that, on the facts of the case, after balancing all interest involved, discovery should not be allowed because the court found a free flow of donated blood of sufficient public importance when combined with the privacy interest of the donors to outweigh Rasmussen’s interest in discovering the donors’ identity. Id. at 804. In support of its conclusion, the court adopted the argument of South Florida Blood Services that because the blood of volunteer donors was less likely to be contaminated with infectious diseases than that of paid donors, the confidentiality of blood service records was essential in order to maintain a voluntary blood donation system sufficient to meet societal demands for blood and blood products. Id.

The District Court of Appeals certified to the Florida Supreme Court the following as a question of great public importance:

Do the privacy interests of volunteer blood donors and a blood service’s and society’s interest in maintaining a strong volunteer blood donation system outweigh a plaintiff’s interest in discovering the names and addresses of the blood donors in the hope that further discovery will provide some evidence that he contracted AIDS from transfusions necessitated by injuries which are the subject of his suit?

The Florida Supreme Court answered the question in the affirmative and approved the decision of the lower court. See Rasmussen v. South Florida Blood Serv., 500 So.2d at 534.

The Supreme Court of Florida acknowledged that the blood donors’ rights of privacy are protected by the Federal and Florida Constitutions, but stated that it need not engage in the strict scrutiny mandated by constitutional analysis because it found that the interests involved were adequately protected under Florida discovery rules. Id. at 535. The court noted that Florida rules of discovery confer broad discretion on a trial court to protect a party from “annoyance, embarrassment, oppression or undue burden or expense.” Id. In its opinion, the Supreme Court of Florida discussed the express right of privacy contained in the Florida Constitution and the discussion which preceded its adoption, stating that a principal aim of the provision was to afford individuals some protection against the increasing collection, retention and use of information relating to all facets of individual lives. Id. at 536. The Supreme Court concluded that the disclosure sought by Rasmussen implicated constitutionally protected privacy interests. Id. at 537. The court also concluded that society’s interest in a strong and healthy blood supply would be furthered by denial of the discovery sought by Rasmussen. Id. at 538.

Neither the Federal Constitution nor our State Constitution expressly mentions any right of privacy. Detailed discussions of the recognition of a constitutional right of privacy may be found in Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973); Ind. Foundation v. Texas Ind. Ace. Bd., 540 S.W.2d 668, 678-80 (Tex.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977); Ex parte Abell, 613 S.W.2d 255, 265-69 (Tex.1981) (Spears, J. dissenting). The term “right of privacy” is a generic term encompassing various rights recognized in decisions of the United States Supreme Court as well as in other federal and state courts. See 16B C.J.S. Right of Privacy sec. 630 (1985). The right of privacy has been held to protect the right of individuals to make certain decisions, without governmental interference, with regard to highly personal matters, e.g., Roe v. Wade. Most privacy cases decided by the United States Supreme Court have involved the rights of individuals to make such autonomous decisions.

•A second general area of “right of privacy” protects rights of individuals to prevent unlimited disclosure of personal information, e.g., Whalen v. Roe, 429 U.S. 589, 598-600, 97 S.Ct. 869, 875-77, 51 L.Ed.2d 64 (1977). An individual’s medical records have been declared to be within a zone of privacy protected by the Federal Constitution. Id. at 601, 97 S.Ct. at 877; G.M.C. v. Director of Nat. Institute, 636 F.2d 163, 166 (6th Cir.1980); United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3rd Cir.1980); E.I. duPont de Nemours & Co. v. Finklea, 442 F.Supp. 821, 825 (W.Va.S.Dist.1977). Although the courts in each of the four cited cases recognized that the right of privacy extends to one’s medical records, their opinions are of little comfort to the relator because, in each, the complained of activity was found to not violate the right of the individual. In Whalen v. Roe, the Supreme Court reversed a three-judge district court decision holding unconstitutional a State statute requiring the reporting of the names and addresses of all persons who had obtained prescriptions to certain drugs for which there were both a lawful and unlawful market. Whalen, 429 U.S. at 592, 97 S.Ct. at 872. The district court had held that the patient identification provisions of the act invaded a doctor-patient relationship which intruded on one of the zones of privacy accorded constitutional protection. Id. at 597, 97 S.Ct. at 875. The Supreme Court reversed the district court noting that the State statute provided safeguards against the improper disclosure of the medical records and held that the records did not establish an unconstitutional invasion of any right or liberty protected by the fourteenth amendment.

We disagree with the opinions of the Florida courts and hold that the trial court order compelling relator to identify blood donors is not an impermissible violation of their rights to privacy. We further hold that relator has not established a societal interest that overrides the plaintiff’s right to discovery of the blood donors’ identities.

In reaching this decision, we have applied a balancing test comparing the interest served by the State action³ with the donors' interest in privacy. Nixon v. Administrator of General Services, 433 U.S. 425, 459, 97 S.Ct. 2777, 2798, 53 L.Ed.2d 867 (1977). The plaintiff’s interest in the identity of the blood donors is legitimate. Without the information, it is unlikely the plaintiff will be able to prosecute her cause of action against the relator. The record does not support relator’s contention that the blood donors possess a need of anonymity greater than the plaintiff’s need. The trial court’s order makes an express finding that the disclosure of the identities and addresses of the donors does not violate a constitutional right of privacy. The trial court’s order also affords the donors protection from public disclosure by its direction that the “plaintiff shall not directly or indirectly contact any ‘donor’ identified through records produced under this order nor undertake further discovery regarding such ‘donors’ until permitted to do so by further order of this court.” The relator has not produced any evidence that would show or tend to show that the information sought by the plaintiff would be used improperly. duPont, 442 F.Supp. at 824. The trial court’s discovery order includes adequate safeguards against the improper disclosure of the blood donors’ identities. See G.M.C. v. Director of Nat. Institute, 636 F.2d at 166. In reaching its conclusions, the Florida Supreme Court noted that the discovery rules of that state allow a trial judge, upon good cause shown, to set conditions under which discovery will be given. See FLA.R.CIV.P. 1.280(c) and that some method could be formulated to verify a blood service’s report that none of the donors was a known AIDS victim while preserving the confidentiality of the donors’ identity. In a footnote to its opinion, the Supreme Court noted that South Florida Blood Service had stated that none of Rasmussen’s 51 donors appeared in a list of identified AIDS victims; however, the court agreed with Rasmussen that he should not have to rely on the Blood Service’s statement. Rasmussen v. South Florida Blood Serv., 500 So.2d at 537.

Texas discovery rules also confer broad discretion upon a trial judge to limit discovery to protect any person against or from whom discovery is sought from undue burden, unnecessary expense, harassment or annoyance, or invasion of personal, constitutional or property rights. TEX.R. CIV.P. 166b(4). Relator seeks a blanket denial of any discovery of the donors’ identities and suggests no conditions limiting the use or publication by the real party in interest of the donors’ identities. From the record it appears that the relator has made no effort to determine whether any of its donors have been identified as AIDS victims. Because the trial court’s order evidences a proper concern with protection of the individual’s right of privacy, we hold that the record does not establish an invasion of any constitutionally protected right for liberty of the blood donors. See Whalen, 429 U.S. at 606-07, 97 S.Ct. at 879-80.

We also hold that the relator has failed to establish that the court ordered discovery is an abuse of discretion because of injury to any societal interest. We agree with the dissenting opinion of Chief Justice Schwartz of the Florida District Court of Appeals that a determination of injury to society’s interest by the limited discovery ordered is no less speculative than a determination that the order would benefit society by discouraging blood donations by those infected with AIDS. South Florida Blood Serv. v. Rasmussen, 467 So.2d at 806.

For the reasons stated, we deny the relator’s prayer for relief.

SPURLOCK, II, and BURDOCK, JJ., join. LATTIMORE, J., concurs. KELTNER, J., files a dissenting opinion in which FENDER, C.J., and HILL, J., join.

1 . A discussion of Rasmussen is important to the determination of this case because its facts are uniquely similar to the facts of the instant case.

2 . Right of privacy. — Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law. FLA.CONST. Art. I, sec. 23.

3 . A court order which compels or restricts pretrial discovery constitutes State action which is subject to constitutional limitations. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984).