Non-party's Privileged Documents not Subject to Subpoena or In Camera Review

Naipo v. Border (HSC May 18, 2011)

Background. Eshell Mitchell sued the Yuen family after Braddah, the Yuen dog, bit her. At the time of the incident, Mitchell was living with Jennifer Naipo. Mitchell claimed that the Naipo was bitten several times by Braddah several months before it bit her. The Yuens denied that their dog had bitten anyone. Naipo was deposed. She didn't have a lawyer. The Yuen's lawyer told her that she could refuse to answer a question that she believed invaded her personal privacy. Naipo answered all the questions. Naipo testified that she was not taken to the hospital for an injury to her forehead but that she went to the Wahiawa Hospital because a different Yuen dog, Misty, had been bitten her several times on the arm. Mitchell deposed Nanea Yuen. Nanea testified that Misty bit Naipo on her forehead, not her arm, and that they had to go to the hospital for that. In light of the conflicting testimony, Mitchell sought a subpoena duces tecum for hospital records from Wahiawa General Hospital.

Naipo, now with a lawyer, moved to quash the subpoena on the grounds that the records were protected from disclosure under Hawai'i Rules of Evidence (HRE) Rule 504, the Hawai'i Constitution, and the federal Health Insurance Portability and Accountability Act (HIPAA). The motion was denied and the court ordered that it would receive the records for an in camera review and that any disclosed records to the parties would be subject to a stipulated qualified protective order. Naipo moved for a stay and petitioned mandamus to the HSC.

Writ of Mandamus Appropriate for Discovery Order Releasing Confidential Files. A writ of mandamus will not issue unless the petitioner shows "a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action." Kema v. Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334, 338 (1999). It is appropriate when a court "issues an order releasing confidential files . . . and the order is not immediately appealable." Brende v. Hara, 113 Hawai'i 424, 429, 153 P.3d 1109, 1114 (2007). A discovery order is not immediately appealable and appropriate for mandamus review . Id.

The Physician-Patient Privilege. "The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest." Hawai'i Const. Art. I, Sec. 6. This right to privacy includes "the right to keep confidential information which is highly personal and intimate." Brende v. Hara, 113 Hawai'i at 430, 153 P.3d at 1116. "Health information is highly personal and intimate information[.]" Id.

There's also an evidentiary privilege:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the patient's physical, medical, or emotional condition, including alcohol or drug addiction, among oneself, the patient's physician, and persons who are participating in the diagnosis or treatment under the direction of the physician, including members of the patient's family.

HRE Rule 504(b). A 504(b) "communication" includes those "made by exhibition or by submission to inspection, as well as by oral or written narration or utterance." State v. Moses, 103 Hawai'i 111, 123, 80 P.3d 1, 13 (App. 2002). The HSC, relying on a case from Illinois, held that information about a patient "deserves the protection of confidentiality that the legislature envisioned." Parkson v. Central DuPage Hospital, 435 N.E.2d 140, 143 (Ill. App. Ct. 1982). "[A]llow[ing] the disclosure of communications involving patients who are not parties to the litigation would neither serve a public interest nor the private interests of those non-party patients." Id.

The HSC held that Jennifer Naipo is not a party to the lawsuit between the Yuens and Mitchell. Her health information in the records from the Wahiawa hospital is protected by the constitutional right to privacy and the privilege under HRE Rule 504(b).

Disclosure Waives the Privilege. A person with a privilege waives it, "if, while the holder of the privilege, the person or the person's predecessor voluntarily discloses or consents to disclosure of any significant part of the privileged matter." HRE Rule 511. Intentional disclosure of privileged material "eliminates the need for the privilege in that instance." Commentary to HRE Rule 511. Waiver arises when the disclosure is voluntary. Save Sunset Beach Coalition v. City and County of Honolulu, 102 Hawai'i 465, 485, 78 P.3d 1, 21 (2003).

The Cabrinha Rule: Disclosure of Privileged Information is not Voluntary Without Express Advisement of the Existence of the Privilege. The HSC relied upon Territory v. Cabrinha, 24 Haw. 621, (Terr. 1919). In that case, the defendant was subpoenaed to appear before a grand jury, which was investigating whether he committed a crime. When he got there, the attorney general advised him that he could refuse any questions posed to him. Cabrinha answered all of the questions, and based on those answers, the grand jury indicted him. Cabrinha moved to quash the indictment; it was denied, and the Territorial Supreme Court affirmed. According to the HSC, Cabrinha established that "subpoenaed testimony on a privileged matter is voluntary, and the applicable privilege is waived, when the witness is expressly advised of the privilege and testifies without asserting the privilege." Applying the Cabrinha rule, the HSC held that Naipo was not adequately advised of her privilege to refuse to answer questions about the treatment of her physical condition at the hospital. The advise that she didn't have to answer questions that invaded her privacy was simply inadequate. The HSC thus held that her disclosure of the answers did not constitute a waiver pursuant to HRE Rule 511.

Privilege is Absolute: In Camera Review Inappropriate. An evidentiary privilege protects "a personal right of confidentiality that is recognized to be of greater societal importance than the principle of free disclosure of all relevant evidence in a judicial proceeding." HRE Rule 511 Commentary. Having held that the medical records were protected by the physician-patient privilege and having held that Naipo did not waive that privilege, the HSC then held that even though there may be relevant evidence in those records, the right to keep them confidential prevents any disclosure, including an in camera review by the trial court.

The Perplexing Footnote. At first blush, it would seem that that was that. Privileged materials cannot be disclosed, not even to the court for inspection. But, the HSC noted that there was no indication that an in camera record would establish evidence of an exception to the privilege. United States v. Zolin, 491 U.S. 554, 572-75 (1989). Thus, in this particular case, there was no need for any kind of disclosure.

What makes that footnote interesting is that when privilege is raised, there may just be an exception to the privilege in the materials themselves. At the very least, counsel would probably want the court to review the subpoenaed materials for exceptions to the privilege at issue. Better luck next time.