You have a bad habit. Patients come in for an initial examination, you tell them whatever you tell them, they agree to start, and so you do. You’ll worry about cavity checks, periodontal clearance, and so on once the case gets under way, if at all. The fact that this is not the “right way” to do things is not what this month’s column is about. Let’s back up. One of these cases goes south, and the patient brings a malpractice action against you. You claim that you always examine a patient before you start, and if the patient needs to be referred for something, you make the referral. You state that it is your usual practice to document these referrals, but somehow you must have forgotten to note this in this patient’s chart. The patient, of course, thinks that what you have claimed you do is a total fabrication and wants to prove it. The problem is how. The plaintiff asks the court to subpoena the records of the last 250 patients you treated because he believes that you routinely just start patients without obtaining periodontal or caries clearance, and you don’t document that these clearances were obtained. The court allows the plaintiff to obtain the records, but they had to be redacted regarding patient identifiers such as name, address, phone number, social security number, and date of birth. Was the court correct in allowing the plaintiff to obtain these records? That’s what Wipf v Altsteil , No. 27491-r-SLZ (S. D. Sup. Ct., Dec. 21, 2016), was all about.

In Wipf, the defendant performed a hernia repair resulting in a perforation to the patient’s abdominal wall. The plaintiff needed subsequent surgical repair and eventually filed a malpractice suit. The plaintiff claimed that the defendant breached the standard of care by not inspecting the bowel for perforations before concluding the surgery. The defendant claimed that he did inspect the bowel, and that there were no perforations; however, his surgical notes did not reflect that such an inspection had been performed. The defendant’s expert said that if the defendant routinely did not do the customary inspections, then he would have an unusually high rate of postoperative complications, something that had not been shown. The plaintiff’s attorney asked the expert how one could possibly prove this high rate when there were no data on which to rely. The defendant’s expert said that the only way he knew of proving this type of habitual substandard practice would be to examine the defendant’s last 200 t0 300 hernia repairs out of the approximately 1000 he had performed over the past 13 years to see how often this type of negative sequellae occurred.

The plaintiff then requested the court to have the defendant produce the patient records, including all postoperative follow-up care, of all hernia repairs performed by the defendant during the last 5 years. The argument was that they were relevant to show that the defendant engaged in a negligent, reoccurring, substandard practice. The court agreed and found that the records would be relevant and ordered the defendant to produce them with the personal identifiers as noted above redacted. The defendant objected claiming that such records were protected from discovery under the doctor-patient privilege of confidentiality. The issue, of course, was that without the records to prove or disprove the defendant’s surgical complication rate and substandard practice of not inspecting the bowel for perforations as a result of the surgery, one would have only the defendant’s unsubstantiated word of having met the standard of care.

The statute governing this matter is SDCL 19-19-503 and deals with physician-patient privilege. It states the following.

A patient may refuse to disclose and may prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment among himself, his physician, and other enumerated individuals. SDCL 19-19-503(b). A communication is confidential if not intended to be disclosed to third persons. SDCL 19-119-503(a)(4).

The South Dakota Supreme Court noted that the statute does not protect all of a practitioner’s medical records but, instead, protects only the portion of the record that is confidential and relates to the diagnosis or treatment of the patient. The court also noted that the statute specifically did not address whether anonymous, nonidentifying information is considered confidential and, if it is, whether it can be disclosed. Since this was a matter of first impression for South Dakota, it looked to how other states had dealt with this issue and discovered that almost all states “hold that when adequate safeguards ensure the anonymity of the patient, relevant, nonidentifying information is not privileged.”

Citing a Utah decision, the court noted the following.

The physician-patient privilege shields from disclosure certain information communicated between a physician or a mental health therapist and a patient, so long as the information “is communicated in confidence” and for the purpose of diagnosis and treatment of the patient. Under [the physician-patient privilege], communicating information contemplates an exchange of information between a physician and a patient. In short, to be operative, [the 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 [the privilege]. 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. (Cit. Omit.)

The South Dakota Supreme Court, while finding that the records were relevant and could be admitted, noted that the redaction must be more encompassing than the information previously noted. Other potential patient identifiers, such as the patient’s medical history and information about the patient’s family members must also be redacted, and the size of the community in question must be considered, because if the community is small, then patients could be more readily identifiable. In the end, the court remanded the case to allow production of the records consistent with heightened patient deidentification concerns.