Medical Malpractice: Physician-Patient Privilege

By on March 9, 2015 - Comments off

Snibbe v. Superior Court, (Second District, February 27, 2014) 224 Cal.App.4th 184, 168 Cal.Rptr.3d 548, 14 Cal. Daily Op. Serv. 2156, 2014 Daily Journal D.A.R. 2450

The sons of a woman who died following hip replacement surgery filed an action for wrongful death against a medical center, the physician who performed the surgery, and the anesthesiologist. The plaintiffs alleged that the decedent was found unresponsive several hours after a physician’s assistant administered hydromorphone, a pain medication which presents a high risk of fatal respiratory depression. The plaintiffs further alleged that administration of hydromorphone for postoperative pain relief was below the standard of care and a substantial factor in the death of the decedent.

The plaintiffs moved to compel production of postoperative orders relating to the physician’s other patients, contending that they would be relevant to the issue of whether the physician and his assistant regularly consulted with an anesthesiologist, (as the physician had testified), or instead, he regularly permitted the assistant to rely on boilerplate drug orders for the administration of opioid pain medication. 

The trial court granted the motion, but limited the scope of discovery to 160 postoperative orders including provisions for the administration of opioids. The physician sought a writ of mandate, contending that production would violate the physician-patient privilege. The court of appeal issued a writ ordering the trial court to issue a new order redacting personal identifying information from the records, but denying the petition in all other respects:

Petitioner argues generally that patients have substantial privacy interests in their medical records, but does not explain how any patient can be identified from the limited information included in the redacted postoperative orders at issue in these proceedings. …Petitioner has made no showing that the postoperative orders in this case cannot successfully be redacted. To the extent he argues that disclosure of redacted orders nevertheless violates the patients’ privacy rights as a matter of law, that is not the law in California. Moreover, to the extent the redacted orders would reveal information about the patients’ health and ailments, such as the type of surgery performed or type and dosage of pain medication ordered, there is no indication that they would reveal particularly sensitive or embarrassing information …

Private information may be discoverable if directly relevant to the litigation. Generally, the least intrusive means must be utilized when privacy rights are at stake. A compelling need for private information does not exist if the information can be obtained through nonconfidential sources. However, absent a showing of a serious intrusion into patient privacy, there is no need to balance privacy interests against the need for discovery. Because the production of portions of redacted orders would not invade patient privacy, real parties need not show a compelling need for discovery. We nevertheless agree with their contention that the opioid orders are directly relevant and may provide information not realistically obtainable from other sources….

They admittedly have not deposed Ms. Cabrera because they do not expect she would be willing to confirm their theory and thus jeopardize her physician assistant license. But if postoperative orders in all or substantially all other patient cases include substantially similar opioid provisions as the order in this case, that would weigh against finding that petitioner exercised medical judgment or supervision over Ms. Cabrera, thus providing additional support for the expert’s opinion and strengthening real parties’ case.

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