STEVEN J. WIPF, Plaintiff and Appellee,
TERRY ALTSTIEL, M.D. and REGIONAL HEALTH PHYSICIANS, INC., Defendants and Appellants.
ON FEBRUARY 17, 2016
REASSIGNED ON AUGUST 2, 2016
FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA, THE HONORABLE MICHELLE K.
PALMER PERCY Judge.
J. LEE GARY D. JENSEN of Beardsley, Jensen & Lee Prof.
LLC Rapid City, South Dakota Attorneys for plaintiff and
JEFFREY G. HURD DANIEL DUFFY of Bangs, McCullen, Butler, Foye
& Simmons LLP Rapid City, South Dakota Attorneys for
defendants and appellants.
ZINTER, JUSTICE (ON REASSIGNMENT).
Steven J. Wipf sued Dr. Terry Altstiel and Regional Health
Physicians Inc. (Appellants) for medical malpractice. Through
discovery, Wipf sought access to operative notes and
postoperative notes relating to follow-up care of some of Dr.
Altstiel's patients who are not parties to this action.
The circuit court ordered Appellants to partially redact and
produce the redacted records, and they appealed. We reverse
and remand for reconsideration.
and Procedural History
On April 22, 2011, Dr. Altstiel performed a laparoscopic
hernia repair on Wipf at the Spearfish Regional Surgery
Center (SRSC). The purpose of the surgery was to repair a
tear or opening in Wipf's abdominal wall. Dr. Altstiel
completed the surgery around 10:00 a.m., and Wipf was
discharged around 4:00 p.m. Wipf was advised to notify his
doctor if he experienced any unusual pain or developed a
The following day, Wipf contacted SRSC to report that he was
experiencing pain in his upper back, he had a fever, and he
had been unable to have a bowel movement since prior to
surgery. SRSC advised Wipf to go to the emergency room, and
Wipf went to the Sturgis Regional Hospital (SRH). The
emergency-department doctor found that Wipf did not have a
fever or bowel blockage. Although Wipf's primary
complaint was pain, he had not been taking his prescribed
pain medication. Wipf was advised to take the pain medication
and return if he felt that his condition worsened.
Wipf returned to SRH's emergency department three nights
later. He reported that he felt nauseous and that he still
had been unable to have a bowel movement. Wipf was admitted
to the hospital for observation, and he underwent a CT scan
of his abdomen the following morning. The scan revealed fluid
and air in the abdomen near an opening in the mid-small
bowel. SRH transferred Wipf to the Rapid City Regional
Hospital, where he underwent surgery with Dr. Larry Wehrkamp.
Dr. Wehrkamp discovered two perforations in the small bowel
that measured approximately two centimeters in size.
Wipf later sued Appellants for malpractice. Wipf alleged that
Dr. Altstiel accidentally perforated Wipf's small bowel
during the laparoscopic hernia repair. Wipf also alleged that
Dr. Altstiel failed to inspect and find the perforations
before completing the surgery. Dr. Altstiel contended that he
inspected Wipf's bowel prior to concluding the surgery
and that no perforations were present. Wipf, however, pointed
out that Dr. Altstiel did not note the claimed inspection in
his operative note. Dr. Altstiel's expert also testified
that for him to opine that Dr. Altstiel violated the standard
of care, Wipf would have to show an unacceptably high
complication rate in similar procedures with different
patients. Because Dr. Altstiel estimated that he had
conducted approximately 955 laparoscopic hernia repairs over
thirteen years, and because Dr. Altstiel's expert
testified in his deposition that it would be relevant to
consider the past 200-300 procedures, Wipf requested
production of Dr. Altstiel's operative notes involving
this procedure for the prior five years, including medical
reports or notes that related to follow-up care. The circuit
court found those records relevant, ordered the doctor and
clinic to "redact from these records the personal
identifiers for each patient, " and ordered them to
produce the remaining redacted information. We subsequently granted Dr. Altstiel's
petition for an intermediate appeal.
For purposes of appeal, Dr. Altstiel concedes that the
redacted information is relevant. However, he claims that the
physician-patient privilege in SDCL 19-19-503(b) protects
such anonymous, nonidentifying information from discovery.
This is a question of first impression in this jurisdiction.
If the privilege applies, then according to Dr. Altstiel,
liability for malpractice will depend solely on his testimony
of his unverifiable estimate of his own complication rate.
Further, the inference to be drawn from Dr. Altstiel's
failure to note an inspection of the bowel in his operative
note will depend solely on Dr. Altstiel's explanation.
The physician-patient privilege, codified in SDCL
19-19-503(b), protects a physician-patient's
"confidential communications made for the purpose of
diagnosis or treatment." But the language of the statute
does not address information in a doctor's records that
does not identify the patient and cannot be traced back to
the patient. Additionally, unlike some jurisdictions that
have passed medical information privacy acts or patient's
rights legislation that more broadly protect medical
information, see 3 Jack B. Weinstein & Margaret
A. Berger, Weinstein's Federal Evidence §
514.12[c] (Mark S. Brodin, ed., Matthew Bender 2d ed.
1998), the South Dakota Legislature has not done so.
The text of SDCL 19-19-503 does not protect all of a
physician's "medical records." Rather, it only
protects physician-patient "confidential
communications" contained in medical records. SDCL
19-19-503(b). Because the text of SDCL 19-19-503(b) fails to
address either the disclosure of anonymous, nonidentifying
information or whether nonidentifying information is a
physician-patient "confidential communication, " it
is informative to consider the cases from other jurisdictions
that have similar rules protecting physician-patient
"confidential communications." With almost
unanimity, the courts applying analogous rules protecting
physician-patient "confidential communications"
hold that when adequate safeguards ensure the anonymity of
the patient, relevant, nonidentifying information is not
privileged. See Snibbe v. Superior
Court, 168 Cal.Rptr.3d 548, 554, 556-57 (Cal.Ct.App.
2014) (interpreting California's privilege rule, Cal.
Evid. Code § 994 (West 2016), which protected
"confidential communication[s] between patient and
physician"); Bennett v. Fieser, 152 F.R.D. 641,
642-44 (D. Kan. 1994) (interpreting Kansas's privilege
rule, Kan. Stat. Ann. § 60-427 (West 2012), which
protected "confidential communication[s] between patient
and physician"); Osterman v. Ehrenworth, 256
A.2d 123, 129 ( N.J.Super. Ct. Law Div. 1969) (interpreting
New Jersey's privilege rule, N.J. Stat. Ann. §
2A:84A-22.2 (West 1968), which protected "a confidential
communication between patient and physician");
Staley v. N. Utah Healthcare Corp., 230 P.3d 1007,
1010-11 (Utah 2010) (interpreting Utah's privilege rule,
Utah R. Evid. 506 (West 1994), which protected
"information that is communicated in confidence to a
physician or mental health therapist").
Additionally, even courts interpreting broader privilege
rules protecting "any communication" or "any
information" hold that relevant, adequately protected,
nonidentifying information is not privileged. See Ziegler
v. Superior Court, 656 P.2d 1251, 1254-56 (Ariz.Ct.App.
1982) (interpreting Arizona's privilege rule, Ariz. Rev.
Stat. Ann. § 12-2235 (West 1974), which protected
"any communication made by [a] patient with reference to
any physical or mental disease or disorder . . . or as to any
such knowledge obtained by personal examination of the
patient"); Cmty. Hosp. Ass'n v. District
Court, 570 P.2d 243, 244-45 (Colo. 1977); (interpreting
Colorado's privilege rule, Colo. Rev. Stat. Ann. §
13-90-107(d) (West 1973), which protected "any
information acquired in attending the patient, which was
necessary to enable him to prescribe or act for the
patient"); Fischer v. Hartford Hosp., 31
Conn.L.Rptr. 291 (Conn. Super. Ct. 2002) (interpreting
Connecticut's privilege rule, Conn. Gen. Stat. Ann.
§ 52-146o (West 1996), which protected "any
communication made to" a patient or "any
information obtained by" a patient); Tomczak v.
Ingalls Mem'l Hosp., 834 N.E.2d 549, 552-555
(Ill.App.Ct. 2005) (interpreting Illinois's privilege
rule, 735 Ill. Comp. Stat. Ann. 5/8-802 (West 2002), which
protected "any information [the physician] may have
acquired in attending any patient in a professional
character, necessary to enable him or her professionally to
serve the patient"); Terre Haute Reg'l Hosp.,
Inc. v. Trueblood, 600 N.E.2d 1358, 1360-62 (Ind. 1992)
(interpreting Indiana's privilege rule, Ind. Code §
34-1-14-5 (1991) (transferred to Ind. Code § 34-46-3-1
(West 2016)), which protected "matters communicated to
[physicians] by patients"); Baptist Mem'l Hosp.
v. Johnson, 754 So.2d 1165, 1169-71 (Miss. 2000)
(interpreting Mississippi's privilege rule, Miss. Code.
Ann. § 13-1-21 (West 2016), which protected "All
communications made to a physician"); State ex rel.
Wilfong v. Schaeperkoetter, 933 S.W.2d 407, 409-10 (Mo.
1996) (interpreting Missouri's privilege rule, Mo. Ann.
Stat. § 491.060(5) (1994), which protected "any
information which [the physician] may have acquired from any
patient while attending [the patient] in a professional
This type of anonymous, nonidentifying information is not
protected by the physician-patient privilege because there is
no patient once the information is redacted. As the
Utah Supreme Court thoughtfully explained:
[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. The United States District Court
for the Southern District of New York cogently explained this
that any record containing a diagnosis, an evaluation or a
treatment, even if it cannot be connected with a patient, is
privileged-is not self evident . . . . [O]ne might argue, as
a matter of theory, that the use of the disjunctive in the
[rule] means that any document containing a patient's
identity or diagnosis or evaluation or treatment is
privileged . . . . Such a construction, however, would lead
to preposterous results. A scrap of paper upon which a
physician had jotted down a patient's name, or wrote only
the word "indigestion" (a diagnosis) or
"aspirin" (a treatment) or "malingering"
(an evaluation) would, or at least could, be privileged. The
. . . rulemakers could not possibly have so intended.
Staley, 230 P.3d at 1011 (quoting In re Rezulin
Prods. Liab. Litig., 178 F.Supp.2d 412, 414 (S.D.N.Y.
2001) (citations omitted)). In accordance with the rationale
of the Utah Supreme Court and the almost unanimous view of
other courts,  we too hold that
anonymous, nonidentifying medical information is not
privileged per se.
To ensure that privileged information is not disclosed, the
circuit court must ensure that the information to be
disclosed is nonidentifying. No third-party patient can be
associated with the information. Additional safeguards such
as protective orders should also be considered. The cases
considering patient anonymity have required such things as:
redaction of all personal information as well as any
information that would tend to identify a patient; sealing
documents; prohibiting the attorneys and parties from
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. See
Ziegler, 656 P.2d at 1254-55; Cmty. Hosp.
Ass'n, 570 P.2d at 244; Fieser, 152 F.R.D.
at 643-44. Courts have also required attorneys to sign
protective orders, see Trueblood, 600 N.E.2d at
1360-62, and limited disclosure to expert witnesses, see
Staley, 230 P.3d at 1009.
In this case, the circuit court required Dr. Altstiel to
"redact the personal identifiers for each patient,
including the patient's name, address, phone number, date
of birth, and social security number." The court did
not, however, require redaction of other information that
could identify the patient, such as the patient's medical
history or information regarding family members. There is
also no indication that the court considered whether
identification of the patient could occur because of the size
of the community. This could be significant because as Dr.
Altstiel points out, Sturgis and Meade Counties have small
populations, which could lead to identification of a patient.
Cf. Staley, 230 P.3d at 1013 (noting little chance
of identification because the hospital at issue was one of
several located in an area populated by approximately 900,
000 people and also drew patients from neighboring states).
Finally, the court did not issue a protective order.
Accordingly, we reverse and remand for the circuit court to
consider whether additional safeguards will ensure patient
anonymity. If they will, the court must enter a protective
order before disclosure.
Reversed and remanded for further proceedings consistent with
WILBUR and KERN, Justices, concur.
GILBERTSON, Chief Justice, and ...