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Pacific Radiation Oncology, LLC v. The Queen's Medical Center

United States District Court, D. Hawaii

November 23, 2016

PACIFIC RADIATION ONCOLOGY, LLC, a Hawai`i Limited Liability Corporation, et al., Plaintiffs,
v.
THE QUEEN'S MEDICAL CENTER, a Hawai`i Non-Profit Corporation, et al., Defendants.

          ORDER RULING ON REMAINING ISSUES IN PENDING APPEALS FROM THE MAGISTRATE JUDGE'S ORDERS

          Leslie E. Kobayashi United States District Judge

         On October 7, 2014, the magistrate judge issued his Order Regarding Discovery Issues (“10/7/14 Discovery Order”). [Dkt. no. 363.] On October 14, 2014, Plaintiffs/Counterclaim Defendants Pacific Radiation Oncology, LLC, a Hawai`i Limited Liability Corporation (“PRO LLC”); PRO Associates, LLC, a Hawai`i Limited Liability Corporation (“PRO Associates”); John Lederer, M.D.; Laeton Pang, M.D.; Eva Bieniek, M.D.; Vincent Brown, M.D.; Paul DeMare, M.D.; and Thanh Huynh, M.D. (all collectively “Plaintiffs”)[1] filed their appeal from the 10/7/14 Discovery Order (“10/7/14 Discovery Appeal”). [Dkt. no. 380.]

         On December 11, 2014, the magistrate judge issued his Order: (1) Granting in Part and Denying in Part Defendants' Motion to Compel Discovery; (2) Denying Defendants' Motion for an Order Compelling Production of Documents by Non-parties Pursuant to Subpoenas; and (3) Granting Defendants' Motion to Amend the Amended Rule 16 Scheduling Order Filed September 15, 2014 (“12/11/14 Discovery Order”). [Dkt. no. 449.] Plaintiffs filed an appeal from the 12/11/14 Discovery Order on December 22, 2014, and Interested Party The Cancer Center of Hawaii, LLC (“TCCH”) filed its appeal on December 24, 2014 (collectively, “12/11/14 Discovery Appeals”). [Dkt. nos. 460, 463.]

         This Court reserved ruling on a portion of the 10/7/14 Discovery Appeal and portions of the 12/11/14 Discovery Appeals, pending the Hawai`i Supreme Court's response to certified questions from this Court. [Order Reserving Ruling on Plaintiffs' Appeal from Magistrate Judge's Order Regarding Discovery Issues [Dkt. 363], filed 1/30/15 (dkt. no. 493) (“10/7/14 Discovery Appeal Order”); Order Regarding Plaintiffs' Appeal and the Cancer Center of Hawaii, LLC's Appeal from the Magistrate Judge's December 11, 2014 Order, filed 4/20/15 (dkt. no. 553) (“12/11/14 Discovery Appeals Order”).[2] On June 13, 2016, the Hawai`i Supreme Court issued its opinion responding to the certified questions (“Response Opinion”). 138 Hawai`i 14, 375 P.3d 1252 (2016), reconsideration denied, 138 Hawai`i 50, 375 P.3d 1288 (July 1, 2016).

         On September 6, 2016, Defendants/Counter Claimants The Queen's Medical Center (“Queen's” or “QMC”) and Queen's Development Corp. (collectively “Defendants”)[3] filed a supplemental memorandum addressing the Response Opinion. [Dkt. no. 628.] Plaintiffs and TCCH filed their respective supplemental memoranda on September 20, 2016. [Dkt. nos. 655, 656.] Also on September 20, Intervenors John and Mary Does 1 through 19 (collectively “the Patient Intervenors”) filed their supplemental memorandum. [Dkt. no. 657.]

         After careful consideration of the parties' submissions, the remaining portions of the 10/7/14 Discovery Appeal and the 12/11/14 Discovery Appeals are HEREBY GRANTED, and the remaining portions of the 10/7/14 Discovery Order and the 12/11/14 Discovery Order are HEREBY SET ASIDE.

         In short, the Court CONCLUDES Hawai`i law precludes production of the de-identified information sought in this case because the proposed de-identified information could be used to identify patients.

         BACKGROUND

         The background of this case is well known to the parties and the Court. It is set forth in, inter alia, this Court's: September 18, 2014 Amended Order Granting in Part and Denying in Part Plaintiffs' Motion for Temporary Restraining Order or in the Alternative for Preliminary Injunction (“9/18/14 TRO Order”); [dkt. no. 343;[4] the 10/7/14 Discovery Appeal Order; and the 12/11/14 Discovery Appeals Order. This Court will therefore only discuss the background that is relevant to the effect of the Response Opinion on the remaining issues in the discovery appeals.

         I. 10/7/14 Discovery Appeal

         In the 10/7/14 Discovery Order, the magistrate judge inter alia, found that the List Patients' medical records (“the List Patients' Records”) will be discoverable if they are de-identified.[5] He ordered the parties to de-identify the List Patients' Records and to produce the de-identified records. [10/7/14 Discovery Order at 5.] In the 10/7/14 Discovery Appeal, Plaintiffs argued that these rulings were erroneous. This Court affirmed the magistrate judge's finding that the List Patients' Records are relevant. 10/7/14 Discovery Appeal Order, 2015 WL 419654, at *4. This Court also “affirm[ed] the 10/7/14 Discovery Order, to the extent that it concluded that the List Patients' de-identified medical records are discoverable under [the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), 42 U.S.C. § 1320d, et seq., ] and corresponding state law.” Id. at *8.

         Because of the lack of Hawai`i caselaw applicable to the facts of this case, this Court could not determine “whether, under the circumstances of this case, the List Patients' right to privacy under article I, section 6 of the Hawai`i State Constitution trumps Defendants' need for the List Patients' Records, even after de-identification.” Id. at *11. This Court therefore reserved ruling - pending the Hawai`i Supreme Court's response to the certified questions - on the ultimate issue of whether the magistrate judge erred in ordering the production of the List Patients' Records after de-identification.

         II. 12/11/14 Discovery Appeals

         The following Requests for Production of Documents and Things remain in dispute after the 12/11/14 Discovery Appeals Order:

9. All documents relating to any patient that received medical care at both QMC's radiation therapy department and The Cancer Center of Hawai`i.
10. All communications amongst Plaintiffs relating to patients that received medical care at both QMC's radiation therapy department and The Cancer Center of Hawai`i.
11. All documents relating to the transfer of any patient from QMC to The Cancer Center of Hawai`i.

[Defs.' Motion to Compel Discovery, filed 7/28/14 (dkt. no. 256), Decl. of Claire Wong Black (“Black Motion to Compel Decl.”), Exh. 14 (Defendant The Queen's Medical Center's First Request for Production of Documents and Things to Plaintiffs Pacific Radiation Oncology, LLC and PRO Associates, LLC, dated 9/26/13) at Exh. A at 2.]

         The following Request for Answers to Interrogatories also remains in dispute: “3. Identify all patients that received medical care at both QMC and The Cancer Center of Hawai`i from 2001 to the present, and describe the procedure(s) performed at each location and the reason for providing care at multiple locations.” [Black Motion to Compel Decl., Exh 15 (Defendant The Queen's Medical Center's First Request for Answers to Interrogatories to Plaintiff Pacific Radiation Oncology, LLC, dated 9/26/13) at 8-9.] Queen's proposed the same interrogatories to PRO Associates.[6] [Id., Exh. 16 (Defendant The Queen's Medical Center's First Request for Answers to Interrogatories to Plaintiff PRO Associates, LLC, dated 9/26/13) at 8-9.] The magistrate judge ordered Plaintiffs - and, where necessary, TCCH - to respond to these discovery requests. In the 12/11/14 Discovery Appeals, Plaintiffs and TCCH argue that the magistrate judge erred in ordering them to respond to these discovery requests. This Court reserved ruling on these aspects of the 12/11/14 Discovery Appeals, pending the response to the certified questions.

         III. Response Opinion

         The Hawai`i Supreme Court reformulated the certified questions as follows:

1. May a party who is in lawful possession of a patient's confidential medical records use, or be compelled to produce, these records in litigation where the patient is not a party?
2. Is a de-identification process sufficient to protect the patient's privacy interests where the party already allowed its agents access to the patient's records and its agents inadvertently made part of the patient's medical information public?

         Response Opinion, 138 Hawai`i at 16, 375 P.3d at 1254. The supreme court specified that “the term ‘party' refers to the parties to the litigation, not to the parties to the physician-patient relationship[, . . .] the ‘parties' in this case are the plaintiffs and defendants, and the ‘third parties' in this case are the patient intervenors.” Id.

         In responding to the first certified question, the supreme court held:

The right to privacy is absolute where, as here, the individuals seeking to protect patient medical records, in discovery and beyond, are not parties to the litigation, have not consented to the use of their patient medical records in relation to the present lawsuit, and no compelling state interest has been shown. . . .
We hold that, pursuant to article I, section 6 of the Hawai`i Constitution, and under the facts of this case, the parties cannot use, or be compelled to produce, confidential patient medical records in litigation where the patient is not a ...

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