United States District Court, D. Hawaii
PACIFIC RADIATION ONCOLOGY, LLC, a Hawai`i Limited Liability Corporation, et al., Plaintiffs,
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
E. Kobayashi United States District Judge
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”) filed their
appeal from the 10/7/14 Discovery Order (“10/7/14
Discovery Appeal”). [Dkt. no. 380.]
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,
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”). 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).
September 6, 2016, Defendants/Counter Claimants The
Queen's Medical Center (“Queen's” or
“QMC”) and Queen's Development Corp.
(collectively “Defendants”) 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.]
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.
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
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.
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
10/7/14 Discovery Appeal
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. 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.
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.
12/11/14 Discovery Appeals
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
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.]
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. [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.
Hawai`i Supreme Court reformulated the certified questions as
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?
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.
responding to the first certified question, the supreme court
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