Case Notes

• Jurisdiction: Hawaii,United States
• Citation: Vol. 20 No. 08
• Publication year: 2016

CASE NOTES

Supreme Court

Civil Procedure

Pacific Radiation Oncology, LLC v. The Queen's Medical Ctr., No. SCCQ-15-0000300, June 13, 2016, (McKenna, J.; Recktenwald, C.J. concurring separately). The United States District Court for the District of Hawaii (District Court) asked the Hawaii Supreme Court to provide guidance on a question of Hawaii law. At issue was whether the parties may use, or be compelled to produce, the confidential medical records of over one hundred cancer patients, in an effort to prosecute or defend against claims that the Plaintiff doctors steered these patients away from treatment at Defendant Queens Medical Center. The patients were not parties to the underlying lawsuit, although 19 of them were granted intervenor status to assert their right to privacy and seek a prohibition on the use and production of their medical records. The District Court1 certified the following questions to the Hawaii Supreme Court: 1. May a third 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. If a third party may use and/or produce a patient's confidential medical records in litigation, is a de-identification process sufficient to protect the patient's privacy interests where the third party already allowed its agents access to the patient's records and its agents inadvertently made part of the patient's medical information public? To avoid confusion, the Hawaii Supreme Court reformulated the certified questions to clarify that the term "party" referred to the parties to the litigation, not to the parties to the physician-patient relationship. Therefore, the reformulated certified questions were: 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? The Hawaii Supreme Court answered the first certified question in the negative. Article I, section 6 of the Hawaii Constitution protects the health information of patient intervenors to this case. Pursuant to that provision, 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 party, absent a compelling state interest. As to the second certified question, the Hawaii Supreme Court did not address whether sufficient de-identification is possible where one party already allowed its agents access to the patient's records and its agents inadvertently made part of the patient's medical information public. The de-identification process and requirements are set forth under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), Pub L. No. 104-191, 110 Stat. 1936 (1996), and its corresponding regulations; therefore, the sufficiency of de-identification does not "concern[] the law of Hawai'i that is determinative of the cause." Hawaii Rules Appellate Procedure Rule 13. Whether the use and production of de-identified medical records is "sufficient to protect the patient's privacy interests," however, is a question the Hawaii Supreme Court could address under article I, section 6. Thus, the Hawaii Supreme Court held that the use and production of de-identified medical information of patients who are not parties to the litigation violates those patients' right to privacy under article I, section 6 of the Hawaii constitution, as no compelling state interest was shown in this case.

Recktenwald, C.J. concurred separately to briefly address the issue of federal preemption, agreeing with the Majority's holding that, pursuant to article 1, section 6 of the Hawaii Constitution, "the parties cannot use, or be compelled to produce, confidential patient medical records, even if sufficiently de-identified, in litigation where the patient is not a party, as no compelling state interest has been shown." However, for the reasons stated in his concurrence in Cohan v. Ayabe, 132 Hawaii 408, 424-46, 322 P.3d 948, 96466 (2014), Recktenwald, C.J. believed that HIPAA may preempt this holding to the extent that it prevents the disclosure of de-identified medical records. Put briefly, 45 C.F.R. § 160.203 provides that HIPAA standards and requirements preempt contrary provisions of state law, except when the state law is "more stringent" and relates to "the privacy of...