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Electronically Filed
Supreme Court
SCPW-11-0000086
18-MAY-2011
02:08 PM
NO. SCPW-11-0000086
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
JENNIFER P. NAIPO, Petitioner,
vs.
THE HONORABLE PATRICK W. BORDER, JUDGE OF THE CIRCUIT
COURT OF THE FIRST CIRCUIT, STATE OF HAWAI#I;
ESHELL MITCHELL; ALBERT H.D. YUEN, OR HIS SUCCESSOR
TRUSTEE, AS TRUSTEE OF THE ALBERT H.D. YUEN REVOCABLE
TRUST; ARNETTE YUEN; NADINE MACHADO; ROBERT YUEN; and
NANEA YUEN, Respondents.
ORIGINAL PROCEEDING
(CIVIL NO. 09-1-1147-05)
MAY 18, 2011
RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND DUFFY, JJ.
AND CIRCUIT JUDGE TRADER, ASSIGNED BY REASON OF VACANCY
Per Curiam. In this original proceeding, petitioner
Jennifer Naipo, a non-party in circuit court Civil No. 09-1-1147-
05, petitions this court for a writ of mandamus directing
respondent the Honorable Patrick W. Border (the respondent judge)
to vacate a February 9, 2011 order directing production of
petitioner's medical records to the respondent judge for in
camera inspection in Civil No. 09-1-1147-05. The respondent
judge ordered production over petitioner's claim of privacy under
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the Hawai#i Constitution, Article I, Section 6 (right of privacy)
and petitioner's claim of privilege under Hawai#i Rules of
Evidence (HRE) Rule 504 (physician-patient privilege).
Based on the following, we conclude that petitioner's
medical records are protected by petitioner's constitutional
right of privacy and by petitioner's physician-patient privilege
that was not waived. Consequently, we grant the petition for a
writ of mandamus and vacate the respondent judge's February 9,
2011 order directing production of petitioner's medical records.
I. Background
Plaintiff Eshell Mitchell sued the Albert Yuen family1
(the Yuens) in circuit court Civil No. 09-1-1147-05 for multiple
leg injuries she suffered on February 22, 2008 when she was
bitten by the Yuens' dog, Braddah, at the Yuens' home. Mitchell
was temporarily residing with the Yuens at the time of the
incident, as was Jennifer Naipo, the nineteen-year-old half-
sister of Nanea Yuen.
Mitchell's claim for negligence was partly based on her
claim that Braddah had bitten Naipo several months before biting
Mitchell. Mitchell testified at a June 30, 2010 deposition that
Naipo had been playing with the Yuens' five dogs outside the
Yuens' house when Mitchell, from inside the house, heard Naipo
1
Albert Yuen, Arnette Yuen, Nadine Machado, Robert Yuen, and
Nanea Yuen.
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scream and, upon going outside, saw a "gouge" on Naipo's forehead
and was told by one of the Yuens' children that "Braddah bit
Jennifer." Mitchell testified that Naipo was taken, by Nanea
Yuen, to the hospital, where she received stitches to her
forehead.
The Yuens, in answers to interrogatories, denied that
any of their dogs, including Braddah, had ever bitten anyone
before Mitchell was bitten. Robert Yuen and Nadine Machado both
testified at October 20, 2010 depositions that Naipo received the
stitches to her forehead when she fell down the stairs at the
Yuens' home and hit her head on a cement block.
The Yuens deposed Naipo on October 28, 2010. Naipo
appeared without counsel. She was advised by the Yuens' counsel,
before questioning, as follows:
It's unlikely that anybody is going to ask
you any questions that are truly improper, but if
anybody does ask you a question that invades your
personal privacy, asks about your sex life or
something like that, you can refuse to answer and
the judge would eventually rule on whether it's a
proper question or not. . . . I just want to let
you know that that option is available if you
feel like you're truly imposed upon with improper
questions.
Naipo acknowledged the advice and thereafter answered all
questions without refusal. She testified that she had never been
bitten by Braddah and that her forehead injury was the result of
a fall outside the Yuens' home while playing with the Yuens'
dogs. She testified that she was not taken to the hospital for
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the forehead injury and that Nanea Yuen herself treated the
injury by stitching it at the Yuens' home. She further testified
that she had been bitten on her arm by the Yuens' dog, Misty, and
that she was taken, by Nanea Yuen, to Wahiawa General Hospital
where she was treated with a local anesthesia, stitches to her
arm, and a rabies shot.
Mitchell deposed Nanea Yuen on November 10, 2010.
Nanea testified that Naipo was bitten by Misty on the forehead,
not on the arm, she was with Naipo when the dog bite occurred,
and she took Naipo to Wahiawa General Hospital where Naipo
received stitches to her forehead for the injury.
The differing testimonies by Naipo and the Yuens as to
the cause of Naipo's forehead injury lead Mitchell, on
November 22, 2010, to issue a subpoena duces tecum to Wahiawa
General Hospital for production of "any and all medical records,
reports, correspondence, billings, etc. from 2003 to the present
pertaining to Jennifer Puumaikai Naipo."
Naipo was notified of Mitchell's subpoena, she retained
counsel, and, on December 8, 2010, she moved to quash the
subpoena. She asserted that the information sought from Wahiawa
General Hospital was protected from disclosure under HRE Rule
504, the Hawai#i Constitution, Article I, Section 6, and the
federal Health Insurance Portability and Accountability Act of
1996. The motion was opposed by Mitchell, who argued that Naipo
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must disclose all records of communications with medical
personnel at Wahiawa General Hospital because she answered
questions at the October 28, 2010 deposition about medical
treatment she received for the injury to her arm.
The respondent judge heard and denied the motion to
quash on January 12, 2011. He entered, on February 9, 2011, an
order directing Wahiawa General Hospital to forthwith turn over,
to the circuit court, "the records of Jennifer Naipo requested in
the [November 22, 2010] Subpoena Duces Tecum." The order further
stated that:
This Court will conduct an in camera inspection
of said records and will decide which records, if
any, shall be turned over to Plaintiff's counsel
and counsel for the other parties in the case.
In the event that the Court determines that
health and/or medical information of Jennifer
Naipo is subject to disclosure in this case, the
parties and Jennifer Naipo shall execute a
Stipulated Qualified Protective Order which
prohibits disclosure or use of the information
other than for this case.
Naipo moved for and was granted a stay of the February 9, 2011
order pending a petition for a writ of mandamus to vacate the
order.
Naipo petitioned this court for mandamus relief on
February 14, 2011. She asserts that she is entitled to mandamus
relief because the February 9, 2011 order is not immediately
appealable and it releases her health information that is
protected by her right to privacy under the Hawai#i Constitution,
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Article I, Section 6, and by her physician-patient privilege
under HRE Rule 504.
As to her physician-patient privilege, Naipo argues
that: (1) medical records of non-parties are protected by the
physician-patient privilege; (2) she did not waive her physician-
patient privilege because waiver requires a voluntary disclosure
and disclosure by deposition is not voluntarily; and (3) her
privilege against the disclosure of her medical records is
violated by an in camera inspection of the records by the
respondent judge.
The respondent judge and Mitchell were directed to
answer Naipo's petition. In answering, they argue that the
information sought from Naipo's medical records is not "highly
personal" or "intimate." The respondent judge further argues
that in camera inspection of Naipo's medical records does not
amount to production of the records. Mitchell also argues that:
(1) the February 9, 2011 order protects against needless
disclosure of Naipo's medical records; (2) Naipo's constitutional
right to privacy of her medical records is not absolute and must
be balanced against Mitchell's competing interest in the records;
(3) Naipo waived her physician-patient privilege under HRE Rule
511 by voluntarily disclosing, at her deposition, significant
facts about her medical treatment for her arm injury; and (4)
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subpoenaed testimony is voluntary where the testimony is given
without asserting a privilege.
II. Standard for Disposition
"The supreme court shall have jurisdiction and power
. . . to exercise original jurisdiction in all questions arising
under writs directed to courts of inferior jurisdiction and
returnable before the supreme court." Hawai#i Revised Statutes
(HRS) § 602-5(3) (Supp. 2010).
A writ of mandamus is an extraordinary remedy that will
not issue unless the petitioner demonstrates a clear and
indisputable right to relief and a lack of alternative means to
redress adequately the alleged wrong or obtain the requested
action. Kema v. Gaddis, 91 Hawai#i 200, 204, 982 P.2d 334, 338
(1999). Such writs are not intended to supersede the legal
discretionary authority of the lower courts, nor are they
intended to serve as legal remedies in lieu of normal appellate
procedures. Id.
"Mandamus is the appropriate remedy where [a] court
issues an order releasing confidential files . . . and the order
is not immediately appealable." Brende v. Hara, 113 Hawai#i 424,
429, 153 P.3d 1109, 1114 (2007) (quoting Kema, 91 Hawai#i at 205,
982 P.2d at 339).
"Discovery orders are not immediately appealable, but
'a petition for writ of mandamus is available for extraordinary
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situations.'" Brende, 113 Hawai#i at 429, 153 P.3d at 1114,
quoting Abrams v. Cades Schutte Fleming & Wright, 88 Hawai#i 319,
323, 966 P.2d 631, 635 (1998).
III. Discussion
A. Medical Records Of Non-Parties Are Protected By The
Constitutional Right To Privacy And By The Physician-
Patient Privilege.
"The right of the people to privacy is recognized and
shall not be infringed without the showing of a compelling state
interest." Hawai#i Constitution, Article I, Section 6. The
constitutional provision "relates to privacy in the informational
and personal autonomy sense. The privacy right protected by the
informational prong . . . is the right to keep confidential
information which is highly personal and intimate." Brende, 113
Hawai#i at 430, 153 P.3d at 1116. "Health information is highly
personal and intimate information that is protected by the
informational prong of article I, section 6." Id.
"A patient has a privilege to refuse to disclose and to
prevent any other person from disclosing confidential
communications made for the purpose of diagnosis or treatment of
the patient's physical, mental, or emotional condition, including
alcohol or drug addiction, among oneself, the patient's
physician, and persons who are participating in the diagnosis or
treatment under the direction of the physician, including members
of the patient's family." HRE Rule 504(b).
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The "communications" protected by HRE Rule 504(b)
include communications "made by exhibition or by submission to
inspection, as well as by oral or written narration or
utterance." State v. Moses, 103 Hawai#i 111, 123, 80 P.3d 1, 13
(App. 2002), citing 8 John Henry Wigmore, Wigmore on Evidence §
2384 at 844-45 (McNaughton rev. 1961). "It is therefore well
settled that the data furnished passively, through submission to
inspection, are equally within the privilege." Id. The
privilege "also [covers] information of a medical nature observed
by the doctor in the course of diagnosis or treatment" and "is
generally held to apply to medical records that contain
information about which the doctor could not be compelled to
testify." Id., citing 3 Jack B. Weinstein & Margaret A. Berger,
Weinstein's Federal Evidence, § 514.12 [5][b] & [c] at 514-14 &
514-15.
The physician-patient privilege of HRE Rule 504(b),
codified in HRS Chapter 626, is "[d]esigned to encourage free
disclosure between physician and patient[.]" HRE Rule 504
Commentary. The privilege, "as with other statutory privileges,
is a legislative balancing between relationships that society
feels should be fostered through the shield of confidentiality
and the interests served by disclosure of the information in a
court of law." Parkson v. Central DuPage Hospital, 435 N.E.2d
140, 143 (Ill. App. Ct. 1982). "The information in [non-party]
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patients' records . . . deserves the protection of
confidentiality that the legislature envisioned." Id. "[T]o
allow the disclosure of communications involving patients who are
not parties to the litigation would neither serve a public
interest nor the private interests of those non-party patients."
Id.
Petitioner Jennifer Naipo is not a party to Eshell
Mitchell's lawsuit against the Yuens. Her health information in
her medical records at Wahiawa General Hospital is protected by
her constitutional right to privacy. The information also
deserves the protection of the physician-patient privilege of HRE
Rule 504.
B. A Deponent's Disclosure Of Privileged Information Is
Not Voluntary Unless The Deponent Makes The Disclosure
After Having Been Expressly Advised Of The Privilege.
"A person upon whom [the HRE rules] confer a privilege
against disclosure waives the privilege if, while holder of the
privilege, the person or the person's predecessor voluntarily
discloses or consents to disclosure of any significant part of
the privileged matter." HRE Rule 511. "Any intentional
disclosure by the holder of the privilege defeats [the purpose of
the privilege] and eliminates the necessity for the privilege in
that instance." HRE Rule 511 Commentary. "Thus, a waiver
analysis would focus on whether the disclosure was voluntary."
Save Sunset Beach Coalition v. City and County of Honolulu, 102
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Hawai#i 465, 485, 78 P.3d 1, 21 (2003), citing Territory v.
Cabrinha, 24 Haw. 621, 626 (1919).
In Cabrinha, defendant Cabrinha was indicted for crimes
on the basis of incriminating testimony he gave to a grand jury
that was investigating him for the crimes and had subpoenaed him
to appear before them for interrogation. He appeared before the
grand jury without counsel and was advised by the deputy attorney
general, in the presence of the grand jury, that he could refuse
to answer any questions propounded to him, where after he
answered all questions without objection. He moved, upon
indictment, to quash the indictment on the ground that he had
been compelled to be a witness against himself, in violation of
his privilege against self-incrimination, without knowing that
his conduct was under investigation. The question of whether the
indictment should be quashed was reserved to the territorial
supreme court, which answered the question by addressing the
dispositive issue of whether Cabrinha's testimony was
voluntarily. The court opined:
We do not think the fact that the defendant
was not told before giving his testimony that his
own conduct was under investigation rendered his
testimony involuntary since he was advised of his
right to refuse to answer any question to which
in his opinion might tend in any way to
incriminate him. He must be assumed to be a man
of ordinary intelligence and to be able to
differentiate between statements which would and
those which would not tend to incriminate him.
Had he known that his own conduct was under
investigation how could that knowledge have aided
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him in determining whether or not his answer to
any given question might have a tendency to
incriminate him? When he was advised of his
right to refuse to answer he was placed on his
guard and if he failed to avail himself of his
privilege he must be deemed to have waived it and
to have testified voluntarily, hence his
constitutional privilege was not invaded.
24 Haw. at 626 (emphasis added).
Cabrinha determined that subpoenaed testimony on a
privileged matter is voluntary, and the applicable privilege is
waived, when the witness is expressly advised of the privilege
and testifies without asserting the privilege. It is the rule to
be applied to determine whether petitioner Jennifer Naipo, at her
deposition, voluntarily disclosed, under HRE Rule 511, her
treatment at Wahiawa General Hospital and whether she waived her
physician-patient privilege on the matter.
Petitioner testified without counsel at her deposition.
She was advised that she could refuse to answer questions that
"invade[d] [her] personal privacy," such as questions "about
[her] sex life or something like that." She was not advised --
by the advice given or otherwise -- that she could refuse to
answer questions about the treatment of her physical condition.
Absent such express advice, her disclosure, upon deposition, of
her treatment for her arm injury at Wahiawa General Hospital was
not a voluntary disclosure under HRE Rule 511. Consequently, the
disclosure of such treatment was not a waiver of petitioner's
physician-patient privilege on the matter.
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C. The Right Of Confidentiality Of Medical Records Under
HRE Rule 504(b) Prohibits In Camera Disclosure To A
Court.
"The sole justification for any rule of privilege is
protection of a personal right of confidentiality that is
recognized to be of greater societal importance than the
principle of free disclosure of all relevant evidence in a
judicial proceeding." HRE Rule 511 Commentary.
Petitioner's medical records of her treatment at
Wahiawa General Hospital are protected by her physician-patient
privilege that was not waived. Regardless of any relevancy of
those records to the judicial proceeding before the respondent
judge, petitioner's right of confidentiality under HRE Rule
504(b) prohibits any disclosure of her medical records,2 including
in camera disclosure to the respondent judge.3
VI. Conclusion
Petitioner's medical records of her treatment at
Wahiawa General Hospital are protected by her constitutional
right to privacy and by her physician-patient privilege that was
2
We note that there is no indication in the record that in camera
review may yield evidence that establishes the applicability of an
exception to the privilege, cf. United States v. Zolin, 491 U.S. 554,
572-75 (1989), and thus we need not determine whether an in camera
review would be appropriate in such circumstances.
3
Because petitioners's medical records are protected by the
physician-patient privilege that was not waived, petitioner's
constitutional right to privacy of the records as balanced against
Eshell Mitchell's competing interests in the records need not be
addressed.
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not waived. Petitioner demonstrates a clear and indisputable
right to a vacatur of the respondent's judge's February 9, 2011
order directing production of petitioner's medical records to the
circuit court for in camera inspection.
The petition for a writ of mandamus is granted. The
February 9, 2011 order directing production of petitioner's
medical records is vacated. The respondent judge is directed to
quash the November 22, 2010 subpoena duces tecum for production
of petitioner's medical records.
Richard B. Miller /s/ Mark E. Recktenwald
and Patricia Kehau Wall
for Petitioner /s/ Paula A. Nakayama
Michael Jay Green, /s/ Simeon R. Acoba, Jr.
Thomas M. Otake, and
Diane K. Agor-Otake /s/ James E. Duffy, Jr.
for Respondent
Eshell Mitchell /s/ Rom A. Trader
Diane Erickson
and Robyn B. Chun,
Deputy Attorneys General,
for Respondent The
Honorable Patrick W. Border
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