IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 261
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ST. JAMES COMMUNITY HOSPITAL, INC., )
)
Petitioner, )
)
vs. ) No. 03-291
)
DISTRICT COURT OF THE EIGHTH )
JUDICIAL DISTRICT, IN AND FOR THE )
COUNTY OF CASCADE, HONORABLE )
THOMAS M. McKITTRICK, District Judge, )
)
Respondent. )
______________________________________________ )
)
BENEFIS HEALTH CARE, and/or BENEFIS HEALTH )
CARE FOUNDATION, d/b/a and BENEFIS HEALTH )
CARE EAST CAMPUS and HEALTH CARE WEST )
CAMPUS, )
)
Petitioner, )
)
vs. ) No. 03-315
)
DISTRICT COURT OF THE EIGHTH )
JUDICIAL DISTRICT, IN AND FOR THE )
COUNTY OF CASCADE, HONORABLE )
THOMAS M. McKITTRICK, District Judge, )
)
Respondent. )
______________
ORDER
AND
OPINION
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¶1 Benefis Health Care, St. James Community Hospital, Inc., St. Patrick Hospital
Corporation, and Med-Cor Health Information Solutions, Inc. (health care providers), have
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filed an application for writ of supervisory control and stay of district court proceedings.
Joan Peterson, Patrick Wallace, and Stanley Schlemmer (plaintiffs), representing themselves
and others similarly situated, have filed a response opposing the application. For the reasons
set forth below, we grant the writ of supervisory control.
¶2 This class action was originally filed in the Eighth Judicial District Court, Cascade
County. Plaintiffs’ complaint seeks an award of monetary damages predicated upon
excessive fees allegedly charged for copies of patients’ medical records from 1993 to 1999.
The plaintiff class was certified, and the class was notified in May 2000. The class members
were notified by opt-out notification, which required potential class members to opt-out of
the litigation or automatically be included in the plaintiff class. Thereafter, plaintiffs served
discovery requests on the health care providers seeking information regarding the names of
patients and requestors and the number of requests for copies, number of copies, the charge
for the copies and the dates of the requests. The health care providers objected to the
discovery requests on the grounds that the requested information was confidential health care
information that could not be divulged without patient authorization. The District Court, on
March 21, 2003, entered an order granting the motion to compel and directing the providers
to provide certain information.
¶3 In their application, the health care providers ask that we order the District Court to
rescind its March 21, 2003, discovery order compelling disclosure of the following:
[I]dentities of individuals who have requested from the defendant health care
providers copies of their health care records between 1993 and 1999. The
information to be provided . . . shall also include the names of requestors, the
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patient’s name, the number of pages provided per each request, the amount
charged, and the date of the request. All of this information shall be provided
and produced, without exception, to Plaintiffs’ counsel at the burden and
expense of the defendant health care providers.
¶4 It is the health care providers’ contention that the above order requires them to violate
the Uniform Health Care Information Act, § 50-16-501, et seq., MCA, as well as the
constitutionally-protected privacy rights of the patients whose records will be disclosed
without their consent, resulting in irreparable harm which cannot be remedied upon appeal.
The Uniform Health Care Information Act only allows discovery of health care information
upon a showing of a compelling state interest that outweighs the patients’ privacy interests.
Section 50-16-535(1)(i), MCA. The health care providers point out that the plaintiffs have
not even attempted to make a showing of a compelling state interest nor was there a finding
by the District Court of such a compelling state interest. Finally, the health care providers
contend that the requirement that they absorb the cost of identifying the plaintiff class is
contrary to established precedent, Oppenheimer Fund, Inc. v. Sanders (1978), 437 U.S. 340,
356, 98 S.Ct. 2380, 2392, 57 L.Ed.2d 253, 268 (ordinarily, a party must bear the burden of
financing his own suit), and will impose a substantial burden on the providers.
¶5 The District Court agreed with plaintiffs’ contention that the information sought is not
of a confidential, private nature. Further, the District Court noted that the health care
providers’ concern for patients’ privacy rights seemed to smack of convenience given that
the providers had allowed access to patient records by a third party (Med-Cor Health
Information Solutions, Inc.) without any authorization by the patients.
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¶6 This application presents a conundrum. Plaintiffs’ counsel have published a class
action “opt-out” notification to all potential class members. Thus, in theory, but for those
who may have “opted-out,” the requestors and patients are the clients of the plaintiffs’
counsel. In essence, plaintiffs’ counsel are seeking to identify their own clients in a class
action suit in which the District Court has already found the providers liable for violating the
Health Care Information Act. Plaintiffs’ counsel need the requested information in order to
compute damages and notify the class members.
¶7 Theory aside, the patients and requestors have not given any consent to having their
names or records released to anyone. The providers, who have the names and information,
are correct in saying that the relevant portions of the Uniform Health Care Information Act
do not allow them to produce the health care information absent a showing of a compelling
state interest. There has been no such showing in this case.
¶8 Despite the internal inconsistencies in the providers’ claims of privacy, we are
concerned with the prospect of having patient names released without the patients’ consent.
As mentioned above, the Health Care Information Act requires a showing of a compelling
state interest before a Court can require production of health care information pursuant to
a discovery request. More importantly, Article II, Section 10, Montana Constitution’s
guarantee of privacy encompasses confidential “informational privacy.” State v. Nelson
(1997), 283 Mont. 231, 242, 941 P.2d 441, 448. The names of patients of the health care
providers fall within the Act’s definition of “health care information.” Section 50-16-504(6),
MCA (“any information, whether oral or recorded in any form or medium, that identifies or
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can readily be associated with the identity of a patient and relates to the patient’s health
care”). The District Court erred in concluding that patient names are not of a private
confidential nature. We conclude that the patient names are both constitutionally and
statutorily protected. At the same time, as the District Court aptly noted, it would be entirely
inappropriate to allow the privacy provisions of the Act to be used as a tool to thwart the
reasonable discovery efforts of those whom the Act is designed to protect.
¶9 In order to ascertain the amount of damages, plaintiffs’ counsel need to know the
number of copies requested, the amounts charged per copy and the dates of the requests.
Names of patients or requestors are not, however, necessary for purposes of damage
calculation. The District Court’s order of March 21, 2003, to the extent it requires
production of patient names, infringes on the patients’ right of informational privacy.
¶10 The District Court, in requiring the production of names of patients and requestors,
was concerned with facilitating subsequent notices that may be given by plaintiffs’ counsel.
To the extent that the order requires the production of the names of non-patient requestors
(e.g. attorneys, insurance companies) whose privacy is not at issue, the order is affirmed.
As stated above, to the extent the order requires the production of names of patients, it must
be vacated. Notification of patients will have to be accomplished through other means such
as an “opt-in” notification.
¶11 Finally, the health care providers contend that the District Court erred in ordering that
they shoulder the cost of securing the requested information. They cite the United States
Supreme Court’s decision in Oppenheimer for the proposition:
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The general rule must be that the representative plaintiff should perform the
tasks [necessary to notify the class], for it is he who seeks to maintain the suit
as a class action and to represent other members of his class. In Eisen IV we
noted the general principle that a party must bear “the burden of financing his
own suit,” . . . . Thus ordinarily there is no warrant for shifting the cost of the
representative plaintiff’s performance of these tasks to the defendant.
Oppenheimer Fund, 437 U.S. at 356, 98 S.Ct. at 2392, 57 L.Ed.2d at 268 (citation omitted).
¶12 While recognizing the principle that the expense of class notice must usually be borne
by the plaintiffs, the plaintiffs here argue that the rationale for that general rule is based on
the assumption that class notification normally happens early in the court proceedings where
there is strong doubt that the plaintiff will prevail. Meadows v. Ford Motor Company (W.D.
Ky. 1973) 62 F.R.D. 98. In Meadows, the court noted that there was no longer any doubt as
to the outcome of the suit since liability had been determined. “Only details as to the method
of perfecting the remedies available to the plaintiff, insofar as hiring goes, remain to be
accomplished by the Court.” A number of other courts have determined that allocating costs
of notification to defendants is proper once the liability of the defendant has been
established. Catlett v. Missouri Highway & Transp. Com. (W.D. Mo. 1984), 589 F.Supp.
949; Allen v. Leis (S.D. Ohio), 2002 WL 1752279, 2002 U.S. Dist. LEXIS 14764; Kyriazi v.
Western Electric Co. (D. N.J. 1979), 465 F.Supp. 1141; Macarz v. Transworld Sys. (D.
Conn. 2001), 201 F.R.D. 54.
¶13 In the present case, since liability has been determined and Montana law, § 50-16-
525, MCA, imposes a duty upon health care providers to maintain records of each person
who has received health care information from a patient’s file during the preceding three
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years, we determine that the District Court was acting within its discretion when it ordered
that the health care providers bear the cost for producing the information as to requests for
copies.
¶14 This matter is remanded to the District Court with instructions to enter an order
consistent herewith.
DATED this 25th day of September, 2003.
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JOHN WARNER
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