(dissenting) — The main difference between our two opinions is that I would affirm, but in doing so, I endorse the trial judge's finding that the blood donor has no right of privacy preventing disclosure of his identity, once John Doe established a prima facie case that Donor X was the source of his contact with the human immunodeficiency virus (HIV). Once such a prima facie case is established meeting the requirements of CR 26(b)(1) (relevance and nonprivileged subject matter), the issue of privacy drops out of the case as a matter of law, leaving Donor X in the same position as any other person, including one with a communicable disease such as HIV, hepatitis, tuberculosis, syphilis or any other serious affliction.
The majority, on the other hand, affirms the trial court's discovery order, but does so without reaching the issue of privacy. This is confusing and logically inconsistent because the trial court's order necessarily finds that there is no right of privacy preventing disclosure of Donor X's identity. For this reason, I dissent.
Analysis
The trial judge's order ruled that John Doe could proceed with limited discovery as to the identity of Donor X. The order provides:
1. The defendant blood center shall . . . disclose to plaintiff in writing identifying information which it may possess concerning the blood donor including his or her name, address, *791telephone number and social security number. Such information shall be kept confidential until such time as the donor is named a defendant herein. The donor shall not be joined as a defendant without prior court approval. All depositions and other discovery responses of the donor shall be sealed . . ..
Clerk's Papers, at 231 (order, at 2).
While discovery in HIV cases may delve into sensitive areas of a person's private life, privacy rights must give way at times to the greater societal good of providing civil redress to innocent plaintiff victims for exposing them to HIV. It is well-settled law that personal rights are not without limitation. There is no doubt that a state may exercise its police powers for the legitimate protection of public health, safety and welfare. Ketcham v. King Cy. Med. Serv. Corp., 81 Wn.2d 565, 569, 502 P.2d 1197 (1972). As early as 1911, this court in passing upon an industrial insurance act aimed at, among other things, providing health care for workers, stated:
[Personal] rights are not absolute. On the contrary, it has been many times said that there is no absolute right to do as one wills, pursue any calling one desires, or contract as one chooses; that the term liberty means absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.
State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 P. 1107 (1911). From this we learn that individuals' rights often give way in the interests of the larger community.
Here, we must determine whether the blood donor's privacy rights must give way to the paramount civil right of John Doe to seek recovery for his injuries. The trial judge found that they must. I agree. In fact, such a civil remedy is a substantial property right, and constitutionally based under article 1, section 10 of our state constitution. Hunter v. North Mason High Sch. & Sch. Dist. 403, 85 Wn.2d 810, 814, 539 P.2d 845 (1975). As such, the State has a compelling interest in preserving this right. Anything less creates de facto immunity in the defendant from his or her wrongdoing. Without disclosure of Donor X's name, John *792Doe is foreclosed from seeking damages from a potentially responsible party.
The majority states the issue of privacy cannot be decided on this record. The majority mistakenly believes Donor X's death raises many unanswered questions that were not briefed by the parties. Majority, at 783-85.1 disagree. Donor X's death came after the discovery order. Our review encompasses the rights of the parties at the time of the order, not later. The issue of privacy was frilly briefed by all parties and the allied amici, and is clearly before us. The majority simply refuses to deal with the delicate issue of balancing individual privacy rights against a civil plaintiff's state constitutional right to seek redress for his injuries.
Lastly, the blood banks argue that public policy mandates that donor confidentiality be recognized, generally. They contend the public will be reluctant to voluntarily donate blood absent such assurance, and that this will jeopardize the blood supply. I disagree. There is no evidence that the shortage of blood is due to public fear that donor names could be revealed in the event that someone were to sue the blood bank.
I
On August 4, 1984, John Doe, plaintiff, was injured in an automobile accident. As a result of his injuries, Doe was transfused with 4 units of blood while a patient at Overlake Hospital in Bellevue. The blood was provided by Puget Sound Blood Center. In August 1987, it was revealed to John Doe that some of the blood he received was contaminated with HIV. One year later, on June 10, 1988, John Doe died of AIDS-related illness. The anonymous donor (Donor X), who gave the HIV-contaminated blood, died from complications associated with AIDS sometime after May 1989.
II
First, we all agree that even though the parties here have settled, the issues are not moot, as they constitute pressing matters of great public interest and concern. In re Swanson, *793115 Wn.2d 21, 24, 793 P.2d 962 (1990). Blood centers around the state are currently, or will soon, face similar disclosure issues as the HIV epidemic worsens.
Second, I agree with the majority's holding that disclosure of identifying information about Donor X is not protected by the statutory physician/patient privilege. I would also hold Donor X is not protected by the common law physician/patient privilege.
HI
The spread of the HIV virus has been a media event. In fact, HIV has been heralded as the modem day equivalent of leprosy. Tarrant Cy. Hosp. Dist. v. Hughes, 734 S.W.2d 675, 680-81 (Tex. Ct. App. 1987), cert. denied, 484 U.S. 1065, 98 L. Ed. 2d 991, 108 S. Ct. 1027 (1988). United Nations health officials predict HIV could infect 40 million people by the end of the century, and nearly one-fourth of those will be afflicted with serious symptoms associated with the onset of the disease.2 According to the Centers for Disease Control, as of May 31, 1991, an estimated 1 million people in the United States have become infected with HIV but have not yet developed AIDS; an estimated 265,000 people are afflicted with advanced HIV infection; and 179,136 Americans have been diagnosed with full-blown AIDS. The average life span of a person with full-blown AIDS is said to be 239 days after the diagnosis.3
The spread of HIV has given rise to heated public debate about the privacy rights of individuals versus the public's right to know the status of infected persons. A recent article in Newsweek reveals that there is a growing sentiment in this country that people have a right to know when health*794care workers are infected with HIV. The poll results are informative:4
Q-l. Which of the following health-care workers should be required to tell patients if they are infected with the AIDS virus?
95% - Surgeons
94% — All physicians
94% - Dentists
90% — All health-care workers
Q-2. If you knew a physician, dentist or other health-care worker treating you was infected with the AIDS virus, would you;
15% — Continue treatment with stringent measures.
13% - Continue treatment but exclude surgery or other invasive procedures.
65% - Discontinue all treatment with that person.
Q-3. If the following kinds of health-care workers test positive for the AIDS virus should they be forbidden to practice?
Sturgeons 63% 28%
All Physicians 51% 42%
Dentists 60% 33%
All health-care workers 49% 43%
YES NO
Q-4. Should patients be required to tell physicians, dentists or other health-care workers if they are infected with the AIDS virus?
97% - YES 2% - NO
The resulting public outcry for disclosure of information regarding HIV-infected persons has led the Centers for *795Disease Control to recently release new guidelines recommending HIV testing and disclosure among health-care workers.5
The HIV epidemic has now found its way into our courts. HIV is known to be transmitted primarily through sexual activity by "high risk" people (generally homosexuals and bisexuals with multiple sex partners), and through intravenous drug use.6 Parties seeking to establish liability for their unwilling exposure to HIV will need answers to highly personal questions about the defendant's lifestyle. They will undoubtedly seek those answers not only from the defendant, but from defendant's relatives, friends, co-workers, and others.
Thus, the potential for intrusion into sensitive areas of a person's life is substantial. In addition, victims of the virus are known to suffer discrimination in employment, education, housing, and even medical treatment. See Rasmussen v. South Fla. Blood Serv., Inc., 500 So. 2d 533, 537, 56 A.L.R.4th 739 (Fla. 1987); see also AIDS omnibus act, Laws of 1988, ch. 206.
The right of privacy has been held to protect the right of individuals to make certain decisions, without governmental interference, with regard to highly personal matters. Most privacy cases decided by the United States Supreme Court have involved the rights of individuals to make such autonomous decisions. Tarrant, at 680-81.
A second general area of privacy rights protect the rights of individuals to prevent unlimited disclosure of personal information. Whalen v. Roe, 429 U.S. 589, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977). A person's medical records have been declared to be within the zone of privacy protected by the federal constitution. Tarrant, at 681.
As with other highly sensitive personal information, when discovery is sought in HIV-related cases courts must *796engage in a balancing test, weighing the need for the information against the individual's right of privacy, including constitutional rights where applicable, and other relevant societal concerns. Analyzing the issues present here requires that we examine our discovery rules and the protection they provide to the individual. Although the potential for extensive invasion of privacy is inherent in the litigation process, the discovery rules do not distinguish between information that is private or intimate and that to which no privacy interests attach. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 30, 81 L. Ed. 2d 17, 104 S. Ct. 2199 (1984). Rather, CR 26(b)(1) provides that any nonprivileged matter relevant to the subject matter is discoverable.
Under CR 26(c), the trial court is given broad discretion to limit or prohibit discovery in order to protect the privacy rights of an individual. Rhinehart, 467 U.S. at 34-36. If the disclosure is careftilly tailored to meet a valid governmental interest and the disclosure is no greater than is reasonably necessary, the disclosure is warranted. Peninsula Counseling Ctr. v. Rahm, 105 Wn.2d 929, 935, 719 P.2d 926 (1986).
In the present case the trial judge exercised his discretion, finding no protected privacy right in Donor X which would prevent disclosure of his identity. Pursuant to the terms of the discovery order, the trial judge retained broad discretion to decide when and how further disclosure of Donor X's identity might occur.
In deciding whether a protective order is appropriate, the trial judge, in his broad exercise of discretion, must balance the competing interests to be served by granting or denying full discovery. Rhinehart, 467 U.S. at 36. The order is only reviewable for an abuse of discretion. A trial court abuses its discretion when its exercise of discretion is manifestly unreasonable or based on untenable grounds or reasons. Allard v. First Interstate Bank of Wash., N.A., 112 Wn.2d 145, 148, 768 P.2d 998, 773 P.2d 420 (1989). "Discretion is abused only where it can be said that no reasonable person *797would take the view adopted by the court." State v. Lewis, 115 Wn.2d 294, 298-99, 797 P.2d 1141 (1990).
The majority believes we cannot address the privacy issue, yet by its own admission it identifies privacy as one of the competing interests to be weighed in deciding whether the trial judge abused his discretion in ordering discovery. Majority, at 783-85. It is puzzling to me how the majority can then affirm the trial court, if privacy is removed from consideration. By doing so, the majority does not weigh all of the competing interests, but only some of them. Furthermore, by affirming the trial judge's order, the majority must agree that the blood donor enjoys no right of privacy which would prevent disclosure of his identity, because that is what the trial judge held. See Clerk's Papers, at 231 (order, at 2).
The trial judge's inquiry was correct. John Doe was required to establish a prima facie case at the discovery motion that Donor X was the source of contaminated blood which exposed him to HIV. Once that was established, the trial judge ruled as a matter of law that Donor X had no protected privacy right in preventing disclosure of his identity. The trial judge ordered discoveiy, with certain limitations. Clerk's Papers, at 231 (order, at 2).
From that point on, privacy drops out of the case. Discovery proceeds against Donor X the same as it would in any other civil matter, regardless of whether his communicable disease is HIV, tuberculosis, syphilis, hepatitis, or any other serious affliction. In affirming the trial court's order, the majority concedes the correctness of this argument. Therefore the majority's statement that we cannot decide the issue of privacy on this record is confusing, at best.
IV
I find John Doe has a valid interest in undertaking discovery to further seek redress for his injuries. As previously stated, Doe presented evidence establishing a prima facie *798case that Donor X was the source of his exposure to HIV. The trial court, satisfied that a prima facie case was established meeting the requirements of CR 26(b)(1), entered the discovery order at issue here. The strict protective order issued by the trial court allowing limited, nonpublic disclosure of Donor X's identity is carefully tailored and no greater than reasonably necessaiy to further John Doe's substantial interest in furthering his lawsuit.
While our discovery rules protect parties from unsupervised "fishing expeditions", they do not create new privacy rights previously unrecognized by this court. Donor X is only entitled to the same protection and safeguards under the law as any other person, whether or not he suffers from AIDS
The blood banks urge this court to establish a general rule of nondisclosure of donor identity as a matter of public policy. Puget Sound Blood Center points to five factors which identify the need for such a policy: (1) the frequent shortage of blood, generally; (2) potential volunteer donors advised of possible disclosure "in connection with AIDS" will not donate; (3) the threat of disclosure will encourage people to give false or inaccurate information when donating blood; (4) newly implemented tests for screening out unacceptable donors have substantially reduced the number of blood donors available to meet our area's needs; and (5) the unfounded belief of many people that the blood donation process itself may expose one to the human immunodeficiency virus, has lessened the donor population. Brief of Petitioner, at 25-30.
I do not find a need for this court to adopt a general rule of nondisclosure. First, there is no evidence that the current blood shortage is due to fear on the part of the public that donor names could be disclosed in litigation. Second, if there is a need for improving current methods of recruiting donors, this is a matter for legislative or executive action. *799For example, the Legislature has provided noncommercial blood banks with limited immunity, but has not extended the same to paid voluntary donors. RCW 70.54.120.7
Third, the policy of this State should be to encourage donation of wholesome blood. Donors who suspect or know their blood may be contaminated should be discouraged from donating. In any event, transmission through exposure to contaminated blood and blood products via transfusion has been virtually eliminated because all blood sold and donated in the United States has been tested for the HIV antibodies since 1985.8
Currently there are two effective tests used to screen blood for HIV antibodies. Briefly, they are the ELISA (enzyme-linked immunoabsorbent assay) test and Western blot assay test. ELISA is generally given first. If a person repeatedly tests positive for the presence of HIV antibodies, Western blot is given as a confirmatory test. These two tests, taken together, are considered 99 percent accurate in screening out blood infected with HIV antibodies.9 ELISA has been criticized for producing too many false positive results.10 However, ELISA was developed specifically for *800purposes of safeguarding the blood supply. As such, it is intentionally an overly sensitive test, sometimes producing false positive results.11 The rationale behind this is "better safe than sorry." Blood that shows a positive reaction on a test is discarded and not transfused.12 Therefore even if high-risk donors give false or inaccurate information in giving blood, the current tests will nullify the effect of such actions.
Finally, public misperceptions about the way in which one can contract HIV can only be cured by education. This is yet another matter for the Legislature.
Conclusion
In sum, the majority's holding is confusing and logically inconsistent. While it affirms the trial court, it states we cannot reach the issue of privacy. The trial court ordered discovery after John Doe established a prima facie case that the information he sought was relevant and nonprivileged, thus meeting the criteria of CR 26(b)(1). The trial court's order necessarily holds that no right of privacy exists in preventing disclosure of Donor X's identity. The majority, by affirming the trial court's decision, must agree! For this reason I must dissent from the majority's holding that we cannot reach the issue of privacy.
I would hold the trial judge correctly granted John Doe limited access to Donor X's identifying information and would affirm. The trial court's discovery order was reasonable and was based on tenable grounds. John Doe has a right to seek redress for his exposure to the deadly human immunodeficiency virus. In fact, such a civil remedy is a substantial property right, and constitutionally based under article 1, section 10 of our State Constitution. Hunter v. North Mason High Sch. & Sch. Dist. 403, 85 Wn.2d 810, 814, 539 P.2d 845 (1975). Individual rights often give way to a state's legitimate exercise of its police powers in protect*801ing public health, safety and welfare. Ketcham v. King Cy. Med. Serv. Corp., 81 Wn.2d 565, 569, 502 P.2d 1197 (1972). As such, the State has a compelling interest in preserving John Doe's right to court access. Anything less creates de facto immunity hi the donor from his or her wrongdoing. Without disclosure of Donor X's name, John Doe is foreclosed from seeking damages from a potentially responsible party.
The blood banks' argument that public policy mandates that we adopt a rule of general donor confidentiality is meritless. There is no evidence that the current blood shortage is the result of public fear that one's identity may be disclosed should someone sue the blood bank. Paid volunteer blood donors have not been granted limited immunity by the Legislature, as have noncommercial blood donors. I do not feel this court should adopt a rule which would, in effect, create such immunity where the Legislature has declined to do so.
Finally, CR 26(c) provides adequate protection to the individual in limiting harassing or embarrassing discovery requests. The trial judge's order was within his discretion, and retained the right to control further disclosure of Donor X's identity. Donor X's privacy rights exist only up to the point where a prima facie case is established that he was the source of Doe's exposure to HIV. Once that occurs, the donor's privacy rights are extinguished and discovery proceeds accordingly.
In balancing the equities, the rights of citizens without HIV are superior to those who are infected with the disease. The public has a right to be informed of those who have the human immunodificiency virus, and those who don't, in order to protect themselves. The alternative is that a great number of citizens will innocently contract HIV and be condemned to a painful death. Faced with this, the donor's right to privacy pales into insignificance when compared to the danger of infecting others with HIV.
Reconsideration denied February 6, 1992.
*802Appendix
[[Image here]]
Africa, Asia brace for the ravages of AIDS, Seattle Post-Intelligencer, June 17, 1991, § A, at 3.
R. J. Perey, Liability for AIDS Contracted by Hemophiliacs and Others from Blood Factor Concentrate and Blood Transfusions 5 (1991) (unpublished manuscript, see Trial Advocacy (Fall 1991)).
For this Newsweek poll, the Gallup Organization interviewed a representative sample of 618 adults by telephone on June 20, 1991. The margin of error is plus or minus 5 percentage points. Some "Don't know" answers are not shown. Kantrowitz, Doctors and AIDS, Newsweek, July 1, 1991, at 49-57.
CDC calls for routine HIV tests, Seattle Post-Intelligencer, July 16, 1991, at 1.
See appendix.
RCW 70.54.120, "Immunity from implied warranties and civil liability relating to blood, blood products, tissues, organs, or bones . . .", provides in relevant part:
"The procurement, processing, storage, distribution, administration, or use of whole blood, plasma, blood products and blood derivatives for the purpose of injecting or transfusing the same . . . into the human body is declared to be, for all purposes whatsoever, the rendition of a service . . . and is declared not to be covered by any implied warranty under the Uniform Commercial Code, Title 62A RCW, or otherwise, and no civil liability shall be incurred as a result of any of such acts, except in the case of wilful or negligent conduct . . . [This section] shall not apply to any transaction in which the donor receives compensation . . .".
National Judicial College, AIDS Benchbook 15 (1991) (citing Institute of Medicine/National Academy of Sciences, Confronting AIDS: Update 1988 47 n.7).
R.J. Perey, supra at 9.
See "AIDS Virus Test Proves Inaccurate," Seattle Times, May 16, 1990, at 1.
AIDS Benchbook, at 16-17.
AIDS Benchbook, at 15.