On December 21, 2016, the South Dakota Supreme Court in Wipf v. Alstiel required a defendant surgeon in a perforated bowel case to redact and provide the plaintiff with non-party patient medical records from his last five years of practice.  The records became relevant to the case when the defendant’s expert testified that the plaintiff would “have to show an unacceptably high complication rate in similar procedures with different patients.”

In its 3-2 split decision, the South Dakota Supreme Court reviewed SDCL 19-19-503(b) (the physician-patient privilege).  The Court took a narrow view of the privilege, finding that it only protects “confidential communications” contained in a medical record and concluding that medical records are not “confidential communications” per se.  The Court did provide further guidance on the types of redactions a covered entity or provider must make before disclosing these types of records.

In an uncharacteristically scathing dissent, Chief Justice Gilbertson attacked the majority’s holding on numerous grounds, calling its analysis “result-oriented” and noting that the majority misinterpreted SDCL 19-19-503(b), undercut policy in South Dakota that encourages honest conversations between a physician and patient, and called into question the traditional scope of many other codified privileges in this state.  Justice Severson penned his own dissent, joining Justice Gilbertson and further discussing the majority’s misinterpretation of SDCL 19-19-503(b).

After Wipf, are defendants left with any method to contest broad discovery requests seeking non-consenting, non-party, medical records?  Yes; the Wipf majority did indicate that relevance objections are still quite appropriate in contesting this type of discovery.  While relevance was not an issue in Wipf, the majority went out of its way to highlight that these records “would not be discoverable in many malpractice cases because they would not be relevant.”

Ultimately, in response to these types of discovery requests, it would be wise for providers and covered entities to continue to rely upon SDCL 19-19-503(b) to protect themselves from patients lodging HIPAA complaints and private lawsuits against them for improper disclosure.  However, these providers and covered entities must be prepared to ultimately fight the issue out on grounds of whether or not the non-party records are relevant to a particular case.

The full Wipf v. Alstiel case can be found at: http://ujs.sd.gov/uploads/sc/opinions/27491.pdf