Ferguson v. Thaemert

#29021-r-DG
2020 S.D. 69

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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ALYSSA FERGUSON, Plaintiff and Appellee,

v.

BRADLEY C. THAEMERT, M.D., Defendant and Appellant.

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APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

****

THE HONORABLE CAMELA THEELER
Judge

****

DANIEL K. BRENDTRO
ROBERT D. TRZYNKA of
Hovland, Rasmus, Brendtro,
& Trzynka, Prof. LLC
Sioux Falls, South Dakota Attorneys for plaintiff and
appellee.

MARK W. HAIGH
TYLER W. HAIGH of
Evans, Haigh & Hinton, LLP
Sioux Falls, South Dakota Attorneys for defendant and
appellant.

****
ARGUED
APRIL 22, 2020
OPINION FILED 12/09/20
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GILBERTSON, Chief Justice

[¶1.] Dr. Bradley Thaemert performed the incision for an anterior spinal

surgery on Alyssa Ferguson. Ferguson sued Dr. Thaemert for lack of informed

consent after he performed a vertical incision rather than her requested horizontal

incision. Ferguson brought a motion to compel the production of medical records of

Dr. Thaemert’s non-party patients. The circuit court granted the motion in part.

Dr. Thaemert brings this intermediate appeal arguing the circuit court abused its

discretion. We reverse the circuit court’s decision.

Facts and Procedural History

[¶2.] Alyssa Ferguson (Ferguson) underwent an anterior spinal surgery

with Dr. Walter Carlson (Dr. Carlson), a spine surgeon, and Dr. Bradley Thaemert

(Dr. Thaemert), a general surgeon, to relieve lower back pain. The surgery was

elective, but is a major surgery, involving an incision through the abdominal

muscles into the peritoneal cavity to reach the spine through the front of the body.

Dr. Thaemert was tasked with making the incision allowing access to the spine, so

Dr. Carlson could perform the spinal surgery.

[¶3.] When Ferguson met with Dr. Thaemert for a pre-operation evaluation,

they discussed her desire to have a horizontal incision below the bikini line, rather

than a vertical incision, “if at all possible.” Ferguson wanted the horizontal incision

for cosmetic reasons as well as for ease of having a caesarian section in the future.

Ferguson claims that at the meeting Dr. Thaemert promised to do the surgery with

a horizontal incision, and that she relied on that promise in undergoing the surgery.

Dr. Thaemert testified at his deposition that, while he cannot specifically recall the

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conversation, he would never make a promise to perform any particular type of

incision. He testified that he always advises his patients in the pre-operative

discussion that he must use the safest incision during the surgery. That

determination is made, according to Dr. Thaemert, by assessing the fat on the

abdomen and where an incision would need to be placed under the fat.

[¶4.] Ferguson signed an informed consent form before the surgery, which

provided consent for any procedures necessitated by changed conditions during the

surgery. Dr. Thaemert claims that in the operating room, after Ferguson was under

anesthesia, he assessed her abdomen and determined a vertical incision would be

the safest way to allow Dr. Carlson access to the spine, so he made the vertical

incision. A radiology technician who is a friend of Ferguson testified that he was in

the surgical suite while anesthesia was being administered to Ferguson and heard

Dr. Thaemert, as he entered the operating room, ask if this was his horizontal

incision case and if anyone had notes on that.

[¶5.] When Ferguson learned after the surgery that Dr. Thaemert had made

a vertical incision, she was upset and asked her nurses and Dr. Carlson if

something had gone wrong in the surgery to necessitate the vertical incision. No

one knew of any complication in the surgery. Ferguson was unable to contact Dr.

Thaemert to ask about the incision. Finally, Dr. Thaemert called Ferguson at Dr.

Carlson’s behest. Ferguson claims Dr. Thaemert told her that nobody informed him

that she was the horizontal incision case that day, and then told her the scar should

not be too bad and that his daughter’s appendix scar was not bad. He advised

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Ferguson to keep the scar out of sunlight for a year and apply zinc oxide to it. Dr.

Thaemert testified that he does not remember the specifics of the phone call.

[¶6.] While the surgery was successful, Ferguson maintains that she would

not have gone through with the surgery on that day if she had known Dr. Thaemert

would not perform a horizontal incision. Dr. Thaemert asserts that he always

makes clear to his patients that he will use whichever incision will be safest,

assessed at the time of surgery.

[¶7.] Ferguson sued Dr. Thaemert alleging that he performed the vertical

incision without Ferguson’s informed consent. Dr. Thaemert denied Ferguson’s

allegations. Ferguson’s counsel requested discovery of “all medical records of any

patients on whom [Dr. Thaemert] performed incisions, for anterior spinal fusions at

or below the L4 level, during the past 5 years without identifying the patient

consistent with . . . Wipf v. Al[t]stiel[.]” Dr. Thaemert objected to the request as

being irrelevant, not reasonably calculated to lead to the discovery of admissible

evidence, vague, violating HIPAA, and otherwise seeking protected health

information that could not be disclosed under South Dakota law. After some back

and forth between the parties’ counsel, Ferguson brought a motion to compel those

non-party patients’ medical records.

[¶8.] The motion to compel was considered at a hearing along with other

motions not at issue here. Ferguson argued that the records are relevant because

Dr. Thaemert’s credibility is at issue, and a jury needs to be able to gauge the

credibility of his testimony that his general practice is to discuss and document

things the way he did with Ferguson. Ferguson argued that the records “would

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allow us to figure out how he proceeds with horizontal incisions, how they’re

conducted, why they’re performed, which patient receives them, their body types,

the notes he makes about them, [and] how often he changes his mind while on the

operating table.” She asserted that the records would reveal Dr. Thaemert’s typical

procedure for obtaining informed consent and would allow a jury to check that

credibility. Finally, Ferguson argued that Wipf v. Altstiel, 2016 S.D. 97, 888 N.W.2d

790, provides “the solution for how we deal with sensitive health information.”

[¶9.] Dr. Thaemert argued that Ferguson’s request to review non-party

patient medical records was made simply to burden him into settling the case and

was based on Ferguson’s belief that if she is allowed to see the records, it is possible

something helpful may be found. Dr. Thaemert also asserted that this case is solely

about his treatment of Ferguson and whether he failed to obtain her informed

consent. He argued that other patients’ records are entirely irrelevant to the

question of whether Ferguson gave informed consent. Finally, Dr. Thaemert

asserted that there is “no relevant evidence that can be gotten from these records

that would support the burden that plaintiff wants to place on us.”

[¶10.] The circuit court granted the motion to compel in part and denied it in

part. The court found the records were relevant because Dr. Thaemert has no

specific recollection of his conversation with Ferguson and relies entirely on his

general practice. However, the circuit court limited the scope of the discoverable

records to pre-operation and operation notes, consult notes, age, gender, and body

mass index (BMI) of patients who had anterior spinal fusion incisions at or below

L4 level in the last three years, finding the five-year time frame to be unreasonably

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cumulative. Dr. Thaemert filed a petition for allowance of appeal from an

intermediate order, which we granted. He raises one issue restated as follows:

whether the circuit court abused its discretion in determining that confidential,

non-party patient records are relevant to this case and discoverable when patient

identifiers are redacted from the documents.

Standard of Review

[¶11.] A circuit court’s discovery orders are reviewed for an abuse of

discretion. Andrews v. Ridco, Inc., 2015 S.D. 24, ¶ 14, 863 N.W.2d 540, 546. “An

abuse of discretion ‘is a fundamental error of judgment, a choice outside the range of

permissible choices, a decision, which on full consideration, is arbitrary or

unreasonable.’” Id. (quoting In re Jarman, 2015 S.D. 8, ¶ 19, 860 N.W.2d 1, 9).

When determining whether a discovery order violated a statute, “it raises a

question of statutory interpretation requiring de novo review.” Id. (quoting Dakota,

Minn. & E. R.R. Corp. v. Acuity, 2009 S.D. 69, ¶ 47, 771 N.W.2d 623, 636).

Analysis and Decision

Relevance

[¶12.] Pretrial discovery has a broad scope. Kaarup v. St. Paul Fire &

Marine Ins. Co., 436 N.W.2d 17, 19 (S.D. 1989). The broad scope ensures the

purposes of discovery—“(1) narrow[ing] the issues; (2) obtain[ing] evidence for use

at trial; (3) secur[ing] information that may lead to admissible evidence”—are

satisfied. Id. “Parties may obtain discovery regarding any matter, not privileged,

which is relevant to the subject matter involved in the pending action[.]” SDCL 15-

6-26(b). “Evidence is relevant if: (a) [i]t has any tendency to make a fact more or

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less probable than it would be without the evidence; and (b) [t]he fact is of

consequence in determining the action.” SDCL 19-19-401. But the definition of

relevance at the discovery stage is broad so that it allows for discovery of

“information that may lead to admissible evidence at trial.” Kaarup, 436 N.W.2d at

20. “It is not ground[s] for objection that the information sought will be

inadmissible at the trial if the information sought appears reasonably calculated to

lead to the discovery of admissible evidence.” SDCL 15-6-26(b).

[¶13.] Dr. Thaemert argues that the requested records are irrelevant to the

central issue of the case: whether Ferguson gave informed consent. He claims that

there is no basis of comparison between Ferguson and other patients because every

body type is different, and the decision to perform a particular type of incision

depends on each patient’s particular circumstance. He therefore asserts that there

has been no showing that the records are relevant to whether Ferguson gave

informed consent here and further contends that any need to impeach his credibility

at trial is not a sufficient reason to compel the pretrial production of confidential

records.

[¶14.] Ferguson responds that Dr. Thaemert made the records relevant by

asserting what he generally does (his pattern, habit, and general practice in

informed consent conversations with patients) as his main defense. Ferguson

asserts that because the scope of discovery is broad, the records are discoverable

because they may show Dr. Thaemert’s habit in how he responds to a patient’s

incision preference and documents the process. According to Ferguson,

documentary evidence is proper evidence for showing whether a pattern claim is

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even a viable defense for Dr. Thaemert, and these non-party records are the only

evidence available. However, Dr. Thaemert explained that it is not his general

practice to write down detailed summaries of his pre-operation conversations with

patients, so a detailed recitation of the conversations would not be in the records if

produced. The records would merely look like Ferguson’s record and be just as

unhelpful. 1

[¶15.] Dr. Thaemert relies on Milstead v. Smith (Milstead I), 2016 S.D. 55,

883 N.W.2d 711, and the Nixon test for production of documents adopted therein.

Both Milstead I and Milstead v. Johnson (Milstead II), 2016 S.D. 56, 883 N.W.2d

725, decided the same day, involved criminal defendants attempting to subpoena

police officer disciplinary records and complaints from the arresting officers’

personnel files. The Minnehaha County Sheriff filed motions to quash those

subpoenas arguing the records were confidential and the subpoenas were

unreasonable. Milstead I, 2016 S.D. 55, ¶ 3, 883 N.W.2d at 715; Milstead II, 2016

S.D. 56, ¶ 3, 883 N.W.2d at 728. The circuit court ordered portions of the

1. Ferguson’s pre-operation record contains only the following relevant notes:

Assessment/Plan
1. Chronic back pain.
2. The plan is for anterior exposure. If at all possible she would
prefer to have a Pfannenstiel [horizontal] incision.
3. I told her it is a little longer incision and she may have a
little bit of numbness. The main issue would be that it is
cosmetically below the bikini line which she wishes for.
4. The risk of seromas, bleeding, DVTs, bowel injury, nerve
injury discussed and she would like to proceed.

The only reference to the incision location in the operation notes for Ferguson
was “[t]he abdomen was prepped and draped in normal sterile fashion. A low
midline incision was made.”

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disciplinary records produced for in-camera review. Milstead I, 2016 S.D. 55, ¶ 4,

883 N.W.2d at 715; Milstead II, 2016 S.D. 56, ¶ 4, 883 N.W.2d at 729.

[¶16.] In the Milstead cases, this Court adopted the test for allowing

production of documents laid out by the United States Supreme Court in United

States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). This Court

acknowledged that

[c]ourts . . . routinely order production of confidential and even
statutorily privileged documents for in camera review in civil
and criminal proceedings. And courts are authorized to impose
necessary, effective, and strict restrictions on the use of the
records.

Milstead I, 2016 S.D. 55, ¶ 33, 883 N.W.2d at 724. It ultimately determined that

before such production can be allowed the Nixon test must be satisfied. That test

“obligates the requesting party to establish that the desired evidence is (1) relevant,

(2) admissible, and (3) requested with adequate specificity.” Id. ¶ 20, 883 N.W.2d at

720. For the relevance element, the Court required that the defendant “establish a

factual predicate showing that it is reasonably likely that the requested file will

bear information both relevant and material to her defense.” Id. ¶ 25, 883 N.W.2d

at 722. See also Milstead II, 2016 S.D. 56, ¶ 25, 883 N.W.2d at 735. All three

elements of the Nixon test were unsatisfied in both Milstead cases, and the Court

held that the circuit court erred in ordering in-camera review of the personnel files.

Milstead I, 2016 S.D. 55, ¶ 33, 883 N.W.2d at 723; Milstead II, 2016 S.D. 56, ¶ 33,

883 N.W.2d at 737.

[¶17.] Ferguson argues that the Milstead cases and the Nixon test are not

applicable here because the Milstead cases dealt only with subpoenas in criminal

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cases. She also argues that the cases allow for confidential records to be produced

when the circuit court can properly protect the information. Dr. Thaemert responds

that nothing in either Milstead case limited its holding to criminal subpoenas.

[¶18.] Although Ferguson’s request for civil discovery does not implicate the

same criminal procedural statutes at issue in the Milstead cases, the relevance

standard from these cases is nevertheless instructive here given that Ferguson is

requesting medical records which may contain statutorily privileged information.

Accounting for the broader definition of relevance in the scope of discovery,

Ferguson must show with adequate specificity that the records are reasonably likely

to contain relevant evidence or lead to the discovery of relevant and admissible

evidence.

[¶19.] Ferguson asserts that she wants the records to search for evidence of

Dr. Thaemert’s general practice in talking to patients and performing this type of

surgery to assess the credibility of his testimony. However, “the need for evidence

to impeach witnesses is [generally] insufficient to require its production in advance

of trial.” Milstead I, 2016 S.D. 55, ¶ 26, 883 N.W.2d at 722 (quoting Nixon, 418 U.S.

at 701, 94 S. Ct. at 3104) (alteration in original). Other than attacking Dr.

Thaemert’s credibility, Ferguson has not identified a specific use for the records

other than a cursory explanation that there could be something helpful in the

records. Allowing a fishing expedition through confidential non-party patient

records cannot be permitted where there has not been a sufficient showing that they

are reasonably likely to contain or lead to evidence relevant to the issues of the case.

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[¶20.] Dr. Thaemert argues that Federal Rule of Evidence 406 does not

require corroborating evidence for him to testify about routine practice, whereas

Ferguson argues that specific evidence of a sufficient number of instances is

required to demonstrate a routine. See Smith v. United States, 583 A.2d 975, 980

(D.C. 1990). However, testimony of general practice is admissible to show

conformity with that routine under Federal Rule of Evidence 406, which is identical

to SDCL 19-19-406, 2 “regardless of whether it is corroborated or whether there was

an eyewitness.” Dr. Thaemert’s testimony concerning his habit in obtaining

informed consent may well be weak evidence, but a jury will be able to weigh it

against Ferguson’s conflicting testimony and determine whether Dr. Thaemert

obtained Ferguson’s informed consent. See Hoffart v. Hodge, 609 N.W.2d 397, 405

(Neb. Ct. App. 2000).

[¶21.] Further, Ferguson acknowledges that she is not seeking to prove Dr.

Thaemert’s claimed habit, but rather to disprove it. Ferguson hopes to find

something in the cache of other patients’ records that “could be used to gauge [Dr.

Thaemert’s] credibility” or cast some doubt on the claim that Dr. Thaemert would

never promise a patient that he would perform a particular incision in this type of

surgery. Emphasis added. However, Ferguson’s theory of liability is very specific to

2. Federal Rule of Evidence 406 and SDCL 19-19-406 both state:

Evidence of a person’s habit or an organization’s routine practice
may be admitted to prove that on a particular occasion the
person or organization acted in accordance with the habit or
routine practice. The court may admit this evidence regardless
of whether it is corroborated or whether there was an
eyewitness.

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her individual care. While Ferguson maintains that Dr. Thaemert breached a duty

of care by failing to make the incision she requested and consented to, she does not

claim that Dr. Thaemert violated the standard of care for this type of procedure by

performing a vertical incision rather than a horizontal incision. Ferguson has not

identified how information relating to other patients undergoing the same surgical

procedure, if found, would support a determination of whether she gave informed

consent.

[¶22.] Discovery of the records requested here does not appear reasonably

calculated to lead to the discovery of relevant and admissible evidence. A request to

forage through other patients’ medical records in the hope of finding some possible

basis for impeachment is not a proper basis to allow discovery of the medical records

in this case. Without a showing of relevance, the non-party patient records are not

discoverable under SDCL 15-6-26(b). The circuit court violated that statute in

granting Ferguson’s motion to compel and thus abused its discretion by making “a

choice outside the range of permissible choices.” See Andrews, 2015 S.D. 24, ¶ 14,

863 N.W.2d at 546.

[¶23.] While we have already determined the records are not subject to

production in this case, the circuit court’s order also exceeds the boundaries

described in Wipf, 2016 S.D. 97, 888 N.W.2d 790. Therefore, we address the parties’

further arguments regarding the applicability of Wipf. In particular, its holding

that any medical records produced may not include personal identifying

information, the disclosure of which would violate the statutory privilege protecting

confidential communications between a doctor and patient.

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Patient Confidentiality

[¶24.] Dr. Thaemert argues that the circuit court erred by failing to balance

the burden on the non-party patients’ confidentiality against any limited relevance

of the requested records. He asserts that redacting identifying information cannot

fully protect other patients’ confidentiality. He relies on the dissent in Wipf to

support the argument that allowing discovery of these records would create a

“slippery slope” leading to the proffer of evidence on irrelevant issues and a

resulting “breach of non-party patients’ confidentiality.” See 2016 S.D. 97, ¶ 22, 888

N.W.2d at 799 (Gilbertson, C.J., dissenting). The risks of confusion, delay, and

misleading the jury, he claims, outweigh any probative value.

[¶25.] Ferguson responds that Wipf determined that redacted patient records

do not infringe on patient privacy. She asserts that only confidential

communications within those records are protected by SDCL 19-19-503’s physician-

patient privilege, and when reasonable safeguards ensure anonymity the rest of the

record is not privileged. Ferguson relies on the statement in Wipf that “there is no

patient once [identifying] information is redacted.” 2016 S.D. 97, ¶ 10, 888 N.W.2d

at 794. She finally argues that Thaemert’s slippery slope argument is false and

that he cited no authority to support that allegation.

[¶26.] The physician-patient privilege protects “confidential communications”

between a patient and doctor “made for the purpose of diagnosis or treatment[.]”

SDCL 19-19-503(b). “The public has an interest in protecting [privileged]

information as it encourages patients to be open and candid with their counselors[,

doctors, etc.].” State v. Karlen, 1999 S.D. 12, ¶ 39, 589 N.W.2d 594, 602. Public

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policy encourages “uninhibited communication between a physician and his patient

. . . to insure the free flow of health care, absent any fears on the patient’s part that

anything he says might later be used against him.” People ex rel. D.K., 245 N.W.2d

644, 648 (S.D. 1976). The disadvantage of limiting available evidence through

privileges is balanced against the public policy favoring the privilege. Maynard v.

Heeren, 1997 S.D. 60, ¶ 8, 563 N.W.2d 830, 833, abrogated on other grounds,

Milstead II, 2016 S.D. 56, ¶¶ 34-35, 883 N.W.2d at 737-38.

[¶27.] In Wipf, a patient sued a surgeon for medical malpractice after two

perforations were found in his small bowel after a laparoscopic hernia repair. 2016

S.D. 97, ¶¶ 4-5, 888 N.W.2d at 791. The surgeon had not noted his claimed

inspection for perforations during the surgery in his operative notes, and his expert

testified that to show a violation of the standard of care the patient “would have to

show an unacceptably high complication rate in similar procedures with different

patients.” Id. ¶ 5, 888 N.W.2d at 791. The expert testified that the surgeon’s

records from the past 200-300 laparoscopic hernia repairs would be relevant to that

question. Id. The circuit court ordered the surgeon and clinic to produce those

records with personal identifiers for each patient redacted. Id. Crucially, the

surgeon conceded the records’ relevance on intermediate appeal but argued the

records were not discoverable under SDCL 19-19-503(b). Id. ¶ 6, 888 N.W.2d at

792.

[¶28.] A majority of this Court agreed with the circuit court’s discovery order

in a 3-2 decision and remanded the case for further consideration of whether

adequate safeguards were in place for ensuring patient anonymity. Id. ¶ 12, 888

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N.W.2d at 795. Those safeguards would include removing, in addition to “name,

address, phone number, date of birth, and social security number[,]” any other

information such as medical history or family members that could also lead to

identifying the patient. Id. The circuit court was also instructed to consider the

population size of the area served by the hospital and to issue a protective order for

the records. Id.

[¶29.] The majority held that “anonymous, nonidentifying medical

information is not privileged per se.” Id. ¶ 10, 888 N.W.2d at 795. It stated that

“confidential communications,” as used in the physician-patient privilege context,

does not include the entire medical record, but only the parts that are confidential

communications. Id. ¶ 8, 888 N.W.2d at 792. The majority found persuasive other

state courts’ decisions holding “when adequate safeguards ensure the anonymity of

the patient, relevant, nonidentifying information is not privileged.” Id. Its

determination, that a lack of identifying information means there is no longer a

patient, was based on the Utah Supreme Court’s explanation that

mere descriptions of diagnoses and treatments that make no
reference to a patient are ineligible for protection. . . . [T]he
presence of identifying information and the orders of the court
are what make the information privileged. Without an
identified individual connected to a diagnosis, the diagnosis
contains nothing more than medical terminology.

Id. ¶ 10, 888 N.W.2d at 794 (quoting Staley v. N. Utah Healthcare Corp., 230 P.3d

1007, 1011 (Utah 2010)).

[¶30.] Ferguson argues that Wipf mirrors this case factually and procedurally

because Dr. Thaemert put his prior procedures at issue by asserting that he

followed his general practice with Ferguson. However, a doctor’s inability to recall

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a conversation with a patient about a specific aspect of the patient’s care does not

suddenly make other patients’ medical records relevant and open for discovery on a

claim involving a particular plaintiff’s informed consent. This is particularly true

where Dr. Thaemert has not referred to other medical records in support of his

defense and Ferguson has failed to adequately articulate the specific relevant

information the non-party patient records may contain. Wipf does not control the

issue here because its holding is limited by the fact that relevance was not at issue.

In fact, the Court, in Wipf, specifically noted that former patients’ records “would

not be discoverable in many malpractice cases because they would not be relevant.”

Id. ¶ 6 n.2, 888 N.W.2d at 792 n.2.

[¶31.] Moreover, even though relevance was conceded in Wipf, the Court

remanded the circuit court’s order to “require redaction of other information that

could identify the patient” and to consider “whether identification of the patient

could occur because of the size of the community.” Id. ¶ 12, 888 N.W.2d at 795. In

comparison, the circuit court here allowed discovery of “pre-operative notes,

operative notes, consult notes, age, gender, and body mass index (BMI) of any

patient on whom [Dr. Thaemert] has performed incisions, for anterior spinal fusions

at or below L4 level, during the past 3 years.” But a patient’s age, gender, and BMI

fall within the realm of personal identifying information deemed to be part of the

confidential communications protected by SDCL 19-19-503. In addition, a patient’s

pre-operative notes often include a wealth of personal information, including the

patient’s medical history, the very type of record the Court noted in Wipf that would

require redaction because it could identify the patient. See id.

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[¶32.] It is hard to conceive of how information from another patient’s record

could be used at trial without one party or the other seeking to use personal

identifying information (e.g., medical history, body composition, communicated

preferences) to explain or defend the type of incision made on a patient. This type

of information goes well beyond “mere descriptions of diagnoses and treatments

that make no reference to a patient.” Id. ¶ 10, 888 N.W.2d at 794. Instead, one

would need to delve into the specifics of each patient’s record to make legitimate

comparisons, much of which would be encompassed in the “exchange of confidential

information” between doctor and patient that is privileged under SDCL 19-19-503.

See id. The circuit court made no effort to determine whether the hundreds of pre-

operative, operative, and consult notes it ordered Dr. Thaemert to produce

contained personal identifying information. It was improper for the circuit court to

order the en masse production of records containing personal identifying

information without determining whether the information sought was privileged.

[¶33.] In cases where a circuit court determines that an adequate showing of

relevance has been made for the production of medical records which may contain

confidential communications, the proper method of receiving those records is by in-

camera review. See Maynard, 1997 S.D. 60, ¶ 30, 563 N.W.2d at 841 (Konenkamp,

J., concurring in part and dissenting in part). In such cases, the circuit court must

conduct an in-camera review to determine whether privileged documents have been

properly redacted. Andrews, 2015 S.D. 24, ¶ 32, 863 N.W.2d at 552. In this process,

the court can also determine, after looking at the records thoroughly, if they are

truly relevant, preventing overbroad production of communications or records. See

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Maynard, 1997 S.D. 60, ¶ 18, 563 N.W.2d at 837. Only after such an in-camera

review should the records be released to the parties.

[¶34.] Dr. Thaemert raised an additional issue concerning the undue burden

on his clinic if he were required to produce the records, but we need not address

that issue to reach the outcome of this case.

Conclusion

[¶35.] The central issue in this case, whether Ferguson gave informed

consent, comes down to what was discussed pre-operation between Ferguson and

Dr. Thaemert. Ferguson has not shown that the requested records are relevant to

that issue or reasonably likely to lead to the discovery of relevant and admissible

evidence. Authorizing Ferguson to access private patient files creates too great a

risk that privileged information will be released when the only justification for that

release is that it might provide something helpful.

[¶36.] Because the records Ferguson requests are irrelevant and therefore

not discoverable, Wipf is distinguishable from this case and does not control the

outcome. The circuit court’s order compelling production of the redacted non-party

patient records is reversed.

[¶37.] JENSEN and DEVANEY, Justices, and SEVERSON, Retired Justice,

concur.

[¶38.] KERN, Justice, dissents.

[¶39.] SEVERSON, Retired Justice, sitting for SALTER, Justice, disqualified.

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KERN, Justice (dissenting)

[¶40.] The majority opinion reverses the circuit court’s order compelling

production of certain redacted patient records. In announcing this decision, it

misapplies the discovery and relevancy standards and inappropriately employs the

Nixon and Milstead tests. Therefore, I respectfully dissent.

[¶41.] At issue is whether Ferguson is entitled to discovery of third-party

medical records. Ferguson moved to compel discovery regarding “all medical

records of any patients on whom [Dr. Thaemert] performed incisions[] for anterior

spinal fusions at or below the L4 level, during the past 5 years without identifying

the patient consistent with Wipf v. Al[t]stiel[.]” 2016 S.D. 97, 888 N.W.2d 790

(emphasis added). Dr. Thaemert had indicated that he had performed

approximately 300 surgeries within the preceding five years. The circuit court

granted the motion in part, limiting production of the redacted documents, to “pre-

operative notes, operative notes, consult notes, age, gender, and body mass index

(BMI) of any patient on whom [Dr. Thaemert] has performed incisions for anterior

spinal fusions at or below the L4 level, during the past 3 years.” In addition, the

court ordered that the documents be released under the provisions of a mutually

agreed upon protective order, or if the parties were unable to agree, by an order

issued from the court.

[¶42.] The majority opinion reverses the circuit court, reasoning that

Ferguson is not entitled to discovery of the evidence because Ferguson has failed to

establish that the records are sufficiently relevant. To support this position, it cites

Milstead v. Smith and its companion case, Milstead v. Johnson, as well as United

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States v. Nixon. See Milstead v. Smith (Milstead I), 2016 S.D. 55, 883 N.W.2d 711;

Milstead v. Johnson (Milstead II), 2016 S.D. 56, 883 N.W.2d 725; United States v.

Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974).

[¶43.] But the Milstead duology and the Nixon decision do not apply here.

The Milstead cases involved the production of statutorily privileged documents

requested for impeachment purposes in a criminal proceeding. In both decisions,

the defendant sought—and the circuit court partially upheld—a subpoena duces

tecum requiring production of certain law enforcement personnel records for use at

trial. On appeal, this Court reviewed whether the circuit court erred when it held

that the personnel file was discoverable under the applicable rules of criminal

procedure.

[¶44.] Although the Milstead decisions allow defendants to subpoena

personnel records under certain circumstances (and when a constitutional right is

implicated), this Court ultimately held that the requesting party did not meet his

burden and reversed with orders to quash the subpoena. In ordering reversal, this

Court specifically observed that a defendant’s use of a subpoena duces tecum in

criminal cases for production of documents from the Government was not intended

“as a generalized tool for discovery[.]” Milstead II, 2016 S.D. 56, ¶ 17, 883 N.W.2d

at 733. See also SDCL 23A-14-5 (authorizing a subpoena duces tecum in criminal

proceedings).

[¶45.] This case, in contrast, involves discovery of confidential

communications in a civil action, a practice that is governed by the general rules of

discovery rather than the rules of criminal procedure. Instead of attempting to use

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a subpoena duces tecum (as in the Milstead cases), Ferguson properly filed a motion

to compel discovery to ascertain the existence of the relevant information. Because

Milstead is entirely inapplicable here, the Court should apply our well-established

rules regarding discovery to determine whether Ferguson’s request is “relevant to

the subject matter involved in the pending action,” and whether “the information

sought appears reasonably calculated to lead to the discovery of admissible

evidence.” See SDCL 15-6-26(b). These standards are easily met.

[¶46.] “Evidence is relevant if: (a) [i]t has any tendency to make a fact more

or less probable than it would be without the evidence; and (b) [t]he fact is of

consequence in determining the action.” SDCL 19-19-401. This benchmark is low,

especially at the discovery stage. See Kaarup v. St. Paul Fire & Marine Ins. Co.,

436 N.W.2d 17, 19 (S.D. 1989) (noting the broad scope of pretrial discovery). Even

inadmissible evidence is discoverable “if the information sought appears reasonably

calculated to lead to the discovery of admissible evidence.” SDCL 15-6-26(b).

[¶47.] In rejecting Ferguson’s relevancy argument, the majority opinion holds

that the documents requested in this case are entirely irrelevant and declares that

permitting discovery “does not appear reasonably calculated to lead to the discovery

of relevant and admissible evidence.” Majority Opinion ¶ 22. But this conclusory

statement assumes that the requested evidence is, in fact, irrelevant, a conclusion

that directly contradicts the circuit court’s evidentiary holding that “the information

sought [was] relevant because [Dr. Thaemert had] no specific recollection of his

discussions or assessments of [Ferguson] and relies entirely on what [Dr. Thaemert]

considers to be his general practice.”

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[¶48.] Appearances and reasonable calculations play no role in the initial

relevancy analysis. The question before us is not whether the desired evidence is

admissible at trial. See Majority Opinion ¶ 22. Rather, the question we must first

ask is whether the evidence has “any tendency to make a fact more or less

probable[.]” SDCL 19-19-401 (emphasis added). “Rule 401 provides a lenient

standard for relevance under which evidence need not conclusively prove the

ultimate fact in issue[.]” Knecht v. Evridge, 2020 S.D. 9, ¶ 21, 940 N.W.2d 318, 326

(emphasis added).

[¶49.] Dr. Thaemert made his record-keeping practices relevant when he

relied on them as a central tenant in his defense. He maintains that he makes the

same general representations to each patient when obtaining informed consent

prior to performing anterior spinal fusions. Although he admits that he cannot

remember his exact conversation with Ferguson, he asserts that his representations

to this Court regarding his ordinary practices are sufficient to establish that he did

not violate the standard of care.

[¶50.] These representations, taken alone, do not control our analysis with

respect to relevancy. Without an opportunity to review documents that likely shed

light on Dr. Thaemert’s patient consultation practices, Ferguson has no meaningful

way to refute Dr. Thaemert’s defense. And while the medical records of other

patients “would not be discoverable in many medical malpractice cases because they

would not be relevant[,]” this may not be the case here. Wipf, 2016 S.D. 97, ¶ 6 n.2,

888 N.W.2d at 792 n.2. See also Majority Opinion ¶ 29. Testimony from a party’s

expert, as was the case in Wipf, or the particulars of a party’s theory or defense, as

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is the case here, might render otherwise irrelevant evidence relevant to a particular

dispute.

[¶51.] Categorically prohibiting discovery of the redacted documents strips

the opposing party of its opportunity to make an independent determination

regarding the true nature of the records, leaving it and subsequently the court to

adopt the position of one party or the other as a gauge for the relevancy inquiry.

The majority opinion’s decision restricts the circuit court’s ability to preside over the

discovery process by foreclosing Ferguson’s ability to challenge the veracity of Dr.

Thaemert’s statements regarding his general practices, a position that is contrary to

the purpose of discovery itself.

[¶52.] The majority opinion also incorrectly assumes that the information

Ferguson seeks would be introduced exclusively for impeachment purposes when it

states that “[a] request to forage through other patients’ medical records in the hope

of finding some possible basis for impeachment is not a proper basis to allow

discovery of the medical records in this case.” Majority Opinion ¶ 22. But this is

not the case. The evidence is relevant not just for impeachment, but as evidence of

Dr. Thaemert’s purported habit of discussing the procedure during patient

consultations. See Arthur v. Zearley, 992 S.W.2d 67, 75 (Ark. 1999) (holding that

the issue of informed consent was a “central issue in th[e] case” and therefore

relevant not only for impeachment, but also as part of the plaintiff doctor’s case-in-

chief). The majority opinion also claims that “Dr. Thaemert’s testimony concerning

his habit in obtaining informed consent may well be weak evidence, but a jury will

be able to weigh it against Ferguson’s conflicting testimony and determine whether

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Dr. Thaemert obtained Ferguson’s informed consent.” Majority Opinion ¶ 20. But

without discovery of his consultation practices this evidence is not subject to cross-

examination. It is not the job of this Court at this initial phase of the proceedings to

limit the scope of the potential evidence to the testimony of the parties.

[¶53.] A reviewing appellate court should not overturn a circuit court’s

relevancy determination without evidence of an abuse of discretion. This standard

requires “a fundamental error of judgment, a choice outside the range of permissible

choices, a decision, which on full consideration, is arbitrary or unreasonable.”

Andrews v. Ridco, Inc., 2015 S.D. 24, ¶ 14, 863 N.W.2d 540, 546.

[¶54.] Implying that the requested documents were categorically irrelevant

and exceeded the scope of discovery under SDCL 15-6-26(b), see Majority Opinion ¶

22, the majority opinion does not articulate how the circuit court abused its

discretion or how its ruling constituted “a choice outside the range of permissible

choices” or is “arbitrary or unreasonable.” Andrews, 2015 S.D. 24, ¶ 14, 863 N.W.2d

at 546. It appears, based on this statement, that the only potential abuse lies in the

document’s perceived irrelevancy. At this stage of the proceedings, the threshold

test for relevancy was met due to the nature of Dr. Thaemert’s defense.

[¶55.] Because the information is, in fact, relevant, the next step is to

determine whether the information sought falls outside the physician–patient

privilege. The primary authority regarding discovery of third-party medical

information in our jurisdiction is Wipf v. Altstiel, 2016 S.D. 97, 888 N.W.2d 790.

Our holding in Wipf, which is consistent with the privilege rules in an

overwhelming majority of jurisdictions, allows for admission of non-identifying

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third-party medical information subject to certain conditions. Id. ¶ 8, 888 N.W.2d

at 792-93 (listing jurisdictions that have held that non-identifying “confidential

communications” are not privileged).

[¶56.] In Wipf, a doctor performed a laparoscopic hernia repair on the

plaintiff that resulted in a medical malpractice action. Id. ¶¶ 2, 5, 888 N.W.2d at

791. During the discovery stage of the litigation, the plaintiff requested production

of Dr. Altstiel’s notes involving the same procedure for the previous five years. Id. ¶

5, 888 N.W.2d at 791. A dispute arose regarding whether the plaintiff was entitled

to the medical records subject to redactions protecting the identities of the third

parties. Id. The circuit court ordered production of the documents with certain

identifying information redacted. Id.

[¶57.] On intermediate appeal, we upheld the circuit court’s determination

that the documents were subject to discovery if “adequate safeguards” are present

to “ensure patient anonymity.” Id. ¶¶ 8, 12, 888 N.W.2d at 792–93, 795. Our

reasoning for allowing discovery centered on the language of SDCL 19-19-503,

which protects only “confidential communications contained in medical records” and

not the medical records themselves. Id. ¶ 8, 888 N.W.2d at 792-93 (emphasis

added). We, however, reversed with instructions that the circuit court take

additional measures to protect the identities of the patients. Id. ¶¶ 12, 13, 888

N.W.2d at 795.

[¶58.] Wipf requires that all information that could reveal the patients’

identities be redacted and that additional safeguards might be appropriate,

including “sealing documents; prohibiting the attorneys and parties from

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attempting to learn the identities of the patients or making contact with them; and

prohibiting any person that viewed the information from disclosing any of the

information.” Id. ¶ 11, 888 N.W.2d at 795. The size of the community is also

relevant when determining whether the circuit court is capable of adequately

shielding the third party’s identity. Id. ¶ 12, 888 N.W.2d at 795.

[¶59.] The majority opinion attempts to bypass Wipf by limiting it to cases in

which relevancy is not at issue. But the holding in Wipf does not call for such a

limited application. It is the circuit court’s role to make the initial determination of

discoverability, scope, and relevancy to “ensure that the information to be disclosed

is nonidentifying.” Id. ¶ 11, 888 N.W.2d at 795. Upon a careful review of the

specific nature of the documents involved in the case, the circuit court is fully

capable of determining the measures necessary to protect the identities of the

patients. The size of the community should play a role in the analysis. Id. ¶ 12, 888

N.W.2d at 795. Notably, because Ferguson’s treatment took place in a hospital in

Sioux Falls, the largest city in the state, community size is less of an issue than it

was in Wipf, which involved an area with a smaller population.

[¶60.] Instead of letting the circuit court perform its function, the majority

opinion classifies certain items in the records as identifying information without

adequate authority to support these declarations. For instance, the majority

opinion observes that “[i]t is hard to conceive of how information from another

patient’s record could be used at trial without one party or the other seeking to use

personal identifying information (e.g., medical history, body composition,

communicated preferences) to explain or defend the type of incision made on a

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patient.” Majority Opinion ¶ 32. It states that “a patient’s age, gender, and BMI

fall within the realm of personal identifying information deemed to be part of the

confidential communications protected by SDCL 19-19-503.” Majority Opinion ¶ 31.

What the majority opinion fails to explain is how this information (e.g. age, gender,

stated preference, or BMI), redacted to remove all information tying it to an

individual patient, somehow becomes identifying.

[¶61.] To support its broad statement, the majority opinion restates the rule

from Wipf that requires redaction of information from a “patient’s medical history”

that “could identify the patient.” 2016 S.D. 97, ¶ 12, 888 N.W.2d at 795 (emphasis

added). Wipf did not provide a definitive list of medical information that must be

redacted in order to protect a patient’s confidential communications—nor could it.

All that our holding in Wipf requires is that “[n]o third-party patient can be

associated with the information.” Id. ¶ 11, 888 N.W.2d at 795. And once properly

redacted, “this type of anonymous, non-identifying information is not protected by

the physician-patient privilege because there is no patient once the information” is

removed. Id. ¶ 10, 888 N.W.2d at 794 (emphasis omitted).

[¶62.] Whether the information is ultimately admissible is, of course, a

separate consideration. The authority the majority opinion relies upon is

distinguishable from this case. Hoffart v. Hodge, for instance, addresses the

admissibility of evidence rather than its discoverability. 609 N.W.2d 397, 405 (Neb.

Ct. App. 2000). And rather than supporting the majority opinion’s conclusion that

the evidence is irrelevant, it actually advances the conclusion that the information

might, indeed, be relevant. As the court in Hoffart observed, “[h]abit evidence is

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relevant because such evidence makes it more probable that the person acted in a

manner consistent with that habit.” Id. at 404 (emphasis added). Because the

evidence challenged herein is relevant, and because the Wipf decision allows

discovery of non-identifying medical information, I would hold that the third-party

medical records are discoverable.

[¶63.] The circuit court did not abuse its discretion by granting the motion to

compel discovery. It ordered a specific, redacted, protected, and limited production

of Dr. Thaemert’s surgical records involving anterior spinal fusions in order to show

his general practice (habit), or lack thereof, for obtaining informed consent during

his patient consultations for these surgeries. The information that the circuit court

ordered be released as part of discovery was—at a minimum—reasonably calculated

to lead to the discovery of admissible evidence.

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