In a case of first impression, the South Dakota Supreme Court, in a 3â2 decision, ruled that the stateâs physicianâpatient privilege does not
The majority cited to several extrajurisdictional decisions on the issue and aligned itself with the purported âunanimous view of other courts ⌠that anonymous, nonidentifying medical information is not privileged per se.â Wipf v. Altstiel, 2016 WL 7411290 (S.D. Dec. 21, 2016).  You may read the decision, which also serves as a helpful research tool, here.
Discovery of Third-Party Patientsâ Medical Records?
Dr. Terry Alstiel performed a laparoscopic hernia repair on Steven Wipf. Wipf had post-operative complications and later filed suit claiming that Alstiel perforated his bowel during the hernia surgery. Dr. Alstielâs expert testified that he would need to see âan unacceptably high complication rate in similar procedures with different patientsâ before he would agree that Alstiel breached the standard of care.
This testimony prompted Wipf to request Alstielâs operative notes and other medical records involving laparoscopic hernia repairs on other patients but with a redaction of the patientsâ personal identifying information.
Issue of First Impression
Dr. Alstiel claimed that South Dakotaâs physicianâpatient privilege, codified at S.D. Codified Laws § 19â19â503(b), protected the patientsâ medical records from discovery. The privilege protects âconfidential communications made for the purpose of diagnosis or treatment.â According to the majority, the dispositive question was âwhether anonymous, nonidentifying informationâi.e., a record without a patientâof a doctorâs complication rate is a physicianâpatient confidential communication.â
South Dakota courts have never ruled on the scope of the physicianâpatient privilege in this context, but cited to decisions from other states that have considered the issue, such as Arizona, California, Colorado, Connecticut, Illinois, Kansas, New Jersey, and Utah.
Ruling
The court held that the physicianâpatient privilege protects only confidential communications from a patient to a physician, and that a doctorâs notations in medical records do not constitute âcommunicationsâ within the meaning of the privilege, so long as the doctor redacts all personal identifying information. In other words, the privilege does not protect âmere descriptions of diagnoses and treatments that make no reference to a patient.â
The court effectively equated anonymity to a lack of privileged status, stating that the physicianâpatient privilege does not protect anonymous, nonidentifying information âbecause there is no patient once the information is redacted.â (emphasis in original).
Stinging Dissent
Two justices authored separate, strong rebukes, labeling the majorityâs decision as a âredacted-patient-records exceptionâ and the product of a âresult-oriented analysis.â Interestingly, the dissent wonders whether this ruling will creep into the attorneyâclient or clergyâpenitent privileges and permit disclosure of confidential communications so long as the lawyer or clergy member redacts her client or penitentâs name. The dissents are worth reading.