IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY

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1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY ANASTACIO ORTIZ and SARA MARIA ORTIZ, his wife, - JTV Plaintiffs, 5. SATOSHI IKEDA, M.D., SATOSHI IKEDA, M.D., P.A., ANDREA K. LANGE, M.D., and CHRISTIANA CARE HEALTH SERVICES, INC., Defendants. Submitted: December 8, 2000 Decided: Stephen F. Dryden, Esq., Wilmington, Delaware. Attorney for Sara Maria Ortiz. Bartholomew J. Dalton, Esq., Wilmington, Delaware. Attorney for Anastacio Ortiz. John D. Balaguer, Esq., Wilmington, Delaware. Attorneys for Dr. Ikeda and Satoshi Ikeda, M.D., P.A. Christian J. Singewald, Esq., Wilmington, Delaware. Attorney for Christiana Care. Upon Consideration of Defendant s Motion For Reargument DENIED VAUGHN, Resident Judge ORDER

2 Upon consideration of the plaintiff s motion for reargument and the record of this case, it appears that: 1. Although this is a motion for reargument, the underlying issue is whether, in this medical malpractice case, the Court should grant plaintiffs motion to compel defendant Satoshi Ikeda, M.D. to produce copies of medical records, with patient names redacted, of other, non-party patients who underwent a procedure like the one that the doctor performed on the plaintiff in this case. Because the scope of discovery does not extend to documents protected by the physician-patient privilege, names redacted or not, the requested discovery will not be ordered in this case. 2. The defendant s medical malpractice claim arises from a video assisted thorascopy with sympathectomy which Dr. Ikeda performed on the left hand of plaintiff Anastacio Ortiz. Through discovery the plaintiff learned that the doctor performed apparently seven procedures of the same or similar nature on other patients. In their motion to compel, the plaintiffs sought the operative notes from those seven other procedures, with the patients names redacted. In support of their motion, the plaintiffs contended that Dr. Ikeda s background, common knowledge, training and skill in this procedure are relevant. They contended that, in fact, his knowledge, training and skill in this procedure are small and inadequate. They contended that the operative notes from the procedures on other patients are necessary to an understanding of Dr. Ikeda s knowledge, training and skill. They also contended that the operative notes may be relevant to his credibility. They contended that the patients privacy could be protected by redacting their names and ordering the records sealed from inspection by anyone other than the parties, their experts, legal counsel 2

3 and the Court. Defendant Dr. Ikeda opposed the motion on the grounds of physicianpatient confidentiality. The motion to compel was denied and the plaintiffs filed this motion for reargument in which they scaled back their request for operative notes to those pertaining to one procedure which apparently is very similar or identical to the one performed on the plaintiff. 3. Rule 26 provides that the scope of discovery extends to any matter, not privileged, which is relevant to the subject matter involved in the pending action. 1 Because privileged matters are expressly beyond the scope of discovery, there is no right or entitlement to discover such matters. 4. The physician-patient privilege includes any confidential communication made for the purpose of diagnosis or treatment. 2 It includes a doctor s communication, set to paper in the form of an operative note, of the details of a surgical treatment performed on a patient. There is nothing in the record to suggest 1 Rule 26(b(1. 2 Rule 503(b. 3

4 that any of the non-party patients have waived the privilege. It has previously been established that the privilege can be asserted by the doctor on behalf of the patient. 3 (ORDER. 3 Shaw v. Metzger, Del. Super., C.A. No. 77C-DE-101, Walsh, J. (Nov. 22,

5 5. The plaintiffs cite a number of cases which have allowed or spoken approvingly of discovery of medical records with patients names redacted. 4 The issue of production of privileged medical records with names redacted has been addressed by courts in varying contexts with different results. 5 However, I conclude that discovery of another patient s medical records, even under seal with the name redacted, should not be permitted in this medical malpractice case. The redaction of names does not alter the fact that the operative notes are privileged. This is not a case where a document contains a mix of privileged and non-privileged material and redaction is used to delete the privileged material. In addition, I am not persuaded that redaction of names adequately protects a patient s legitimate expectation of privacy. Granting the relief sought by plaintiffs would mean that the patient s only real privilege is that of having his name deleted before his intimate medical records are interjected into a civil lawsuit without his knowledge or consent. And sealing a record does not change the fact that it is being made available to the parties, their attorneys, 4 State Ex Rel. Benoit v. Randall, Miss. Supr., 431 S.W.2d 107 (1968; Williams v. Buffalo General Hospital, N.Y. Supr., App. Div., 280 N.Y.S.2d 699 (1967; Hyman v. Jewish Chronic Disease Hospital, N.Y. Ct. App., 258 N.Y.S.2d 397 ( See, for example, Discovery, in Medical Malpractice Action, of Names and Medical Records of Other Patients to Whom the Defendant has Given Treatment Similar to That Allegedly Injuring Plaintiff, 66 A.L.R.5th 591 (

6 and their experts, all of whom are strangers to the patient. 6. The plaintiffs distinguish the case of Shaw v. Metzger, 6 which also denied a plaintiff s request to have medical records of other patients in a medical malpractice case, by arguing that the discovery of other patients records sought there was voluminous, as opposed to here where now only one patient s records are sought. However, while that may have been a factor, the court also clearly expressed concern for patient privacy. It does not necessarily follow that production of the medical records sought in that case would have been ordered but for their volume. 7. The plaintiffs remain free to conduct discovery of Dr. Ikeda s knowledge, training, skill and credibility by other means. Whether there might be circumstances where the Court would order production of the contents of privileged medical records of non-party patients in a malpractice action in redacted form, despite the fact that such records are not within the scope of discovery under Rule 26, is not something that must be decided here. However, my ruling is that in this case no sufficient basis has been established to justify an order requiring production of any portion of privileged medical records of non-party patients. 7. THEREFORE, the plaintiff s motion for reargument is denied. IT IS SO ORDERED. Resident Judge 6 Cited in footnote 3. 6

7 oc: cc: Prothonotary Order Distribution 7

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