952 N.W.2d 277
S.D.2020Background:
- Plaintiff Alyssa Ferguson requested a low horizontal (Pfannenstiel) incision for an anterior spinal fusion; Dr. Bradley Thaemert performed a vertical incision instead.
- Ferguson sued Dr. Thaemert for lack of informed consent, alleging he promised a horizontal incision and she relied on that promise.
- Ferguson sought discovery of non-party patients’ medical records (anterior fusions at/below L4) to show Thaemert’s general practice and impeach his credibility.
- The circuit court compelled limited production (pre-op, operative, consult notes, age, gender, BMI) for the past three years with redactions; Thaemert appealed the intermediate discovery order.
- The South Dakota Supreme Court reversed: it held Ferguson failed to show the non-party records were reasonably likely to contain relevant, admissible evidence and stressed privilege concerns and limits on broad fishing expeditions; it also discussed proper redaction/in‑camera review procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether non-party, redacted medical records are discoverable | Records are relevant to impeach Thaemert and to show his habit/general practice in consent discussions; broad discovery rule permits it | Records are irrelevant to Ferguson’s individual informed-consent claim; production would invade third-party confidentiality and is unnecessary | Reversed: records not discoverable because Ferguson failed to show they were reasonably likely to contain relevant/admissible evidence |
| Proper standard for compelled production of potentially privileged/confidential records | Milstead/Nixon constraints are inapplicable or permissive for civil discovery here; Wipf controls | Nixon/Milstead require a factual predicate showing likely relevance and specificity before production | Court applied Nixon/Milstead relevance requirement (factual predicate) and required adequate specificity; Ferguson did not meet it |
| Scope and sufficiency of redaction under Wipf v. Altstiel | Wipf permits production of nonidentifying medical info with safeguards; circuit court’s redaction scope was acceptable | Redaction may not fully protect confidentiality; some ostensibly nonidentifying fields (age, gender, BMI, pre-op notes) can still identify patients | Wipf distinguishable: even redacted fields ordered by circuit court risk revealing privileged, identifying/confidential communications; circuit court erred in ordering en masse production without in-camera review |
| Proper procedure if relevance shown | Broad production under protective order is workable in larger-population settings | Court should balance burden and protect non-party privacy; use in‑camera review to determine privilege | If adequate relevance shown, court must conduct in‑camera review and narrowly tailor/redact records before release; here relevance not established, so no production |
Key Cases Cited
- Wipf v. Altstiel, 888 N.W.2d 790 (S.D. 2016) (nonidentifying third‑party medical data discoverable with adequate redaction and safeguards)
- Milstead v. Smith, 883 N.W.2d 711 (S.D. 2016) (adopted Nixon-style test for production of confidential records)
- Milstead v. Johnson, 883 N.W.2d 725 (S.D. 2016) (same)
- United States v. Nixon, 418 U.S. 683 (U.S. 1974) (production of confidential material requires showing of relevance, admissibility, and specificity)
- Kaarup v. St. Paul Fire & Marine Ins. Co., 436 N.W.2d 17 (S.D. 1989) (discovery has broad scope at pretrial stage)
- Andrews v. Ridco, Inc., 863 N.W.2d 540 (S.D. 2015) (abuse-of-discretion standard for discovery orders)
- Hoffart v. Hodge, 609 N.W.2d 397 (Neb. Ct. App. 2000) (habit evidence admissible under Rule 406)