Wipf v. Altstiel
2016 SD 97
| S.D. | 2016Background
- Plaintiff Steven Wipf sued Dr. Terry Altstiel for malpractice after a laparoscopic hernia repair allegedly caused small-bowel perforations discovered postoperatively by another surgeon.
- Wipf sought discovery of Dr. Altstiel’s prior laparoscopic hernia operative and 30-day postoperative notes (2009–2013) to show complication rate and pattern; the trial court ordered production after redacting personal identifiers.
- Dr. Altstiel conceded relevance but argued the physician–patient privilege (SDCL 19‑19‑503) bars disclosure even of redacted, nonidentifying information from third‑party medical records.
- The South Dakota Supreme Court reviewed whether SDCL 19‑19‑503 protects anonymous, non‑identifying medical information when adequate safeguards are used to preserve anonymity.
- The majority held that truly nonidentifying, anonymized medical information is not per se privileged and remanded for the trial court to consider additional safeguards (e.g., fuller redaction, protective order, limiting access) to ensure anonymity before disclosure.
- Chief Justice Gilbertson and Justice Severson dissented, arguing the plain text and precedent in South Dakota treat medical records as confidential communications and that redaction does not nullify the privilege.
Issues
| Issue | Plaintiff's Argument (Wipf) | Defendant's Argument (Altstiel) | Held |
|---|---|---|---|
| Whether SDCL 19‑19‑503 bars discovery of third‑party medical records after redaction of personal identifiers | Redacted records are relevant to show a surgeon’s complication rate; disclosure of anonymized information is permissible | The physician–patient privilege protects confidential communications in medical records even after redaction; nonparties’ privacy must be preserved | Nonidentifying, anonymized medical information is not per se privileged; remanded for trial court to assess whether safeguards will preserve anonymity and to enter a protective order if appropriate |
| Scope of "confidential communication" in SDCL 19‑19‑503: does it include information that cannot be traced to a patient? | (Implicit) The privilege should not block access to de‑identified, relevant clinical data | The statute’s plain language covers medical records as confidential communications; redaction does not convert them into nonconfidential material | Majority: statute does not expressly cover anonymous, nonidentifying information; other jurisdictions support disclosure where anonymity can be ensured; dissent: plain text and prior SD decisions treat records as privileged regardless of redaction |
| Whether additional procedural safeguards are required before disclosure of redacted records | Safeguards are acceptable so long as records are useable to prove pattern/complication rates | Stronger safeguards or complete nondisclosure necessary to protect nonparty patients in a small community | Court remanded for trial court to consider and, if adequate, enter protective measures (redaction beyond basic identifiers, sealing, limits on access/use, prohibition on re‑identification/contact) |
| Interaction with HIPAA and federal law: does HIPAA preempt state privilege here? | (Argued below) HIPAA permits use of de‑identified information and may preempt state privilege | HIPAA does not categorically preempt state privilege; state law can be more protective | Majority did not need to decide preemption; dissent argues HIPAA does not preempt state privilege in purely state‑law litigation and state law can be more stringent |
Key Cases Cited
- Snibbe v. Superior Court, 224 Cal.App.4th 184 (Cal. Ct. App. 2014) (holds de‑identified third‑party medical information not protected when anonymity can be assured)
- Staley v. N. Utah Healthcare Corp., 230 P.3d 1007 (Utah 2010) (privilege requires identifiable patient; anonymous clinical descriptions are not privileged where safeguards protect anonymity)
- Ziegler v. Superior Court, 134 Ariz. 390 (Ariz. Ct. App. 1982) (permitting disclosure of nonidentifying clinical information under adequate protections)
- In re Rezulin Prods. Liab. Litig., 178 F. Supp. 2d 412 (S.D.N.Y. 2001) (reasoning that a privilege limited to communications cannot logically extend to isolated, nonidentifying terms)
- Bennett v. Fieser, 152 F.R.D. 641 (D. Kan. 1994) (approving disclosure of de‑identified medical information with protective measures)