¶1 Benefis Health Care, St. James Community Hospital, Inc., St. Patrick Hospital Corporation, and Med-Cor Health Information Solutions, Inc. (health care providers), have filed an application for writ of supervisory control and stay of district court proceedings. Joan Peterson, Patrick Wallace, and Stanley Schlemmer (plaintiffs), representing themselves and others similarly situated, have filed a response opposing the application. For the reasons set forth below, we grant the writ of supervisory control.
¶2 This class action was originally filed in the Eighth Judicial District Court, Cascade County. Plaintiffs’ complaint seeks an award of monetary damages predicated upon excessive fees allegedly charged for copies of patients’ medical records from 1993 to 1999. The plaintiff class was certified, and the class was notified in May 2000. The class
¶3 In their application, the health care providers ask that we order the District Court to rescind its March 21, 2003, discovery order compelling disclosure of the following:
[[Identities of individuals who have requested from the defendant health care providers copies of their health care records between 1993 and 1999. The information to be provided ... shall also include the names of requestors, the patient’s name, the number of pages provided per each request, the amount charged, and the date of the request. All of this information shall be provided and produced, without exception, to Plaintiffs’ counsel at the burden and expense of the defendant health care providers.
¶4 It is the health care providers’ contention that the above order requires them to violate the Uniform Health Care Information Act, § 50-16-501, et seq., MCA, as well as the constitutionally-protected privacy rights of the patients whose records will be disclosed without their consent, resulting in irreparable harm which cannot be remedied upon appeal. The Uniform Health Care Information Act only allows discovery of health care information upon a showing of a compelling state interest that outweighs the patients’ privacy interests. Section 50-16-535(l)(i), MCA. The health care providers point out that the plaintiffs have not even attempted to make a showing of a compelling state interest nor was there a finding by the District Court of such a compelling state interest. Finally, the health care providers contend that the requirement that they absorb the cost of identifying the plaintiff class is contrary to established precedent, Oppenheimer Fund, Inc. v. Sanders (1978),
¶6 This application presents a conundrum. Plaintiffs’ counsel have published a class action “opt-out” notification to all potential class members. Thus, in theory, but for those who may have “opted-out,” the requestors and patients are the clients of the plaintiffs’ counsel. In essence, plaintiffs’ counsel are seeking to identify their own clients in a class action suit in which the District Court has already found the providers liable for violating the Health Care Information Act. Plaintiffs’ counsel need the requested information in order to compute damages and notify the class members.
¶7 Theory aside, the patients and requestors have not given any consent to having their names or records released to anyone. The providers, who have the names and information, are correct in saying that the relevant portions of the Uniform Health Care Information Act do not allow them to produce the health care information absent a showing of a compelling state interest. There has been no such showing in this case.
¶8 Despite the internal inconsistencies in the providers’ claims of privacy, we are concerned with the prospect of having patient names released without the patients’ consent. As mentioned above, the Health Care Information Act requires a showing of a compelling state interest before a Court can require production of health care information pursuant to a discovery request. More importantly, Article II, Section 10, Montana Constitution’s guarantee of privacy encompasses confidential “informational privacy.” State v. Nelson (1997),
¶9 In order to ascertain the amount of damages, plaintiffs’ counsel
¶10 The District Court, in requiring the production of names of patients and requestors, was concerned with facilitating subsequent notices that may be given by plaintiffs’ counsel. To the extent that the order requires the production of the names of non-patient requestors (e.g. attorneys, insurance companies) whose privacy is not at issue, the order is affirmed. As stated above, to the extent the order requires the production of names of patients, it must be vacated. Notification of patients will have to be accomplished through other means such as an “opt-in” notification.
¶11 Finally, the health care providers contend that the District Court erred in ordering that they shoulder the cost of securing the requested information. They cite the United States Supreme Court’s decision in Oppenheimer for the proposition:
The general rule must be that the representative plaintiff should perform the tasks [necessary to notify the class], for it is he who seeks to maintain the suit as a class action and to represent other members of his class. In Eisen IV we noted the general principle that a party must bear “the burden of financing his own suit,” .... Thus ordinarily there is no warrant for shifting the cost of the representative plaintiffs performance of these tasks to the defendant.
Oppenheimer Fund,
¶12 While recognizing the principle that the expense of class notice must usually be borne by the plaintiffs, the plaintiffs here argue that the rationale for that general rule is based on the assumption that class notification normally happens early in the court proceedings where there is strong doubt that the plaintiff will prevail. Meadows v. Ford Motor Company (W.D. Ky. 1973)
¶13 In the present case, since liability has been determined and Montana law, § 50-16-525, MCA, imposes a duty upon health care providers to maintain records of each person who has received health care information from a patient’s file during the preceding three years, we determine that the District Court was acting within its discretion when it ordered that the health care providers bear the cost for producing the information as to requests for copies.
¶14 This matter is remanded to the District Court with instructions to enter an order consistent herewith.
DATED this 25th day of September, 2003.