HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/DO-RC-SC.ASC

Text File | 1993-01-14 | 23KB | 490 lines

/* This case is reported in 788 F.Supp. 884 (D.S.C. 1992). In
this contaminated blood case, a court declines to allow discovery
into information concerning the donors, in contrast to several
other cases permitting such discovery. */

Jane DOE (whose true name is confidential), Personal
Representative of the Estate of John Doe (whose true name is
confidential), deceased, Plaintiff,

v.

The  AMERICAN  NATIONAL  RED CROSS, d/b/a American Red Cross
Central South Carolina Chapter S.C. Regional Blood Services,
Defendant.

United States District Court, D. South Carolina, Columbia
Division.

March 31, 1992.



MEMORANDUM OPINION AND ORDER

SHEDD, District Judge.

These are companion blood contamination cases. [footnote 1]  In
both cases, plaintiff alleges that her husband received a
transfusion of HIV-contaminated blood in 1984 during surgery at
Baptist Medical Center in Columbia. The blood was processed and
supplied to the hospital by defendant.  Plaintiff's husband died
in December 1987 and an autopsy revealed that plaintiff's husband
had the AIDS virus.  Plaintiff contends that defendant was
negligent in its processing of the blood used for the
transfusion.

Currently before the Court are plaintiff's motion to compel
defendants to respond to interrogatories and defendant's motion
for a protective order safeguarding it from disclosing the
identity of the blood donor suspected of transmitting the AIDS
virus to plaintiff's husband.  After carefully reviewing the
arguments presented and the controlling legal authorities, the
Court finds that defendant's motion should be granted and
plaintiff's motion should be denied.



I.

During discovery plaintiff served upon defendant written
interrogatories, four of which are as follows:

1.  Identify the blood donor whose blood donation  was  labeled
blood  number 36K04689, who is known to have tested positive for
HIV.

3.   If the donor referred to in interrogatory 1 above is alive,
or is not known to be dead, and the defendant does not know the
current address of said donor, identify all persons who know or
may have reason to know the current address of said donor.

4.   State the name and addresses of all persons known to you to
be witnesses concerning the facts of this case and indicate
whether or not written or recorded statements have been taken
from the witnesses and indicate who has possession of such
statements.

5.   Set forth a list of photographs, plats, sketches, or other
prepared documents in your possession or the possession of your
attorneys or attorney that relate to the claims or defense in
this case.

Defendant objected to Interrogatories 1 and 3 [footnote 2]
asserting:

The Red Cross objects to this interrogatory on the grounds of
undue burden, annoyance, embarrassment, and oppression, as well
as on grounds that the request is not reasonably calculated to
lead to the discovery of admissible evidence.  The Red Cross also
objects to this interrogatory on the grounds that the identity of
the implicated blood donor is protected by rights of privacy
under the United States and South Carolina constitutions, state
statutory privileges, and public policy interests.

Defendant responded in part to Interrogatories 4 and 5, but
objected in part asserting that the interrogatories called for it
to speculate as to what all of the facts, claims, and defenses
involved in the case are or may be.

In response to defendant's objections, plaintiff moved to compel
defendant to respond to these interrogatories.  Defendant
responded by moving for a protective order to safeguard the
identity of the implicated blood donor ("the Donor") [footnote 3]
based essentially on the grounds set forth in its objection to
Interrogatories 1 and 3. Defendant also restated its objections
to Interrogatories 4 and 5 in its motion.

Two separate discovery issues are before the Court: whether
defendant should be required to disclose the identity of the Do
nor, which will resolve the motions with respect to
Interrogatories 1 and 3;  and whether defendant should be
required to further respond to Interrogatories 4 and 5. The Court
will address each issue separately below.



II

Initially, the Court will address whether defendant must disclose
the identity of the Donor.   Defendant  has  raised  several
grounds in support of its position that it should not be required
to disclose the Donor s identity.  The Court need not reach each
of these grounds, however, because the Court finds that
defendant's assertion that the Donor's identity is privileged
information under S.C.Code Ann.  44-29-135 is dispositive.  Based
on this privilege, the Court will deny the motion to compel and
grant the motion for a protective order.



A.

The pertinent facts concerning this motion may be summarized as
follows. [footnote 4]  In January 1988, defendant was notified by
Baptist Medical Center that plaintiff's husband developed AIDS
and died following transfusions of blood provided by defendant.
Defendant conducted a "lookback" investigation and determined
that the blood components of twenty-four donors were transfused
into plaintiff's husband. Under defendant's standard operating
procedure for conducting lookback investigations, defendant
examined its records to determine whether any of the twenty-four
donors whose blood or blood components were implicated in the
transfusion had tested HIV negative more than six months
following the implicated donation.  Of these donors, sixteen had
tested HIV negative when subsequently donating blood to
defendant. Again, pursuant to its standard operating procedures,
defendant attempted to contact by mail (last known address) the
remaining eight donors who had not been tested for HIV and to
have them report to Ms. Covington for an HIV test.  Of these
eight donors, seven subsequently reported and tested negative for
HIV.  The Donor did not respond to this letter.

After receiving no response from the Donor, whose HIV status was
unknown at that time, Ms. Covington attempted to contact the
Donor by calling the phone number he had provided during his 1984
implicated donation.  Ms. Covington learned during this call that
the Donor no longer resided at the address that he had given to
defendant and that he had not given any forwarding address,
telephone number, or other means by which defendant could locate
him.  Ms. Covington then requested the assistance of DHEC.  On
August 25,1988, DHEC officials confirmed that it had tested the
Donor for HIV and that the test results were positive.  DHEC
released this information to defendant based on its belief that
the release was justified under Section 44-29-135(c) and (d)
because it would not be released to third parties, and because it
would be used exclusively to ensure the control and treatment of
a sexually transmitted disease and to protect the health of
recipients of the Donor. DHEC would not have released any
information concerning the Donor for purposes other than those
set forth in Section 44-29-135.

DHEC has historically taken the position that information and
records pertaining to sexually transmitted diseases, whether in
DHEC's control or released pursuant to Section 44-29-135, cannot
be disclosed in personal injury proceedings because such a
release is not authorized by the statute. Defendant has not
communicated with the Donor since August 1984 and defendant did
not learn, from DHEC or otherwise, the Donor's address or any
specific information concerning his whereabouts.



B.

In 1978, the South Carolina General Assembly, finding that "an
emergency situation exists requiring the protection of the
confidentiality of venereal disease records and further that
failure to protect such confidentiality threatens the continued
effectiveness of the venereal disease control program in the
State," enacted Section 44-29~135. See 1978 S.C. Acts No. 542.
Section 44-29-135, which is part of the State's overall
legislative program relating to contagious and infectious
diseases, specifically sexually transmitted diseases, provides:

All information and records held by the Department of Health and
Environmental Control and its agents relating to a known or
suspected case of a sexually transmitted disease are strictly
confidential except as provided in this section. The information
must not be released or made public, upon subpoena or otherwise,
except under the following circumstances:

(a)  release is made of medical or epidemiological information
for statistical purposes in a manner that no individual person
can be identified: or

(b)  release is made of medical or epidemiological information
with the consent of all persons identified in the information
released;

(c)  release is made of medical or epidemiological information to
the extent necessary to enforce the provisions of this chapter
and related regulations concerning the control and treatment of a
sexually transmitted disease;

(d)  release is made of medical or epidemiological information to
medical personnel to the extent necessary to protect the health
or life of any person; or

(e)  in cases involving a minor, the name of the minor and
medical information concerning the minor must be reported to
appropriate agents if a report is required by the Child
Protection Act of 1977. No further information is required to be
released by the department.  If a minor has  acquired
Immunodeficiency  Syndrome (AIDS) or is infected with Human
Immunodeficiency Syndrome (HIV), the virus that causes AIDS, and
is attending the public schools, the superintendent of the school
district assigned to the school the minor attends must be
notified.

The General Assembly has statutorily vested DHEC with the
authority to promulgate regulations to carry out the purposes of
Section 44-29-135 and other laws dealing with sexually
transmitted diseases. S.C.Code Ann.  44-29-130 (1990). [footnote
5] Pursuant to its statutory authority, DHEC has promulgated
Regulation 61-21G(2)(d) which provides:

If a person infected with HIV, Hepatitis B or syphilis informs
the Department [DHEC], or the Department learns, that he/she has,
during a period of probable infection, donated or sold blood,
semen, tissue, organs or other body fluids determined to be
infectious by the Department, the Department may disclose or
release the name of the donor only to the entity which collected
the infected blood or body product.  The information may be given
to the collecting entity to protect the recipient and/or the
blood or body product supply.  The entity which collected the
blood or body product must not release to any other person the
information identifying the donor provided by the Department and
such information must be kept strictly confidential.

S.C.Reg. Vol. 15, Issue 5 (May 24, 1991) (emphasis added).  Any
person who violates this regulation "is guilty of a misdemeanor
and, upon conviction, must be fined not more than two hundred
dollars or be imprisoned for not more than thirty days." S.C.Code
Ann.  44-29-140.

The clear intent of the General Assembly in enacting Section 44-
29-135, and of DHEC in promulgating Regulation 61-21G(2)(d), is
to protect the identity of persons having the HIV virus or other
sexually transmitted diseases [footnote 6] so that two important
interests may be best served. On the one hand, these enactments
strive to protect the privacy interests of those persons having
one of these diseases. [footnote 7] On the other hand, by
protecting those individuals' privacy, these enactments serve the
state's interest in "encouraging victims [of sexually transmitted
diseases] to seek help voluntarily and to give honest responses
to screening questions," Doe v. American Red Cross Blood Servs.,
S.C Region, 125 F.R.D. 646, 651 (D.S.C.1989) (unrelated case),
thereby promoting the overall health of the citizens of South
Carolina. Only by maintaining the identities in strict confi
dence, as Section 44-29-135 and Regulation 61-21G(2)(d) purport
to do, can these two interests best be served.



C.

[1]  With this backdrop in mind, the Court must determine whether
defendant may properly assert grounds of privilege under Section
44-29-135 in order to refrain from disclosing the identity of the
Donor. The Court notes that in civil matters such as this one
which are grounded upon state law, evidentiary privileges are
determined in accordance with state law. Fed. R. Evid. 501. Under
South Carolina law a matter is privileged if it "is not intended
to be introduced into evidence and/or testified to in Court."
South Carolina State Highway Dept. v. Booker, 260 S.C. 245,195
S.E.2d 615, 619 (1973).



[2, 3]  Section 44-29-135 clearly limits the release of all
information and records held by DHEC and its agents relating to a
known or suspected case of a sexually transmitted disease to five
specific circumstances, none of which allows for the information
to be released for the purposes of litigation. [footnote 8]
These limitations apply even when the information is requested
under subpoena.  Therefore, it is abundantly clear that by
enacting Section 44-29-135, the South Carolina General Assembly
intended for "[a]ll information and records held by [DHEC] and
its agents relating to a known or suspected case of a sexually
transmitted disease" to be privileged matter.  Plaintiff concedes
this fact, but argues that this privilege exists only in favor of
DHEC and its agents, and not to other persons or entities that
receive authorized information from DHEC.  The Court cannot agree
with plaintiff's position.



[4, 5]  "It is well settled that while the Legislature may not
delegate its power to make laws, in enacting a law complete in
itself it may authorize an administrative agency or board 'to
fill up the details' by prescribing rules and regulations for the
complete operation and enforcement of the law within its
expressed general purpose." Heyward v. South Carolina Tax Comm'n,
240 S.C. 347,126 S.E.2d 15,19-20 (1962). A duly promulgated
regulation has the force and effect of statutory law and becomes
an integral part of the enabling statute. Pritchett v. Lanier,
766 F.Supp. 442, 447 (D.S.C.1991); Tant v. Dan Riter, inc., 289
S.C. 325, 345 S.E.2d 495, 496 (1986). DHEC, which is the agency
charged with the administration of Section 44-29-135, has
promulgated Regulation 61-21G(2)(d), which prohibits a blood
collection agency such as defendant from releasing "information
identifying the donor provided by [DHEC]" and which requires that
"such information must be kept strictly confidential."  DHEC
promulgated Regulation 61-21(G)(2)(d) under the authority vested
in it by the General Assembly in Section 44-29 130;  thus,
Regulation 61-21G(2)(d) is an integral part of South Carolina
law. Under these authorities, the Court finds that the privilege
created by Section 44-29-135 extends to defendant, as an
authorized recipient of information identifying the identity of
an HIV-infected donor. [footnote 9]

Furthermore, the Court finds that although Section 44-29-135,
unlike Regulation 61-21G(2)(d), does not expressly state that the
privilege extends to individuals or entities other than DHEC and
its agents, the legislative intent of this section, as discussed
in Part II-B of this Opinion, clearly is to extend the privilege
to authorized recipients. [footnote 10]  If the privilege did not
extend to authorized recipients of information, then the state's
policy of encouraging infected individuals to identify themselves
to DHEC voluntarily and in confidence would be frustrated since
those individuals would naturally be less likely to identify
themselves if they believed that DHEC would then release the
information to an entity such as defendant, who would not be
subject to the same confidentiality requirements.  Given the
various interests at stake, the General Assembly, by subjecting
DHEC to strict confidentiality  requirements while at the same
time authorizing limited release of confidential information in
certain circumstances, clearly intended for the information
released by DHEC to remain confidential.

Furthermore, DHEC's construction of Section 44-29-135, as
expressed by Regulation 61-21G(2)(d) and by the testimony of Dr.
Jones, is itself entitled to "most respectful consideration" and
should not be overruled absent compelling circumstances.

Jasper County Tax Assessor v. Westvaco Corp., 409 S.E.2d 333, 334
(S.C.1991).  As is obvious from the Court's determination of the
intent of the General Assembly, the Court finds that there are no
compelling circumstances to overrule DHEC's construction of
Section 44~29-135. [footnote 11]



D.

Rule 26(b)(1), which defines generally the scope of discovery,
states that "[p]arties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved
in the pending action ... ."  Rule 26(c) authorizes the Court, in
appropriate circumstances, to issue a protective order which
limits, in whole or in part, discovery related to a particular
matter. Because the Court finds that information in defendant's
possession relating to the identity of the Donor is privileged,
[footnote 12] the Court shall order that defendant is protected
from disclosing such information, and shall deny plaintiff's
motion to compel responses to Interrogatories 1 and 3.



III

As noted, plaintiff has also moved to compel responses to
Interrogatories 4 and 5.  These interrogatories are, as plaintiff
asserts, standard interrogatories under the South Carolina Rules
of Civil Procedure. See S.C.R. Civ. P. 33(b).  Defendant has re
sponded in part to these interrogatories, but has objected to
"being improperly placed in a position of anticipating the fac
tual issues and legal theories plaintiff may formulate during the
course of this complex medical malpractice litigation."  Def.
American Red Cross's Mem. of Points and Auths. in Supp. of Its
Mot. for a Prot. Order and in Opp'n to Pl.'s Mot. to Compel, p.
37. While these interrogatories may be interpreted differently in
state court, the Court is satisfied that defendant has fully
responded to the extent required under the Federal Rules.  The
Court will therefore deny plaintiff's motion to compel responses
to Interrogatories 4 and 5.  If plaintiff desires further
information from defendant, then she may serve additional
interrogatories which are more specific in scope.



IV

IT IS THEREFORE ORDERED that defendant's Motion For A Protective
Order be GRANTED and that plaintiff's Motion To Compel be DENIED.
The parties are advised that all discovery must be completed no
later than May 1, 1992, and all motions other than those relating
to the admissibility of evidence at trial must be filed no later
than May 18, 1992.  These cases are subject to being called for
trial at the Court's June 1992 term.



AND IT IS SO ORDERED.



FOOTNOTES:

1.   C.A. No. 91-0039-19 is a wrongful death action and C.A. No.
9-0040-19 is a survival action.

2.   Defendant's objection to Interrogatory 3 specifically
referred to the stated objections in Interrogatory 1.

3.   The Court's use of masculine pronouns to refer to the Donor
in this Opinion is for the purpose of clarity only and in no way
indicates that the Donor is actually male.

4.   Defendant has submitted the affidavits of G. Dianne
Covington, the manager of defendant's medical records, and Dr.
Jeffrey L. Jones, the State Epidemiologist for the South Carolina
Department of Health and Environmental Control ("DHEC").  Ms.
Covington's duties include the coordination of "lookback"
investigations to determine the HIV status of blood donors whose
donations have been implicated in transfusion-associated
infections. Dr. Jones's duties include the development and
enforcement of DHEC's regulatory program concerning the
surveillance, investigation, and prevention of the spread of
communicable diseases.  The factual summary in the text is taken
from these affidavits.

5.   Section 44-29-130 provides that DHEC "shall promulgate
regulations necessary to carry out the purposes of Sections 44-29-
60 to 44-29-140, other than Section 44-29-120 . . . . All
regulations so made are binding upon all county and municipal
health officers and other persons affected by Sections 4429-60 to
4429-140."

6.   The Court recognizes that the HIV virus may be transmitted
in ways other than by sexual transmission.  However, as noted,
Section 44 29-135 (and Regulation 61-21G(2)(d) promulgated
thereunder) was enacted to address the confidentiality of
information pertaining to sexually transmitted diseases.

7.   The privacy interest is best illustrated by the fact that
plaintiff has brought this lawsuit in a confidential manner.

8.   The General Assembly has, however, authorized the release of
this information under court order for law enforcement purposes.
S.C.Code Ann.  4429-136.  The General Assembly has also exempted
physicians and state agencies who identify and notify a spouse or
known "contact" of an HIV-infected individual from liability for
damages resulting from the disclosure.  S.C.Code Ann.  4429-146.

9.   Plaintiff asserts that South Carolina only recognizes three
relation-based privileges: attorney/client, priest/penitent, and
husband/wife. While plaintiff is correct, the Court notes that
the privilege at issue in this case is not based on the relation
between DHEC and defendant but, instead, is based on the nature
of the information itself.

10.  In South Carolina, the cardinal rule in construing a statute
is to ascertain and effectuate the intent of the legislature.
Burns v. State Farm Mut. Auto Ins. Co., 297 S.C. 520, 377 S.E.2d
569, 570 (1989).

11.  The Court recognizes that in Doe (unrelated), then District
Judge (now Circuit Judge) Hamilton found that the privilege does
not extend to anyone other than DHEC and its agents.  125 F.R.D.
at 651. That decision, however, was decided prior to the
promulgation of Regulation 6I-21G(2)(d).

12.  Plaintiff argues that defendant, under its own policies, was
required to locate the Donor once his blood was implicated and
that defendant had sufficient information to locate the Donor.
The Court finds little relevance in these facts, even assuming
their truth, since the fact remains that only through DHEC did
defendant learn the HIV status of the Donor.  Practically
speaking. plaintiff is not merely interested in the identity of
the Donor itself.  Rather, plaintiff's interest in the Donor's
identity hinges upon the Donor's HIV status. which is privileged
information.  Although defendant's apparent acknowledgment that
DHEC confirmed the positive HIV status of the Donor may itself be
a disclosure of privileged information. that is no reason for the
Court to order further release of privileged information.