HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/TARRANT.ASC

Text File | 1993-01-14 | 39KB | 772 lines

/* This case is reported in 734 S.W.2d 675 (Tx.App. Fort Worth
1987). In this case a plaintiff who allegedly receives a
transfusion of blood which is HIV positive seeks discovery of the
names of blood donors. Under Texas practice, the Judge is named
as the respondent, but this is simply an appeal of the decision.
This case is significant in permitting limited discovery of
information regarding blood donors. This is particularly the case
when one considers that other courts have disagreed with the
opinion. */

TARRANT COUNTY HOSPITAL DISTRICT, Relator,

v.

Hon. William L HUGHES, Jr., Respondent

Court of Appeals of Texas, Fort Worth.

April 9, 1987.

Rehearing Denied Aug. 12, 1987.



Before the court en banc.

FARRIS, Justice.

Relator, Tarrant County Hospital District, seeks the issuance of
a writ of mandamus to compel the Hon. William L. Hughes, Jr.,
Judge of the 48th District Court of Tarrant County, Texas, to
rescind his order of October 16, 1986, entered in cause number 48-
95022-86, styled Belinda C. Jackson, in behalf of the estate of
Tristianne O. Jackson, deceased v. Tarrant County Hospital
District, d/b/a John Peter Smith Hospital, which order compels
relator as defendant to produce and make available to the
plaintiff certain documents identifying blood donors.

We grant relator's motion for leave to file the petition, but
deny the relief requested herein.

The cause of action giving rise to the matter in controversy is a
suit for wrongful death brought by the plaintiff, individually
and in behalf of the estate of the plaintiff's deceased daughter,
against the relator. Plaintiff's original petition alleges that
the deceased was given blood transfusions by relator which
resulted in her contracting Acquired Immune Deficiency Syndrome
(AIDS), and in the death of the deceased. Plaintiff accuses
relator of failing to exercise the degree of care and the skill
and treatment that is ordinarily exercised by and expected of the
defendant (medical malpractice) as well as a failure to provide a
wholesome blood product (implied warranty).  The relator as
defendant answered by general denial. Plaintiff served the
defendant with a request for production of documents requesting,
in relevant part, the production of information pertaining to the
names and addresses of blood donors.  Relator filed its objection
to the production of the information relating to blood donors and
sought protective orders of the trial court. The trial court
overruled the discovery objection and ordered that the relator
disclose the identities and addresses of the blood donors.  The
court also ordered the plaintiff to not directly or indirectly
contact any donor nor undertake further discovery regarding such
donors until permitted to do so by further order of the court.

The scope of discovery largely rests within the discretion of the
trial court. Jordan v. Ct. of App. for Fourth Sup. Jud. Dist.,
701 S.W.2d 644, 648-9 (Tex. 1985).  A party opposing discovery
bears the burden of establishing a discovery privilege.  Weisel
Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex.1986); Jordan,
701 S.W.2d at 649; Peeples v. Hon. Fourth Supreme Judicial Dist.,
701 S.W.2d 635, 637 (Tex.1985).

In its petition for writ of mandamus, relator contends that the
order complained of violates TEX.R.EVID. 509, that it violates
the blood donors' constitutional right to privacy, and that the
societal interest in maintaining a healthy and effective blood
donor program clearly overrides any legitimate interest of the
plaintiff in the disclosure of the blood donors' identities.

[l]  We hold that the physician-patient privilege expressed in
TEX.R.EVID. 509 is not applicable. Under rule 509, a "patient" is
defined to mean any person who consults or Is seen by a physician
to receive medical care. A "physician" is defined as a person
licensed to practice medicine.  Nothing in the record reflects
that the blood donors were seen by a physician or received
medical care when they donated blood.

In support of its contentions that the discovery order violates
the donor's right to privacy and adversely affects the interest
of society in maintaining a healthy and effective blood donor
program, relator cites South Florida Blood Serv. v. Rasmussen,
467 So.2d 798 (Fla.App. --3d Dist.1985); [footnote 1] aff'd, 500
So.2d 533 (Fla.1987). Rasmussen received 51 units of blood in the
treatment of injuries incurred in an automobile accident.
Subsequently, Rasmussen was diagnosed as having AIDS.  Rasmussen
sued the owner and operator of the other motor vehicle involved
in the accident and served subpoena duces tecum on South Florida
Blood Services, Inc., seeking "any and all records, documents,
and other material indicating the names and addresses of the
blood donors." South Florida Blood Services, not a party to the
lawsuit, moved to quash the subpoena on the grounds that
Rasmussen had failed to show good cause or justifiable reason for
the invasion of the private confidential records of the blood
service and its volunteer donors. The majority of the District
Court of Appeals of Florida, 3rd District, held that the subpoena
violated the donors' privacy interest and society's interest in a
strong and healthy volunteer blood donation program and quashed
plaintiff's subpoena.

The District Court of Appeals in Rasmussen acknowledged that the
plaintiff had a legitimate interest in determining the identities
of the blood donors because he could recover additional damages
from the defendants if it could be shown that his AIDS was caused
by blood transfusions necessitated by the injuries he suffered in
the automobile accident, but his interest in the information was
held slight when compared with the opposing interests.  See South
Florida Blood Serv. v. Rasmussen, 467 So.2d at 801.  The District
Court of Appeals in Rasmussen characterized its decision as one
establishing that the Federal and State Constitutions [footnote
2] are sources of  privacy interest which must be scrutinized
when raised in challenge of a discovery order. Id. at 803. In
arriving at its decision, the District Court of Appeals
determined that the blood donors' privacy interests were
constitutionally based, that court orders which compel, restrict
or prohibit discovery constitute State action subject to
constitutional limitations, and that the court would apply a
balancing test comparing the interest served by the State action
with interests encroached upon by that action.  Id.

The District Court of Appeals in Rasmussen also held that, on the
facts of the case, after balancing all interest involved,
discovery should not be allowed because the court found a free
flow of donated blood of sufficient public importance when
combined with the privacy interest of the donors to outweigh
Rasmussen's interest in discovering the donors' identity.  Id. at
804. In support of its conclusion, the court adopted the argument
of South Florida Blood Services that because the blood of
volunteer donors was less likely to be contaminated with
infectious diseases than that of paid donors, the confidentiality
of blood service records was essential in order to maintain a
voluntary blood donation system sufficient to meet societal
demands for blood and blood products. Id.

The District Court of Appeals certified to the Florida Supreme
Court the following as a question of great public importance:

Do the privacy interests of volunteer blood donors and a blood
service's and society's interest in maintaining a strong
volunteer blood donation system outweigh a plaintiff's interest
in discovering the names and addresses of the blood donors in the
hope that further discovery will provide some evidence that he
contracted AIDS from transfusions necessitated by injuries which
are the subject of his suit?

The Florida Supreme Court answered the question in the
affirmative and approved the decision of the lower court See
Rasmussen v. South Florida Blood Serv., 500 So.2d at 534.

The Supreme Court of Florida acknowledged that the blood donors'
rights of privacy are protected by the Federal and Florida
Constitutions, but stated that it need not engage in the strict
scrutiny mandated by constitutional analysis because it found
that the interests involved were adequately protected under
Florida discovery rules. Id. at 535.  The court noted that
Florida rules of discovery confer broad discretion on a trial
court to protect a party from "annoyance, embarrassment,
oppression or undue burden or expense." Id.  In its opinion, the
Supreme Court of Florida discussed the express right of privacy
contained in the Florida Constitution and the discussion which
preceded its adoption, stating that a principal aim of the
provision was to afford individuals some protection against the
increasing collection, retention and use of information relating
to all facets of individual lives. Id. at 536.  The Supreme Court
concluded that the disclosure sought by Rasmussen implicated
constitutionally protected privacy interests. Id. at 537. The
court also concluded that society's interest in a strong and
healthy blood supply would be furthered by denial of the
discovery sought by Rasmussen. Id. at 538.

Neither the Federal Constitution nor our State Constitution
expressly mentions any right of privacy.  Detailed discussions of
the recognition of a constitutional right of privacy may be found
in Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct 705, 726, 35
L.Ed.2d 147 (1973); Ind. Foundation v. Texas Int. Acc. Bd., 540
S.W.2d 668, 678- 80 (Tex.1976), cert. denied, 430 U.S. 931, 97
S.Ct 1550, 51 L.Ed.2d 774 (1977); Ex parte Abell, 613 S.W.2d 255,
265-69 (Tex.1981) (Spears, J. dissenting). The term "right of
privacy" is a generic term encompassing various rights recognized
in decisions of the United States Supreme Court as well as in
other federal and state courts. See 16B C.J.S. Right of Privacy
sec. 630 (1985). The right of privacy has been held to protect
the right of individuals to make certain decisions, without
governmental interference, with regard to highly personal mat
ters, e.g., Roe v. Wade. Most privacy cases decided by the United
States Supreme Court have involved the rights of individual's to
make such autonomous decisions.

A second general area of "right of privacy," protects rights of
individuals to prevent unlimited disclosure of personal infor
mation, e.g., Whalen v. Roe, 429 U.S. 589, 598-600, 97 S.Ct. 869,
87577, 51 L.Ed.2d 64 (1977). An individual's medical records have
been declared to be within a zone of privacy protected by the
Federal Constitution. Id. at 601, 97 S.Ct. at 877; G.M.C. v.
Director of Nat. Institute, 636 F.2d 163, 166 (6th Cir.1980);
United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3rd
Cir.1980); E.I. duPont de Nemours & Co. v. Finklea, 442 F.Supp.
821, 825 (W.Va. S.Dist 1977). Although the courts in each of the
four cited cases recognized that the right of privacy extends to
one's medical records, their opinions are of little comfort to
the relator because, in each, the complained of activity was
found to not violate the right of the individual.  In Whalen v.
Roe, the Supreme Court reversed a three- judge district court
decision holding unconstitutional a State statute requiring the
reporting of the names and addresses of all persons who had
obtained prescriptions to certain drugs for which there were both
a lawful and unlawful market. Whalen, 429 U.S. at 592, 97 S.Ct at
872. The district Court had held that the patient identification
provisions of the act invaded a doctor-patient relationship which
intruded on one of the zones of privacy accorded constitutional
protection.  Id. at 597, 97 S.Ct. at 875. The Supreme Court
reversed the district court noting that the State statute
provided safeguards against the improper disclosure of the
medical records and held that the records did not establish an
unconstitutional invasion of any right or liberty protected by
the fourteenth amendment.

[2] We disagree with the opinions of  the Florida courts and hold
that the trial court order compelling relator to identify blood
donors is not an impermissible violation of their rights to
privacy. We further bold that relator has not established a
societal interest that overrides the plaintiff's right to
discovery of the blood donors' identities.

[3] In reaching this decision, we have applied a balancing test
comparing the interest served by the State action [footnote 3]
with the donors' interest in privacy. Nixon v. Administrator of
General Services, 433 U.S. 425, 459, 97 S.Ct. 2777, 2798, 53
L.Ed.2d 867 (1977).  The plaintiff's interest in the identity of
the blood donors is legitimate. Without the information, it is
unlikely the plaintiff will be able to prosecute her cause of
action against the relator. The record does not support relator's
contention that the blood donors possess a need of anonymity
greater than the plaintiff's need. The trial court's order makes
an express finding that the disclosure of the identities and
addresses of the donors does not violate a constitutional right
of privacy. The trial court's order also affords the donors
protection from public disclosure by its direction that the
"plaintiff shall not directly or indirectly contact any 'donor'
identified through records produced under this order nor
undertake further discovery regarding such 'donors' until
permitted to do so by further order of this court." The relator
has not produced any evidence that would show or tend to show
that the information sought by the plaintiff would be used
improperly.  duPont, 442 F.Supp. at 824. The trial court's
discovery order includes adequate safeguards against the improper
disclosure of the blood donors' identities. See G.M.C. v.
Director of Nat. Institute, 636 F.2d at 166.  In reaching its
conclusions, the Florida Supreme Court noted that the discovery
rules of that state allow a trial judge, upon good cause shown,
to set conditions under which discovery will be given. See
FIA.R.CIV.P. 1.280(c) and that some method could he formulated to
verify a blood service's report that none of the donors was a
known AIDS victim while preserving the confidentiality of the
donors' identity. In a footnote to its opinion, the Supreme Court
noted that South Florida Blood Service had stated that none of
Rasmussen's 51 donors appeared in a list of identified AIDS
victims; however, the court agreed with Rasmussen that he should
not have to rely on the Blood Service's statement.  Rasmussen v.
South Florida Blood Serv., 500 So.2d at 537.

[4] Texas discovery rules also confer broad discretion upon a
trial judge to limit discovery to protect any person against or
from whom discovery is sought from undue burden, unnecessary
expense, harassment or annoyance, or invasion of personal, con
stitutional or property rights.  TEX.R.CIV.P. 166b(4).  Relator
seeks a blanket denial of any discovery of the donors' identities
and suggests no conditions limiting the use or publication by the
real party in interest of the donors' identities. From the record
it appears that the relator has made no effort to determine
whether any of its donors have been identified as AIDS victims.
Because the trial court's order evidences a proper concern with
protection of the individual's right of privacy, we hold that the
record does not establish an invasion of any constitutionally
protected right for liberty of the blood donors. See Whalen, 429
U.S. at 606-07, 97 S.Ct. at 879-80.

[5] We also hold that the relator has failed to establish that
the court ordered discovery is an abuse of discretion because of
injury to any societal interest  We agree with the dissenting
opinion of Chief Justice Schwartz of the Florida District Court
of Appeals that a determination of injury to society's interest
by the limited discovery ordered is no less speculative than a
determination that the order would benefit society by
discouraging blood donations by those infected with AIDS. South
Florida Blood Serv. v. Rasmussen, 467 So.2d at 806.

For the reasons stated, we deny the relator's prayer for relief.



SPURLOCK, II, and BURDOCK, JJ., join.

LATTIMORE, J., concurs.

KELTNER, J., files a dissenting opinion in which FENDER, C.J.,
and HILL, J., join.



LATTIMORE, Justice, concurring.

I concur with the opinion of Justice Farris. We should not assume
the occurrence of the worst eventuality. The trial court has it
within its power to prevent the consequences not threatened by
the parties, but envisioned by the dissenting opinion.



KELTNER, Justice, dissenting.

I respectfully dissent.

This mandamus case comes to us on a sparse record.  In fact, we
have not been furnished a copy of the discovery requests to which
the Hospital District objects. However, all parties candidly
admit the source of their disagreement and as a result, we are
given enough information to grant leave to file this writ of
mandamus.

In reviewing a trial court's actions in a writ of mandamus
proceeding, this court cannot substitute its opinion for that of
the trial judge. Instead, a writ of mandamus will not issue
unless the trial judge clearly abuses his discretion. Barker v.
Dunham, 551 S.W.2d 41, 42-43 (Tex.1977). Additionally, the party
attempting to exclude information from discovery has the
affirmative duty to specifically plead and prove the particular
privilege or immunity. Peeples v. Hon. Fourth Supreme Judicial
Dist., 701 S.W.2d 635, 637 (Tex.1985); Jordan v. Ct. of App. for
Fourth Sup. Jud. Dist, 701 S.W.2d 644, 649 (Tex.1985).

The facts of the underlying case are discussed in the majority
opinion.  As is revealed by Justice Farris' opinion, we are asked
to restrict discovery of the identity and location of blood
donors. The defendant's decedent allegedly died of AIDS.
[footnote 1] The defendant intends to prove that her decedent
acquired AIDS through a transfusion of blood carrying the AIDS
virus.

The spread of AIDS has been a media event The hideous results of
AIDS combined with the population groups with which it is most
commonly associated (homosexual and bisexual men, intravenous
drug users), has caused a mass hysteria. [footnote 2] In fact,
AIDS has been heralded as the "modern  day equivalent of
leprosy." [footnote 3] Rasmussen v. South Florida Blood Service,
467 So.2 798 (Fla.App.-3d Dist 1985), aff'd, 500 So.2d 533
(Fla.1987).

As a result, social hostility has extended to AIDS victims, no
matter how innocently they have acquired the disease.  In
addition, members of the "suspect groups" are stigmatized
regardless if they are not infected with the disease. [footnote
4] As a result the Hospital District asks us to protect the
unnamed donors from intrusions into their medical conditions and
private lives.

PHYSICIAN-PATIENT PRIVILEGE

In my opinion, the Hospital District has not carried its burden
in proving that the identity of the blood donors is shielded from
discovery because of the physician-patient privilege. The record
before us does not contain a statement of facts.  Counsel for
both the Hospital District and the respondent admit that an
evidentiary hearing was not held on the Hospital District's
motion for protective order.  This failure to produce proof that
a physician-patient relationship existed between the Hospital
District and blood donors is necessarily fatal to the Hospital's
attempt to avoid disclosing the names of the blood donors.

The physician-client privilege did not exist at common law.  8
WIGMORE, EVIDENCE sec. 2880 (McNaughton rev. 1961). However, the
privilege is now established by our rules of evidence.
TEX.R.EVID. 509.  Justification for the privilege is the well-
reasoned policy of encouraging the full communications necessary
for effective treatment of a patient by a physician.  C.
McCORMICK, EVIDENCE Sec. 72 (3rd ed. 1984).  The primary purpose
of the privilege is to protect the patient against an invasion of
privacy. Ex parte Abell, 613 S.W.2d 255, 263 (Tex.1981).  As a
result, courts have allowed physicians to assert the privilege on
behalf of their patients.

Id at 262-63.

It is interesting to note that in a letter brief to the trial
judge, the Hospital District contends that the hospital and
medical director of the blood bank have the "same duties and
responsibilities in regard to a blood donor as they would to any
other patient coming under their care." Specifically, the
Hospital District contends that the hospital and medical director
of the blood bank are required to meet certain standards of care
and are obligated to maintain the confidentiality of information
collected from the patient in regard to their past and present
medical conditions.  The Hospital District further points out
that the blood collection process is an invasive procedure which
has, "readily observable effects on the donor" and carries the
possibility for potential "serious adverse reaction." However,
the Hospital District does admit that blood donors may not ever
actually see or consult with a physician.

Neither this opinion nor the majority opinion passes on whether
these contentions, if proved, would bring the information within
the physician-patient privilege. However, it is the burden of the
Hospital District to actually prove that a physician-patient
privilege  existed.   This  case presents a unique situation for
the application of the privilege.  Unlike most cases where the
privilege is raised, actual testimony may have been the only
method in which to prove the application of the privilege.
Unfortunately, the trial court was not furnished an adequate
basis upon which to decide the issue.

As a result, we cannot hold that the trial court abused its
discretion in overruling the Hospital District's motion for
protective order and allowing discovery of the identity of blood
donors.

RIGHT TO PRIVACY

The Hospital District also claims that the disclosure of the
blood donors' identities would violate their right to privacy.
Specifically, the Hospital District states, "the only conceivable
reason for seeking discovery of the identity and location of
these donors is to delve into the medical history and condition
of each individual."  The Hospital District claims that the
information that is likely to be sought by the respondent will
include the "intimate details" of the donors' lives, including
sexual practices, drug abuse, and medical histories.

The majority opinion discusses the law regarding the
constitutional right to privacy.  While neither the United States
nor the Texas Constitution expressly mention the right to
privacy, it has been recognized as a necessary element of
individual freedom.  Whalen v. Roe, 429 U.S. 589, 598-600, 97
S.Ct 869, 875-77, 51 L.Ed.2d 64 (1977). However, in a complex
society, the total right of privacy is infeasible, particularly
where disclosure of information is concerned. Roe v. Wade, 410
U.S. 113, 93 S.Ct 705, 35 L.Ed.2d 147 (1973).

When the right to privacy is raised, courts must entertain a two-
step process of inquiry.  The court must first determine whether
the information sought to be disclosed concerns a fundamental
right of privacy, i.e., a protected zone of privacy. Roe v. Wade,
410 U.S. at 15253, 93 S.Ct at 72627, 35 L.Ed.2d at 17677; Ex
parte Abell, 613 S.W.2d 255, 266 (Tex.1981) (dissenting
opinion). [footnote 5]   If  the  information sought concerns a
fundamental privacy right and thereby falls within a protected
zone of privacy, the State must show a compelling interest before
invading the zone of privacy. Roe v. Wade, 410 U.S. at 155, 93
S.Ct. at 728, 35 L.Ed.2d at 178; Ex parte Abell, 613 S.W.2d at
266 (dissenting opinion).  On the other hand, if the information
does not concern a protected zone of privacy, the court weighs
the impact and threat of disclosure against the State interest
and disclosure.  Whalen v. Roe, 429 U.S. at 601, 97 S.Ct at 877,
51 L.Ed.2d at 75; Ex parte Abell, 613 S.W.2d at 266 (dissenting
opinion).

At this writing, only certain activities have been found to fall
within the protected zone of privacy. Sexual relations within the
marriage fall within such a protected zone. Loving v. Virginia,
388 U.S. 1, 87 S.Ct 1817, 18 L.Ed.2d 1010 (1967).  Likewise,
contraception, [Eisenstadt v. Baird 405 U.S. 438, 92 S.Ct 1029,
31 L.Ed.2d 349 (1972)]; abortion, [Roe v. Wade, 410 U.S. at 113,
93 S.Ct at 705, 35 L.Ed.2d at 147]; and procreation, [Skinner v.
Oklahoma, 316 U.S. 535, 62 S.Ct 1110, 86 L.Ed. 1655 (1942)] have
been held to be within the protected zone of privacy.  However, a
number of essential activities outside marriage have been held
not to involve fundamental areas of privacy. For example,
homosexual conduct, [Bowers v. Hardwick, - U.S. -,106 S.Ct 2841,
92 L.Ed.2d 140 (1986)];  adultery, [McLaughlin v. Florida, 379
U.S. 184, 85 S.Ct 283, 13 L.Ed.2d 222 (1964)];  and prostitution,
[Caminetti v. United States, 242 U.S. 470, 37 S.Ct 192, 61 L.Ed.
442 (1917)] have been held not to involve protected areas of
privacy.

In the instant case, it is impossible to determine which, if any,
privacy interests may be invaded. The inquiries made during
future discovery will determine that issue.  The trial judge
wisely decided to prevent the plaintiff from contacting blood
donors or conducting further discovery until further order of the
court.  Obviously, the trial court intends to conduct discovery
in the least obtrusive manner possible.

SOCIETAL INTERESTS

The Hospital District also contends that disclosure of the
identity of blood donors would harm societal and institutional
interests in maintaining a healthy and effective blood donation
program. The Hospital District alleges that the public disclosure
of blood donor identities would inhibit blood donations in the
future.  Specifically, the Hospital District argues that
society's interest in maintaining an effective blood do nation
program clearly overrides any interest of the plaintiff in the
disclosure of the identities of the blood donor. On the other
hand, the plaintiff claims there is no other way for her to prove
the allegations of her lawsuit.

At the outset, the Hospital District produced no evidence that
the blood provided plaintiff's decedent was provided by blood
donors rather than sellers. [footnote 6]  Additionally, the
Hospital District produced no evidence regarding the difficulty
that local blood banks are encountering in encouraging volunteer
donations of blood. [footnote 7]  No evidence was presented which
would tend to demonstrate that the disclosure of the donors'
names would be counterproductive to the blood bank program.

Nonetheless, the Hospital District relies on the authority cited
in Rasmussen v. South Florida Blood Serv., 500 So.2d 533
(Fla.1987). The facts of that case are discussed in the majority
opinion. The court in Rasmussen was faced with a similar
situation. [footnote 8] In Rasmussen, the South Florida Blood
Service moved to quash a subpoena and moved for protective order
when its records reflecting the identity and location of blood
donors were subpoenaed.  When the trial court ruled against the
blood service, it sought a writ of certiorari to the appellate
court which in turn certified the question to the Florida Supreme
Court. In Rasmussen, the Florida court concluded that, "society's
interest in a strong and healthy blood supply will be furthered
by the denial of discovery in this case." Id at 538.

The volunteer blood donation system is crucial to the maintenance
of the life and health of the individual members of society. As a
result, it is not in the public interest to discourage blood
donations by members of the public.  The public disclosure of the
identity of donors in order to discover if they are infected with
the AIDS virus might well discourage donors.

However, we must also protect the plaintiff's right to
information necessary to prove her cause of action. In some
instances, it is not possible to resolve the conflict between
these two competing interests. In those cases, the courts must
apply balancing tests to determine whether society's interest
outweighs those of a litigant.

However, in this case, it is possible to balance those interests
without doing substantial damage to either. The trial court
resolved the conflict by allowing discovery, but, denying the
plaintiff an opportunity to contact the donors without a further
order of the court, stating:

Defendant shall not directly or indirectly contact any "donor"
identified through records produced under this order nor
undertake further discovery regarding such "donors" until
permitted to do so by further order of this court.

It is obviously the trial court's intention to closely monitor
the discovery process to avoid undue publicity and intrusion into
the donors' private lives.  However, the trial court's order
stops one step short of accomplishing the task.  The trial court
should have further insulated the donors by pro venting any party
to the litigation from disclosing the donors' names or locations,
either directly or indirectly.

The problem with the current order is demonstrated in the
Rasmussen case. The Florida Supreme Court noted that an order
could be designed to both grant discovery and protect donors,
stating:

Some method could be formulated to verify the Blood Service's
report that none of the donors is a known AIDS victim while
preserving the confidentiality of the donors' identities.
However, the subpoena in question gives petitioner access to the
names and addresses of the blood donors with no restrictions on
their use. There is nothing to prohibit petitioner from
conducting an investigation without the knowledge of the persons
in question.  We cannot ignore, therefore, the consequences of
disclosure to nonparties, including the possibility that a
donor's coworkers, friends, employers, and others may be queried
as to the donor's sexual preferences, drug use, or general
lifestyle.

Rasmussen, 500 So.2d at 537.

In the instant case, the trial court's order does not prevent any
party from disclosing the identity of the donors to third
parties, including potential witnesses and the news media. I
realize this was not the intention of the trial court, and that
this court has had the opportunity to review the trial court's
decision, made in the heat of a trial schedule, with a relaxed
20/20 hindsight Additionally, the plaintiff has indicated her
understanding of the potential problem.

In her reply to the writ of mandamus, plaintiff has suggested
that the list of donors be sealed in the court's record, not be
disseminated to the public, be made available only to the parties
in the case, and be destroyed on the final disposition of the
case. As mentioned in Justice Lattimore's concurring opinion, the
threat of disclosure is not great. However, I cannot agree with
his conclusion.  While the threat may not be great, the potential
harm of disclosure is great.  If the names of the donors are
disclosed, it will be too late for the court to act to protect
society's interest.

I would grant the writ of mandamus only to the extent of
directing the trial court to modify its order to prevent
disclosure of the names of the donors, either directly or
indirectly to any third person.

FENDER, O.I., and HILL, J., join.



ON MOTION FOR REHEARING

FARRIS, Justice.

After our original opinions were handed down in this case, Judge
Hughes entered a supplemental order relating to the discovery of
the identities of blood donors which reaffirmed the restrictions
included in the October 16, 1986 order and placed further
restrictions on the parties and their attorneys preventing them
from disclosing the identities of the donors or contacting the
donors without further order of the court [footnote 1] The
supplemental order expresses an  intent to "allay the fears"
contained in the dissenting opinion.  In argument on relator's
motion for rehearing, before the court sitting en banc, counsel
for relator has expressed relator's continued objection to any
discovery of the identities of blood donors despite the
additional restrictions placed upon discovery by the trial court.
In argument, the attorney for relator has acknowledged that Judge
Hughes has not denied relator any requested restrictions on the
use or dissemination of the discovered blood donors' identities,
and that relator would continue its objection to the discovery
regardless of any restrictions which the court might impose.

Mandamus issues only to correct a clear abuse of discretion or
the violation of a duty imposed by law when there is no other
adequate remedy by law, and we would act in excess of our writ
power if we granted mandamus relief absent these circumstances.
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917
(Tex.1985).

[6]  Relator seeks to have us issue our writ compelling the trial
court to withdraw its discovery order. The scope of discovery
largely rests within the discretion of the trial court  Jordan v.
CL of App. for Fourth Sup. Jut Dist,, 701 S.W.2d 644, 648-49
(Tex.1985).  The supplemented order of the court so restricts the
discovery of the blood donors' identities as to preclude any risk
of disclosure of the identities of the blood donors to third
persons. The orders of the trial court with regard to the
challenged discovery reflect a well reasoned use of the
discretion reserved to trial courts on matters of this sort  The
relator's motion for rehearing is overruled.



FOOTNOTES:



1.   A discussion of Rasmussen is important to the determination
of this case because its facts are uniquely similar to the facts
of the instant case.

2.   Right of privacy.-Every natural person has the right to be
let alone and free from governmental intrusion into his private
life except as otherwise provided herein. This section shall not
be construed to limit the public's right of access to public
records and meetings as provided by law.  FLA.CONST. Art. 1, sec.
23.

3.   A court order which compels or restricts pretrial discovery
constitutes State action which is subject to constitutional
limitations.  Seattle Times Co. v. Rhinehart, 467 US. 20, 104
S.Ct. 2199, 81 L.Ed.2d 17 (1984).



DISSENTING FOOTNOES:

1.   Acquired Immunodeficiency Syndrome.

2.   Seventy-three percent of AIDS victims have been identified
as homosexual or bisexual men. Seventeen percent have been
identified as heterosexual men and women who are frequent
intravenous drug users. Landesman, Ginzburg & Weiss "Special
Report: The AIDS Epidemic," 312 New Engl.J.Med. 521 (1985). The
other ten percent of AIDS cases have been divided among the
following groups: Haitians living in the United States;  non-drug-
abusing individuals with hamophilia; prisoner population groups;
central African immigrants to Europe; female sex partners of
persons with AIDS; children of mothers who were high risk for
AIDS.  See Gottlieb, Groopman, Weinstein, "The Acquired
Immunodeficiency Syndrome" 99 Ann.Intern..Med. 208 (1983);
Clumeck, Sonnet, Taelman, "Acquired Immunodeficiency Syndrome In
African Patients" 310 New Engl.J.Med. 492 (1984).

3.   At the present time, experts estimate that the mortality
rate for AIDS may be as high as forty percent. Blodgett, "Despite
the public's hands-off attitude towards AIDS, those who discrimi
nate against the disease's victims are finding no immunity from
the law," 12 Student Law. 8 (Jan. 1984).

4.   See N.Y. City Commission on Human Rights, "Gay and Lesbian
Discrimination Documentation Project" (1984).

5.   An analogous fact situation to the instant case was
presented in the Abell case. That case involved patients of a
psychologist who brought actions against him because he had sex
with them during their psychotherapy. They sought discovery of
the names of other patients with whom the psychologist had sexual
contact. The majority in Abell held that the information was
privileged under the provisions of TEX.REV.CIV.STAT.ANN. art.
5561h (Vernon Supp.1987), repealed by Act of May 17, 1979, ch.
239, 1979 Tex.Gen. Laws 512, 512-515, amended by Act of June 19,
1983, ch. 511, secs. 2 and 4, 1983 Tex.Gen. Laws 2970, 2972-73,
2974-75 (presently contained in TEX.R.EVID. 510), and did not
discuss the right to privacy issue.  However, four justices
dissented and discussed the right to privacy claim. (Spears,
Campbell, Wallace and Ray).  The justices constituting the
majority have all left the court.

The dissenting justices with the addition of any one of their
colleagues now constitute a majority of the court. As a result, I
believe the dissenting opinion casts light on the present
thinking of our Supreme Court.

6.   A voluntary blood donation system is encouraged by the
United States Government.  See National Blood Policy, 39 FED.REG.
32701 (Sept. 10, 1974). Voluntary blood donation is highly
favored over the selling of blood for the obvious reasons that
blood donors are less likely to be contaminated with infectious
diseases than those unfortunate individuals forced to sell their
blood for subsistence. Id.

7. However, there is no doubt that local blood banks have had
difficulty in obtaining blood from volunteers.

8. The Rasmussen court was evidently presented more evidence
rqarding the effect of the disclcsure of the identity of donors.
South Florida Blood Serv. v. Rasmussen, 467 So.2d 798, 803-04
(Fla.App.-3d Dist.1985), aff'd 500 So.2d 533 (Fla.1987). (Court
of Appeals opinion).

9.   Florida certiorari practice is similar to mandamus practice
in Texas.  See 467 So.2d at 804. (Court of Appeals opinion.)



FOOTNOTES (REHEARING:)

1.   The specific restrictions added by the supplemental order
are as follows:

No one, including but not limited to Counsel and the parties'
connected with this litigation shall directly nor indirectly
divulge or allow to be divulged the identity of any "donors", any
information about such "donors", or any information regarding
such "donors" without specific leave and order of this Court. All
information concerning such "donors" shall be kept in a secure
place and shall be made available for destruction under the su
pervision of this Court at the conclusion of this litigation or
at such other time as the Court may order.

On or before May 8, 1987, each party desiring to do so will
submit to the Court in letter form a plan for the future
discovery of information relating to such "donors" beyond that
now ordered. Such plan should include details for contacting such
"donors", discovery directed to such "donors" and/or "testing" of
such donors if contact, direct discovery and/or testing is
anticipated.