Staley v. Jolles

2010 UT 19
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Denise Staley, 	No. 20080492
Plaintiff and Respondent,
v.
Christopher Jolles, M.D.; and
Northern Utah Healthcare
Corporation dba St. Mark’s 	F I L E D
Hospital,
Defendants and Petitioners. 	March 26, 2010
---
Third District, Salt Lake
The Honorable Kate A. Toomey
No. 050916251
Attorneys: 	David A. Cutt, Jordan P. Kendell, Salt Lake City,
for plaintiff
Jennifer Ries-Buntain, Eric P. Schoonveld,
Mark A. Riekhof, Hugh C. Griffin, Salt Lake City,
for defendants
---
NEHRING, Justice:
INTRODUCTION
¶1 	This interlocutory appeal requires us to decide whether
redacted medical information, which may only be reviewed by a
limited number of people, offends the policies of the physician-
patient privilege outlined in Utah Rule of Evidence 506. 	We hold
that it does not and affirm the district court’s ruling.
FACTS AND PROCEDURAL HISTORY
¶2 	On April 10, 2003, appellee Denise Staley underwent a
hysterectomy at St. Mark’s Hospital, a facility located in Salt
Lake City, Utah, and owned by appellant Northern Utah Healthcare
Corporation. 	Following surgery, Ms. Staley was sent to floor
Four West for postoperative recovery. 	During the evening of

No. 200820492 	2
April 11, and while on floor Four West, Ms. Staley was cared for
by registered nurse Angela Stallings. 	Ms. Stallings had an
additional six patients assigned to her during that same evening.
¶3 	St. Mark’s nursing guidelines suggest a minimum of six
registered nurses be on duty if there are thirty-four patients to
a floor. 	These guidelines also provide that if a patient’s
systolic blood pressure drops below 90 points, the patient’s
assigned nurse should report that drop to the patient’s
physician. 	Four West was staffed with only five registered
nurses and had a total of thirty-four patients from the evening
of April 11, at 11:00 p.m., until April 12, at 7:00 a.m. 	During
the same evening, Ms. Staley’s systolic blood pressure dropped
from 132 to 86 points between the hours of 6:15 p.m. and 2:00
a.m. 	Ms. Staley’s physician was never notified.
¶4 	Ms. Staley claims Ms. Stallings was negligent and that
St. Mark’s knowingly and recklessly understaffed floor Four West.
Ms. Staley claims that because of this understaffing, Ms.
Stallings was unable to adequately monitor and prevent permanent
damage to Ms. Staley’s kidneys, which resulted from the low blood
pressure. 	To support her negligent staffing claim, Ms. Staley
requested documentation reflecting the acuity of the other
patients assigned to Ms. Stallings during the evening following
Ms. Staley’s surgery. 	Patient acuity refers to the amount of
nursing care a patient requires. 	After a series of discovery
motions, St. Mark’s was ordered to produce either a chart
reflecting the acuity of Ms. Stallings’ patients or a statement
discussing how patient acuity is assessed and communicated on
floor Four West. 	St. Mark’s chose the latter.
¶5 	In response to the order, St. Mark’s produced an
affidavit of registered nurse How-Su Chen, the nursing manager
for floor Four West. 	Ms. Chen explained in her affidavit that
patient acuity involves multiple factors including the patient’s
medical diagnosis and multiple patient needs that change from
shift to shift. 	Ms. Chen also indicated that she had personally
reviewed the six patient charts assigned to Ms. Stallings during
the evening of April 11, and that in her opinion, Ms. Stallings’
assignment was an appropriate staffing decision.
¶6 	Ms. Staley then requested the six patient charts. 	Ms.
Staley argued that it would be unfair and contrary to discovery
for Ms. Chen to have access to the six patient charts without
providing Ms. Staley an opportunity to review the records
herself. 	St. Mark’s refused to produce the six patient charts,
arguing that they fall under the physician-patient privilege
found in Utah Rule of Evidence 506(b). 	To overcome this

3 	No. 20080492
physician-patient privilege, Ms. Staley has stipulated to
redaction of all personal identifying information from the six
patient charts as well as limiting review of the records to only
attorneys and experts. 	St. Mark’s rejected this stipulation,
which resulted in a discovery hearing before the district court.
¶7 	The district court noted that the question of redaction
in the context of a physician-patient privilege is one of first
impression in Utah. 	After analyzing the policies underlying the
physician-patient privilege, and following the review of sister
jurisdictions’ treatment of the issue, the district court ordered
St. Mark’s to produce the six patient charts for redaction and
limited review, holding that such a course would take the medical
information out of the privilege altogether.
¶8 	St. Mark’s timely filed this interlocutory appeal
pursuant to rule 5 of the Utah Rules of Appellate Procedure. 	We
have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶9 	“The existence of a privilege is a question of law for
the court, which we review for correctness, giving no deference
to the trial court’s determination.” 	Moler v. CW Mgmt. Corp.,
2008 UT 46, ¶ 7, 190 P.3d 1250 (internal quotation marks
omitted).
ANALYSIS
¶10 	Stripped to their essence, St. Mark’s contentions on
appeal are: 	(1) that the physician-patient privilege found in
rule 506 of the Utah Rules of Evidence permits neither redaction
nor restricted review of medical files, (2) that even if
redaction were allowed, the patient files would be only
marginally relevant to Ms. Staley’s negligent staffing claim and
therefore would not overcome St. Mark’s interest in protecting
patient privacy, and (3) that Ms. Staley’s negligent staffing
claim has no independent viability and is merely a reformulation
of her negligence claim.
¶11 	Ms. Staley counters by pointing to the plain language
and policy of rule 506, which, in her view, permits redaction and
restricted access to medical records like that approved by the
district court. 	Next, Ms. Staley asserts the medical records are
very relevant, bearing directly on her claim that too few nurses
were assigned to her floor on the night she suffered kidney
damage.

No. 200840492 	4
I. 	THE PHYSICIAN-PATIENT PRIVILEGE IS NOT IMPLICATED IF THE
RECORDS ARE ADEQUATELY REDACTED
¶12 	The first issue before us is whether the physician-
patient privilege applies to the medical records requested by Ms.
Staley. 	Ms. Staley argues that when the documents sought were
scrubbed of information that might identify the patient, and when
access to the redacted documents was restricted, the physician-
patient privilege no longer applied. 	In the alternative, Ms.
Staley argues that the exception found in rule 506(d)(1) should
include medical conditions of non-litigants.
¶13 	St. Mark’s reasons that since the text of rule 506 says
nothing about redaction, and moreover, the enumerated exceptions
to rule 506(b) are to be strictly construed, any redaction cannot
change the privileged character of the records. 	St. Mark’s also
argues that rule 506(d)(1), excepting from the privilege
physician-patient communications when a patient’s “condition is
an element of any claim or defense,” applies only to patients who
are parties and not to a condition of a non-litigant.
¶14 	“We interpret court rules, like statutes and
administrative rules, according to their plain language.” 	Burns
v. Boyden, 2006 UT 14, ¶ 19, 133 P.3d 370. 	“Parties may obtain
discovery regarding any matter, not privileged, which is relevant
to the subject matter involved in the pending action, whether it
relates to the claim or defense of the party seeking discovery or
to the claim or defense of any other party . . . .” 	Utah R. Civ.
P. 26(b)(1) (emphasis added). 	Rule 506 of the Utah Rules of
Evidence creates the physician-patient privilege. 	It states in
part:
If the information is communicated in
confidence and for the purpose of diagnosing
or treating the patient, a patient has a
privilege, during the patient’s life, to
refuse to disclose and to prevent any other
person from disclosing (1) diagnoses made,
treatment provided, or advice given, by a
physician or mental health therapist,
(2) information obtained by examination of
the patient, and (3) information transmitted
among a patient, a physician or mental health
therapist, and persons who are participating
in the diagnosis or treatment under the
direction of the physician or mental health
therapist . . . .

5 	No. 20080492
Utah R. Evid. 506(b). 	Certain exceptions to the privilege exist
under rule 506(d). 	Otherwise privileged communications will
become discoverable in three specifically enumerated situations:
(1) when a patient’s condition is “an element of any claim or
defense”; (2) when “proceedings to hospitalize the patient for
mental illness” are being conducted; or (3) when communications
of a “physical, mental, or emotional condition of a patient” are
“made in the course of” and are “pertinent to the purpose of a
court-ordered examination.” 	Utah R. Evid. 506(d)(1)-(3).
¶15 	On appeal, the parties have focused their arguments on
how the exceptions to the physician-patient rule have been
interpreted and applied. 	We find, however, that this appeal is
best resolved by examining the general meaning, scope, and intent
of rule 506. 	See State v. Rothlisberger, 2006 UT 49, ¶ 15, 147
P.3d 1176 (“Our objective in interpreting a court rule is to give
effect to the intent of the body that promulgated it.”)
¶16 	Rule 506 shields from disclosure certain information
communicated between a physician or a mental health therapist and
a patient, so long as the information “is communicated in
confidence” and for the purpose of diagnosis and treatment of the
patient. 	Utah R. Evid. 506(b). 	Under rule 506, communicating
information contemplates an exchange of information between a
physician and a patient. 	In short, to be operative, rule 506
requires two actors--a patient and a physician, and an exchange
of confidential information concerning a particular subject
matter--diagnosis and treatment. 	All of these elements must be
present for the privilege to be activated; mere descriptions of
diagnoses and treatments that make no reference to a patient are
ineligible for protection under rule 506. 	Indeed, the presence
of identifying information and the orders of the court are what
make the information privileged. 	Without an identified
individual connected to a diagnosis, the diagnosis contains
nothing more than medical terminology. 	The United States
District Court for the Southern District of New York cogently
explained this concept
that any record containing a diagnosis, an
evaluation or a treatment, even if it cannot
be connected with a patient, is privileged–-
is not self evident. . . . 	[O]ne might
argue, as a matter of theory, that the use of
the disjunctive in the [rule] means that any
document containing a patient’s identity or
diagnosis or evaluation or treatment is
privileged . . . . 	Such a construction,
however, would lead to preposterous results.

No. 200860492 	6
A scrap of paper upon which a physician had
jotted down a patient’s name, or wrote only
the word “indigestion” (a diagnosis) or
“aspirin” (a treatment) or “malingering” (an
evaluation) would, or at least could, be
privileged. 	The . . . rulemakers could not
possibly have so intended.
In re Rezulin Prods. Liab. Litig., 178 F.Supp. 2d 412, 414 (S.D.
N.Y. 2001). 	Other jurisdictions have adopted similar positions.
See, e.g., Ziegler v. Superior Court, 656 P.2d 1251, 1255 (Ariz.
Ct. App. 1982) (holding that a privilege extends only so far as
the patient could be identified through the records produced);
Rudnick v. Superior Court, 523 P.2d 643, 650 n.13 (Cal. 1974)
(“[I]f disclosure reveals the ailments but not the patient’s
identity, then such disclosure would not appear to violate the
[physician-patient] privilege”); but see Binder v. Superior
Court, 242 Cal. Rptr. 231, 233-34 (Cal. Ct. App. 1987) (holding
that Rudnick did not apply to photographs of patients, even if
the patients could not be identified in the photographs); Baptist
Mem’l Hosp.-Union County v. Johnson, 754 So. 2d 1165, 1168-71
(Miss. 2000) (“[T]he privilege must be interpreted in sensible
accommodation to the aim of a just result” and thus, in some
circumstances adequate safeguards, such as redaction or in camera
review may be employed to protect patient confidentiality.).
¶17 	St. Mark’s holds fast to the view that “once a
protected communication, always a protected communication.”
Because no express authorization for redaction appears in the
rule, St. Mark’s contends that the rule will not tolerate the
alteration by redaction of otherwise privileged communications
for the purpose of removing them from the ambit of rule 506. 	St.
Mark’s claims to find support for this view in our observation
that rule 506 should be “strictly construed.” 	Burns v. Boyden,
2006 UT 14, ¶ 17, 133 P.3d 370. 	St. Mark’s reliance on Burns is
unwarranted and we find its strict construction argument
inapplicable to this case.
¶18 	Burns involved a state investigation into allegedly
fraudulent insurance billing practices of a chiropractor. 	Id.
¶ 2. 	During the investigation, the State served Dr. Burns with a
subpoena duces tecum seeking all medical and billing information
for over 300 patients. 	Id. ¶ 5. 	Dr. Burns moved to quash the
subpoena by raising the physician-patient privilege in rule
506(b). 	On appeal, Dr. Burns argued that under rule 506(c), he
had the right as a physician to raise the privilege on behalf of
his patients. 	Id. ¶ 17. 	The State argued that a separate
exception to the physician-patient privilege, supplementing the

7 	No. 20080492
exceptions already enumerated in rule 506(d), should exist to
permit access to records, otherwise privileged, if sought in aid
of an insurance fraud investigation. 	Id. ¶ 8. 	This court held
that the physician-patient privilege and its enumerated
exceptions should be “strictly construed,” that “rule 506
contain[ed] only three explicit exceptions,” and that
accordingly, the court would not “create a blanket insurance
fraud exception” because such a result “would run directly
counter to the intent that exceptions be ‘specifically
enumerated.’” 	Id. ¶¶ 17-18.
¶19 	St. Mark’s situation can be distinguished from that of
the parties in Burns. 	In Burns, the State sought not just the
medical billing charts of all the patients Dr. Burns had treated,
but also the names associated with those charts. 	The records in
Burns were clearly privileged under rule 506 because they
contained identifying information. 	The controversy in this case
is different because Ms. Staley does not seek the names or other
personal identifying information of the patients.
¶20 	Furthermore, it is not clear to us how a “strict
construction” of rule 506 aids St. Mark’s. 	As a general
proposition, the effect of “strictly construing” a rule or
statute is to restrict its application. 	In Burns, we declined to
create, by judicial fiat, an exception to rule 506 to exclude
from the physician-patient privilege records sought in connection
with an insurance fraud investigation. 	See id. ¶ 18. 	We had no
occasion, however, to strictly construe rule 506 to reach this
conclusion. 	Instead, we relied on the unambiguous language of
the committee’s note to rule 506 indicating that exceptions to
the rule should be “specifically enumerated” to reject the
State’s claim that the exception it sought could be appended to
the rule. 	Id. 	To remove a communication from the physician-
patient privilege by removing from it the possibility that the
communication might be traced to the patient who made the
communication does not require the creation of a new exception to
the rule and is compatible with the purpose and intent of the
privilege protection.
¶21 	Next, St. Mark’s argues that redacting the records
would not encourage full patient disclosure. 	Specifically, St.
Mark’s argues that due to the sensitive nature of one’s medical
records, a patient’s candid disclosure could be chilled if the
patient believes there is a possibility of being identified even
after redaction.
¶22 	The evidentiary rule of the privilege was meant to
“foster[] candor in important relationships by promising

No. 200880492 	8
protection of confidential disclosures.” 	Utah R. Evid. 501
advisory committee’s note 1. 	Accordingly, we have found that
“[t]he purpose of the [physician-patient] privilege is to promote
full disclosure within a physician-patient relationship and
thereby facilitate more effective treatment.” 	Burns, 2006 UT 14,
¶ 10. 	We have also held that “[t]he privilege serves to
alleviate patients’ fear that their medical records could be
disclosed to the public and cause them embarrassment.” 	Id.
Hence, the physician-patient privilege is concerned with
(1) promoting discourse between the physician and the patient and
(2) protecting the right to keep private, intimate medical
information outside of public view. 	Although we have no control
over individual beliefs, in this instance we are confident that
patients will have little fear that confidential communications
in redacted records will be disclosed when the redactions have
been reviewed by a judge charged with the task of examining the
redacted records to confirm that, in fact, no identifying content
remains.
¶23 	We acknowledge that skepticism of redaction may be a
concern of some patients, and that some states have relied on
this concern in fashioning their own rules of physician-patient
privilege. 	See, e.g., In re Columbia Valley Reg. Med. Ctr., 41
S.W.3d 797, 802 (Tex. Ct. App. 2001) (prohibiting any disclosure
of information even after redaction of personal information). 	We
have confidence, however, that redaction can adequately prevent
patient identification and that where it does so, the privilege’s
purpose of fostering full disclosure by patients will survive
unimpaired. 	However, an underlying premise to upholding
redaction and limited review is that patient identification will
be impossible. 	Whether and under what circumstances redaction
can make good on its promise of anonymity depends on the
circumstances of each case.
¶24 	Although redaction will serve to protect the identity
of the patients in this case, we also note that in some cases the
prospect of preserving anonymity through redaction may be too
uncertain to permit the production of redacted records. 	For
instance, in Bennett v. Fieser, a plaintiff sought the medical
records of a burn patient who, upon arriving at the medical
facility, allegedly diverted the attention of the doctor from the
plaintiff. 	152 F.R.D. 641, 642 (D. Kan. 1994). 	Due to the
specific nature of the injury and potential publicity of the
event, the court found that “providing medical records with names
and identifying information removed could nonetheless provide
vital clues which would assist a party in identifying the non-
party patient.” 	Id. at 643. 	Courts must be cautious when
analyzing the information so as to determine the appropriate

1 See U.S. Bureau of Census, DP-1 Profile of General
Demographic Characteristics: 	2000, Data Set: 	Census 2000
Summary File 1 (SF 1) and Summary File 3 (SF 3), available at
http://quickfacts.census.gov/qfd/states/49/49035.html.
9 	No. 20080492
method and level of redaction, if any at all, which would be
sufficient to avoid offending the physician-patient privilege.
See, e.g., Parkson v. Cent. DuPage Hosp., 435 N.E.2d 140, 144
(Ill. App. Ct. 1982) (“Whether the patients’ identities would
remain confidential by the exclusion of their names and
identifying numbers is questionable at best.”).
¶25 	The district court properly noted that the
circumstances of this case indicate that redaction will
adequately protect patient identities. 	St. Mark’s Hospital is
located in Salt Lake County, an area that, according to a U.S.
Census for the year 2000, is home to nearly 900,000 people. 1
Furthermore, St. Mark’s is one of several hospitals in the region
that provides medical care to patients from many neighboring
counties and states, thereby increasing the likelihood of
preserving anonymity of patients through redaction. 	Finally, Ms.
Staley has limited the scope of her request to patient records
for the period following their surgeries and to records revealing
their acuities while on floor Four West. 	In sum, to deduce the
name of the six patients receiving treatment on floor Four West
during the evening of April 10, 2003, would be extremely
difficult if not entirely impossible. 	Where redaction of
personal information will prevent identification of the patient
connected to the medical information, the redacted information is
not subject to rule 506(b).
¶26 	Finally, St. Mark’s requests that the six patients at
least “[be] afforded [the] required opportunity to protect the
confidentiality of their medical records.” 	St. Mark’s relies on
the holding of Debry v. Goates, 2000 UT App 58, 999 P.2d 582, and
State v. Yount, 2008 UT App 102, 182 P.3d 405, for this
assertion. 	These cases have little relevance in this setting.
¶27 	In Debry, the court of appeals stated that prior to
disclosing confidential patient information, the patient “must at
least be afforded the opportunity for protection” by receiving
prior notification of the pending disclosure. 	2000 UT App 58,
¶ 16. 	But the Debry court was addressing a specific request to
find information regarding a specific patient’s identity and that
patient’s medical information. 	Id. ¶ 5. 	Ms. Staley seeks only
redacted medical information under limited review free of content
that might reveal patient identities. 	Hence, the arguments in
Debry do not apply to this case.

No. 2008100492 	10
¶28 	In Yount, the court of appeals similarly held that a
patient’s right to notice “does not change even where the records
allegedly contain communications that qualify as an exception to
the physician-patient privilege.” 	2008 UT App 102, ¶ 15. 	The
records sought by the State in Yount clearly disclosed the
identity of the patient. 	Id. ¶ 6. 	The court of appeals held
that although the records would likely fall within an exception
to rule 506, Mr. Yount was entitled to notice before the records
were produced pursuant to the subpoena. 	Id. ¶ 16. 	The issue in
Yount has no bearing on this case.
II. 	THE PATIENT MEDICAL RECORDS ARE RELEVANT TO MS. STALEY’S
CLAIMS
¶29 	St. Mark’s argues that even if the records are
admissible under rule 506, the six patient records are not
relevant to Ms. Staley’s claim. 	Specifically, St. Mark’s asserts
three arguments against the relevancy of the six patient charts:
(1) that Ms. Staley is creating a new and unauthorized exception
to rule 506 of the Utah Rules of Evidence; (2) that the doctrine
of respondeat superior already holds St. Mark’s responsible for
Ms. Stallings’ negligence towards Ms. Staley, and that,
consequently, the other patient charts are irrelevant as they do
not specifically deal with Ms. Stallings’ negligence towards Ms.
Staley; and (3) that the six patient charts are not necessary to
support a punitive damages claim.
¶30 	As to the first argument, our preceding discussion
makes clear that rule 506 does not apply where the records have
been redacted so that the patient’s identity cannot be
discovered. 	As to the second and third arguments, we find the
six patient charts are relevant both to an individual claim of
negligence against Ms. Stallings that holds St. Mark’s liable via
respondeat superior, as well as to a punitive damages claim
against St. Mark’s for grossly negligent staffing decisions.
Specifically, the six patient charts contain patient acuity
information which, upon review, could indicate that Ms. Stallings
was well within her abilities to care for Ms. Staley yet
neglected to do so. 	This information could go directly to
proving negligence on behalf of Ms. Stallings herself. 	Regarding
a punitive damages claim, the six patient charts could indicate
that St. Mark’s knowingly understaffed the nursing care of floor
Four West even after learning that the conditions of the patients
were extremely acute and required greater care. 	This could show
that Ms. Stallings was negligent because St. Mark’s knowingly
overburdened her.

11 	No. 20080492
¶31 	St. Mark’s also argues that Ms. Staley’s negligent
staffing claim adds nothing to her negligence cause of action.
It argues that “because [it] has already admitted its
responsibility for the acts/omission of Nurse Stallings in her
care of [Ms. Staley], there is no basis for [Ms. Staley’s]
understaffing claim.” 	We find that this argument was not
properly preserved before the trial court.
[I]n order to preserve an issue for appeal[,]
the issue must be presented to the trial
court in such a way that the trial court has
an opportunity to rule on that issue. 	This
requirement puts the trial judge on notice of
the asserted error and allows for correction
at that time in the course of the proceeding.
State ex rel. K.F., 2009 UT 4, ¶ 62, 201 P.3d 985 (internal
quotation marks omitted) (second alteration in original).
Inasmuch as St. Mark’s has failed to preserve this argument by
presenting it to the trial court, we decline to reach the merit
of this question on appeal. 	See State v. Holgate, 2000 UT 74, ¶
11, 10 P.3d 346.
CONCLUSION
¶32 	Because rule 506(b) is not applicable where the names
of the patients have been redacted in a way that adequately
prevents the patients from being identified, and because the
information sought is relevant to Ms. Staley’s claim, we affirm
the district court’s ruling and order St. Mark’s to disclose
properly redacted copies of the medical records of the six
patients for whom Ms. Stallings provided care during the evening
in question.
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¶33 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Parrish concur in Justice Nehring’s
opinion.