# Tarrant County Hospital District v. Hughes

> Court of Appeals of Texas · April 9, 1987 · 734 S.W.2d 675

URL: https://www.frixlaw.com/law-library/cases/9771804

## Case

- **Full name:** TARRANT COUNTY HOSPITAL DISTRICT, Relator, v. Hon. William L. HUGHES, Jr., Respondent
- **Court:** Court of Appeals of Texas
- **Decided:** April 9, 1987
- **Citations:** 734 S.W.2d 675; 1987 Tex. App. LEXIS 8221
- **Precedential status:** Published
- **Opinion:** Dissent by Keltner
- **Judges:** Farris, Spurlock, Burdock, Lattimore, Keltner, Fender, Hill
- **Cited by:** 43 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9771804

## How later opinions describe it (automated extraction)

- holding that compelling disclosure of blood donors’ identities was not an impermissible violation of constitutional right to privacy
- holding that the disclosure of blood donors' identities was not an impermissible violation of constitutional right to privacy
- noting that medical records are within constitutionally protected zone of privacy

## Opinion text

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. 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 (ho *681 mosexual and bisexual men, intravenous drug users), has caused a mass hysteria. 2 In fact, AIDS has been heralded as the “modem day equivalent of leprosy.” 3 Rasmussen v. South Florida Blood Service, 467 So.2d 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. 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. 2380 (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 *682 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, 875-877 , 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 152-53 , 93 S.Ct. at 726-27 , 35 L.Ed.2d at 176-77 ; Ex parte Abell, 613 S.W.2d 255, 266 (Tex.1981) (dissenting opinion). 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 funda *683 mental 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 donation 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. 6 Additionally, the Hospital District produced no evidence regarding the difficulty that local blood banks are encountering in encouraging volunteer donations of blood. 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. 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. 9 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 *684 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 preventing 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 co-workers, friends, employers, and others may be queried as to the donor’s sexual preferences, drug use, or general life-style.
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 dissiminated 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, C.J., and HILL, J., join.
. Acquired Immunodeficiency Syndrome.
.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 EnglJ.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 hemophilia; 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 EnglJ.Med. 492 (1984).
. 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 discriminate against the disease’s victims are Ending no immunity from the law,” 12 Student Law. 8 (Jan. 1984).
. See N.Y. City Commission on Human Rights, "Gay and Lesbian Discrimination Documentation Project" (1984).
. 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.
. 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.
. However, there is no doubt that local blood banks have had difficulty in obtaining blood from volunteers.
. The Rasmussen court was evidently presented more evidence regarding the effect of the disclosure 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).
. Florida certiorari practice is similar to mandamus practice in Texas. Rasmussen, 467 So.2d at 804 . (Court of Appeals opinion.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9771804. Public record. Not legal advice.