Summary
The Supreme Court of Hawaiʻi considered a petition for a writ of mandamus challenging orders requiring Richard Cohan to sign medical and employment-record authorizations and use a stipulated qualified protective order. The court held that article I, section 6 of the Hawaiʻi Constitution protects health information from disclosure outside the underlying litigation and granted mandamus relief. The court directed the respondent judge to vacate the order affirming the arbitration decision and require revisions to the protective order and authorizations consistent with the opinion.
Topics
Practice areas
Questions Presented
- Whether mandamus was an appropriate remedy to review an order requiring disclosure of confidential health information when the order was not immediately appealable.
- Whether article I, section 6 of the Hawaiʻi Constitution protects health information produced in discovery from disclosure or use outside the underlying litigation absent a compelling state interest.
- Whether the disputed provisions of Marriott's qualified protective order violated the Hawaiʻi Constitution.
- Whether Cohan could be compelled to sign medical-record authorizations that permitted broad disclosure and re-disclosure of his health information.
Holdings
- Mandamus is available to review an order releasing confidential health information when the order is not immediately appealable and the petitioner establishes a clear and indisputable right to relief with no adequate alternative remedy.
- Article I, section 6 of the Hawaiʻi Constitution protects health information produced in discovery from disclosure outside the underlying litigation without a showing of a compelling state interest.
- HIPAA establishes a minimum federal floor of privacy protection, and Hawaiʻi law may impose more stringent protections for health information.
- The disputed provisions permitting internal and external review, de-identification, broad record keeping, compelled consent to additional disclosures, and a ninety-day return period violated article I, section 6 because they allowed use or disclosure outside the underlying litigation without a compelling state interest.
- Cohan could not be compelled to sign medical-record authorizations that allowed broad disclosure or re-disclosure of his health information outside the underlying litigation without his consent.
Key quotations
“We hold that the privacy provision of the Hawai#i Constitution, article I, section 6, protects Cohan’s health information against disclosure outside the underlying litigation.” (132 Haw. at 408)
“To allow this information to be used outside the litigation, regardless of whether it is de-identified or not, would reach beyond what the Hawai#i Constitution permits in the absence of a showing of a compelling state interest.” (132 Haw. at 419)
“While discovery of Cohan’s medical records are relevant to the subject matter of his claims, article I, section 6 of the Hawai#i Constitution protects the disclosure of health information produced in discovery and limits such disclosure to the underlying litigation.” (132 Haw. at 423)
Factual background
In September 2009, Richard Cohan was injured after falling into a koi pond while dining at a Marriott property in Hawaiʻi. During the resulting personal-injury litigation and arbitration, Marriott sought broad authorizations for Cohan's medical and employment records and proposed a qualified protective order allowing certain internal, external, statistical, record-keeping, and other uses of the information. Cohan objected that the authorizations and protective order permitted disclosure beyond the underlying litigation and did not satisfy HIPAA or the Hawaiʻi Constitution's privacy protections.
Procedural history
Cohan and his wife sued Marriott and a restaurant after Cohan was injured in a fall at Marriott's property. The matter entered Hawaiʻi's Court Annexed Arbitration Program. The arbitrator ordered Cohan to sign medical and employment-record authorizations and the HSBA form protective order; the CAAP Administrator and Circuit Judge Bert I. Ayabe affirmed. Cohan then petitioned the Hawaiʻi Supreme Court for mandamus relief.
Remand instructions
The respondent judge was directed to vacate the order affirming the arbitration decision and to order that the qualified protective order and the authorizations for release of medical records be revised consistently with the opinion.