           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          OP 07-0348


THE ESTATE OF CHRISTINE KEARNEY; by
and through her Personal Representative, MANDY                              AijG 2    2 2007
KEARNEY; and individually LEE KEARNEY,
                                                                             F d Smitfi
MANDY KEARNEY, Clay Kearney, and C.J.                               CLERK OF THE SUPSFME COURT
KEARNEY,                                                                 s~/urr; k l h t t ' t f f ~ ~
                                                                               ctr


             Petitioners,
                                                                       ORDER
      v.

THE MONTANA THIRTEENTH JUDICIAL
DISTRICT COURT, AND THE HONORABLE
GREGORY TODD, PRESIDING JUDGE,

             Respondents.


       Before this Court is a Petition for Writ of Supervisory Control filed by the Estate of
Christine Kearney, et al. (the Estate) in a medical malpractice, wrongful death lawsuit against
David Healow, M.D., and Pain Control Consultants, P.C. (collectively, "Dr. Healow"). In its
petition, the Estate asks this Court to reverse an Order of the District Court for the Thirteenth
Judicial District, Yellowstone County, denying the Estate's requests for discovery of any
information relating to other substantially similar deaths involving Dr. Healow's patients.
       Christine Kearney (Christine) suffered from multiple sclerosis. During her illness,
Dr. Healow prescribed methadone and other drugs to deal with Christine's chronic pain.
After Christine died, the Estate sued Dr. Healow claiming that the amount of methadone he
had prescribed for Christine was excessive and lethal.
       In his defense, Dr. Healow denied foreseeability, notice, standard of care and
causation. In particular, he denied that he should have known the amounts of medication he
prescribed were potentially excessive and lethal; that the dosage would lead to fatal heart
arrhythmia; that he should have advised Christine of the risks of the dosage or more carefully
monitored her use of the prescribed medication; and that Christine's dosage resulted in her
death. During discovery, the Estate requested that Dr. Healow provide information regarding
other chronic pain patients who died under similar circumstances. Dr. Healow objected on
the basis that the requests were overly broad, unduly burdensome, irrelevant, immaterial,
vague, ambiguous, and called for confidential patient information. Dr. Healow also refused
to produce patient files with the identifying information redacted, and he moved for a
protective order.
       On April 12, 2007, following oral argument, the District Court issued an order
denying the Estate's motion to compel and granting Dr. Healow's motion for a protective
order. The Estate moved the District Court to reconsider, but the court refused.
       Thereafter, the Estate notified Dr. Healow that it intended to run a public notice in The
Billings Gazette asking for information on any patients who may have died from prescribed
pain medications. Although the notice did not mention Dr. Healow or Pain Control
Consultants, P.C., Dr. Healow moved for a preliminary injunction asking the court to enjoin
publication of the notice. In response, the Estate requested that the District Court sanction
Dr. Healow for his "continual refusal to permit discovery into Dr. Healow's past and because
[his] current motion for injunctive relief is frivolous." The District Court denied both
Dr. Healow7srequest for an injunction and the Estate's request for sanctions.
       The Estate then brought this petition asking this Court to exercise supervisory control
over the District Court for the purpose of reversing that court's orders. In its petition, the
Estate argues that the District Court's orders are in fundamental error and that the Estate
lacks an adequate remedy of appeal.
       This Court exercises supervisory control in appropriate cases pursuant to the authority
granted in Article VII, Section 2(2) of the Montana Constitution and M. R. App. P. 17(a).
Inter-Fluve v. Eighteenth Jud. Dist. Court, 2005 MT 103,1 17,327 Mont. 14,117, 112 P.3d
258, T( 17. Supervisory control is an extraordinary remedy that is only appropriate where the
district court is proceeding based on a mistake of law which, if uncorrected, would cause
significant injustice for which an appeal is not an adequate remedy. Inter-Fluve,         7 17.
Consequently, we have followed the practice of proceeding on a case-by-case basis while
taking care not to substitute supervisory control for an appeal. Inter-Fluve,   7 17.
       In the instant case, the Estate asks this Court to exercise its supervisory authority and
reverse the District Court's order denying the Estate's request for discovery of any
information relating to other substantially similar deaths involving Dr. Healow's patients.
       "The purpose of discovery is to promote the ascertainment of truth and the ultimate
disposition of the lawsuit in accordance therewith. Discovery fulfills this purpose by
assuring the mutual knowledge of all relevant facts gathered by both parties which are
essential to proper litigation." Richardson v. State, 2006 MT 43,7 22,33 1 Mont. 23 l , 7 22,
130 P.3d 634,a 22 (quoting Massaro v. Dunham, 184 Mont. 400,405,603 P.2d 249,252
(1 979)). "Modern instruments of discovery, together with pre-trial procedures, 'make a trial
less a game of blindman's buff and more a fair contest with the basic issues and facts
disclosed to the fullest practicable extent.' " Richardson,    7 22 (quoting United States v.
Proctor & Gamble Co., 356 U.S. 677,682'78 S. Ct. 983,986-87 (1958)).
       We addressed the propriety of supervisory control in the discovery context in Preston
v. MT18th Judicial Dist. Court, 282 Mont. 200,936 P.2d 814 (1997). In Preston, we issued
a writ of supervisory control to correct the District Court's decision to limit discovery in a
product liability case to the subject product. The plaintiff in Preston had requested evidence
of prior accidents involving similarly designed products, which the District Court declined to
order. Noting that such information was relevant to the plaintiffs burden of proof, we held
that a writ of supervisory control was appropriate to correct the discovery limitation because
the District Court was proceeding under a mistake of law which did a gross injustice to the
plaintiff by placing him at a significant disadvantage in litigating his case, and remedy by
appeal would be inadequate. Preston, 282 Mont. at 206, 936 P.2d at 8 18.
       We also stated in Plumb v. Fourth Jud. Dist. Court, 279 Mont. 363, 370, 927 P.2d
1011, 1016 (1996), that where the district court's order places a litigant at a significant
disadvantage and causes the litigant to incur unwarranted expenses and delays in the ultimate
resolution of the litigation, the exercise of supervisory control is just. Moreover, if settlement
negotiations would be hindered, then any verdict reached would be questionable, subsequent
litigation and additional costs would be inevitable, and a remedy by appeal would be
inadequate. Plumb, 279 Mont. at 370, 927 P.2d at 1016.
       As part of its case-in-chief, the Estate must prove that Dr. Healow knew of the risk of
death, failed to take corrective action, and that the medications resulted in Christine's
premature death. The Estate points out in its petition that evidence from Dr. Healow's files
that there had been prior deaths under substantially similar circumstances would be highly
probative, if not determinative, of these issues. The Estate further states that the requested
information is critical to challenge Dr. Healow's defenses because Dr. Healow is asserting
that he did not know the prescribed medication was potentially fatal, the prescribed dose was
consistent with medical standards, and Christine's use of the medication was not the cause of
her death. Failure to provide the requested information may hinder the Estate's ability to
prove causation or breach and to engage in effective cross examination and impeachment.
       The purpose of the physician-patient privilege is to insure the patient will receive the
best medical treatment possible by encouraging full and frank disclosure of medical history
and symptoms by a patient to his or her doctor. However, that privilege should not be used to
deny patient victims the ability to discover unsafe physicians or medical practices. The
Health Insurance Portability and Accountability Act (HIPAA), specifically 45 C.F.R.
§ 164.508 (2007) and 45 C.F. R. § 164.512(e)(l) (2007), permits the disclosure ofprotected
health information without patient consent in the course of any judicial or administrative
proceeding, if the party seeking the information makes reasonable efforts to secure a
qualified protective order limiting use of the information to the subject proceeding.
       In this case, the Estate suggested that any identifjing information could be redacted
from the patient files. However, Dr. Healow asserted, and the District Court agreed, that
redaction of identifjing information would not solve any problems with respect to doctor-
patient privilege or right of privacy because the Estate would eventually need to ask for
patient identities in order to contact those individuals and ask them to testifL at trial.
       The District Court's observation that the requested information is protected by
Montana's Uniform Health Care Information Act, Title 50, Chapter 16, Part 5, of the
Montana Code Annotated, is not entirely correct. Health care information includes only that
information which identifies or can readily be associated with the identity of a patient and
relates to the patient's health care. Section 50-16-504(6), MCA. If that identifling
information is redacted, as suggested by the Estate, the information sought would not even be
considered health care information under this Act.
       Additionally, the Estate points out that Dr. Healow and the District Court are
confusing the issue of the "discoverability" of prior bad acts with the "admissibility" of such
evidence. M. R. Civ. P. 26(b)(l) provides, in pertinent part: "It is not ground for objection
that the information sought will be inadmissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence." Moreover, we stated
in Preston, that "discovery requests are to be construed broadly in favor of disclosing any
information tending to lead to admissible evidence. Whether that evidence is admissible is
for the court to decide at trial, not for [the defendant] to determine at the discovery stage of
proceedings." Preston, 282 Mont. at 208, 936 P.2d at 819.
       We have repeatedly held that discovery into a defendant's prior conduct is proper.
Preston, 282 Mont. at 207,936 P.2d at 8 18; Runkle v. Burlington Northern, 188 Mont. 286,
292,613 P.2d 982,986 (1980); Schmidt v. Washington Contractors Group, 1998 MT 194,
7 25,290 Mont. 276,125,964 P.2d 34,Y 25. We stated in Richardson that evidence ofprior
accidents " 'is nevertheless admissible to show the existence of a danger or defect and notice
or knowledge thereof [and that] '[elvidence of prior, similar accidents can have significant
probative force bearing upon the question of the reasonableness of defendant's conduct.'      "



Richardson, 7 26 (quoting Kissock v. Butte Convalescent Center, 1999 MT 322, 1 15-16,
                                                                              1
297 Mont. 307,    1 15-16, 992 P.2d
                   1                     1271, 1 15-16). Furthermore, evidence of prior
                                                1
accidents is "clearly relevant to the issues of whether a danger did in fact exist, whether
[defendant] had knowledge of the danger, whether [defendant's] conduct was reasonable in
light of any such knowledge, and whether [defendant] should have anticipated [plaintiffs]
injury." Richardson, 7 28.
       The Estate has the burden at trial to show that evidence of prior acts is substantially
similar to the putative conduct at issue. Without discovery into prior patient deaths, the
Estate has no ability to carry that burden. The Estate also cannot challenge Dr. Healow's
anticipated testimony that in his opinion and based upon his experience, the drugs prescribed
to Christine were safe as prescribed. In addition, the Estate cannot develop a claim for
punitive damages without showing from prior patient deaths whether Dr. Healow's conduct
toward Christine was in complete disregard for her safety and the safety of others.
       We conclude that supervisory control is appropriate in this case because the District
Court is proceeding under a mistake of law. The District Court improperly prejudged issues
about admissibility before discovery into these areas was completed. No individual patients'
rights are infringed by the release of medical information that cannot be identified with them.
Physicians and public health agencies publish studies or statistics of patients all the time
without releasing the patients' identities and often without obtaining the patients' consent.
Allowing the District Court's discovery restrictions to stand would not only unfairly
disadvantage the Estate but would defeat the purposes of the Rules of Civil Procedure in that
it would require the Estate to endure the time and expense of a trial and an appeal before
obtaining discoverable material essential to its case.
       To the extent that any of the discovery requests are actually overbroad or burdensome,
the District Court can craft an appropriate discovery order. In addition, we are not addressing
the matter of the injunction request or the request for sanctions, pending the District Court's
compliance with the foregoing provisions of this Order. Therefore,
       IT IS ORDERED that the Estate's Petition for Writ of Supervisory Control is
GRANTED. The District Court shall craft an order permitting the Estate's requested
discovery while protecting the disclosure of information that would identi@ an individual
patient and limiting any legitimately overbroad or burdensome requests for information.
       IT IS FURTHER ORDERED that the Clerk of this Court give notice of this Order by
mail to all counsel of record and to the District Court.
DATED this   &2ybayof A




                          V   Justices
