#27491-r-SLZ

2016 S.D. 97

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STEVEN J. WIPF, Plaintiff and Appellee,

v.

TERRY ALTSTIEL, M.D. 

and REGIONAL HEALTH 

PHYSICIANS, INC., Defendants and Appellants.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FOURTH JUDICIAL CIRCUIT

LAWRENCE COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE MICHELLE K. PALMER PERCY

Judge

* * * *

BRAD J. LEE

GARY D. JENSEN of

Beardsley, Jensen & Lee Prof. LLC

Rapid City, South Dakota Attorneys for plaintiff 

and appellee.

JEFFREY G. HURD

DANIEL DUFFY of

Bangs, McCullen, Butler,

 Foye & Simmons LLP

Rapid City, South Dakota Attorneys for defendants

and appellants.

* * * * 

ARGUED ON 

FEBRUARY 17, 2016

REASSIGNED ON

AUGUST 2, 2016

OPINION FILED 12/21/16
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ZINTER, Justice (on reassignment).

[¶1.] Steven J. Wipf sued Dr. Terry Altstiel and Regional Health Physicians Inc. 

(Appellants) for medical malpractice. Through discovery, Wipf sought access to 

operative notes and postoperative notes relating to follow-up care of some of 

Dr. Altstiel’s patients who are not parties to this action. The circuit court ordered 

Appellants to partially redact and produce the redacted records, and they appealed. 

We reverse and remand for reconsideration.

Facts and Procedural History

[¶2.] On April 22, 2011, Dr. Altstiel performed a laparoscopic hernia repair 

on Wipf at the Spearfish Regional Surgery Center (SRSC). The purpose of the 

surgery was to repair a tear or opening in Wipf’s abdominal wall. Dr. Altstiel 

completed the surgery around 10:00 a.m., and Wipf was discharged around 4:00 

p.m. Wipf was advised to notify his doctor if he experienced any unusual pain or 

developed a fever.

[¶3.] The following day, Wipf contacted SRSC to report that he was 

experiencing pain in his upper back, he had a fever, and he had been unable to have 

a bowel movement since prior to surgery. SRSC advised Wipf to go to the 

emergency room, and Wipf went to the Sturgis Regional Hospital (SRH). The 

emergency-department doctor found that Wipf did not have a fever or bowel 

blockage. Although Wipf’s primary complaint was pain, he had not been taking his 

prescribed pain medication. Wipf was advised to take the pain medication and 

return if he felt that his condition worsened.
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[¶4.] Wipf returned to SRH’s emergency department three nights later. He 

reported that he felt nauseous and that he still had been unable to have a bowel 

movement. Wipf was admitted to the hospital for observation, and he underwent a 

CT scan of his abdomen the following morning. The scan revealed fluid and air in 

the abdomen near an opening in the mid-small bowel. SRH transferred Wipf to the 

Rapid City Regional Hospital, where he underwent surgery with Dr. Larry 

Wehrkamp. Dr. Wehrkamp discovered two perforations in the small bowel that 

measured approximately two centimeters in size.

[¶5.] Wipf later sued Appellants for malpractice. Wipf alleged that 

Dr. Altstiel accidentally perforated Wipf’s small bowel during the laparoscopic 

hernia repair. Wipf also alleged that Dr. Altstiel failed to inspect and find the 

perforations before completing the surgery. Dr. Altstiel contended that he inspected 

Wipf’s bowel prior to concluding the surgery and that no perforations were present. 

Wipf, however, pointed out that Dr. Altstiel did not note the claimed inspection in 

his operative note. Dr. Altstiel’s expert also testified that for him to opine that Dr. 

Altstiel violated the standard of care, Wipf would have to show an unacceptably 

high complication rate in similar procedures with different patients. Because 

Dr. Altstiel estimated that he had conducted approximately 955 laparoscopic hernia 

repairs over thirteen years, and because Dr. Altstiel’s expert testified in his 

deposition that it would be relevant to consider the past 200-300 procedures, Wipf 

requested production of Dr. Altstiel’s operative notes involving this procedure for 

the prior five years, including medical reports or notes that related to follow-up 

care. The circuit court found those records relevant, ordered the doctor and clinic to 
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“redact from these records the personal identifiers for each patient,” and ordered 

them to produce the remaining redacted information.1 We subsequently granted 

Dr. Altstiel’s petition for an intermediate appeal.

[¶6.] For purposes of appeal, Dr. Altstiel concedes that the redacted

information is relevant.2 However, he claims that the physician-patient privilege in 

SDCL 19-19-503(b) protects such anonymous, nonidentifying information from 

discovery. This is a question of first impression in this jurisdiction. If the privilege 

applies, then according to Dr. Altstiel, liability for malpractice will depend solely on 

his testimony of his unverifiable estimate of his own complication rate. Further, the 

inference to be drawn from Dr. Altstiel’s failure to note an inspection of the bowel in 

his operative note will depend solely on Dr. Altstiel’s explanation.

 

1. The circuit court required redaction by Dr. Altstiel and the clinic before

disclosing the information. The court’s order provided:

Defendant shall provide to Plaintiff copies of all the medical 

records (beginning with the operative note and including all 

medical reports or notes generated for the next 30 days that in 

any way related to care for, or recovery from, the laparoscopic 

hernia repair surgery) for each patient on which Dr. Terry L. 

Altstiel performed laparoscopic hernia repair surgery during the 

years 2009 through 2013;

IT IS FURTHER ORDERED that Defendants shall redact from 

those records the personal identifiers for each patient, including 

the patient’s name, address, phone number, date of birth, and 

social security number, prior to disclosing these records to 

Plaintiff . . . .

2. The records sought in this case would not be discoverable in many 

malpractice cases because they would not be relevant. However, in this case, 

Dr. Altstiel’s expert made the information relevant in his deposition 

testimony, and Dr. Altstiel does not contest the court’s relevancy 

determination for purposes of this appeal. 
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Decision

[¶7.] The physician-patient privilege, codified in SDCL 19-19-503(b), 

protects a physician-patient’s “confidential communications made for the purpose of 

diagnosis or treatment.” But the language of the statute does not address 

information in a doctor’s records that does not identify the patient and cannot be 

traced back to the patient. Additionally, unlike some jurisdictions that have passed 

medical information privacy acts or patient’s rights legislation that more broadly 

protect medical information, see 3 Jack B. Weinstein & Margaret A. Berger, 

Weinstein’s Federal Evidence § 514.12[5][c] (Mark S. Brodin, ed., Matthew Bender 

2d ed. 1998), the South Dakota Legislature has not done so. 

[¶8.] The text of SDCL 19-19-503 does not protect all of a physician’s 

“medical records.” Rather, it only protects physician-patient “confidential 

communications” contained in medical records. SDCL 19-19-503(b). Because the 

text of SDCL 19-19-503(b) fails to address either the disclosure of anonymous,

nonidentifying information or whether nonidentifying information is a physicianpatient “confidential communication,” it is informative to consider the cases from 

other jurisdictions that have similar rules protecting physician-patient “confidential 

communications.” With almost unanimity, the courts applying analogous rules 

protecting physician-patient “confidential communications” hold that when 

adequate safeguards ensure the anonymity of the patient, relevant, nonidentifying 

information is not privileged.3 See Snibbe v. Superior Court, 168 Cal. Rptr. 3d 548, 

 

3. The Chief Justice’s dissent contends that the plain text of SDCL 19-19-503 is 

broad enough to cover all medical records, whether identifying or 

(continued . . .)
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554, 556-57 (Cal. Ct. App. 2014) (interpreting California’s privilege rule, Cal. Evid. 

Code § 994 (West 2016), which protected “confidential communication[s] between 

patient and physician”); Bennett v. Fieser, 152 F.R.D. 641, 642-44 (D. Kan. 1994) 

(interpreting Kansas’s privilege rule, Kan. Stat. Ann. § 60-427 (West 2012), which 

protected “confidential communication[s] between patient and physician”); 

Osterman v. Ehrenworth, 256 A.2d 123, 129 (N.J. Super. Ct. Law Div. 1969) 

(interpreting New Jersey’s privilege rule, N.J. Stat. Ann. § 2A:84A-22.2 (West 

1968), which protected “a confidential communication between patient and 

physician”); Staley v. N. Utah Healthcare Corp., 230 P.3d 1007, 1010-11 (Utah 2010) 

(interpreting Utah’s privilege rule, Utah R. Evid. 506 (West 1994), which protected 

“information that is communicated in confidence to a physician or mental health 

therapist”). 

________________________

(. . . continued)

nonidentifying. C.J.’s Dissent ¶¶ 18, 20. Both dissenting opinions point out 

that we have applied the privilege in SDCL 19-19-503 to a doctor’s treatment 

records. See, e.g., Shamburger v. Behrens, 380 N.W.2d 659, 662 (S.D. 1986)

(holding that a hospital’s records of a patient’s treatment for alcoholism were 

“protected by the [physician-patient] privilege” (emphasis added) and were 

therefore not discoverable in an action attempting to prove that the patient 

had a problem with alcohol). However, the dissent’s cases such as 

Shamburger do not state that a physician’s records are “confidential 

communications” per se; and the text of the rule does not mention medical 

records—it only protects physician-patient confidential communications. 

SDCL 19-19-503. The dispositive question is whether anonymous,

nonidentifying information—i.e., a record without a patient—of a doctor’s 

complication rate is a physician-patient confidential communication. 

Further, if such information is not privileged, it does not matter who may 

invoke the privilege because there is no patient to invoke it for, contra J.

Severson’s dissent ¶ 40, nor does it amount to creating a new exception to the 

privilege, contra C.J. Gilbertson’s dissent ¶ 16; J. Severson’s dissent ¶ 41.
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[¶9.] Additionally, even courts interpreting broader privilege rules 

protecting “any communication” or “any information” hold that relevant, adequately 

protected, nonidentifying information is not privileged. See Ziegler v. Superior 

Court, 656 P.2d 1251, 1254-56 (Ariz. Ct. App. 1982) (interpreting Arizona’s privilege

rule, Ariz. Rev. Stat. Ann. § 12-2235 (West 1974), which protected “any 

communication made by [a] patient with reference to any physical or mental disease 

or disorder . . . or as to any such knowledge obtained by personal examination of the 

patient”); Cmty. Hosp. Ass’n v. District Court, 570 P.2d 243, 244-45 (Colo. 1977); 

(interpreting Colorado’s privilege rule, Colo. Rev. Stat. Ann. § 13-90-107(d) (West 

1973), which protected “any information acquired in attending the patient, which 

was necessary to enable him to prescribe or act for the patient”); Fischer v. Hartford 

Hosp., 31 Conn. L. Rptr. 291 (Conn. Super. Ct. 2002) (interpreting Connecticut’s 

privilege rule, Conn. Gen. Stat. Ann. § 52-146o (West 1996), which protected “any 

communication made to” a patient or “any information obtained by” a patient); 

Tomczak v. Ingalls Mem’l Hosp., 834 N.E.2d 549, 552-555 (Ill. App. Ct. 2005) 

(interpreting Illinois’s privilege rule, 735 Ill. Comp. Stat. Ann. 5/8-802 (West 2002), 

which protected “any information [the physician] may have acquired in attending 

any patient in a professional character, necessary to enable him or her 

professionally to serve the patient”); Terre Haute Reg’l Hosp., Inc. v. Trueblood, 600 

N.E.2d 1358, 1360-62 (Ind. 1992) (interpreting Indiana’s privilege rule, Ind. Code 

§ 34-1-14-5 (1991) (transferred to Ind. Code § 34-46-3-1 (West 2016)), which 

protected “matters communicated to [physicians] by patients”); Baptist Mem’l Hosp. 

v. Johnson, 754 So. 2d 1165, 1169-71 (Miss. 2000) (interpreting Mississippi’s 
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privilege rule, Miss. Code. Ann. § 13-1-21 (West 2016), which protected “All 

communications made to a physician”); State ex rel. Wilfong v. Schaeperkoetter, 933 

S.W.2d 407, 409-10 (Mo. 1996) (interpreting Missouri’s privilege rule, Mo. Ann. 

Stat. § 491.060(5) (1994), which protected “any information which [the physician]

may have acquired from any patient while attending [the patient] in a professional 

character”).4

[¶10.] This type of anonymous, nonidentifying information is not protected by 

the physician-patient privilege because there is no patient once the information is 

redacted. As the Utah Supreme Court thoughtfully explained: 

[The physician-patient privilege] 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. Under [the physician-patient 

privilege], communicating information contemplates an 

exchange of information between a physician and a patient. In 

short, to be operative, [the privilege] requires two actors—a 

 

4. The only cases that have concluded nonidentifying information may be 

privileged are inapposite. For example, Baker v. Oakwood Hospital Corp.

involved consideration of a broader statute prohibiting disclosure of “any 

information that the person has acquired in attending a patient.” 608 

N.W.2d 823, 827-831 (Mich. Ct. App. 2000) (quoting Mich. Comp. Laws Ann. 

§ 600.2157 (West 2016) (emphasis added)). Two other courts relied on other 

legislative authority. See In re Columbia Valley Reg’l Med. Ctr., 41 S.W.3d 

797, 799 (Tex. App. 2001) (“[T]he Texas Health and Safety Code provides that 

all health care information found in hospital records is privileged and cannot 

be disclosed without authorization.”); Roe v. Planned Parenthood Sw. Ohio 

Region, 912 N.E.2d 61, 70 (Ohio 2009) (citing Hageman v. Sw. Gen. Health 

Ctr., 893 N.E.2d 153, 156 (Ohio 2008)) (determining that medical records 

were privileged based on HIPAA and the Ohio Public Records Act before 

going on to hold the redacted records were privileged). And one case involved 

a situation where it was doubtful whether the identities of third-party 

patients could be kept confidential. See Parkson v. Cent. DuPage Hosp., 435 

N.E.2d 140, 143-44 (Ill. App. Ct. 1982).
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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 [the privilege]. 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. 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. 

Staley, 230 P.3d at 1011 (quoting In re Rezulin Prods. Liab. Litig., 178 F. Supp. 2d 

412, 414 (S.D.N.Y. 2001) (citations omitted)). In accordance with the rationale of the 

Utah Supreme Court and the almost unanimous view of other courts,5 we too hold 

that anonymous, nonidentifying medical information is not privileged per se.

 

5. The dissenting opinions contend that we should not follow the virtually 

unanimous rule because those cases eschew a “plain text” analysis of the 

language. See C.J. Gilbertson’s dissent ¶ 21; J. Severson’s dissent ¶¶ 38-39. 

However, there is no dispute that SDCL 19-19-503 does not address 

anonymous, nonidentifying information that has no connection to any 

particular patient. That alone should end any “plain text” argument. But 

additionally, although the precise issue in this case has been repeatedly 

litigated in other courts, courts do not agree with the dissents’ view that the 

“plain meaning” of the words physician-patient “confidential communication” 

(or analogous words) in any physician-patient privilege rule includes 

(continued . . .)
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[¶11.] To ensure that privileged information is not disclosed, the circuit court 

must ensure that the information to be disclosed is nonidentifying. No third-party 

patient can be associated with the information. Additional safeguards such as 

protective orders should also be considered. The cases considering patient 

anonymity have required such things as: redaction of all personal information as 

well as any information that would tend to identify a patient; sealing documents; 

prohibiting the attorneys and parties from attempting to learn the identities of the 

patients or making contact with them; and prohibiting any person that viewed the 

information from disclosing any of the information. See Ziegler, 656 P.2d at 1254-

55; Cmty. Hosp. Ass’n, 570 P.2d at 244; Fieser, 152 F.R.D. at 643-44. Courts have 

also required attorneys to sign protective orders, see Trueblood, 600 N.E.2d at 1360-

62, and limited disclosure to expert witnesses, see Staley, 230 P.3d at 1009. 

________________________

(. . . continued)

information that cannot be traced to a patient and thus contains nothing 

more than medical terminology (such as a doctor’s method of practice and 

complication rate). See cases cited supra ¶¶ 8-9 (finding no privilege); see 

also Baker, 608 N.W.2d at 830 (finding privilege applied because “any 

information” is broad enough to protect nonidentifying information) 

(emphasis added); Roe, 912 N.E.2d at 70-71 (no plain meaning analysis); 

Parkson, 435 N.E.2d at 144 (no plain meaning analysis). Moreover, the 

courts finding that the privilege does not apply have done so despite the fact 

that they employ the same rules of interpretation that we do: they first look 

to the plain meaning of the text. See Farris v. Advantage Capital Corp., 170 

P.3d 250, 251 (Ariz. 2007); People v. Castillolopez, 371 P.3d 216, 219-20 (Cal. 

2016); Mulberger v. People, 366 P.3d 143, 147 (Colo. 2016) (en banc); Gould v. 

Freedom of Info. Comm’n, 104 A.3d 727, 732-33 (Conn. 2014); In re Marriage 

of Turk, 12 N.E.3d 40, 44 (Ill. 2014); State v. Ryce, 368 P.3d 342, 349 (Kan. 

2016); Brown v. State, 102 So. 3d 1087, 1089 (Miss. 2012); Ross v. Dir. of 

Revenue, 311 S.W.3d 732, 735 (Mo. 2010) (en banc); State v. Grate, 106 A.3d 

466, 473 (N.J. 2015); State v. Steed, 325 P.3d 87, 93 (Utah 2014). 
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[¶12.] In this case, the circuit court required Dr. Altstiel to “redact the 

personal identifiers for each patient, including the patient’s name, address, phone 

number, date of birth, and social security number.” The court did not, however, 

require redaction of other information that could identify the patient, such as the 

patient’s medical history or information regarding family members. There is also 

no indication that the court considered whether identification of the patient could 

occur because of the size of the community. This could be significant because as 

Dr. Altstiel points out, Sturgis and Meade Counties have small populations, which 

could lead to identification of a patient. Cf. Staley, 230 P.3d at 1013 (noting little 

chance of identification because the hospital at issue was one of several located in 

an area populated by approximately 900,000 people and also drew patients from 

neighboring states). Finally, the court did not issue a protective order. Accordingly, 

we reverse and remand for the circuit court to consider whether additional 

safeguards will ensure patient anonymity. If they will, the court must enter a 

protective order before disclosure. 

[¶13.] Reversed and remanded for further proceedings consistent with this 

opinion.6

[¶14.] WILBUR and KERN, Justices, concur.

[¶15.] GILBERTSON, Chief Justice, and SEVERSON, Justice, dissenting.

 

6. In light of this disposition, we need not address the other arguments raised 

on appeal. 
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GILBERTSON, Chief Justice (dissenting).

[¶16.] This case involves nothing more than a question of statutory 

construction. However, the majority’s decision today results in serious damage to 

patient privacy by judicially creating a redaction exception to SDCL 19-19-503, 

South Dakota’s physician–patient privilege.7 In doing so, the majority relies on a 

number of decisions from other jurisdictions that analyze the purpose of their 

respective privileges rather than the plain meaning of those statutes. Like the 

cases upon which it relies, the majority’s result-oriented analysis overlooks the 

primary issue in this case: Whether the plain language of SDCL 19-19-503 applies 

to redacted patient records. The majority devotes a single, cursory paragraph to 

this issue. Because the plain language of SDCL 19-19-503 applies to the patient 

records at issue in this case, and because Wipf’s remaining arguments are similarly 

incorrect, I respectfully dissent.

[¶17.] 1. Analysis of South Dakota’s physician–patient privilege

[¶18.] In determining whether SDCL 19-19-503 applies to redacted patient 

records, this Court must first examine the plain language of the statute. E.g., PittHart v. Sanford USD Med. Ctr., 2016 S.D. 33, ¶ 10, 878 N.W.2d 406, 410. Under 

South Dakota’s physician–patient privilege, “[a] patient [may] refuse to disclose and 

[may] prevent any other person from disclosing confidential communications made 

for the purpose of diagnosis or treatment . . . among himself, [his] physician,” and 

other enumerated individuals. SDCL 19-19-503(b). “A communication is 

 

7. Prior to 2015, the physician–patient privilege was codified as SDCL 19-13-7 

(Rule 503(b)).
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‘confidential’ if not intended to be disclosed to third persons . . . .” SDCL 19-19-

503(a)(4). This Court has explicitly and consistently held that a patient’s medical 

records are confidential communications within the meaning of the physician–

patient privilege. See Shamburger v. Behrens, 380 N.W.2d 659, 662 (S.D. 1986) 

(“[T]reatment records are also protected by the [physician–patient] privilege.”); 

Maynard v. Heeren, 1997 S.D. 60, ¶¶ 7-15, 563 N.W.2d 830, 833-36 (applying 

physician–patient privilege and exceptions to psychological records of plaintiff–

litigant), abrogated on other grounds, Milstead v. Johnson, 2016 S.D. 56, ¶¶ 34-35, 

883 N.W.2d 725, 737-38; State v. Stuck, 434 N.W.2d 43, 53-54 (S.D. 1988) (applying 

physician–patient privilege and exceptions to victim’s medical records); People ex 

rel. D.K., 245 N.W.2d 644, 647-49 (S.D. 1976) (applying physician–patient privilege 

and exceptions to hospital records of infant).8 Despite the majority’s attempt to 

relabel the documents sought in this case as merely “information,” the circuit court 

ordered the production of medical records belonging to several hundred patients—

 

8. Although the majority acknowledges that these cases apply the privilege to 

patient medical records, it nevertheless claims that these cases “do not state 

that a physician’s records are ‘confidential communications’ per se; and the 

text of the rule does not mention medical records—it only protects physicianpatient confidential communications.” Supra ¶ 8 n.3. As noted above, we 

have explicitly held that “treatment records are . . . protected by the 

[physician–patient] privilege.” Shamburger, 380 N.W.2d at 662. Yet, the 

privilege only applies to confidential communications. SDCL 19-19-503. 

Therefore, contrary to the majority’s claim, Shamburger necessarily holds 

that patient medical records are confidential communications.
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i.e., confidential communications—unrelated to this litigation.9 Therefore, as a 

starting point, the subject of the circuit court’s discovery order is privileged.

[¶19.] In light of the foregoing, the onus is on the majority to demonstrate 

how under the plain text of SDCL 19-19-503 a confidential communication (e.g., a 

medical record, see supra ¶ 18) ceases to be either confidential or a communication 

when redacted. The majority fails to do so. I can only assume that in the majority’s 

view, the removal of identifying information from a medical record renders what 

was a “confidential communication” merely a “communication.” However, as noted 

above, a communication is confidential “if not intended to be disclosed to third 

persons[.]” SDCL 19-19-503(a)(4) (emphasis added). The word intend means “[t]o 

have in mind a fixed purpose to reach a desired objective” or “to have as one’s 

purpose[.]” Black’s Law Dictionary (10th ed. 2014). Thus, in order for redaction to 

remove the “confidential” quality of a communication, redaction would have to 

actually create a “fixed purpose” in the mind of the patient to disclose the 

communication to a third party. But passive assent is not active intent, so even if 

hundreds of Dr. Altstiel’s patients would passively accept the dissemination of their 

redacted medical records (assuming they even find out about it), that is a far cry 

from having a “fixed purpose” of providing their medical information to Wipf. 

 

9. The majority erroneously claims that “the dispositive question is whether 

anonymous, nonidentifying information . . . of a doctor’s complication rate is a 

physician-patient confidential communication.” Supra ¶ 8 n.3. This claim—

like much of the majority’s opinion—relies on the false premise that the 

circuit court merely ordered the production of “information” from Dr. Altstiel’s

records. On the contrary, as Justice Severson correctly notes in his dissent, 

the court ordered Appellants to produce “all the medical records . . . for each 

patient on which Dr. Terry L. Altstiel performed laparoscopic hernia repair 

surgery during the years 2009 through 2013.” Infra ¶ 42 (emphasis added).
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Therefore, under the plain text of SDCL 19-19-503, a medical record is confidential 

as long as the patient does not intend to disseminate it, regardless of whether it has 

been redacted.

[¶20.] Instead of explaining how a patient medical record ceases to be a 

confidential communication under SDCL 19-19-503 when redacted, the majority 

merely observes that SDCL 19-19-503 “does not address the disclosure of 

anonymous, nonidentifying information[.]” Supra ¶ 8. According to the majority, 

this observation “alone should end any ‘plain text’ argument.” Supra ¶ 10 n.5.10 

Yet, neither does SDCL 19-19-503 specifically “address the disclosure of 

[identifying] information[.]” Thus, the logical conclusion of the majority’s argument 

is that the plain text of SDCL 19-19-503 will never control (because every 

communication necessarily is either identifying or nonidentifying and the statute 

does not specifically address either subcategory). The better view is that the plain 

text of a statute cannot be avoided by simply appending adjectives.11 See Pitt-Hart, 

2016 S.D. 33, ¶ 10 n.2, 878 N.W.2d at 410 n.2 (“When the [author of a statute] uses 

inclusive language indicating a broad range of conduct, it is not required to 

 

10. This argument simply assumes the conclusion it is meant to prove—that the 

content of the medical record is relevant to the application of the privilege. 

11. The majority’s argument can be replicated by appending essentially any 

adjective. For example, SDCL 19-19-503 does not specifically address the 

disclosure of electronically recorded medical records or medical records 

generated on a Tuesday. Are we to conclude, as the majority’s argument 

suggests, that such records consequently are not protected under the plain 

text of SDCL 19-19-503? Of course not. Such a conclusion is insupportable 

because like the content of the medical record, neither the format of the 

record nor the day of its creation is among the statutory requirements of 

SDCL 19-19-503. 
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anticipate and individually address each subdivision of that conduct a party [or a 

majority of this Court] might imagine.”). Simply put, under the plain text of 

SDCL 19-19-503, a patient medical record is a confidential communication, 

regardless of the information it contains. Nothing in SDCL 19-19-503 supports the 

majority’s frustration of this statutorily defined privilege by imposing a fourth 

prerequisite to its application—i.e., that the content of the communication be 

personally identifying.12 

[¶21.] Despite the plain text of SDCL 19-19-503, the majority relies on a 

number of decisions from other jurisdictions holding that the disclosure of redacted 

medical records does not violate the purposes of their respective physician–patient 

privileges. See supra ¶¶ 8-10.13 The majority claims that those decisions “employ 

 

12. Although SDCL 19-19-503 originated as a court rule, this Court is not free to 

amend the statute at will. “It is not our task to revise or amend, via judicial 

opinions, statutes or court rules, or to ‘liberally construe a statute or court 

rule . . . where such action would do violence to the plain meaning of the 

statute under construction.’” Hannon v. Weber, 2001 S.D. 146, ¶ 8,

638 N.W.2d 48, 50 (per curiam) (emphasis added) (quoting Sudbeck v. Dale 

Elec., Inc., 519 N.W.2d 63, 67 (S.D. 1994)). Moreover, while the current 

version of the privilege may have originated as a court rule, the basis for the 

privilege is legislative and can be traced back to § 499(3) of Dakota 

Territory’s 1877 Revised Code of Civil Procedure. 

13. The majority claims the rule adhered to in its selection of cases is “the 

virtually unanimous rule” and that “courts do not agree with the dissents’ 

view that the ‘plain meaning’ of the words physician-patient ‘confidential 

communication’ (or analogous words) in any physician-patient privilege rule 

includes information that cannot be traced to a patient[.]” Supra ¶ 10 n.5. 

These claims are contradicted by the majority’s note four. As the majority 

acknowledges, a number of other jurisdictions have held that the disclosure of 

redacted medical records does violate their respective privileges. See 

Glassman v. St. Joseph Hosp., 631 N.E.2d 1186, 1198 (Ill. App. Ct. 1994);

Johnson v. Detroit Med. Ctr., 804 N.W.2d 754, 756 (Mich. Ct. App. 2010) 

(“The [physician–patient] privilege prohibits the disclosure of ‘“any 

(continued . . .)
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the same rules of interpretation that we do[.]” Supra ¶ 10 n.5. While some of those 

decisions purport to conduct a plain-text analysis, they do so only to the same 

extent that the majority does so today—which when reduced to its essence, is not at 

all. None of the decisions cited by the majority actually conducts a plain-text 

analysis of their respective privileges. Indeed, half of those decisions do not even 

quote the text of their corresponding statutes. See Bennett ex rel. Bennett v. Fieser, 

152 F.R.D. 641 (D. Kan. 1994); Ziegler v. Superior Court, 656 P.2d 1251 (Ariz. Ct. 

App. 1982); Snibbe v. Superior Court, 168 Cal. Rptr. 3d 548 (Cal. Ct. App. 2014); 

Fischer v. Hartford Hosp., 31 Conn. L. Rptr. 291 (Conn. Super. Ct. 2002); State ex 

rel. Wilfong v. Schaeperkoetter, 933 S.W.2d 407 (Mo. 1996) (en banc).14 Therefore, 

these decisions are incongruous with this Court’s firmly established rules of 

statutory construction: “The intent of a statute is determined from what [its author] 

said, rather than what the courts think it should have said, and the court must 

confine itself to the language used.” Peters v. Great W. Bank, Inc., 2015 S.D. 4, ¶ 7, 

________________________

(. . . continued)

information” acquired under the requisite circumstances,’ even if the 

patient’s identity is redacted.” (quoting Baker v. Oakwood Hosp. Corp., 

608 N.W.2d 823, 830 (Mich. Ct. App. 2000))); Roe v. Planned Parenthood Sw. 

Ohio Region, 912 N.E.2d 61, 72 (Ohio 2009) (“Redaction of personal, 

identifying information does not remove the privileged status of the 

records.”); In re Columbia Valley Reg’l Med. Ctr., 41 S.W.3d 797, 800 (Tex. 

App. 2001) (“[R]edaction of identifying information from nonparty medical 

records does not defeat the medical records privilege.”).

14. Another decision relied on by the majority is based on a balancing test pitting 

the third party’s privacy interest against the need to disclose the privileged 

information, see Baptist Mem’l Hosp.-Union Cty. v. Johnson, 754 So. 2d 1165, 

1171 (Miss. 2000), implying that even the disclosure of records containing 

personally identifying information might be discoverable under certain 

circumstances. 
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859 N.W.2d 618, 621 (emphasis added) (quoting City of Rapid City v. Estes, 

2011 S.D. 75, ¶ 12, 805 N.W.2d 714, 718); Hannon v. Weber, 2001 S.D. 146, ¶ 8, 

638 N.W.2d 48, 50 (per curiam) (holding requirement of plain-text analysis applies 

equally to all statutes, whether authored by the Legislature or this Court). 

[¶22.] The rule of the foregoing decisions should be rejected even if we ignore 

the plain text of SDCL 19-19-503. The cases relied on by the majority essentially 

conclude that disclosing third-party medical records does not violate the physician–

patient privilege if the patient’s identity is not disclosed. However, South Dakota’s 

physician–patient privilege is not merely concerned with a patient’s privacy. It 

“expresses a long-standing policy to encourage uninhibited communication between 

a physician and his patient. It is a privilege that seeks to insure the free flow of 

health care, absent any fears on the patient’s part that anything he says might later 

be used against him.” Maynard, 1997 S.D. 60, ¶ 8, 563 N.W.2d at 833 (emphasis 

added) (quoting D.K., 245 N.W.2d at 648).15 Whether physician–patient 

communication is inhibited necessarily depends on the patient’s subjective 

assessment of the relative security of his or her identity. Thus, the purpose of the 

privilege may be undermined when a patient fears identification through the 

disclosure of his medical records—even if no such identification actually occurs.

 

15. As noted above, South Dakota’s physician–patient privilege may be traced 

back to § 499(3) of Dakota Territory’s 1877 Revised Code of Civil Procedure. 

“In promulgating Section 499, the legislature declared: ‘There are particular 

relations in which it is the policy of the law to encourage confidence and to 

preserve it inviolate[.]’” Hogue v. Massa, 80 S.D. 319, 323, 123 N.W.2d 131, 

133 (1963) (emphasis added). 
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[¶23.] Even under the new exception created by the majority, the facts of this 

case do not warrant disclosure. The probability that a patient will be identified 

could depend on a number of factors including the volume of data disclosed, the 

rarity of the patient’s particular combination of medical conditions,16 the number of 

treating physicians in the area, and relatedly, the population base served by those 

physicians. In Staley v. Northern Utah Healthcare Corp., 230 P.3d 1007 (Utah 

2010), for example, the hospital at issue was one of several located in an area 

populated by approximately 900,000 people in addition to patients from neighboring 

states. Id. at 1013. In contrast, Sturgis has a population of approximately 6,700. 

The population of Meade County, in which Sturgis is located, has a total population 

of only approximately 27,000.17 So even if it is unlikely that a third-party patient in 

Salt Lake County, Utah, will be identified by his or her redacted medical records, 

the probability of identifying a similar patient in Sturgis, South Dakota, is much 

greater. As the majority correctly points out, the circuit court’s order in this case 

does little to protect against identification by the uniqueness of a patient’s medical 

history. 

 

16. The majority remands “for the circuit court to consider whether additional 

safeguards will ensure patient anonymity.” Supra ¶ 12. Appellants 

indicated in their briefs to this Court that Wipf’s discovery request involves 

the medical records of potentially hundreds of third-party patients. The 

circuit court will be required to individually review each record sought on a 

patient-by-patient basis. The irony is that in resisting the disclosure of their 

medical records, some of these third-party patients may actually be forced to 

divulge even more medical information than was requested in order to prove 

a unique medical “footprint.” 

17. This census data was obtained from the U.S. Census Bureau, 

http://www.census.gov/quickfacts/table/PST045215/4662100,46093,00 (last 

visited December 20, 2016).
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[¶24.] The damage done by the majority today to the privacy interests of 

South Dakotans is not limited to those who seek medical care. The phrase 

confidential communication is used throughout SDCL chapter 19-19 to define a 

number of different privileges. In addition to the physician–patient privilege, this 

phrase is used to define the lawyer–client privilege (SDCL 19-19-502), the spousal 

privilege (SDCL 19-19-504), the religious privilege (SDCL 19-19-505), and the 

public-officer privilege (SDCL 19-19-508). Under the majority’s decision today, 

arguably a communication between an attorney and her client is now discoverable, 

as is the confession of a penitent made in confidence to a clergyman, if a third party 

can convince a judge that the identity of the communicator will not be discernible by 

such disclosure. Little is gained in this case by placing at risk the privacy of anyone 

who seeks medical care, legal advice, or spiritual guidance in South Dakota—Dr. 

Altstiel already provided the information Wipf ostensibly seeks in this case.18 While 

little is gained, much is lost. Will this decision force the citizens of this state to seek 

medical treatment outside the boundaries of this state to protect and maintain the 

privacy of their medical records? As Justice Brandeis observed (and the United 

States Supreme Court has repeatedly held): “[T]he right to be let alone [is] the most 

comprehensive of rights and the right most valued by civilized [persons].” Olmstead 

v. United States, 277 U.S. 438, 478, 48 S. Ct. 564, 572, 72 L. Ed. 944 (1928) 

 

18. In Dr. Altstiel’s responses to Wipf’s first set of interrogatories, Dr. Altstiel 

stated that he has practiced medicine for 33 years, that he performed 

approximately 950 hernia repairs between April 2001 and July 2013, and 

that only two of those procedures (including Wipf’s case) resulted in a 

perforated bowel.
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(Brandeis, J., dissenting), abrogated on other grounds, Katz v. United States, 

389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). 

[¶25.] To summarize, this Court’s past decisions firmly establish that patient 

medical records are confidential communications within the meaning of SDCL 19-

19-503. In order for redaction to remove the confidentiality of a medical record, it 

must create an intent—i.e., a fixed purpose—in the mind of the patient to actually 

disclose his or her medical information to a third person. The majority avoids this 

plain-text analysis in order to subscribe to the purpose-driven analysis of 

extrajurisdictional decisions that also avoid plain-text analysis. In doing so, the 

majority bypasses a fundamental rule of statutory construction and improperly 

adds another prerequisite to application of the privilege. Additionally, the majority 

fails to address the dual purpose of South Dakota’s physician–patient privilege: 

protecting the patient’s privacy and encouraging uninhibited communication 

between patient and physician. Finally, the majority fails to address the effect its 

decision would have on several other privileges, including the attorney–client 

privilege and the clergy–penitent privilege. For these reasons, I respectfully 

dissent.

[¶26.] 2. Wipf’s additional arguments

[¶27.] Because the majority creates a redacted-patient-records exception to 

SDCL 19-19-503, it does not address Wipf’s additional arguments for permitting 

discovery. Wipf contends that the plain meaning of SDCL 19-19-503 is 

unreasonable because according to Wipf, it violates public policy. However, he does 
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not cite any supporting authorities, and his argument on this point consists almost 

entirely of rhetorical questions. He asks:

If Altstiel’s interpretation is adopted, how could patients injured 

by the negligence of their doctor ever show that doctor is 

incompetent to perform a procedure if the patient cannot 

discover the results of other procedures? For example, if a 

doctor consistently performed a medical procedure incorrectly, 

the evidence from those other procedures showing the doctor 

violated the standard of care would be vital.

Yet, SDCL 19-19-503 also “expresses a long-standing policy to encourage 

uninhibited communication between a physician and his patient.” Maynard, 

1997 S.D. 60, ¶ 8, 563 N.W.2d at 833 (quoting D.K., 245 N.W.2d at 648). Thus, Wipf 

asks this Court to balance two competing public policies and decide which is more 

important. However, it is well settled that “legislatures, and not the courts, are the 

proper place to determine the state’s public policy.” Wegleitner v. Sattler, 1998 S.D. 

88, ¶ 25, 582 N.W.2d 688, 696. Therefore, the decision whether to subordinate the 

physician–patient privilege to other policy concerns must be decided by the 

Legislature and not this Court. 

[¶28.] Finally, Wipf essentially argues that HIPAA categorically “preempts 

[s]tate privilege laws that offer protection to de-identified medical records.” Wipf 

relies solely on In re Zyprexa Products Liability Litigation, 254 F.R.D. 50 (E.D.N.Y. 

2008). In that case, several states sought “damages, including reimbursement for 

Medicaid payments, stemming from the alleged unlawful marketing of Zyprexa, an 

atypical anti-psychotic drug manufactured by [Eli Lilly & Company].” Id. at 51. 

The cases were removed to federal courts and consolidated. Id. “As part of its 

discovery demands, Lilly [sought] a sampling of medical records for Medicaid 

patients who used Zyprexa, as well as records for patients who took other atypical 
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anti-psychotic drugs during the relevant time period.” Id. “[T]he States argue[d] 

that their respective physician–patient privilege laws prohibit[ed] discovery of the 

patient medical records.” Id. at 52. After determining that each of the cases 

involved federal questions, the court held “that de-identified health information is 

not protected under HIPAA, and that, to the extent state privilege laws offer 

protection to de-identified medical records, HIPAA preempts those laws.” Id. at 54.

[¶29.] Although the Zyprexa court’s conclusion seems to support Wipf’s 

argument that HIPAA preempts South Dakota’s physician–patient privilege, this 

conclusion is difficult to reconcile with the provisions of HIPAA itself, as well as 

with the conclusion of the United States Court of Appeals for the Seventh Circuit in 

Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 923 (7th Cir. 2004). That 

case involved “a subpoena commanding Northwestern Memorial Hospital in 

Chicago to produce the medical records of certain patients [who had undergone] 

late-term abortions at the hospital using the controversial method known variously 

as ‘D & X’ (dilation and extraction) and ‘intact D & E’ (dilation and evacuation).” Id.

at 924. The government sought the records for use in a lawsuit challenging the 

constitutionality of the Partial-Birth Abortion Ban Act of 2003, id., and therefore

the case involved a federal question. The district court held that HIPAA supported 

application of Illinois’s physician–patient privilege and quashed the subpoena, and 

the government appealed. Id. at 925.

[¶30.] On appeal, the Seventh Circuit rejected the district court’s application 

of state-law privilege to a federal-question suit. Id. However, the court explicitly 

stated that a state “is free to enforce its more stringent medical-records privilege . . . 
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in suits in state court to enforce state law[.]” Id. The court concluded that HIPAA 

“should be understood to . . . create a procedure for obtaining authority to use 

medical records in litigation. Whether the records are actually admissible in 

evidence will depend among other things on whether they are privileged.” Id.

at 925-26. Unlike Northwestern Memorial Hospital and Zyprexa, the present case 

does not involve a federal question—Wipf’s malpractice claim against Appellants is 

purely a matter of South Dakota’s negligence law. Therefore, under Northwestern 

Memorial Hospital, HIPAA does not categorically preempt state privilege laws, and 

further analysis is necessary to determine whether South Dakota’s physician–

patient privilege is preempted in this case.

[¶31.] Congress passed HIPAA in 1996 and charged the Secretary of the 

Department of Health and Human Services (the Secretary) to produce a regulatory 

scheme to implement the Act. Among other things, HIPAA and the rules 

promulgated pursuant thereto produced the Privacy Rule, which governs the use 

and disclosure of protected health information by covered entities. 45 C.F.R. 

§ 164.502(a) (2015). HIPAA also includes a preemption provision:

[A] provision or requirement under this part, or a standard or 

implementation specification adopted or established under 

sections 1320d-1 through 1320d-3 of this title, shall supersede 

any contrary provision of State law, including a provision of 

State law that requires medical or health plan records 

(including billing information) to be maintained or transmitted 

in written rather than electronic form.

42 U.S.C.A. § 1320d-7(a)(1) (Westlaw through Pub. L. No. 114-248); 45 C.F.R. 

§ 160.203. However, there are several exceptions to this general preemption rule. 

42 U.S.C.A. § 1320d-7(a)(2); 45 C.F.R. § 160.203. Notably, HIPAA does not preempt 

a contrary state law if it “relates to the privacy of individually identifiable health 
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information and is more stringent than a standard, requirement, or implementation 

specification adopted under [the Privacy Rule].” 45 C.F.R. § 160.203(b). 

[¶32.] In arguing for application of South Dakota’s physician–patient 

privilege, Appellants argue that the “more stringent” exception applies. This 

argument, however, skips a crucial analytical step: determining whether the state 

provision is contrary to HIPAA in the first place. As noted above, HIPAA preempts 

only contrary state laws. Id. § 160.203; see also Standards for Privacy of 

Individually Identifiable Health Information, 64 Fed. Reg. 59,918, 59,996 (proposed 

Nov. 3, 1999) (to be codified at 45 C.F.R. pts. 160-64) (“The term ‘contrary’ . . . is a 

precondition for any preemption analysis . . . .”), 1999 WL 990734. The term 

contrary has a specific meaning under HIPAA:

Contrary, when used to compare a provision of State law to a 

standard, requirement, or implementation specification adopted 

under this subchapter, means:

(1) A covered entity or business associate would find it 

impossible to comply with both the State and Federal 

requirements; or

(2) The provision of State law stands as an obstacle to 

the accomplishment and execution of the full purposes 

and objectives of part C of title XI of the Act, section 

264 of Public Law 104–191, or sections 13400–13424 of 

Public Law 111–5, as applicable.

45 C.F.R. § 160.202. Therefore, a state law is not contrary to HIPAA—or preempted 

thereby—unless one of these definitions is met. 

[¶33.] To determine whether it is impossible to comply with both state and 

federal requirements, it is necessary to compare what is required under both 

regulatory schemes. As explained above, South Dakota’s physician–patient 

privilege generally prohibits discovery of redacted, third-party medical records. 
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Therefore, the only way that it would be impossible to comply with both state and 

federal requirements is if HIPAA requires the disclosure of redacted, third-party 

medical records in this case. The Privacy Rule requires a covered entity to disclose 

protected health information in only two scenarios: (1) when requested, under 

certain circumstances, by the individual to whom the information pertains; or 

(2) when required by the Secretary “to investigate or determine the covered entity’s 

compliance with [the Privacy Rule].” Id. § 164.502(a)(2). All other uses or 

disclosures of protected health information authorized by HIPAA are permissive 

rather than mandatory. Id. § 164.502(a)(1). The present case does not fit within 

either of these two mandatory scenarios. Even if HIPAA authorizes Appellants to 

disclose the information Wipf seeks, HIPAA does not require that Appellants do so. 

Therefore, in this case, nondisclosure complies with both HIPAA and South 

Dakota’s physician–patient privilege. Consequently, the privilege is not preempted 

under the impossibility test.

[¶34.] Neither is South Dakota’s physician–patient privilege an obstacle to 

HIPAA’s objectives. In remarking on the Privacy Rule, the Department has said: 

“In general, the rule that we are proposing would create a federal floor of privacy 

protection, but would not supercede [sic] other applicable law that provide[s] 

greater protection to the confidentiality of health information.” Standards for 

Privacy of Individually Identifiable Health Information, 64 Fed. Reg. at 59,926. 

This statement is consistent with the operation of the Privacy Rule’s preemption 

provision. See 45 C.F.R. § 160.203(b) (preserving contrary state law when the law 

would provide greater protection than HIPAA). The plain text of SDCL 19-19-503 
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certainly furthers the objective of increasing protection for an individual’s medical 

privacy by restricting a third party’s access to the individual’s records beyond the 

restrictions imposed by HIPAA. Wipf makes no argument to the contrary. 

Therefore, South Dakota’s physician–patient privilege is not an obstacle to HIPAA’s 

objectives. Because neither definition of the term contrary is met, the privilege is 

not preempted by HIPAA.

Conclusion

[¶35.] The plain language of South Dakota’s physician–patient privilege 

indicates it generally applies to any communication between a patient and his or 

her physicians that is made for the purpose of diagnosis or treatment and not 

intended to be disclosed to a third party. We have expressly held that a patient 

medical record is a confidential communication within the meaning of SDCL 19-19-

503. The application of SDCL 19-19-503 is not limited by the content of the 

communication. Consequently, the privilege bars discovery of any qualifying 

communication regardless of its content—i.e., even if the patient’s personal 

information has been removed. At this point, “[a]ny [redacted-records] exception to 

the physician-patient privilege is a matter for the [Legislature] to address.” Roe v. 

Planned Parenthood Sw. Ohio Region, 912 N.E.2d 61, 71 (Ohio 2009); see also PittHart, 2016 S.D. 33, ¶ 10 n.2, 878 N.W.2d at 410 n.2. Therefore, I would reverse.

[¶36.] SEVERSON, Justice, joins this dissent.
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SEVERSON, Justice (dissenting).

[¶37.] I join Chief Justice Gilbertson’s writing in its entirety, and I write 

separately to emphasize the Court’s error today and to address the proper privilege 

analysis. Because today’s majority erroneously construes the physician–patient 

privilege to include redacted medical records of nonparty patients, I respectfully 

dissent.

[¶38.] This case does not solely involve “operative notes” as the Court would 

suggest. The records subject to production today are the medical records of patients 

who are not parties to this case. As Chief Justice Gilbertson points out, the 

physician–patient privilege includes a patient’s treatment records. See 

Shamburger, 380 N.W.2d at 662. Furthermore, SDCL 19-19-503(b) clearly provides 

that the physician–patient privilege belongs to the patient. “A patient has a 

privilege to refuse to disclose and to prevent any other person from disclosing

confidential communications made for the purpose of diagnosis or treatment of his 

physical, mental, or emotional condition . . . .” SDCL 19-19-503(b) (emphasis 

added). A physician is entitled to claim the privilege on behalf of the patient. 

SDCL 19-19-503(c). And a court has the independent duty to protect the privilege of 

persons not present or represented in a hearing. SDCL 19-2-9 provides:

In all cases where it shall appear to the court that any person 

who is not present nor represented at the hearing should be 

protected in his right to have any communication made under 

the confidential relations provisions of §§ 19-19-502 to 19-19-

505, inclusive, and 19-19-508, excluded, it shall be the duty of 

the court to make such objections and orders for such purpose as 

to the court may seem necessary.
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[¶39.] Today’s decision is contrary to the plain language of our statutes and 

the protection that those statutes provide for those who were not present or 

represented at the hearings in this case. The Court’s decision results in the 

production of numerous patients’ medical records, despite the privilege and privacy 

that those patients expect and are entitled to when they seek treatment from 

medical professionals. 

[¶40.] Additionally, no exception applies in this case. We do not exempt 

communications subject to privilege merely because they may be relevant. See 

Voorhees Cattle Co. v. Dakota Feeding Co., 2015 S.D. 68, ¶ 13, 868 N.W.2d 399, 406

(rejecting argument that communication subject to attorney–client privilege was 

waived because attorney’s advice was relevant to show knowledge of attorney’s 

clients). Certainly, the many nonparty patients whose medical records are at issue 

cannot be said to have waived the privilege; no waivers have been granted by the 

patients whose records are sought. See SDCL 19-2-3; SDCL 19-2-3.2; SDCL 19-19-

510. Today’s decision is also inconsistent with our rule concerning attorney–client 

privilege, which contains similar language. In those cases, we have made it clear 

that the client is the holder of the privilege and the privilege is only waived by the 

client or through the client’s attorney. See Andrews v. Ridco, Inc., 2015 S.D. 24, ¶ 

18, 863 N.W.2d 540, 547. And “[t]he burden of establishing a waiver of the 

attorney-client privilege rests with the party asserting the claim of waiver[.]” Id. 

Rather than applying our precedent regarding privilege, this Court now exempts 

medical records from the privilege because they might be relevant and they can be 
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redacted to the point that they contain “mere . . . medical terminology.” See supra ¶ 

10 (quoting Staley, 230 P.3d at 1011).

[¶41.] Although this Court now uses redaction to create what it deems 

unprivileged “medical information,” redaction is not an exception to the privilege. 

“On the contrary, redaction presumes a record is subject to disclosure.” Mercer v. 

S.D. Attorney Gen. Office, 2015 S.D. 31, ¶ 18, 864 N.W.2d 299, 304 (rejecting 

argument that Attorney General must “consider redaction of records [that were not 

subject to disclosure] if redaction could protect the privacy interests at issue.”). 

Here, the medical records are not subject to redaction because they are covered 

under the privilege and no exceptions exist. On this point, the Ohio Supreme Court 

has explained: “Redaction of personal information, however, does not divest the 

privileged status of confidential records. Redaction is merely a tool that a court 

may use to safeguard the personal, identifying information within confidential 

records that have become subject to disclosure either by waiver or by an exception.” 

Roe, 912 N.E.2d at 71. And other than a desire to prove their claim with additional, 

duplicative information, Plaintiffs have offered no reason, such as a competing 

right, which compels production of any information in the records. See Milstead v. 

Smith, 2016 S.D. 55, ¶ 32, 883 N.W.2d 711, 723 (allowing, under enumerated 

circumstances, production of protected law enforcement personnel records in light of 

a criminal defendant’s constitutional right to proffer a defense); Milstead v. 

Johnson, 2016 S.D. 56, 883 N.W.2d 725 (holding the same); see also Novotny v 

Sacred Heart Health Servs., 2016 S.D. 75, ___ N.W.2d. ___ (rejecting procedural 
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due process and open courts challenge to medical peer review privilege). Thus, 

redaction is an inappropriate approach in this case.

[¶42.] Because the plain language of South Dakota’s physician–patient 

privilege protects the records at issue in this case, I would reverse the circuit court’s 

order that Defendants produce “all the medical records . . . for each patient on which 

Dr. Terry L. Altstiel performed laparoscopic hernia repair surgery during the years 

2009 through 2013.”

[¶43.] GILBERTSON, Chief Justice, joins this dissent.