MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020	ME	115

Docket: Cum-18-445

Argued: March	5,	2019

Reargued: July	15,	2020

Decided: September	29,	2020

Revised: April	1,	2021

Panel: MEAD,	JABAR,	HUMPHREY,	and	HORTON, JJ.,	and	HJELM, A.R.J.*

Majority: MEAD,	HUMPHREY,	and	HORTON,	JJ.,	and	HJELM,	A.R.J.

Dissent: JABAR,	J.

ESTATE	OF	CAROL	A.	KENNELLY

v.

MID	COAST	HOSPITAL

HUMPHREY,	J.

[¶1]		In	this	appeal,	arising	in	a	medical	malpractice	case,	we	must	decide	

whether	 medical	 records	 of	 individuals	 who	 are	 not	 parties to	 these	

proceedings,	 even	 when	 redacted	 to	 remove personally	 identifying	

information,	are	protected	from	discovery	by	statutes	providing	for patient	and	

medical	 records	 privacy,	 42	 U.S.C.S.	 §	 1320d-6 (LEXIS	 through	 Pub. L.	 No.	

* At	the	time	that	this	case	was	originally	argued,	Chief	Justice	Saufley participated	in	the	appeal,	

but	she	resigned	before	this	opinion	was	certified.		Justices	Alexander	and	Hjelm	also	participated	in	

the	 first	 argument,	 but	 they	 retired	 before	 this	 opinion	 was	 certified.	 	 Justice	 Hjelm	 is	 now	

participating	in	this	appeal	as	an	Active	Retired	Justice.		This	appeal	has	since	been	reargued,	and	the	

panel	now	includes	Justice	Horton.
2

116-158);	22	M.R.S.	§	1711-C	(2020),

1 or	the	physician-patient	privilege,	M.R.	

Civ.	P.	26(b)(1);	M.R.	Evid.	503(a)(1)(A),	(a)(2)(A),	(b).		

[¶2]	 	Mid	 Coast	Hospital	 (MCH)	appeals	 from	an	 order	entered	 by	 the	

Superior	 Court	 (Cumberland	 County,	 L.	 Walker,	 J.)	 compelling	 discovery	 of	

(1) the	redacted	medical	records	of	fifty	MCH patients who	are not	parties to	

these	 proceedings	 and	 (2)	 the	 personnel	 file	 of	 Dr.	 Mia	 Marietta,	 a former	

employee of	MCH who	performed	the	surgery	at	issue	in	this	case.2		MCH	argues	

that	these	records	are	not	subject	to	discovery	because	they	are	not	relevant,	

they	are	protected	under	state	and	federal	law,	and	they	are	privileged	under	

the	Maine	Rules	of	Evidence.		See 42	U.S.C.S.	§	1320d-6;	22 M.R.S.	§ 1711-C(2);	

M.R.	 Civ.	 P.	 26(b)(1);	 M.R.	 Evid.	 503.	 	 The	 Estate	 of	 Carol A. Kennelly	 (“the	

Estate”)3 argues	that	the appeal	is	interlocutory	because	it	does	not	satisfy	any	

1		Although	references	to	Title	18-A	in	22	M.R.S.	§	1711-C	have	now	been	updated	to	reference	

Title	18-C,	these	amendments	are	immaterial	to	the	issues	on	appeal,	and	in	all	other	respects	the	

statute	 now	in	effect	is	identical	 to	 that	which	 the	 court	 construed	in	 this	matter.	 	See	P.L.	 2017,	

ch. 402,	 §§	 C-44,	 F-1 (effective	 Sept.	 1,	 2019	 pursuant	 to	 P.L.	 2019,	 ch.	 417,	 § B-14)	 (codified	 at	

22 M.R.S.	§	1711-C	(2020)).		We	cite	the	current	statute	throughout	this	opinion.

2	 	 MCH	 originally	 also	 appealed	 the	 trial	 court’s	 order	 compelling	 production	 of	 documents	

relating	to	Dr.	Marietta’s	training	and	continuing	education	and	of	an	audit	trail	of	her	entries	in	a	

patient’s	electronic	medical	 records.	 	MCH	later	agreed	 to	produce	 these	materials,	however, and	

therefore	is	no	longer	challenging	those portions of	the	court’s	order.		

3		Kennelly	died	in	November	2018,	while	 this	appeal	was	pending.		We	granted	 the	plaintiff’s	

motion	 to	 substitute	 her	 estate	 as	 the	 plaintiff	 in	 this	 action.	 	 Accordingly,	 all	 references	 to	 the	

proceedings	in	this	action	refer	to	“the	Estate.”		There	is	no	suggestion	in	the	record	that	Kennelly’s	

death	was	related	to	the	medical	procedure	at	issue.
3

of	 the	exceptions	 to	 the	 final	judgment	rule and	 that the	records	at	issue	are	

discoverable.	 	We	 conclude	 that	MCH’s	appeal	from	 the	 portion	of	 the	 order	

compelling	production	of	 the	personnel	 file	is	interlocutory	and	does	not	fall	

within any	of	the	exceptions	to	the	final	judgment	rule,	but	we	reach	the	merits	

of	 MCH’s	 appeal	 from	 the	 court’s	 order	 compelling	 discovery	 of	 the	 fifty	

nonparty	patient	records,	and	we	vacate	that	part	of	the	order.

I.		BACKGROUND

[¶3]		The	pertinent facts	are largely	procedural	and	are drawn	from	the	

trial	 court	 record,	 which	 includes discovery	 materials	 already	 produced.		

See Doe	v.	McLean,	2020	ME	40,	¶	2,	228	A.3d	1080.		On	September	2,	2015,	

Dr. Marietta	 performed	 a	 laparoscopic	 cholecystectomy—a	 gallbladder	

removal—on	Carol A.	Kennelly	at	MCH	in	Brunswick.		The	Estate	alleges	that	

Dr.	Marietta,	who	is	not	a	party	to	this	action,	negligently	cut	the	incorrect	duct	

during	 the	 procedure,	 causing	 bile	 to	 leak into	 Kennelly’s	 abdomen,	 which	

required	surgical	repair,	an	extended	recovery,	and	other	medical	treatments.		

The	 Estate	 further	 alleges	 that	 MCH	 is	 vicariously	 liable	 as	 Dr. Marietta’s	

employer.

[¶4]	 	In November	 2016,	 the	 Estate	 filed	 a	 notice	 of	 claim	 of	 medical	

malpractice	against	MCH,	and	the	parties proceeded	through	the	prelitigation	
4

screening	 panel	 process.	 	 See 24	 M.R.S.	 §	 2853(1)	 (2020);	 M.R.	 Civ. P.	

80M(b)(1).	 	 After	 the	 prelitigation	 screening	 process	 concluded	 without	the	

parties	 reaching	 a	 settlement,	 the	 Estate	 filed	 a	 complaint in	 2018 alleging	

medical	malpractice.		See	24	M.R.S.	§	2903	(2020).

[¶5]	 	The	 Estate	alleges that	MCH	 breached	its	 duty	 to	Kennelly	when	

Dr. Marietta	performed the	surgery	in	a	manner	that	violated	the	appropriate	

standard	of	care.		It	contends that	the	standard	of	care	in	this	procedure	is	called	

the	Critical	View	of	Safety	(CVS).		According	to	the	Estate,	MCH’s expert	testified	

before	the	screening	panel	that,	although	CVS	is	the	safest	way	to	perform	this	

procedure	and	is	 the	standard	of	care	in	major	cities,	 “a	surgeon	in	Maine	is	

within	the	standard	of	care	as	long	as	[the	surgeon]	use[s]	an	approach	that [the	

surgeon]	 feel[s]	comfortable	with.”		Dr. Marietta	testified	in	a	deposition	that	

she	 performs	 roughly	 200	 surgeries	 per	 year,	 the	 majority	 of	 which	 are	

laparoscopic	cholecystectomies,	and	that	she	does	not	use	the	phrase	“critical	

view	of	safety”	because	she	believes	the	term	is	unclear,	and	prefers	instead	to	

describe	the	specific	steps	she	takes	in	a	procedure.

[¶6]	 	 The	 Estate	 requested,	 and	 later	 filed	 a	 motion	 to	 compel	 the	

production	of,	Dr.	Marietta’s	operative	notes,	with	certain	redactions, for	the	

twenty-five	gallbladder	removal	surgeries	she	performed	on	nonparty patients	
5

before	Kennelly’s	 surgery	and	the	twenty-five	gallbladder	 removal	 surgeries	

she	performed	on	nonparty	patients	after	Kennelly’s	surgery.4

[¶7]		MCH	objected	to	the	production	of	the	operative	notes,	arguing	that	

the notes were	privileged,	confidential,	and	protected	by	state	and	federal	law;

that	 the	 request	 was	 not	 reasonably	 calculated	 to	 lead	 to	 the	 discovery	 of	

admissible	 evidence;	 and	 that	 the	 notes would	 be unduly	 burdensome	 to	

produce.		The	Estate	argued	that	the	redacted	operative	notes	were	relevant	to	

determine	 whether	 Dr. Marietta	 had	 followed	 her	 standard	 practice	 during	

Kennelly’s	 surgery and	 that	 production	 of	 those	 records	 would	 not	 violate	

privilege	or	confidentiality	requirements.

[¶8]		By	written	order	entered	on October	15,	2018,	the	Superior	Court	

granted	the	Estate’s	motion	to	compel	discovery	and	ordered	MCH	to	produce,	

subject	 to redaction,	 Dr.	 Marietta’s	 operative	 notes	 from the twenty-five	

nonparty	 surgeries	 she	 performed	 before	 Kennelly’s	 procedure	 and	 the	

twenty-five	 she	 performed	 after	 it.	 	 The	 court	 ordered	 that	 the	 records	 be

redacted	and	produced	as	follows:

Each	redacted	record	shall	include	only the	year	of	the	surgery,	the	

name	of	the	surgeon	(Dr.	Marietta),	the	name	of	the	procedure,	and	

4	 	The	 Estate	initially requested	 records from	the	fifty	 procedures	 performed	 before	 and fifty	

procedures	 performed	 after	 Kennelly’s	 surgery,	 but	 later	 reduced	 the	 number	 of	 records	 it	 was	

requesting.
6

a	 portion	 of	 the	 section	 labeled	 “operative	 procedure”	 (i.e.,	 all	

information	other	than	the	year,	the	name	of	the	surgeon,	the	name	

of	the	procedure,	and	a	portion	of	the	“operative	procedure”	will	be	

redacted).	 	 The	 “operative	 procedure”	 section	 shall	 be	 provided	

only	 to	 the	 point	 in	 the	 surgery	 where	 the	 gallbladder	 was	

removed.		To	the	extent	there	is	any	identifying	information,	(e.g.,	

name,	 date	 of	 birth,	 age,	 sex,	 race)	 in	 the	 “operative	 procedure”	

section,	 such	 information	 shall	 also	 be	 redacted.	 	 The	 [c]ourt	 is	

satisfied	that	these	significantly	redacted	records	will	not	identify	

any	non-parties	and	that	their	identification	will not	be	able	to	be	

discerned	from	the	records	or	otherwise.

.	.	.	.	

.	 .	 .	[A]ll	 records	 produced	 by	 this	 Order	 shall	 be	 used	 by	

Plaintiff	solely	for	the	purpose	of	prosecuting	her	claim	before	the	

court.	 	 Plaintiff’s	 counsel	 shall	 not	 attempt	 to	 identify	 persons	

whose	identities	have	been	redacted	and	shall	not	provide	copies	

to	anyone,	other	than	expert	witnesses	in	the	case.

(Emphasis	in	original.)

[¶9]	 	 MCH	 did	 not	 produce	 the	 requested	 materials	 but	 rather,	 on	

November	5,	2018,	filed	a	notice of	appeal from	the	discovery	order.		The	Estate	

filed	 motions	 to	 dismiss	 the	 appeal	 as	 interlocutory	 and	 to	 supplement	 the	

record	 with	 certain	 materials.	 	 We	 denied	 both	 of	 the	 Estate’s	 motions	 but	

ordered	that	the	appellate	justiciability	of	the	issues	raised	would	be	addressed	

with	the	merits of	the	appeal.5

5		On	this	issue,	we	conclude	that	as	to	the	medical	records	of	nonparty	patients,	which	may	be	

subject	to	the	physician-patient	privilege,	the death	knell	exception	to	the	final	judgment	rule	applies,	

and	we	proceed	to	address	all	issues	pertaining	to	those	records.		See	Harris	Mgmt.,	Inc. v.	Coulombe,	

2016	 ME	 166,	 ¶	 11	 n.3,	 151	 A.3d	 7;	see	 also	 M.R.	 Civ.	 P.	 26(b)(1).	 	 The appeal	 from	 the order	
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II.		DISCUSSION

[¶10]	 	 On	 appeal,	 MCH	 challenges	 the	 court’s	 order	 compelling	

production of	the	fifty	nonparty	operative	notes.		Much	as	it	did	before	the	trial	

court,	 MCH	 argues	 here	that	 no	 portion of	 the	 nonparty	 medical	 records	 is

discoverable	because	the records are	not	relevant,	see M.R.	Civ. P.	26(b)(1),	and	

are	protected	by	both	state	and	federal	privacy	laws,	see 22 M.R.S.	§	1711-C(2);	

42	U.S.C.S.	§ 1320d-6,	and the	physician-patient	privilege,	see M.R.	Evid.	503.		

MCH	 asserts	 that	 the	 court	 therefore	 abused	its	 discretion	 by	 ordering	it	 to	

produce	the	requested	material.

A. Relevance

[¶11]		MCH	first	argues	that	the	court	abused	its	discretion	by ordering	

production	 of	 the	 operative	 notes	 because	 the	 way	 Dr.	 Marietta	 performed	

nonparty	surgeries	has	no	bearing	on	whether	she	breached	her	duty	of	care	to	

Kennelly.		The	trial	court	found that	the	Estate’s	discovery	request	was	“[m]ore	

than	a	mere	fishing	expedition	for	irrelevant	surgical	errors	in	other	surgeries”	

and	sought	“to	better	establish	what	procedures	would	be	consistent	with	the	

compelling	production	of	the	personnel	file	does	not,	however,	fall	within	an	exception	to	the	final	

judgment	 rule because	 26	 M.R.S.	 §	 631	 (2020)	 does	 not	 create	 a	 privilege	 that	 could	 protect	 a	

document	 from	 discovery.	 	 See M.R.	 Civ.	 P.	 26(b)(1)	 (allowing	 the	 discovery	 of	 “any	 matter,	 not	

privileged”);	Pinkham	v.	Dep’t	of	Transp.,	2016	ME	74,	¶¶	12-13,	139	A.3d	904.
8

applicable	 standard	 of	 care	and	whether	 the	 procedure	Dr.	Marietta	 used	in	

[Kennelly]’s	 surgery	 breached	 that	 standard.”	 	 We	 agree but	 only	 as	 to	 the	

surgical	procedures	preceding	Kennelly’s.

[¶12]	 	 We	 review	 for	 clear	 error	 the	 court’s	 determination	 that	 the	

nonparty	 operative	 notes	 are	 relevant.	 	 See Pinkham	 v.	 Dep’t	 of	 Transp.,	

2016 ME	74,	¶ 17,	139	A.3d	904.		Pursuant	to M.R.	Civ.	P.	26(b)(1),	a	party	“may	

obtain	discovery	regarding	any	matter,	not	privileged,	which	is	relevant	to	the	

subject	matter	involved	in	the	pending	action,	whether	it	relates	to	the	claim	or	

defense	of	the	party	seeking	discovery	or	to	the	claim	or	defense	of	any	other	

party.”		The	scope	of	discoverable	materials	at	this	stage	in	the	proceedings	is	

broader	 than	 the	 scope	 of	 relevant	 evidence	 at	 trial.	 	Compare id. (“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.” (emphasis	 added))	 with	 M.R.	 Evid.	 401	

(“Evidence	 is	 relevant	 if:	 [i]t	 has	 any	 tendency	 to	 make	 a	 fact	 more	 or	 less	

probable than	it	would	be	without	the	evidence;	and	[t]he	fact	is	of	consequence	

in	determining	the	action.” (emphasis	added)).		Therefore,	the	issue	presented	

to	 the	 trial	 court	 was	 whether	 the	 nonparty	 operative	 notes	 were either

relevant	 to	 the	 standard	 of	 care	 Dr.	 Marietta	 owed	 Kennelly	 or reasonably	
9

calculated	to	lead	to	the	discovery	of	“admissible evidence,”	which	must	itself	

be	relevant.		M.R.	Civ. P.	26(b)(1);	see M.R.	Evid.	401,	402.

[¶13]	 	The	 Estate	 renews	 on	appeal	its	argument	 that	operative	 notes	

from	 surgeries	 performed	 on	 nonparties	 both	 before	 and	 after	 Kennelly’s	

procedure are	relevant	to establishing	or	are	reasonably	calculated	to	lead	to	

admissible	evidence regarding	(1)	the	standard	of	care	to	which	Dr.	Marietta	

should	 have	 adhered, and	 (2)	 whether	 Dr.	 Marietta had	 knowledge	 of	 and	

experience	using	the	CVS	technique.		The	Estate’s	argument	may	be	persuasive	

with	 regard	 to	 the	 surgeries	 Dr.	 Marietta	 performed	 before	 Kennelly’s	

procedure,	but it fails	as	to	those	performed	after	Kennelly’s	procedure.

[¶14]	 	 Unlike	 the	 surgical	 techniques	 used	 by	 Dr.	 Marietta	 before	

Kennelly’s	 surgery,	 those	 used	 afterward have	 no	 bearing	 on	 whether	

Dr. Marietta	had	used	or	had	been	aware	of	the	CVS	technique	at	the	time	she	

performed	the	gallbladder	procedure	on	Kennelly or whether	during	Kennelly’s	

procedure	she	had	used,	as	an	alternative	to	CVS, a	technique	with	which	she	

was	 “comfortable.”	 	 Therefore,	 the	 operative	 notes	 for	 surgeries	 performed	

after	Dr. Marietta	operated	on	Kennelly	are	unlikely	to	lead	to	the	discovery	of	
10

admissible	evidence	and	are	therefore	not	discoverable.		M.R.	Civ. P. 26(b)(1).		

The	court	committed	clear	error, and	we	vacate	that	part	of	the	court’s	order.6

[¶15]	 	 We	 turn	 to	 the	 question	 of	 whether	 the	 operative	 notes	 from	

procedures	 before	Kennelly’s surgery,	although	 relevant,	are	 protected	 from	

discovery	by	statutory	law	or	the	physician-patient	privilege.

B. State	and	Federal	Statutory	Prohibitions

[¶16]		MCH	argues	that	the	nonparty	operative	notes	are	protected	from	

discovery	 by	 the	 Maine	 statute	 providing	 for	 confidentiality	 of	 health	 care	

information,	22	M.R.S.	§	1711-C(2),	and	the	federal	Health	Insurance	Portability	

and	 Accountability	 Act	 (HIPAA),	 42 U.S.C.S.	 §	 1320d-6.	 	We	 review	 de	 novo	

whether	either	statute	prevents	disclosure	of	the	nonparty	operative	notes.	 See

SAD	3	Educ.	Ass’n	v.	RSU 3 Bd. of Dirs.,	2018	ME	29,	¶ 14,	180	A.3d	125.

[¶17]	 	 In	 general,	 both	 the	 Maine	 statute and	 HIPAA	 prohibit	 the	

disclosure	of	individually	identifiable	health	care	information;7 however,	each	

6		Even	if	the	notes	from	these	later	procedures	were	relevant	or	reasonably	calculated	to	lead	to	

the	discovery	of	admissible	evidence,	they	would	be	protected	from	disclosure	for	the	same	reasons,	

discussed	 below,	 that the	 notes	 from	 the	 surgeries	 preceding	 Kennelly’s	 were	 privileged	 and	

therefore	not	discoverable.

7		The	health	care	information	protected	by	Maine’s	statute and	HIPAA	is,	specifically,	information	

that	identifies the	patient.		See	22	M.R.S.	 §	1711-C(1)(E),	 (2) (2020);	42	U.S.C.S.	 §	1320d-6	 (LEXIS	

through	Pub.	L.	No.	116-91);	see	also 45	C.F.R.	§	164.514(a)	(2020) (“Health	information	that	does	

not	identify an	individual	and	with	respect	to	which	there	is	no	reasonable	basis	to	believe	that	the	

information	can	be	used	to	identify	an	individual	is	not	individually	identifiable	health	information.”).
11

statute	 also	 contains	 an	 exception	 permitting disclosure	 of	 health	 care	

information	 pursuant	 to	 a	 court	 order.8	 	 See 22	 M.R.S.	 § 1711-C(6)(F-1);

45 C.F.R.	§	164.512(e)	(2020).		Thus,	the	trial	court	correctly	determined	that,	

despite	substantial	protection	under	state	and	federal	laws,	“neither	the	[Maine	

statute] nor	HIPAA	absolutely	bars	the	disclosure	of	medical	records”	because	

each permits disclosure	by	the	custodian of	the	records	if	they	do	not	identify	

the	patient	or	if	disclosure	is	directed	by	a	court	order.

[¶18]	 	 However,	 neither	 the	 Maine	 statute nor	 HIPAA	 addresses	 the	

circumstances	 under	 which	 a	 court	 may order	 the	 disclosure	 of	 a	 nonparty	

patient’s	 operative	 notes.	 These	 statutes	 speak	 in	 terms	 of	 confidentiality	

rather	than	privileges that	protect	records	from	disclosure	through	discovery	

pursuant	 to	 Rule	 26(b)(1).	 	 Absent	 provisions	 specifically	 declaring	 an	

individual’s	 health	 care	 information	 privileged,	 the statutes do	 not	 directly	

8		The	regulations	implementing	HIPAA	plainly	contemplate	that	confidential	medical	records	may	

be	disclosed	pursuant	to	a	court	order	in	the	context	of	litigation.		For	example,	“[a]	covered	entity	

may	disclose protected	health	information	in	the	course	of	any	judicial	or	administrative	proceeding

. . . in	 response	 to	 an	 order	 of	 a	 court,”	45	 C.F.R.	 §	 164.512(e)	 (2020) (emphasis	 added),	without	

violating	 HIPAA’s	 confidentiality	 protections	 and	 without	 leading to	 the	 penalties	 created	 in	

42 U.S.C.S.	§ 1320d-6.

Title	 22	 M.R.S.	 §	 1171-C	 similarly provides	 that	 “[a]n	 individual’s	 health	 care	 information	 is	

confidential	and	may	not	be	disclosed	other	than	to	the	individual	by	the	health	care	practitioner	or	

facility	except	as	provided	in	subsection	3,	3-A,	3-B,	6	or	11.”		22	M.R.S.	§	1711-C(2).		Subsection	6	

lays	out	a	list	of	exceptions	 to	 that	general	rule,	one	of	which	is	 that	a	health	care	practitioner	or	

facility	covered	by	section	1171-C may	disclose	confidential	health	care	information	“[a]s	directed	by	

order	of	a	court	or	as	authorized	or	required	by	statute.”		22	M.R.S.	§	1711-C(6)(F-1) (2020).
12

address	the	judicial	analysis	of	privilege	in	the	context	of	discovery	or	the	trial	

court’s	authority	to	order	the	disclosure	of	nonparty	medical	records.		See M.R.	

Evid.	 503	 (physician-patient	 privilege); M.R.	 Civ.	 P.	 26(b)(1)	 (permitting	

discovery	of	materials	“not	privileged”);	see	also Pinkham,	2016	ME	74,	¶¶ 10,	

13,	 139	 A.3d	 904	 (distinguishing	 confidentiality	 and	 privilege);	Burka	 v.	U.S.	

Dep’t	of	Health	& Human	Servs.,	87	F.3d	508,	518	(D.C.	Cir.	1996) (stating	that	

privileged	information	is	“presumptively	not	discoverable”).

[¶19]	 	 Thus,	 we	 turn	 to	 the	 question	 of	 whether	 the	 operative	 notes	

sought	 in	 this	 case	 are	 categorically	 protected	 by	 the	 physician-patient	

privilege	such	that	a	court	may	not	order	their	disclosure	without	a	waiver	of	

the	privilege	by	the	nonparty	patient,	or	whether	they	may	be	redacted	to	an	

extent	that	the	privilege	no	longer	applies.

C. Privilege

[¶20]	 	 MCH	 contends	 that	 the	 nonparty	 records	 are	 protected	 from	

discovery	by	the	physician-patient	privilege and	that,	in	the	absence	of	a	waiver	

by	 the	 nonparty	 patient,	 no	 redaction	 can	 abrogate	 that	 privilege.	 	 See M.R.	

Civ. P.	26(b)(1);	M.R.	Evid.	P.	503.		We	review	de	novo	the	“nature	and	scope”	

of	 the	 physician-patient	 privilege.	 	 See	 Dubois	 v.	 Dep’t	 of	 Env’t.	 Prot.,	

2017 ME 224,	¶ 13,	174	A.3d	314.
13

[¶21]		It	is	well	established	that	“discovery	is	not	a	limitless	mechanism	

to	obtain	information.”		Pinkham,	2016	ME	74,	¶	13,	139	A.3d	904.		Privileged	

information,	although	often	relevant,	is	“neither	discoverable	nor	admissible	at	

trial.”		Id.;	see	also M.R.	Civ.	P.	26(b)(1).		“Rules	of	privilege	are	designed	to	keep	

out	some	portion	of	the	truth	in	order	to	foster	relationships	that	as	a	matter	of	

social	 policy	 are	 deemed	 to	 deserve	 protection.”	 	 Field	 &	 Murray,	 Maine	

Evidence	§	501.1	at	206	(6th	ed.	2007).		One	such	privilege,	found	in	Maine	Rule	

of	Evidence	503,	protects	confidential	communications	between	a	patient	and	

the	patient’s	physician.

1. The	Physician-Patient	Privilege	in	Maine

[¶22]	 	 There	 was	 no	 physician-patient privilege	 at	 common	 law.	 	 The

privilege	was	 first	adopted	in	Maine	by	statute,	which	provided,	in	pertinent	

part:

Except	at	the	request	of,	or	with	the	consent	of,	the	patient,	

no	duly	licensed	physician	shall	be	required	to	testify	in	any	civil	or	

criminal	action	.	.	.	respecting	any	information	which	he	may	have	

acquired	 in	 attending,	 examining	 or	 treating	 the	 patient	 in	 a	

professional	capacity	if	such	information	was	necessary	to	enable	

him	to	furnish	professional	care	to	the	patient.	.	.	.	

Nothing	 in	 this	 section	 shall	 prohibit disclosure	 by	 a	

physician	 of	 information	 concerning	 a	 patient	 when	 such	

disclosure	is	required	by	law.
14

32	 M.R.S.A.	 §	 3295	 (Supp.	 1973).9	 	In	 1976,	 when	 we	 first	 promulgated	 the	

Maine	 Rules	 of	 Evidence	 in	 our	 capacity	 as	 the	 Supreme	 Judicial	 Court,	 we	

included	a	rule	specifically	adopting	the	physician-patient	privilege	because	we	

considered	the	statutory	privilege	in	section	3295	to	be	“a	dubious	protection	

to	the	confidentiality	of	the	relationship	[between	physician	and	patient],	since	

disclosure	would	be	required	when	a	court	in	the	exercise	of	sound	discretion	

deem[ed]	 such	disclosure	necessary	 to	 the	proper	administration	 of	justice.”	

M.R.	Evid.	503	Advisers’	Note	to	former	M.R.	Evid. 503 (Feb. 2, 1976)(quotation	

marks	omitted);	see	also Field	&	Murray,	Maine	Evidence §	503.1	at	225.		The	

Rule	 was	 intended	 to	 provide	 what	 the	 statutory	 privilege	 could	 not:	 “clear	

assurance	to	the	patient	.	.	.	before	the	communication	was	made	that	it	would	

not	be	ordered	to	be	disclosed.”10		M.R.	Evid.	503	Advisers’	Note	to	former	M.R.	

Evid. 503 (Feb.	 2,	 1976).	 	 Rule	 503	 is	 currently	 the	 only	 source	 of	 the	

physician-patient	privilege	in	Maine.

[¶23]	 	 Rule	 503	 provides	 that	 “[a]	 patient	 has	 a	 privilege	 to	 refuse	 to	

disclose,	 and	 to	 prevent	 any	 other	 person	 from	 disclosing, confidential	

9		Title	32	M.R.S.A.	§	3295	was	repealed	by	P.L.	1977,	ch.	564,	§	123	(effective	July	23,	1977).

10		The	physician-patient	privilege	is	not	absolute.		See M.R.	Evid.	503(e)	(providing	exceptions	not	

applicable	to	this	appeal).
15

communications	made	for	the	purpose	of	diagnosing	or	treating	the	patient’s	

physical,	mental,	or	emotional	condition,	including	alcohol	or	drug	addiction.”		

M.R.	 Evid.	 503(b)	 (emphasis	 added).	 	 Subject	 to	 several	 exceptions	 listed	 in	

Rule 503(e),	 none	 of	 which	 is applicable	 here,	 the	 Rule	 specifically	 protects	

confidential	 communications	 “between	 or	 among”	 the	 patient; the	 patient’s	

“health	 care	 professional,	mental	 health	 professional,	 or	 licensed	 counseling	

professional”; and “[t]hose	 who	 were	 participating	 in	 the	 diagnosis	 or	

treatment	 at	 the	 direction	 of	 the	 health	 care,	 mental	 health,	 or	 licensed	

counseling	professional.”	 M.R.	Evid.	503(b).

[¶24]	 	 Whereas Maine’s	 confidentiality	 statute protects “health	 care	

information,” 22	M.R.S.	§	1711-C(1)(E),	(2),	and	HIPAA	protects	“individually	

identifiable	 health	 information,”	 42	 U.S.C.S. § 1320d-6(a),	 Rule	 503	 protects	

“confidential	 communications.”	 	 Both	 the	 state	 and	 federal	 statutes permit	

disclosure	when certain	 information	 is	 redacted	 or	 withheld.	 	 See	 22	 M.R.S.	

§ 1711-C(1)(E),	(2);	42	U.S.C.S. §	1320d-6.		On	the	other	hand,	Rule	503	by	its	

plain	terms	does	not	provide that	redaction	of	discrete	pieces	of	information	

conveyed	 as	 part	 of a	 confidential	 communication	 will	 remove	 the	 entire	

communication	 from	 the	 privilege’s	 protection.	 	 See	 Wipf	 v.	 Altstiel,	

888 N.W.2d 790,	796-98	(S.D.	2016)	(Gilbertson, C.J.,	dissenting) (“Simply	put,	
16

.	.	.	a	patient	medical	record	is	a	confidential	communication,	regardless	of	the	

information	it	contains.”);	In	re	Columbia	Valley	Reg’l	Med.	Ctr.,	41	S.W.3d	797,	

800-02 (Tex. App.	 2001).	 	 Thus,	 in	 this	 context,	 the	 terms	 “confidential	

communication”	 and	 “information”	 are	 closely	 related,	 but	 they	 are	 not	

synonymous.

[¶25]		The	privilege	available	under	Rule	503	belongs	to	the	patient,	but	

it	 may	 also	 be	 claimed	 on	 behalf	 of	 the	 patient	 by	 the	 patient’s guardian,	

conservator,	 or	 personal	 representative.	 	 See M.R.	 Evid.	 503(d)(1);	 Field	

& Murray,	 Maine	 Evidence §	 503.3	 at	 227.	 	 Additionally,	 “[t]here	 is	 a	

presumption	 that	 the	 person	 who	 was	 the	 health	 care,	 mental	 health,	 or	

licensed	counseling	professional	at	the	time	of	the	communication	in	question	

has	 authority	 to	 claim	 the	 privilege	 on	 behalf	 of	 the	 patient.”	 	 M.R.	 Evid.	

503(d)(2).	 A	“health	care	professional”	is	“[a]	person	authorized	to	practice	as	

a	 physician;	 [a]	 licensed	 physician’s	 assistant;	 or	 [a]	 licensed	 nurse	

practitioner.”		M.R.	Evid.	503(a)(2).

[¶26]		Under	this	definition,	a	hospital	or	medical	facility,	such	as	MCH,	is	

not	 considered	 a	 health	 care	 professional	 and	 cannot	 claim	 the	 privilege	 on	

behalf	 of	 the	 patient.11	 	 See	 id.;	 see	 also	 State	 v.	 Moody,	 486	 A.2d	 122,	 124	

11	 	In	 contrast,	Maine’s	 confidentiality	 statute defines	a	 “health	 care	 practitioner”	as	 “a	 person	

licensed	 by	 this	 State	 to	 provide	 or	 otherwise	 lawfully	 providing	 health	 care	 or	 a	 partnership	 or	
17

(Me. 1984)	(holding	that	the	State	could	not	claim	the	privilege	on	behalf	of	a	

patient).12		However,	none	of	the	individuals	who	are	authorized	to	claim	the	

privilege	on	behalf	of	the	patient	under	Rule	503(d)	has the	capacity	to	waive

the	privilege;	that	right	belongs	to	the	patient	alone.		See	Seider	v.	Bd.	of	Exam’rs	

of	 Psychs.,	 2000	 ME	 206,	 ¶¶	 17,	 20,	 762	 A.2d	 551;	 see	 also	 Dorris	 v.	 Detroit	

Osteopathic	Hosp.	Corp.,	594	N.W.2d	455,	459	(Mich.	1999).

[¶27]	 	 In	 this	 case,	 although	 MCH	 did	 not	 claim	 the	 physician-patient	

privilege	on	behalf	of	the	nonparty	patients—and	could	not	have	done	so,	see	

M.R.	Evid.	503(d)—it	did	object	to	the	Estate’s	discovery	request	on	the	ground	

that	 the	 medical	 records	 sought	 by	 the	 Estate	 are	 privileged.	 	 See	 M.R.	

Civ. P. 26(b)(1)	 (“Parties	 may	 obtain	 discovery	 regarding	 any	 matter,	 not	

privileged . . . .”)	(emphasis	added).		In	precluding	the	discovery	of	matter	that	

is	 privileged,	 Rule	 26(b)(1)	 does	 not	 require	 that	 the	 party	 objecting	 to	 the	

discovery	request	be	the	holder	of	the	privilege.		Because	the	physician-patient	

corporation	made	up	of	those	persons or	an	officer,	employee,	agent	or	contractor	of	that	person	acting	

in	the	course	and	scope	of	employment,	agency,	or	contract	related	to	or	supportive	of	the	provision	

of	health	care	to	individuals.”		22	M.R.S.	§	1711-C(1)(F)	(emphasis	added).

12		In	State	v.	Moody,	486	A.2d	122,	124	(Me.	1984),	although	not	parties to	the	action,	the	minor	

patient,	 her	 family,	 and	 her	 physician	 were	 present	 and	 involved	 with	 the	 case	 and	 had	 the	

opportunity	 to	assert	 the	physician-patient	privilege	but	did	not	do	so.	 In	the	case	before	us,	 the	

nonparty	 patients	 have	 not	 been	 present	 or	involved,	likely	 do	 not	even	 know	that	their	medical	

records	are	being	sought,	and	have	had	no	opportunity	to	assert	the	privilege.
18

privilege	“continues	indefinitely,	and	can	be	waived	by	no	one	but	the	patient,”	

it	 is	 proper	 for	 a	 party	 to	 object	 to	 discovery	 if	 the	 materials	 requested	 in	

discovery	contain	such	privileged	communications.	 Dorris,	594	N.W.2d	at	459	

(quotation	marks	 omitted).	 	It	is	 on	 this	 basis	 that	we	 consider	whether	 the	

operative	notes	sought	in	 this	medical	malpractice	case	are	protected	by	 the	

physician-patient	 privilege even	 in	 the	 absence	 of	 the	 nonparty	 patients’	

presence	in	the	case	to	claim	it.

[¶28]		The	nonparty	patients	whose	medical	records	are	at	issue	here	are	

likely	 unaware	 that	 the	 court	 has	 issued	 an	 order	 compelling	 production	 of	

their	records.		See M.R.	Evid.	511(b)	(“A privilege	is	not	waived	by	a	disclosure	

that	was	.	.	.	[m]ade	without	opportunity	to	claim	the	privilege.”).		To	compel	

MCH	to	produce	the	medical	records	of	these	nonparty	patients	would	deprive	

them	 of	 the	 protection	 of	 their	 communications	 with	 their	 healthcare	

professionals	provided	by	the	privilege	simply	because	their	common	doctor,	

Dr.	Marietta, has	not	been	joined	as	a	defendant	and	the	hospital	cannot	claim	

the	 privilege	 under	 Rule	 503(d).	 	 A	 patient’s	 medical	 records	 are	 no	 less	

privileged	simply	because	the	patient	is	unaware	of	the	prospect	of	disclosure	

and,	therefore,	unable	to	assert	or	waive	the	privilege, and	none	of	the	other	

individuals	with	the	authority	to	assert	the	privilege	has been	made	a	party	to	
19

the	 suit.	 	 See	 M.R.	 Evid.	 503(b),	 511(b);	see	 also Tucson	 Med.	 Ctr.	 v.	 Rowles,	

520 P.2d	518,	523	(Ariz.	Ct.	App.	1974); Meier	v.	Awaad,	832 N.W.2d	251,	260	

(Mich.	Ct.	App.	2013).	 Therefore,	at	least	in	these	circumstances,	when	neither	

the	patient	nor	the	physician	is	a party	to	the	case,	we	consider	the	privilege	to	

exist	and	not	to	have	been	waived.		See M.R.	Evid. 511(b);	cf.	Tucson	Med.	Ctr.	v.	

Misevch,	545	P.2d	958,	961	(Ariz.	1976)	(“[W]hen	neither	the	physician	nor	the	

patient	has	an	interest	in	the	proceedings,	the	hospital	has	standing	to	assert	

the	privilege	to	protect	the	absent	patient.”).		We	therefore	conclude	that	the	

unredacted	patient	records	are	privileged	and	not	discoverable.		See M.R.	Civ. P.	

26(b)(1).

[¶29]	 	We	 next	 consider	whether	 the	 nonparty	medical	 records,	when	

redacted	 of	 all	 personally	 identifying	 information,	 are	 protected	 by	 the	

physician-patient	privilege.

2. Scope	of	the	Privilege:	Confidentiality	and	Redaction

[¶30]	 	 Rule	 503—the	 patient	 privilege	 rule—protects	 from	 disclosure	

“confidential	 communications.”	 	M.R.	 Evid.	 503(b).	 	Specifically,	 the	 patient’s	

privilege	 is	 “to	 refuse	 to	 disclose,	 and	 to	 prevent	 any	 other	 person	 from	

disclosing,	confidential	communications	made	for	the	purpose	of	diagnosing	or	

treating	 the	 patient’s	 physical,	 mental,	 or	 emotional	 condition.”	 	 M.R.	
20

Evid. 503(b)	(emphasis	added).		Pursuant	to	Rule 503(a)(5),	for	purposes	of	the	

privilege	rule,

A	 communication	 is	 “confidential”	 if	 it	 was	 not	 intended	 to	 be	

disclosed	to	any	third	persons,	other	than:

(A)		 Those	who	were	present	to	further	the	interests	of	the	

patient	in	the	consultation,	examination, or	interview;

(B)		 Those	 who	 were	 reasonably	 necessary	 to	 make	 the	

communication;	or

(C)		 Those	 who	 are	 participating	 in	 the	 diagnosis	 and/or	

treatment	under	the	direction	of	the .	.	. professional.		

This	includes	members	of	the	patient’s	family.

(Emphasis	added.)		Although	Rule	503	does	not	define	“communication,”	other	

courts	 have	 held	 that, in	 the	 context	 of	 the	 physician-patient	 privilege,

communication	includes	all	information	conveyed	verbally	between	a	patient	

and	a	physician	as	well	as	information	and	knowledge	gained	by	the	physician	

through	 observation	 and	 examination	 of	 the	 patient.	 See	 State	 v.	 Comeaux,	

818 S.W.2d 46,	 54-56	 (Tex.	 Crim.	 App.	 1991)	 (Campbell,	 J.,	 concurring)	

(collecting	 cases);	 see	 also	 State	 v.	 Schroeder,	 524	 N.W.2d	 837,	 839-42	

(N.D. 1994);	Williams	v.	City	of	Gallup,	421 P.2d	804,	808	(N.M.	1966) (stating	

that	“information	obtained	through	observation	or	examination	of	the	patient	

includes	 all	 inferences	 and	 conclusions	 drawn	 therefrom”).	 But	 whether	 a	

communication	is	confidential,	and	 therefore	privileged,	does	not	depend	on	
21

the	particular	content	of	the	communication or	the	specific	kind	of	information	

involved;	 instead,	 whether	 a	 communication	 benefits	 from	 the	 protections	

afforded	by	Rule	503	hinges	on	the	intention	of	the	patient	and	his	or	her	health	

care	 professional—whether	 the patient intended	 the	 communication	 “to	 be	

disclosed	to	any	third	persons.”		M.R.	Evid.	503(a)(5);	see	also	Wipf,	888	N.W.2d	

at	796-98	(Gilbertson,	C.J.,	dissenting) (positing that	redaction	cannot	“remove	

the	‘confidential’	quality	of	a	communication”	because	redaction	cannot	“create	

a	‘fixed	purpose’	in	the	mind	of	the	patient	to	disclose	the	communication,”	and	

therefore a	medical	record	remains	“confidential	as	long	as	the	patient	does	not	

intend	 to	 disseminate	it,	 regardless	 of	 whether	it	 has	 been	 redacted”); In	 re	

Columbia	 Valley	 Reg’l	 Med.	 Ctr.,	 41	 S.W.3d	 at	 800-03 (analogizing	 the	

physician-patient	privilege	to	the	attorney-client	privilege	and	observing	that	

in	the	attorney-client	context	a	trial	court	may	not	redact	information covered	

by	the	privilege	while	permitting	disclosure	of	the	rest	of	the document	once	it	

has	been	established	that	the	document	contains	a	confidential	communication	

because	the	privilege	extends	to	the	entire	document,	and	therefore “redaction	

of	any	or	all	privileged	portions	of	the	nonparty	medical	records	does	not	defeat	

the	privilege”);	Field	&	Murray,	Maine	Evidence §	503.2	at	226.
22

[¶31]		One	of	the	primary	questions	presented	by	this	appeal	is	whether	

the	 nonparty	 operative	 notes	 remain	 confidential,	 and	 therefore	 privileged,	

once	 personally	 identifying	 information is	 redacted—assuming	 that	 the	

redaction	can	be	accomplished	in	a	way	that	would	produce information	that	is	

relevant	 or	 reasonably	 calculated	 to	 lead	 to	 the	 discovery	 of	 admissible	

evidence.		See	infra	n.18.		Because	this	is	an	issue	of	first	impression	in	Maine,13

we	 consider	 the	 approaches	 of	 other	 states	 that	 have	 grappled	 with	 the	

disclosure	 of	 redacted	 nonparty	 medical	 records	 and	 the	 privacy	 concerns	

implicated.

[¶32]		The	states	are split	as	to	whether,	and	to	what	extent,	redacting	

personally	 identifying	 patient	 information	 de-identifies	 nonparty	 medical	

records	 sufficiently	 to	 remove	 the	 records	 from	 the	 ambit	 of	 the	

physician-patient	privilege.		However,	 there	is	general	agreement	among	 the	

states	that	certain	personally	identifying	information—such	as	a	patient’s	name	

and	address—is	absolutely	protected	by	the	physician-patient	privilege	and	is	

not	discoverable	under	any	circumstances.14

13		This	issue	was	presented	in	McCain	v.	Vanadia,	2018	ME	118,	¶	16,	191	A.3d	1174;	however,	

because	we	held	the	appeal	moot,	we	did	not	consider	the	case	on	the	merits.

14		See	e.g.,	In	re	Fink,	876	F.2d	84,	85	(11th	Cir.	1989) (applying	Florida	law to	prevent	disclosure	

of	 the	 names and	 addresses	 of	 a	 particular	 doctor’s	 patients	 who	 had	 undergone	 a	 particular	

procedure	during	a	specified	time); Bennett	v.	Fieser,	152	F.R.D.	641,	643-44	(D.	Kan.	1994)(allowing	

discovery	of	nonparty	medical	records	pursuant	to	a	Kansas	privilege	statute	where	“the	patient’s	
23

[¶33]		In	a majority	of	states	that	have	addressed	 the	issue, once	such	

identifying	information	has	been	redacted,	 the	physician-patient	privilege	no	

longer	protects	nonparty	medical	 records	 from	disclosure.15		In	other	states,

redaction	 of	 a	 nonparty’s	 personally	 identifying	 information	 is	 deemed	

insufficient	 to	 protect	 the	 nonparty’s	 privacy	 interests,	 so	 that the	

physician-patient	privilege	continues	to	prevent	the	disclosure	of	all portions	

of	 nonparty	 patient	 records	 even	 when the	 records	 have	 been	 significantly	

name	and	other	identifying	information	[are]	deleted	from	the	records,”	and	“the	parties	and	counsel	

.	.	.	 [were	ordered	 to]	make	no	effort	 to	learn	 the	identity	of	 the	patient	or	attempt	 to	contact	 the	

patient”);	 Ex	 parte	 Mack,	 461 So. 2d	 799,	 800-01	 (Ala.	 1984) (preventing	 disclosure	 of	 patients’	

names	and	addresses	in	an	action	against	a	clinic	and	physician	alleging	negligent	performance	of	an	

abortion);	Marcus	v.	Superior	Ct.,	95	Cal.	Rptr.	545,	546	(Cal.	Ct.	App.	1971) (preventing	disclosure	of	

the	names	and	addresses	of	certain	patients	who	had	received	the	same	medical	test	as	the	plaintiff);	

Meier	v.	Awaad,	832	N.W.2d	251,	254,	259-60	(Mich.	Ct.	App.	2013) (preventing	the	disclosure	of	the	

names and addresses	of	nonparty	patients).

15	 	 See	 e.g., Cochran	 v.	 St.	 Paul	 Fire	 &	 Marine	 Ins.	 Co.,	 909	 F.	 Supp.	 641,	 645	 (W.D.	 Ark.	 1995)

(applying	Arkansas	law	and	ordering	the	defendant	hospital	to	release	medication	incident	reports	

with	patient	names	omitted,	and	denying	the	defendant’s	request	to	further	redact	“the	name	and	

title	of	the	person	discovering	the	incident,	the	name	of	the	physician,	the	signature	and	title	of	the	

person	involved	in	the	incident,	the	section	entitled	analysis	of	the	medication	incident,	the	comment	

section,	and	the	name	of	the	department	manager”);	Ziegler	v.	Superior	Ct.,	656	P.2d	1251,	1254-56	

(Ariz.	 Ct.	 App.	 1982) (ordering	 discovery	 of	 nonparty	 medical	 records	 provided	 that	 the	 “name,	

address,	marital	status	and	occupation	or	employment”	and	“[a]ny	additional	information	that	would	

tend	 to	 identify	 the	 patient	 .	 .	 .	 except	 for	 age,	 sex	 and	 race”	 were	 removed (quotation	 marks	

omitted));	 Amente	 v.	 Newman,	 653	 So. 2d	 1030,	 1032-33	 (Fla.	 1995) (ordering	 the	 discovery	 of	

nonparty	medical	records	where	identifying	information—names	and	addresses—is	removed,	but	

providing	for	additional	procedural	safeguards	if	the	trial	court	is	not	satisfied	that	redaction	alone	

is	sufficient	to	protect	nonparty	privacy);	Terre	Haute	Reg’l	Hosp.,	Inc.	v.	Trueblood,	600	N.E.2d	1358,	

1361-62	(Ind.	1992) (allowing	the	production	of	unredacted	nonparty	medical	records	where	there	

are	“adequate	safeguards	to	protect	the	identity	of	the	non-party	patients,”	including	requiring	the	

plaintiff’s	attorney	and	expert	to	sign	a	confidential	protective	order	and	requiring	leave	of	court	to	

copy	inspected	 records,	 which	must	 be	 redacted	to	 remove patient	information);	Wipf	 v.	 Altstiel,	

888 N.W.2d	790,	794-95	(S.D.	2016) (holding	that	“anonymous,	nonidentifying	medical	information	

is	not	privileged	per	se”	because	“there	is	no	patient once	the	information	is	redacted”).
24

redacted.16		We	determine	that	the	nonparty	privacy	interests	at	stake	are	best	

served	 by	 the	 latter	 approach and	 that	 the	 physician-patient	 privilege of	

Rule 503	protects	the	entirety	of	privileged	medical	records.

[¶34]	 	 The	 physician-patient	 privilege	 protects	 “confidential	

communications	made	for	the	purpose	of	diagnosing	or	treating	the	patient’s	

physical,	mental, or	emotional	condition,	including	alcohol	or	drug	addiction.”		

M.R.	 Evid.	 503(b).	 	 The	 privilege	 represents	 an	 acknowledgement	 that	 the	

potential	evidentiary	value	of	patient	information	is	outweighed	by	the	benefit	

and	critical	importance	of	encouraging	a	trusting	relationship	between	patient	

and	 physician	 vital	 for	 full	 and	 effective	 treatment.	 “This	 out-of-court	

[relationship]	is	affected	by	giving	assurance	that	the	recipient	of	a	confidence	

16		See People	ex	rel.	Dep’t	of	Pro. Regul.	v.	Manos,	782	N.E.2d	237,	244-47	(Ill.	2002) (concluding	

that	disclosing	records	after	“merely	deleting	the	patient	names	and	other	identifying	information	

from	patient	records	would	violate	the	physician-patient	privilege”);	Parkson	v.	Cent.	DuPage	Hosp.,

435	 N.E.2d	 140,	 143-44	 (Ill.	 App.	 Ct.	 1982) (denying	 a	 discovery	 request	 for	 redacted	 nonparty	

medical	records	after the	court	concluded	that	redaction	would	not	sufficiently	protect	the	patients’	

expectation	of	privacy	when	they	disclosed	“prior	and	present	medical	conditions”	to	their	doctors);	

Meier,	832	N.W.2d	at	259	(observing	that	under	Michigan	law,	the	physician-patient	privilege	is	an	

“absolute	bar”	that	prohibits	unauthorized	disclosure	of	nonparty	medical	records,	even	when	the	

patient’s	identity	and	other	personal	information	are redacted);	Roe	v.	Planned	Parenthood	Sw.	Ohio	

Region,	912	N.E.2d	61,	71	(Ohio	2009) (concluding	that	“[r]edaction	of	personal	information	. . .	does	

not	 divest	 the	 privileged	 status	 of	 confidential	 records”);	 Buckman	 v.	 Verazin,	 54	 A.3d	 956,	 964	

(Pa. Super.	Ct.	2012) (denying	a	discovery	request	for	nonparty	surgical	records	where	the	nonparty	

patients	 had	 not	 consented	 to	 the	 disclosure	 of	 their	 records);	 see	 also	 Ortiz	 v.	 Ikeda,	

No. 99C-10-032-JTV,	2001	Del.	Super.	LEXIS	193,	at	*4-5	(Del.	Super.	Ct.	Mar.	26,	2001) (denying	a	

discovery	 request	 for	 redacted	 nonparty	medical	 records—even	if	 subsequently	 sealed—because	

none	 of	 the	 nonparties	 waived	 the	 privilege	 and	 the	 court	 was	 “not	 persuaded	 that	 redaction	 of	

names	adequately	protects	a	patient’s	legitimate	expectation	of	privacy”).
25

will	 not	 be	 required	 to	 disclose	it.”	 	 Field	&	Murray,	Maine	 Evidence §	 501.1	

at 206.	 	 Therefore,	 to	 foster	 this	 relationship,	 “it	 is	 necessary	 to	 secure	 the	

patient	 from	 disclosure	 in	 court	 of	 potentially	 embarrassing	 private	 details	

concerning	health	and	bodily	condition.”		1	Robert	P.	Mosteller,	McCormick	on	

Evidence § 98	at	692 (8th	ed.	2020).

[¶35]		The	United	States	Supreme	Court	considered	such	public	policy	

objectives	and	the	balance	of	privacy	concerns and	evidentiary	interests	when	

it	 sanctioned	 the	 use	 of	 the	 psychotherapist	 privilege	 in	 federal	 litigation.17		

See generally Jaffee v. Redmond, 518 U.S. 1 (1996).		There,	the	Court	opined	that	

“the	 psychotherapist-patient	 privilege	 is	 rooted	 in	 the	 imperative	 need	 for	

confidence	 and	 trust”	 and	 that	 “the	 mere	 possibility	 of	 disclosure	 [of	

confidential	 communications] may	 impede	 development	 of	 the	 confidential	

relationship	 necessary	 for	 successful	 treatment.”	 	Id. at 10 (quotation marks

omitted).		The Court made clear that the likely evidentiary benefit that would

result from the disclosure of such sensitive personal information is modest

when compared with the significant interest of the patient in seeking and the

public in “facilitating the provision of appropriate treatment.”		Id. at 11.

17		Rule	503	includes	provisions	protecting	communications	made	during	 the	course	of	mental	

health	and	counseling	treatment.		M.R.	Evid.	503(a)(1)(B)-(C),	(b).
26

[¶36]		Several states have applied this same reasoning when considering

the scope of the physician-patient privilege as it pertains to redacted nonparty

medical records.	 	For example, in Roe v. Planned Parenthood Southwest Ohio

Region, 912 N.E.2d 61, 71 (Ohio 2009), the Supreme Court of Ohio concluded

that “[r]edaction of personal information . . . does not divest the privileged

status of confidential [medical] records.”		In	that	case,	the	parents	of	a	minor	

who	received	an	abortion	at	a	Planned	Parenthood	facility	sought	the	medical	

records	of	nonparties—many	of	whom	were	also	minors—in	a	civil action	for	

damages.	 	 Id.	 at	 64-65.	 	 The	 parents	 did	 not	 dispute	 that	 the	 records	 were	

confidential	and	contained	privileged	information;	however,	they	argued	that	

redaction	 of	 the	 patients’	 personally	 identifying	 information	 removed	 the	

confidential	 and	 privileged	 status	 of	 the	 records.	 	 Id.	 at	 67.	 	 Over	 Planned	

Parenthood’s	 objection	 and	 motion	 for	 a	 protective	 order,	 the	 trial	 court	

ordered	Planned	Parenthood	to	turn	over	the	medical	records	but	specifically	

ordered	that	“all	patient-identifying	information	[be]	redacted	from	the	records	

produced.”		Id.	at	66.		The	Ohio	Supreme	Court,	affirming	the	appellate	court’s	

reversal	of	the	trial	court’s	order	compelling	discovery,	held	that	“[r]edaction	

is	 merely	 a	 tool	 that	 a	 court	 may	 use	 to	 safeguard	 the	 personal,	 identifying	

information	within	confidential	records	that	have	become	subject	to	disclosure	
27

either	 by	 waiver	 or	 by	 an	 exception,”	 but	 that	 it	 was	 not	 a	 mechanism	 for	

circumventing	the	physician-patient	privilege.		Id.	at	66,	71.

[¶37]		Other	courts	concur in	that	approach.		See,	e.g., People	ex	rel.	Dep’t	

of	 Pro. Regul. v.	 Manos,	 782	 N.E.2d	 237,	 246-47	 (Ill.	 2002) (rejecting	 the	

argument	that	“deleting	the	patient	names	and	identifying	information	from	the	

records	 removes	 the	 records	 from	 protection	 under	 the	 physician-patient	

privilege”	and	 concluding	 that	 “merely	 deleting	 the	patient	names	and	 other	

identifying	 information	 from	 patient	 records	 would	 [not	 circumvent] the	

physician-patient	 privilege”);	 Meier,	 832	 N.W.2d	 at	 259	 (stating	 that	 “the	

physician-patient	 privilege	 prohibits	 disclosure	 even	 when	 the	 patient’s	

identity	is	redacted”	and	that	“[t]he	names,	addresses,	telephone	numbers,	and	

medical	information	relative	to	nonparty	patients	 fall	within	the	scope	of	the	

physician-patient	privilege”);	In	re	Columbia	Valley	Reg’l	Med.	Ctr.,	41	S.W.3d	

at 803	(concluding	that	“the	requested	nonparty	medical	records	in	redacted	

form	remain	privileged”);	see	also	Ortiz	v.	Ikeda,	No.	99C-10-032-JTV,	2001	Del.	

Super.	LEXIS	193,	at	*4-5	(Del.	Super.	Ct.	Mar.	26,	2001) (concluding	that	“[t]he	

redaction	 of	 names	 does	 not	 alter	 the	 fact	 that	 the	 operative	 notes	 are	

privileged”	 because	 allowing	 the	 disclosure	 of	 redacted	 nonparty	 patient	

medical	 records	 “would	mean	 that	 the	 patient’s	 only	 real	 privilege	is	 that	 of	
28

having	 his	 name	 deleted	 before	 his	intimate	medical	 records	 are	interjected	

into	a	civil	lawsuit	without	his	knowledge	or	consent”).

[¶38]	 	 In	 this	 case,	 the	 Estate	 seeks	 the	 operative	 notes	 contained	 in

nonparty	medical	records.		The	trial	court	ordered	MCH	to	produce	the	notes	

but	 specified	 that	 “[e]ach	 redacted	 record	 shall	 include	 only the	 year	 of	 the	

surgery,	the	name	of	the	surgeon	(Dr.	Marietta),	the	name	of	the	procedure,	and	

a	portion	of	the	section	labeled	‘operative	procedure’	(i.e.,	all	information	other	

than	the	year,	the	name	of	the	surgeon,	the	name	of	the	procedure,	and	a	portion	

of	 the	 ‘operative	 procedure’	 section	 will	 be	 redacted).”	 	 The	 operative	

procedure	 section	 of	 the	 note	was	 to	 be	 further	 redacted	 of	 “any	identifying	

information	(e.g.,	name,	date	of	birth,	age,	sex,	race)”	and disclose	information

“only	 to	 the	 point	 in	 the	 surgery	 where	 the	 gallbladder	 was	 removed.”		

However,	 these	 operative	 notes	 themselves	 constitute confidential	

communications—records	created	by	Dr. Marietta	 to	inform	her	patients	and	

their	other	treatment	providers	about	the	techniques	used	during	surgery,	the	

outcome	of	 the	procedure,	any	challenges	encountered	during	 the	operation,	

and	 anything	 else	 relevant	 to	 the	 procedure	 or	 associated	 medical	 care	 and	

treatment.		M.R.	Evid.	503(b);	Ortiz,	2001	Del.	Super.	LEXIS	193,	at	*3	(stating	

that	“a	doctor’s	communication,	set	to	paper	in	the	form	of	an	operative	note,	
29

of	the	details	of	a	surgical	treatment	performed	on	a	patient”	is	a	“confidential	

communication”	and	protected	by	 the	physician-patient	privilege).		Although	

the	 trial	 court	 ordered	 substantially	more	 redaction	 than	many	 other	 courts	

have,	see	supra n.14,	the	nonparty	records	even	in	this	heavily	redacted	form	

remain	 protected	 by	 the	 physician-patient	 privilege	 and	 are therefore not	

discoverable.

[¶39]	 	Absent	 a	 waiver	 of	 the	 privilege,	it	must	 be	 presumed	 that	 the	

nonparty	patients	in	this	case,	like	the	patients	in	Parkson	v.	Central	Du	Page	

Hospital,	 435	 N.E.2d	 140,	 143-44	 (Ill.	 App.	 Ct.	 1982),	 for	 example,	 disclosed	

private	medical	information	to	their	health	care	providers	with	an	expectation	

of	 privacy.	 	 These	 disclosures	were	made	in	 an	 environment	marked	 by	 the	

assurance	that	their	private	medical information	would	be	kept	in	confidence	

by	 their	 doctors	 and	 other	 treatment	 professionals.	 	 Likewise,	 the	 operative	

notes	made	by	Dr.	Marietta	following	the	surgeries were	for	the	benefit	of	her	

patients	 and	 were	 part	 of	 the	 ongoing	 confidential	 dialogue	 among	 the

physician,	the patient,	and	other	care	providers.

[¶40]		Because	there	is	no	evidence	that	the	nonparty	patients	in	this	case	

intended for	any	portion	of	these	confidential	communications	“to	be	disclosed	

to	 any	 third	 persons,”	 	 M.R.	 Evid.	 503(a)(5),	 their	 medical	 records	 must	 be	
30

deemed	to	remain	privileged	in	their	unredacted	and	redacted	forms.18		See,	e.g.,

Meier,	832	N.W.2d	at	259;	Roe, 912	N.E.2d	at	71.		To	hold	otherwise	would	erode	

the	necessary	trust	between	physician	and	patient	and	impede	the	delivery of	

effective	physical,	emotional,	and	mental	health	services—the	very	purpose	of

the	 privilege.	 	 See M.R.	 Evid.	 503	 &	Advisers’	Note	 to	 former	 M.R.	 Evid. 503

(Feb. 2,	 1976);	 Field	 & Murray,	 Maine	 Evidence	 §	 501.1	 at	 206;	 1 Robert	

P. Mosteller,	 McCormick	 on	 Evidence § 98	 at	 692.	 The	 trial	 court	 erred	 in	

ordering	the	production	of	the	nonparty	operative	notes	in	the	circumstances	

of	this	case, and	we	vacate	the	court’s	judgment	to	the	extent	it	compelled	their	

disclosure	by	MCH.

The	entry	is:

The	 portion	 of	 the	 discovery	 order	 compelling	

disclosure	 of	 any	 medical	 records	 of	 nonparty	

patients	vacated.		Remanded	 for	issuance	of	an	

18		The	Estate’s	argument	also	hinges	entirely	on	the	premise	that	the	redaction of	all	identifying	

information	 from	 a	 patient	 record	 makes	 it	 impossible	 to	 identify	 the	 patient.	 	 That	 premise	 is	

demonstrably	not	true	in	all	cases.		For	example,	if	one	party	to	litigation	seeks	discovery	of	the	other	

party’s	patient	records,	the	identity	of	the	patient	is	obvious	even	if	the	records	are	redacted.		Thus,	

the	Estate’s	premise	is	true	only	when	the	requester	does	not	know	the	identity	of	the	patient	whose	

records	are	requested.		Even	then,	if	either	the	medical	condition	or	the	medical	procedure	described	

in	 the	 record	is	 uncommon,	it	may	 be	 possible	 to	 deduce	 the	identity	 of	 the	 patient	 from	 a	 fully	

redacted	record.		The	disclosure	of	other	information	in	medical	records,	for	instance	the	date	of	a	

procedure	performed	in	a	small	community hospital,	could	also	create	“the	possibility	of	recognizing	

and	equating	a	record”	with	a	particular	patient.		Manos,	782	N.E.2d	at	247.		For	us	to	give	blanket	

endorsement	to	discovery	of	redacted	patient	records	would	be	antithetical	to	the	letter	and	spirit	of	

M.R.	Evid.	503.
31

order	denying	that	part	of	the	motion	to	compel.		

In	all	other	respects,	appeal	dismissed.

JABAR,	J.,	dissenting.

[¶41]	 	 Although	 I	 agree	 that	 neither	 the	 Maine	 statute	 providing	 for	

confidentiality	of	health	care	information, 22 M.R.S.	§	1711-C	(2020),	nor	the	

Health	 Insurance	 Portability	 and	 Accountability	 Act	 (HIPAA),	 42	 U.S.C.S.	

§ 1320d-6	 (LEXIS	 through	 Pub.	 L. No. 116-91),	 prevent	 the	 disclosure	 of	

medical	records	when	identifying	information	is	redacted,	I	respectfully	dissent	

because	I	believe	that	the	physician-patient	privilege	set	out	in	Maine	Rule	of	

Evidence 503	does	not	prevent	the	disclosure	of	relevant	medical	records	of	an	

unidentified	nonparty	patient.		I	would	follow	the	near	unanimous approach	of	

the	other	jurisdictions	 that	have	considered	 this	issue	and	hold	 that	relevant	

health	information	that	does	not	identify	the	patient	is	not	privileged.	 This	is	

the	same	approach	taken	in	HIPAA and	the	Maine	statute.

A. HIPAA and	the	Maine	statute

[¶42]	 	 I	 concur	 in	 the	 Court’s	 opinion	 indicating	 that	 the	 requested	

medical	 records	 are	 not	 confidential	 under HIPAA and	 the	 Maine	 statute,	

however	 I	 believe	 that	 it	 is	 unnecessary	 to	 rely	 on	 the	 statutes’	 respective
32

court-order	exceptions	for	the	disclosure	of	health	information.		See	22	M.R.S	

§ 1711-C(6)(F-1);	45	C.F.R. 164.512(e).

[¶43]		Under	HIPAA,	it	is	a	violation	to	disclose	“individually	identifiable	

health	 information.”	 42	 U.S.C.S.	 §	 1320d-6. Section	 1320d(6) defines	

“individually	identifiable	health	information”	as	any	information	that	

(B)	relates	to .	.	. [health	information]	and—

(i)	identifies	the	individual;	or	

(ii)	 with	 respect	 to	 which	 there	 is	 a	 reasonable	 basis	 to	

believe	 that	 the	 information	 can	 be	 used	 to	 identify	 the	

individual.

42	 U.S.C.S.	 §	 1320d(6).	 	By	 definition, unidentified	 health	information	is	 not	

confidential.

[¶44]		Similarly, under	the	Maine	statute,	section	1711-C(1)(E), defines	

health	 care	information	 as	“information	 that	 directly	 identifies	 the	 individual

and	 that	 relates	 to	 an	 individual’s	 physical,	 mental	 or	 behavioral	 condition,	

personal	 or	 family	 medical	 history	 or	 medical	 treatment	 or	 the	 health	 care	

provided	to	that	individual.” See	22	M.R.S.	§ 1711-C(1)(E) (emphasis	added).		

It	 specifically	 states	 that	 “‘[h]ealth	 care	 information’ does	 not	 include	
33

information	 that	 protects	 the	 anonymity	 of	 the	 individual by	 means	 of	

encryption	or	encoding	of	individual	identifiers .	.	.	.”		Id.

19

[¶45] Pursuant	 to both	 the	 federal	 and	 state	 statutes, health	 care	

information	that	does	not	identify	the	patient	is	not	confidential.		See 42	U.S.C.S.	

§ 1320d-6;	22	M.R.S	§ 1711-C(1)(E).	 Therefore, there	is	no	need	to	refer	to	the	

sections	 allowing	 disclosure	 pursuant	 to court	 order.	 The	 corresponding	

exceptions dealing	with	court	orders	permit	the	court	to	order	the	disclosure	

of	 protected	 health	 care	 information—information	 that	 is	 identifiable	 and	

therefore	confidential.		See 22	M.R.S	§ 1711-C(6)(F-1);	45	C.F.R. 164.512(e). In	

this	 case, the	medical	information	 does	 not	 fit	 the	 definition	 of	 “individually	

identifiable	health	information,” see	42	U.S.C.S.	§	1320d(6),	nor	does	it	“directly	

identify	the	individual,”	22	M.R.S.	§	1711-C(1)(E).	 The	requested	health care

information	in	this	case	is	by	definition	not	confidential,	and	therefore	there	is	

no	 need	 to	 obtain	 a	 court	 order	 pursuant	 to	 section	 1711-C(6)(F-1).	 	 See

22 M.R.S.	§	1711-C(1)(E),(2),	(6).

19		Section	1711-C(1)(E)	directs	 the	Maine	Health	Data	Organization (MHDO) to	adopt	rules	 to	

define	what	constitutes	“identifying	information.”		22	M.R.S.	§	1711-C	(1)(E)(2020).		The	MHDO	rules	

specify	 twenty-five	items	as	identifying	information.		See	90-590	C.M.R.	ch. 125	(effective	Feb.	17,	

2009).		None	of	these	identifiers	would	be	present	in	the	redacted	operative	notes	at	issue	pursuant	

to	the	court	order.
34

B. Privilege

[¶46]		I	also	disagree	with	the	Court’s	holding	that	Maine	Rule	of	Evidence	

503(b)	protects	the	health	care	information	in	this	case	because	I	believe	that	

we	should	adopt	the	same	approach	as	the	federal	and	state	confidentiality	laws

(HIPAA &	the	Maine	statute)—if	the	individual	is	not	identifiable then	the	rule	

does not	apply.		42	U.S.C.S.	§ 1320d-6;	22	M.R.S	§	1711-C(1)(E),	(2).

[¶47]	 	 Based	 upon	 the	 recognition	 that	 the	 confidentiality	 of	 the	

physician-patient relationship	is	paramount	to	medical	care,	the	Maine	statute	

prohibits the	 unauthorized	 disclosure	 of	identifiable information	 obtained	in	

the	context	of	that relationship.		See	22	M.R.S.	§	1711-C;	P.L. 1997,	ch.	793;	see	

also	An	Act	to	Provide	for	Confidentiality	of	Healthcare	Information and	An	Act	

Regarding	 Access	 to	 Medical	 Information:	 Hearing	 on	 L.D.	 1737	 &	 L.D.	 1779

Before	 the	J.	Standing	 Comm.	 on	Health	&	Human Servs.,	 118th	 Legis.	 (1997).		

Thus,	 section	 1711-C	 “establishes	 safeguards	 for	 maintaining	 the	

confidentiality,	 security	 and	 integrity”	 of	 an	 individual’s	 identifiable	 health	

information.		L.D.	1737,	Enacted	Law Summary (118th	Legis.	1998).		

[¶48]	 	 The physician-patient	 privilege	 in	 Maine	 arises	 from	 our	 own	

evidentiary	rules.20 Maine	Rule	of	Evidence	503(b)	protects	 from	disclosure	

20	 	 The	 since-repealed	 statutory	 privilege	 cited	 by	 the	 Court	 “could	 not	 give	 assurance	 to	 the	

patient	that	what	the	patient	said	would	not	be	disclosed.”		Field	&	Murray,	Maine	Evidence	§	503.1	
35

“confidential communications	made	for	the	purpose	of	diagnosing	or	treating	

the	patient’s	physical,	mental,	or	emotional	condition.”		Like	other	evidentiary	

privileges,	the	physician-patient	privilege	exists	to	serve	the	public	interest	by	

encouraging	complete	and	honest	discourse	between	a	patient	and	their	doctor.		

See Jaffee	v.	Redmond,	518	U.S.	1,	11	(1996);	Lewin	v.	Jackson,	492	P.2d	406,	410	

(Ariz.	 1972).	 	 The	 physician-patient	 privilege	 facilitates	 this	 interest	 by	

“secur[ing]	 the	 patient	 from	 disclosure	 in	 court	 of	 potentially	 embarrassing	

private	details	concerning	health	and	bodily	condition.”		1 Robert	P.	Mosteller,	

McCormick	on	Evidence §	98	at	692	(8th	ed.	2020).

[¶49]		Here	we	are	not	interpreting	a	statutory	confidentiality	provision,	

but	considering	our	own	evidentiary	rule	and	setting	policy	based	on	that	rule.		

Although	we	are	not	bound	by	the	Maine	statute’s	definition	of	confidentiality	

in	 interpreting	 Rule	 503,	 we	 should	 be	 wary	 of	 adopting	 a	 policy	 that	 is	

incongruous	with	that	of	the	Maine	Legislature.		Rule	503	and	the	Maine	statute	

both	 seek	 to	 facilitate	 effective	 health	 care	 services	 by	 protecting	 the	

confidentiality	 of	 the	 physician-patient	 relationship.	 	 See	 M.R.	 Evid.	 503	

Advisers’	Note	to	former	M.R.	Evid.	503	(Feb.	2,	1976).		We	should	not	interpret	

at	225;	see 32	M.R.S.A.	§	3295	(Supp.	1973),	repealed	by	P.L.	1977,	ch.	564,	§	123	(effective	July	23,	

1977).
36

Rule	 503	 as	 preventing	 disclosure	 of nonidentifiable	 health	 information	

because	 such	 an	interpretation	 conflicts	 with	 the	 Legislature’s policy, which

does	 not	 prevent	 disclosure	 of nonidentifiable	 health	 care	 information. See	

22 M.R.S.	§ 1711-C(1)(E),	(2).		 In	this	case,	pursuant	to HIPAA and	the	Maine	

statute,	 the	 hospital	 could	 produce	 these	 records	 (properly	 redacted)	 to	 the	

estate,	 or	 to	anyone	 that	 requests	 them,	but	under	 the	Court’s	holding	 these	

same	records	could	not	be	produced	to	the	litigants	because	Rule 503	prohibits	

disclosure.

[¶50]	 	 When any	 and	 all	 information	 that	 could	 potentially	 identify	 a	

patient	 is	 redacted	 prior	to	 the	 disclosure	 of	 a	 relevant	 medical	 record,	 the	

privilege	should	not	be	applicable.		In	the	absence	of	identifying	information,	

there	is	no	“patient”	for	the	privilege	to	protect	and	the	information	contained	

within	 the	 redacted	 medical	 records	 becomes “nothing	 more	 than	 medical	

terminology.”	 Staley	v.	Jolles,	230	P.3d	1007,	1011	(Utah	2010); see	also Wipf	v.	

Altstiel,	 888	 N.W.2d	 790,	 794	 (S.D.	 2016) (“This	 type	 of	 anonymous,	

nonidentifying	information	is	not	protected	by	the	physician-patient	privilege	

because	there	is	no	patient once	the	information	is	redacted.”)		Likewise,	the	

purpose	 that	 the	privilege	exists	 to	serve	is	no	longer	served	because	 “[i]t	is	

unlikely	that	a	patient	would	be	inhibited	from	confiding	in	his	physician	where	
37

there	 is	 no	 risk	 of	 humiliation	 and	 embarrassment,	 and	 no	 invasion	 of	 the	

patient’s	privacy.”	 Terre	Haute	Reg’l	Hosp.,	Inc.	v.	Trueblood,	600	N.E.2d	1358,	

1361	(Ind.	1992).		

[¶51]		A	substantial	majority	of	other	jurisdictions	follows	the	approach	

of	allowing	for	the	discovery	of	relevant	medical	records	when	information	that	

could	identify	a	nonparty	patient	has	been	redacted.		See,	e.g.,	Wipf,	888	N.W.2d	

at	793	(collecting	cases);	Staley,	230	P.3d	at	1011; Baptist	Mem’l Hosp.-Union	

Cnty. v.	Johnson,	754	So.	2d	1165,	1169-71	(Miss.	2000); State	ex	rel.	Wilfong	v.	

Schaeperkoetter,	933	S.W.2d	407,	409-10	(Mo.	1996);	Amente	v.	Newman,	653	

So.	2d	1030,	1033	(Fla. 1995);	Terre	Haute	Reg’l	Hosp.,	600	N.E.2d	at	1361-62;	

Cmty.	 Hosp.	 Ass’n	 v.	 Dist.	 Ct.,	 570	 P.2d	 243,	 244-45	 (Colo.	 1977);	 Rudnick	 v.	

Superior	Ct.,	523	P.2d	643,	650	n.13	(Cal.	1974); Snibbe	v.	Superior	Ct.,	168	Cal.	

Rptr.	 3d	 548,	 556-57	(Cal.	 App.	 Ct.	 2014);	 Bennet	 v.	 Fieser,	 152	 F.R.D.	 641,	

643-44	 (D.	 Kan.	 1994); Todd	 v.	 S.	 Jersey	 Hosp.	 Sys.,	 152	 F.R.D.	 676,	 684-87

(D.N.J. 1993).

[¶52]		To	protect	 the	anonymity	of	nonparty	patients,	courts	 following	

the	majority	approach	have	taken	a	variety	of	steps	to	ensure	that	any	and	all	

identifying	information	has	been	redacted	from	the	medical	records, including	

not	just	patient	names,	but	any	other	information	that	could	reasonably	lead	to	
38

the	 identification	 of	 a	 patient—e.g.,	 dates	 of	 birth,	 locations	 and	 dates	 of	

treatment,	 family	 and	 medical	 histories,	 or	 any	 other	 information	 deemed	

necessary.		See,	e.g.,	Wipf,	888	N.W.2d	at	795;	Cmty.	Hosp.,	570	P.2d	at	244.	

[¶53]		In	Wipf	v.	Altstiel,	the	South	Dakota	Supreme	Court	held	that	“[i]n	

accordance	with	the	rationale	of	.	.	.	the	almost	unanimous	view	of	other	courts,	

we	 too	 hold	 that	 anonymous,	 nonidentifying	 medical	 information	 is	 not	

privileged	per	se.”	 Wipf,	888	N.W.2d	at	794.		In	Wipf and	other	similar	cases,	the	

courts	 have	 ordered	 procedural	 steps	 to	 protect	 the	 information	 provided	

within	the	medical	records,	such	as issuing	protective	orders	requiring	leave	of	

court	to	copy	records,	and	limiting	who	the	redacted	records	may	be	disclosed	

to	 for	 the	 purposes	 of	litigation.	 	 See	Wipf,	 888	N.W.2d	 at	 795;	Terre	Haute,	

600 N.E.2d	at	1362.		

[¶54]	 	 In	 this	 case,	 the	trial	 court	 took	 significant	 steps	 to	 protect	 the	

identity	 of	 any	 nonparty	 patients	 and	to	 ensure	 that	 the	 request	 was	 not a	

fishing	 expedition.	 The	 trial	 court	 first	 determined	 that	 the	 requested	

information	was	relevant.		The	trial	court	stated,	“Here,	because	the	standard	

relied	upon	by	the	parties	requires	some	assessment	of	the	physician’s	usual	

practice,	 the	 procedure	 the	 physician	 has	 used	 in	 other	 surgeries	 has	 some	

tendency	to	make	it	more	or	less	probable	that	she	breached	the	standard	of	
39

care.”		After	making	this finding	of	relevance	for	purposes of	discovery,	the	trial

court	 ordered	 the	 production	 of	 twenty-five redacted notes	 on	 operations	

performed	by	Dr. Marietta	before	the	surgery	on	Kennelly	and	twenty-five on	

operations performed	 after	it.21	 	The	 trial	 court	 ordered	 that	all	information

except “the	 year	 of	 the	 surgery,	 the	 name	 of	 the	 surgeon	 (Dr. Marietta),	 the	

name	 of	 the	 procedure,	 and	 a	 portion	 of	 the	 section	 labeled	 ‘operative	

procedure’”	 be	 redacted.	 	To	 the	extent	 there	is	any	identifying	information,	

(e.g., name,	date	of	birth,	age,	sex,	 race)	in	 the	‘operative	procedure’ section,	

such	information	shall	also	be	redacted.”		Further	still,	the	trial	court	subjected	

the	 already	 highly-redacted	 information	 to	 a	 protective	 order,	 stating	 that	

“[p]laintiff’s	counsel	shall	not	attempt	to	identify	persons	whose	identities have	

been	 redacted	 and	 shall	 not	 provide	 copies	 to	 anyone,	 other	 than	 expert	

witnesses	in	the	case	.	.	.	.”		

[¶55]		This	is	not	to	say	that	redactions	in	all	cases	make	the	protections	

of	the	physician-patient	privilege	inapplicable.		The physician-patient	privilege,	

although	broad,	should	not	be a blunt	impediment	 to	 the	discovery	of	highly	

21		Because	I	agree	with	the	trial	court	that	the	procedure	used	by	Dr.	Marietta	in	the	twenty-five	

surgeries	before	Kennelly’s	and the	twenty-five	surgeries	after	Kennelly’s	has	some	tendency	to	make	

it	more	 or	less	probable	 that	 she	 breached	 the	 standard	 of	care,	 I	would	hold	 that	 the	 trial	court	

properly	concluded	that	the	requested	operative	notes	from	the	twenty-five	surgeries	that	took	place	

after	Kennelly’s	are	relevant	for	purposes	of	discovery.
40

relevant	 medical	 records	 when	 there	 is	 a	 sufficient	 guarantee	 of	 anonymity	

through	the	use	of	redactions	or	other	procedural	protections.		“Whether	and	

under	 what	 circumstances	 redaction	 can	 make	 good	 on	 its	 promise	 of	

anonymity	 depends	 on	 the	 circumstances	 of	 each	 case.”	 	 Staley,	 230	 P.3d	 at	

1012.	 	 In	 this	 vein,	a	 recent	 dissent	in	McCain	 v.	 Vanadia raised	 the	issue	 of	

whether,	even	with	substantial	redactions,	 the	identities of	patients	could	be	

protected	in	“smaller	Maine	communities	where	only	a	few	treatments	may	be	

provided	 per	 year.”	 	 2018	 ME	 118,	 ¶	 27,	 191	 A.3d	 1174	 (Alexander,	 J.,

dissenting).	 	 This,	 and	 other	 similar	 concerns,	 however,	 would	 properly	 be	

considered	 by	 the	 court	 on	 a	 case-by-case	 basis	 prior	 to	 issuing	 an	 order	

compelling	 the	 production	 of	medical	 records.	 	 See	Wipf,	 888	N.W.2d	at 795	

(noting	that,	on	remand,	the	court	should	consider	when	the	small	population	

would	make	identification	of	patients	likely);	Staley,	230	P.3d	at 1013	(noting	

that	a	large	population	served	by	multiple	hospitals	increased	 the	likelihood	

that	anonymity	would	be	preserved).		If	“the	prospect	of	preserving	anonymity	

through	redaction	[is]	too	uncertain,”	Staley,	230	P.3d	at	1013, then	the	court,	

in	 its	 discretion,	 could	 deny	 the	 request	 for	 records,	 even	 with	 substantial	

redactions.
41

C. Conclusion

[¶56]		It	does	not	make	sense	to	hold	that	HIPAA and	the	Maine	statute

provide	less	protection	to	a	patient’s	confidential	record	than	a	court	created	

rule	of	evidence	pertaining	to	the	same	records.	

[¶57]		In	 this	case,	 I	believe	 that	 the	 trial	court	 took	sufficient	steps	 to	

protect	 the	 identity	 of	 the	 nonparty	 patients	 whose	 medical	 records	 are	 at	

issue.		I	would	affirm	the	trial	court’s	order	compelling	the	production	of	the	

operative	notes along	with	the	safeguards	ordered	by	the	court.

Philip	 M.	 Coffin	 III,	 Esq.,	 and	 Abigail	 C.	 Varga,	 Esq.	 (orally),	 Lambert	 Coffin,	

Portland,	for	appellant	Mid	Coast	Hospital

Travis	M.	Brennan,	Esq.	(orally),	and	Taylor	A.	Asen,	Esq.,	Berman	&	Simmons,	

P.A.,	Lewiston,	for	appellee Estate	of	Carol	A.	Kennelly

Karen	 Frink	 Wolf,	 Esq.,	 and	 Rachel	 M.	 Wertheimer,	 Esq.,	 Verrill Dana	 LLP,	

Portland,	 for	 amici	 curiae	 Maine	 Hospital	 Association	 and	 Maine	 Medical	

Association

Thomas	L.	Douglas,	Esq.,	Douglas,	McDaniel	&	Campo	LLC,	PA,	Westbrook,	for	

amicus	curiae	Maine	Trial	Lawyers	Association

Cumberland	County	Superior	Court	docket	number	CV-2016-471

FOR	CLERK	REFERENCE	ONLY