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,	HUMPHRE Y ,	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	 part ies to	 these proceedings, even when	 redacted to	 remove personally	 identifying information,	are	protected	from	discovery	by	statutes providing	for p atient	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.		J ustices	Alexander	and	Hjelm also participated	in the first	 argument,	 but	 they retired	 before	 this	 opinion	 wa s	 certified.	 	 Justice	 Hjelm	 is	 now participating	in	this	appeal	a s	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	(20 20 ) , 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	part ies to these	 proceedings	 and	 (2)	 the	 person nel	 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	ar e 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	th e 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	 const rued	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	 t rial	 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 th erefore	is	no	longer	challenging	th ose portion s 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	 referen ces	 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	i s	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	prelitigation4 screening	 panel	 process. See 24	 M.R.S.	 §	 2853(1)	 (20 20 ) ;	 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 allege s that	MCH	 bre ached	its	 duty	 to	Kennelly when
Dr. Marietta	perform ed 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,	M CH’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	re dactions, for the twenty
- five	gallbladder	removal surgeries she performed	on	nonpart y patients5 before	Kennelly’s	 surgery	and the twenty
- five	gallbladder	 removal	 surgeries she performed	on	nonpart y	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 request ed	 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 o f	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 a s	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). T he appeal	 from	 the order7 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 c ould	 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	 proc edure	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	 t he	 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
g round	 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	 t he	 trial	 court	 was	 whether	 the	 nonparty	 operative	 notes	 were either relevant	 to	 the	 standard	 of	 care	 Dr.	 Marietta	 owed	 Kennelly or reasonably9 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.	Ma rietta 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	 t he	 surgical	 techniques	 used	 by	 Dr.	 Marietta before Kennelly’s	 surgery ,	 those used after ward have	 no	 bearing	 on	 whether
Dr. Marie tta 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	of10 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 [¶1 6 ]		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	note s. S ee SAD	3	Educ.	Ass’n	v.	RSU 3 Bd. of Dirs .,	2018	ME	29,	¶ 14,	180	A.3d	125

. [¶1 7 ]	 	 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	adm issible	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	stat ute 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)	(20 20 ) .		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 per mit s disclo sure	by	the custodian of	the	records if	they	do	not	identify the	patient	or if	disclosure	is directed by	a	court	order. [¶1 8 ] 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. T hese	 statutes	 speak	 in	 terms	 of	 confidentiality rather	than privilege s that protect	records	from	disclosure through	discovery pursuant	 to	 Rule	 26(b)(1).	 	 A bsent	 provisions	 specifically	 declar ing	 an individual’s	 health	 care	 information privileged , the statutes do	 not	 directly

8 The	regulations	implementing	HIPAA	plainly	contemplate	th at	confidential	medical	records	may be	disclosed	pursuant	to	a	court	order	in	the	context	of	litigation. F or	example,	“[a]	covered	entity may	disclose protected	health	information	in	the	course	of any	judicial	or	administrative	proceeding

. . . in	 respons e	 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).		Sub section	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	req uired	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”). [¶1 9 ] 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	a n
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.		W e	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 [¶2 1 ]		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 [¶2 2 ]	 	 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	an y	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 A dvisers’ N ote	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 A dvisers’ N ote	to	former M.R. Evid. 503 ( Feb. 2, 1976 ) .	 	 Rule	 503	 is	 currently	 the	 only	 source	 of	 the physician

- patient	privilege	in	Maine. [¶2 3 ]	 	 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 app licable	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	 w hich 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	 participati ng	 in	 the	 diagnosis	 or treatment	 at	 the	 direction	 of	 the	 health	 care,	 mental	 health,	 or	 licensed counseling	professional.” M.R.	Evid.	503(b). [¶2 4 ]	 	 Where as Maine’s	 confidentiality	 statute protect s “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.” B oth 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. [¶2 5 ]		The	privil ege	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.	 	 Addition ally,	 “ [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). [¶2 6 ]		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	 or17 (Me. 1984)	(holding	that	the	State	could	not	claim	the	privilege	on	behalf	of	a pati ent). 12 However,	none	of	the	individuals	who	are	authorized	to	claim	the privilege	on	behalf	of	the	patient	under	Rule	503(d)	ha s 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)

. [¶2 7 ]	 	 In	 this	 case,	 although	 MCH	 did	 not	 claim	 the	 physician

- patient privilege	on	behalf	of	the	nonparty	patients

— and	could	not	have	do ne	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	hold er	of	the	privilege.		Because	the	physician

- patient

corporation	made	up	of	those	person s 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 Stat e	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

- pa tient	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	communicati ons. 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	 patien ts’ presence	in	the	case	to	claim	it

. [¶2 8 ]		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.		S ee 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 prov ided	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	unaw are of	the	prospect	of	disclosure

a nd,	therefore,	unable	to	assert	or	waive	the	privilege , and	none	of	the	other individuals	with	the	authority	to	assert	the	privilege	ha s been	made	a	party	to19 the	 suit. See M.R.	 Evid.	 503(b),	 511(b); see	 also Tucson	 Me d. 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). [¶2 9 ]	 	We	 next	 consider	whether	 th e	 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	 discl osure “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	on21 the	particular	conte nt	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 int ended	 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	redacti on	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	 r e Columbia	 Valley	 Reg’l	 Med.	 Ctr. ,	 41	 S.W.3d at 800

- 0 3 ( 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	documen t , and	therefore “redaction of	any	or	a ll	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	 admiss ible evidence

. See	infra n.1 8

. 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. [¶3 2 ]		Th e	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	gener al	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	 name s and	 addresses	 of	 a	 pa rticular	 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 ’ s23 [¶3 3 ] 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	o ther	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	 w hen 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	disclosur e	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 Se e	 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	nam e	of	the	department	manager”); Ziegler	v.	Superior	C t. ,	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	inform ation	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	informat ion

— 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	patient s ,”	including	requiring	the plaintiff’s	attorney	and	expert	to	sign	a	confidential	prot ective	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

. [¶3 4 ]	 	 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	 re presents	 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	identify ing	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	th at	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	a n “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 ,	200 1 ) (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	expectat ion	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 Evid ence § 98	at	6 92 ( 8 th	ed. 20 20 ). [¶3 5 ]		The	United	States	Supreme	Court	considered	such	public	policy objectives	and	the	balance	of	priva cy	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 sensi tive 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 [¶3 6 ] Several states have applied this same reasoning when consi dering the scope of the physician

- patient privilege as it pertains to redacted nonparty medical records. For example, in Roe v. Planned Parenthood S outhwest 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

— ma ny	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	 info rmation	 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	disclosure27 either	 by	 waiver	 or	 by	 an	 exception,”	 but	 that	 it	 was	 not	 a	 mechanism	 for circumventing	the	physician

- patient	privilege. Id. at 66, 71. [¶3 7 ]		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	 i nformation	 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,	addr esses,	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 ,	200 1 ) (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	 of28 having	 h is	 name	 deleted	 before	 his	intimate	medical	 records	 are	interjected into	a	civil	lawsuit	without	his	knowledge	or	consent”)

. [¶3 8 ]	 	 In	 this	 case,	 the	 Estate	 seeks	 the	 operative	 notes contained	 in nonparty	medical	records.		The	trial	court	ordered	MCH	to	p roduce	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	oth er 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,	 t hese	 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	 assoc iated	 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	“conf idential communication”	and	protected	by	 the	physician

- patient	privilege).		Although the	 trial	 court	 ordered	 substantially	more	 redaction	 than	many	 other	 courts have, see	supra n . 1 4 ,	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	 t he nonparty	patients	in	this	case,	like	the	patients	in Parkson	v.	Central	Du	Page Hosp ital ,	 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	wou ld	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 physi cian ,	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	 p ersons ,”	 	 M.R.	 Evid.	 503(a)(5),	 their	 medical	 records must	 be30 deemed	to remain	privileged	in	their	unredacted and redacted	forms. 18 See,	e.g.,
Meier ,	832	N.W.2d	at	259; R oe , 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	 & A dvisers’ N ote	 to	 former M.R.	 Evid. 503 ( Feb. 2, 1976 ) ;	 Field	 & Murray, Maine	 Evidence §	 501.1	 at	 206;	 1 Robert
P. Mosteller, McCormick	 o n	 Evid ence § 98	 at	 6 92

. 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 T he	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	ident ity	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	pr ocedure	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	s pirit	of M.R.	Evid.	503.31 order	denying	t hat	part	of the motion	to	compel. In	all	other	respects,	appeal dismissed.

JABAR,	J.,	dissenting. [¶ 4 1] 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	dis sent 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	juri sdictions	 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	 th e	 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’	 respective32
court
- order	exceptions	for	the	disclosure	of	health	informa tion

. 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 “ informati on	 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] ea l th	 care	 information ’ does	 not	 include33 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 c are 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	identifyi ng	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. P rivilege [¶ 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	identifi able th e n	the	rule does n o t	apply. 42	U.S.C.S.	§ 1320d

- 6 ; 22	M

. R

. S § 1711

- C( 1 )( E ) ,	(2). [¶ 47 ] B ased up on	 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,	c h .	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. ,	 1 18 th	 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 §	50 3 .135

“ confidential communic ations	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	discou rse	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	 in terpreting	 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

- pa tient	 relationship. See M.R.	 Evid.	 503 Advisers’	Note	to	former	M.R.	Evid.	503	( Feb.	2, 1976)

. We	should	not	interpret

at	2 25; 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	 pr eventing	 disclosure	 of nonidentifiable	 health	 information because	 such	 an	interpretation	 conflicts	 with	 the	 Legislature’s policy , which does	 not p revent	 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,	 o r	 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]	 	 W hen 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.
Al t stiel ,	 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	wher e37 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.	199 6 ) ; 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.2 d	 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	to38 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,	 nonide ntifying	 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	 determ ined	 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

t endency	to	make	it	more	or	less	probable	that	she	breached	the	standard	of39 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

. Mariett a	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	 sect ion	 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 bee n	 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	privi lege, 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	 th at	 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	 circumstanc es	 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),	 Lam bert	 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	&	C a mpo	LLC,	PA,	Westbrook,	for a micus curiae Maine	Trial	Lawyers	Association

Cumberland	County	Superior	Court	dock et	number	CV

- 2016

- 471 F OR C LERK R EFERENCE O NLY