M AINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2018 ME 118 Docket: Pen

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- 381 Argued : April	11,	2018 Decided: August	14,	2018 Panel: SAUFLEY,	C.J.,	and	ALEXAND ER,	MEAD,	GORMAN,	JABAR, and	HUMPHREY,	JJ. Majority: SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	JABAR, and	HUMPHREY,	JJ. Dissent: ALEXANDER,	J.

DOROTHEA	B.	McCAIN

v. JOHN	F.	VANADIA	et	al.

MEAD,	J. [ ¶1] John	 F.	 Vanadia,	 D.O.,	 Bangor	 Surgical	 Associates,	 P.A.,	 and
St. Joseph Hospital	 appeal	 from	 an	 order	 of	 the	 Superior	 Court (Penobscot County, A.	Murray,	J. ),	acting	as	medical	malpractice	screening	panel chair	pursuant	to 24	M.R.S.	§	2852 (6)	(2017)	and M.R.	Civ.	P.	80M (e) ,	granting Dorothea	 B.	McCain’s	motion	 to	 compel	 them	 to	 produce	in	 discovery	 thirty redacted,	nonparty	patient	medical	records	that	the	court	found	were	relevant to	 McCain’s	 notice	 of	 claim	 asserting	 medical	 negligence.	 	 The	 appellants contend	that	the	court	erred	in	ordering	the	records’	disclosure	because	they are	(1)	irrelevant	to	McCain’s	claim	and	(2)	protected	from	disclosure	by	state2 and	 federal	 statute	 and	 by	 the	 physician

- patient	 privilege	 set	 out	 in
M.R. Evid. 503

. [¶2 ] McCai n	 has	 moved	 to	 dismiss	 this	 interlocutory	 appeal	 on	 two grounds,	 asserting	 first	 that	 decisions	 of	 the	 Superior	 Court	 acting	 as	 panel chair	are	not	appealable, see Gafner	v.	Down	E.	Cmty.	Hosp

. , 1999	ME	130,	¶	12 735 A.2d	 969;	 and	 second	 that	 dismissal	 is required	 pursuant	 to	 the	 final judgment	 rule, see Bd.	 of Overseers	 of	 the	Bar	v.	Warren ,	2011	ME	124,	¶	19,
34 A.3d	 1103	 (“ The	 general	 rule	 is	 that discovery	 orders	 are	 deemed interlocutory	 and	 therefore	 are	 reviewable	 only	 on	 appeal	 from	 the	 final judgmen t. ”). [¶3]		Given	the	unusual	procedural	pos ture	presented	here,	we hold that the	discovery	order issued	during	the	course	of	the	panel	proceedings is now	a nullity and	 therefore	 does	 not	 govern	 future	 proceedings	 in	 this	 case. Accordingly,	no	exception to	the	final	judgment	rule	applies	that	would	require us	to	reach	the	merits	of	the	parties’	arguments	now , and	we	remand	the	matter to	the	Superior	Court.
I.		BACKGROUND [¶4 ] In	November	2015, John	Vanadia ,	 the	sole	physician	employed	by Bangor	 Surgical	 Associates,	 P.A.,	 performed	 a	 laparoscopic	 cholecystectomy3 ( gallbladder	 removal ) on	 Dorothea	 McCain	 at	 St.	 Joseph	 Hospital	 in	 Ban gor. During	the	procedure, Vanadia	cut	McCain’s	common	bile	duct	after	mistak ing it	for	her	cystic	duct,	necessitating	corrective	surgery	soon	thereafter. [¶5 ] On	June	30,	2016,	McCain	filed	a	notice	of	claim	against Vanadia and Bangor	 Surgical	 Associates,	 P.A.	 (collectively Vanadia ), alleging	 medical negligence;	her	claim	was	la ter	amended	to	include	St.	Joseph	Hospital	(SJH).
See 24	M.R.S.	§	2853 (1) (2017);	M.R. Civ.	P.	80M (b)(1).		The	Chief	Justice	of	the Superior Court	 appointed	 a	 medical	 malpractice	 screening	 panel	 chair pursuant	to	24	M.R.S.	§ 2852(2)(A) (2017)	and	M.R.	Civ .	P. 80M(b)(2)

. [¶6 ] In	May	 2017,	McCain	 filed	 a	motion	 to	 compel	 the	 production	in discovery	 of	 “[t]he	 operative	 notes	 for	 each	 and	 every	 [laparoscopic ch olecystectomy]	 performed	 by Vanadia	 in	 2015	 with	 the	 names	 and	 any identifying	information	for	the individual	patients	redacted	to	preserve	pati ent confidentiality.”		When Vanadia	and	SJH	objected,	the	panel	chair	referred	the motion	to	the	Superior	Court. See 24	M.R.S.	§	2852(6); M.R.	Civ.	P.	80M(e)

. [¶7 ] Pursuant	to M.R. Civ.	P.	26(g) , the	court	held	a	hearing and	granted the	motion ,	ordering	that Vanadia	and	SJH	produce	the	operative	notes	for	the fifteen	 laparoscopic	 cholecystectomies performed	 by Vanadia	 preceding McCain’s	procedure	and	for	the	fifteen	following	her	procedure.		The	c ourt	took4 great	care	to	order	that	the	records	be	heavily	redacted to	protect	the	identit ies of	the	patients. [¶8 ] Vanadia and	SJH	filed	a	motion	to	reconsider	and	a	timely	notice	of appeal;	McCain	 then	moved	 this	Court	 to	dismiss	 the	appeal.		The	 trial court declined	to	act	on	the	motion	to	reconsider	because	of	the	pending	appeal, see M.R.	App.	P.	3(b)	(Tower	2016), 1 and	we	consolidated	our	consideration	of	the motion	to	dismiss	with	our	review	of	the	appeal’s	merits. [¶9 ] Inexplicably, w hile	those matters were pending, the	parties	opted to	 forge	 ahead	 with	 the	 panel	 process	 without	 the	 records subject	 to	 the discovery	order	having	been produced. T he	screening	panel	held	a	hearing	and entered	a	unanimous	decision on	 the	questions	of	whethe r Vanadia deviated from	the	applicable	standard	of	care;	whether	his	acts	or	omissions	were	the proximate	cause	of	McCai n’s	injury;	and	whether,	if Vanadia were	found	to	be negligent,	any	contributory	negligence	 on	 the	part	 of	McCain	 outweighed	his negligence. 2 See 24	M.R.S.	§	2855(1) (2017). The	issuance	of	findings	by	the screening	panel	marked	 the	conclusion	 of	 the	panel’ s	 role	in	McCain’ s	claim

. See 24	 M.R.S.	 §	 2858	 (2017). On	 September	 18,	 2017,	 McCain	 filed	 a	 civil

1 The	motion	to	reconsider	and	the	notice	of	appeal	were	filed	be fore	the	restyled	Maine Rules	of Appellate	Procedure	took	effect.		M.R.	App.	P.	1.

2 At	this	stage	of	the	case,	the	panel’s	findings	are	confidential. 24	M.R.S.	§	2857(1) (2017).5 complaint	in	 the	Superior	Court	against Bangor	Surgical	Associates,	P.A.,	and SJH,	alleging	medical	negligence.
II.		DISCUSSION [ ¶ 10 ] The	appeal	brought	by Vanadia and	SJH	is	interlocutory,	in	 that McCain’s	post

- screening	panel	medical	negligence	claim	has	not	yet	proceeded beyond	 the	 filing	 o f	 a	 complaint.	 	 Therefore,	 we	 must	 initially	 determine whether	the	appellants	have	met	their	burden	of	“demonstrating	.	.	.	that	one	of the	exceptions	to	the	final	judgment	rule	justifies	our	reaching	the	merits	of	the appeal.” Taylor	v.	Walker ,	2017	ME	2 18,	¶ 8,	173	A.3d	539	(alteration	omitted) ( quotation	marks	 omitted).	 	 If	 not,	 then	 the	 appeal	 “is	 not	 ripe	 for	 appellate
review

. ” Id. Vanadia and	SJH	assert	that	the	death	knell	and	collateral	order exceptions	to	the	final	judgment	rule	apply	here.		Because	we	conclude	that	the order	at	issue	is	no	longer	operative,	the	exceptions	do	not	apply. [¶1 1 ] In	issuing	its	discovery	order	granting	Mc Cain’s	motion	to	compel the	production	of	thirty	nonparty	operative	notes,	the	Superior	Court	acted	in a	limited	role	in	place	of	the	screening	panel	chair as	part	of	the	screening	panel proceedings. Gafner , 1999	ME	130,	¶	12,	735	A.2d	969; see 24	M.R.S. §	2852(6); M.R.	Civ.	P.	80M(e).		In Gafner ,	we	held	that	in	that	circumstance [the	 court’s] actions	 are	 subject	 to	 the	 same	 provisions	 and remedial	 limitations	 as	 those	 of	 t he	 chair.	 	 The	 decisions	 of	 the6 panel	 chair,	 including	 its	 discovery	 rulings,	 are	 n ot	 subject	 to appellate	 review. Consequently,	 ordinary	 discovery	 orders entered	by	the	Superior	Court	in	matters	pending	before	the	panel are	not	reviewable. 1999	ME	130,	¶	12,	735	A.2d	969	(citation s omitted).		However,	in	a	footnote , we	 recognized,	but did	not	address,	 “ the	possibility	 that	a	judicial	 order	in	 a panel	discovery	matter	related	to	issues	such	as	privilege	may	be	immediately subject	to	appellate	review.” Id. ¶	12	n.4. [¶1 2 ] Eight	years	later we revisited Gafner ,	holding	that d iscovery	orders	that	are	entered	by	the	Superior	Court	while	the matter	is	pending	before	a	prelitigation	panel	are	not	reviewable. In Gafner ,	we	 reserved	 the	issue	 as	 to	 whether	 the	 decision	 of	 a judicial	officer	in	a	panel	discovery	matter	relating	to	a n	issue	such as	privilege	might	be	immediately	subject	to	appellate	review.		We here	answer	that	reserved	question	in	part.		A	decision	upholding a	 claim	 of	 privilege	 or	 confidentiality	 is	 not	 subject	 to	 appellate review. Estate	of	Cox	v.	E.	Me.	Med.	Ctr. ,	2007	ME 15,	¶	6,	915	A.2d	418	(citation omitted).
We specifically did	 not	 answer	 the question that	 is presented	 in	 this	 case, namely whether	a	decision on	a	discovery	matter denying	a	claim	of	privilege or	confidentiality	is	subje ct	to	immediate	appella te	review.		For	the	following reasons,	on	the	unique and	very	specific facts	and	circumstances	of	this	case, we	decline	to	answer	it	now.7 [¶1 3 ] As	noted	previously, after	McCain	obtained the	unusual discovery order,	th e	parties	elected	to	proceed	with the	panel	hearing before Vanadia and SJH	produced	the	records	that	the	court	had	ordered	to	be	disclosed .		Indeed, to	date, we	understand	that	no records	have	been	disclosed. Had	the parties and	the panel	taken	the step of	scheduling	the	screening	panel	h earing	for after the	receipt of	the	court’s	discovery	order and our	consideration	of	that	order , we	may	well	have	been	called	upon	to decide	the	question	left	unanswered	in Estate	of	Cox .		Now,	however,	the	case	has	moved	from	the	panel	phase	to	the trial phase	without	any	nonparty	medical	records	having	been	produced,	and we	conclude	that	the	order	has	lost	its	vitality.		In	other	words,	in	these	unique circumstances,	and	on	this	record,	we	conclude	that	the	order	is	no	longer	the “law	 of	 the	case”	 and	has become a	 nullity	without	legal	 force	 or	effect

. See Chretien	v.	Chretien ,	2017	ME	192,	¶	6,	170	A.3d	260	(“We	will	decline	to	hear a	 case	 that	 has	 lost	 its	 controversial	 vitality and	 is	 moot	 .

. . .”	 (alteration omitted)	( quotation	marks	omitted)). [¶14 ]		We	acknowledge	 that,	ordinarily,	 the	Superior	Court’s	discovery order	would	be	effective	in	the	post

- panel	proceeding.		As 24	M.R.S.	§	2857(3) (2017)	 provides,	 “in	 a	 subsequent	 Superior	 Court	 action	 all	 discovery conducted	 during	 the	 prelitigation	 scree ning	 panel	 proceedings	 is	 deemed8 discovery	 conducted	 as	 a	 part	 of	 that	 court	 action.”	 	 In	 this	 case,	 however, because	 the	 parties	 allowed	 the	 panel	 hearing	 to	 move	 forward a nd	 to	 a conclusion	 without	 disclosure	 of the	 nonparty	 records,	 the	 records	 were
app arently deemed not sufficiently relevant to the	plaintiff’s	case	in	the	panel process.		Moreover,	 the	motion	 for	reconsideration	was	never	acted	upon	by the	judge or	panel	chair,	and	the assessment	of	the	relevance	of	the	records	may have	changed	as	 the	li tigation	progressed. T hese unique	circumstances lend additional	weight	 to	our	conclusion	 that	 the	discovery	order was	rendered	a nullity upon	 the	conclusion	of	 the	panel	process.		Accordingly,	we	determine that	any	discovery	request	for	the	nonparty	recor ds	at	issue	here ,	if	still	sought by	the	plaintiff, must	be	presented anew	to	the	Superior	Court	for an	analysis of	the	records’ relevance	and	whether	any	privilege	protects	them

. [¶1 5 ]	 	 Because	 the	 records	 were	 not	 provided and	 therefore	 not presented	 in the	 panel	 proceeding ,	 we	 need	 not	 decide,	 and	 do	 not	 decide, whether	a	decision	of a	judge acting	as	panel	chair that	compels	discovery	in the	face	of	a	claim	of	privilege	is	immediately	appealable

. [¶1 6 ] Finally,	 because	 the	 order	 appealed	 from	 has	 beco me a	 nullity, neither	the death	knell nor	the collateral	order	exception	to	the	final	judgment rule applies with	regard	to	the	merits	of	the	appeal.		Both	exceptions	require9 that	 the	party	invoking	 the	 exception	demonstrate	an	irreparable	loss	 of	 the right	 claimed. See Taylo r ,	 2017	 ME	 218,	 ¶	 8,	 173	 A.3d	 539; In	 re	 Evelyn A. , 2017 ME 182,	¶	14,	169	A.3d	914	(stating	that	the	death	knell	exception “ allows a	party	to	appeal	an	i nterlocutory	order	immediately	if	substantial	rights	of	that party	 will	 be	 irreparably	 lost	 if	 review	 i s	 delayed	 until	 final	 judgment” (quotation	 marks	 omitted)); Bond	 v.	 Bond ,	 2011	 ME	 105,	 ¶	 11,	 30	 A.3d	 816 (stating	 that	 the	 collateral	 order	 exception	 app lies	 when	 a	 court’s	 decision

“ would	 result	 in	 irreparable	 loss	 of	 the	 rights	 c laimed,	 absent	 immediate review”	 (quotation	 marks	 omitted)). Vanadia and	 SJH	 cannot	 make	 the required	 showing	 concerning	 their	 claim	 that	 the	 nonparty	 operative	 notes must	be	pr otected	from	disclosure	because	no	records	were	actually	produced, nor	will	 they	be	without	 further	hearing	and	 analysis	by	 the	Superior	Court. Accordingly,	there	is	no	harm	or	threat	of	harm	to	an	important	right	that	would justify	 our	 immediate	 review of	 the	 merits

. See Taylo r ,	 2017	 ME	 218,	 ¶	 8,
173 A.3d	539. [¶1 7 ] We	note	that	the	dissent	undertakes	to	address	substantive	issues raised	by	 the	 appellants

. See Dissenting	Opinion	 ¶¶ 21

- 33 .		 Because	we are remanding	 this	matter	without	 reaching the	mer its	 of	 the	 appeal , we	 do	 not endorse or reject the	conclusions	reached	by	the	dissent	on	those	issues.10 The	entry	is: Remanded	 for further	 proceedings	 in	 the Superior	Court	consistent	with	this	opinion

. ALEXANDER,	J.,	dissenting. [¶18 ] I respectfully	dissent. [¶19 ] Medical	malpractice	actions	are	commenced	by	a	filing	of	a	notice of	claim	in	the	Superior	Court.		24	M.R.S.	§	2853(1)	(2017).		Those	actions	have a	medical	malpractice	scre ening	panel	phase,	24	M.R.S.	§§ 2854

- 2858	(2017), but they	remain	actions	pending	before	the	Superior	Court. Because the parties addressed	the	question	thoroughly	with	the	Superior	Court,	and	the	Superior Court	entered	a	detailed	order	on	the	discovery	issue,	I	would	not	determine the	 order	 to	 have	 lost	 its vitality,	 notwithstanding	 the	 serious	 question	 of relevance	given	that	the	panel	proceeded	without	the	evidence	at	issue.		I	would reach	the	merits	and	vacate	the	order. [¶20 ]	 	 That	 discovery	 order	 authorizes	 Dorothea	 McCain	 and	 her attorneys	 to	 launch	 a	 d iscovery	 fishing	 expedition,	 reviewing	 the	 medical records	 of	 at	 least	 thirty	 other	 innocent,	 unrelated	 individuals	 who	 have undergone	similar	procedures	performed	by	the	defendants.		Knowledge	that we	 have	 not	 addressed	 the	 merits	 of this	 order	 may	 invite others	 to	 launch11 similar	fishing	expeditions,	hoping	to	bolster	a	client’s	case	by	prying	into	the private	medical	records	of	perhaps	hundreds	of	innocent,	unaware	individuals. [¶21 ]	 	 The	 Superior	 Court’s	 order	 authorizes	 review	 of	 records of unnamed	and unnotified	patients in	violation	of	those	patients’	constitutional rights	to	privacy,	in	violation	of	privileges	established	in	our	Rules	of	Evidence, and	in	violation	of	numerous	state	and	federal	statutes	mandating	the	privacy of	patient	identities	and the	confidentiality	of	medical	records. See	infra ¶	30. [¶22 ] Vanadia ,	 his	 medical	 practice,	 and	 the	 hospital	 where	 the procedure	was	performed all have	standing	to	assert	the	constitutional	rights to	 privacy,	 the	 privileges	 against	 disclosure	 of	 communi cations	 relating	 to medical	 treatment,	and	 the	 statutory	 rights	 of	privacy	 and	confidentiality	 on behalf	 of	 the	 unidentified	 and	 otherwise	 defenseless	 patients	whose	 records are	sought	in	this	matter. See Field	&	Murray, Maine	Evidence §	503.3	at	227 (6th ed.	2007). [¶2 3 ]		Turning	to	the	merits	of	the	appeal ,	we	have not	yet	addressed	the question	presented	here:	whether	an	individual	claiming	improper	treatment by	a	medical	provider may obtain	access	to	records of	other	patients	who	have received	 similar treatment	 from	 that	medical	 provider	 to	 determine	if	 those other	 patients’	 records	 might	 contain	 information	 to	 support	 the	 plaintiff’s12 action.	 	 The	 implications	 of	 the	 Superior	 Court’s	 ruling	 for	 patients	 and	 the medical	community	that	s erves	those	patie nts	are	vast. [¶2 4 ] Even	though	the	Superior	Court’s	order	has	become	ineffective	as a	 result	 of	 the	 Court’s	 determination	 that	 it	 is	 a	 nullity, the	 ruling remains unchange d. Therefore,	 that precedent ,	 preliminary	 as	 it	is,	 may serve	 as	 an invitation for	others to	seek	the	records	of	other	patients	to	see	what	might	be in	 those	 records	 to	help	 the	complainants’	cases.		Sometimes	 the	invasion	 of rights	 of	 privacy	 and	 confidentiality	 of	 only	 a	 few	 patients	 may	 be	involved, other	 times,	 with	 more	 common	 p rocedures, hundreds	 of	 records	 of other patients	may	be	sought

. [¶2 5 ]		Once	the	door	is	opened,	access	to	other	patients’	records	may	be obtained	by	complainants	unhappy	with	all	manner	of	treatmen ts	including,	as a	 few	 examples, abortions,	 HIV	 infe ction	 t herapies, or	 substance	 abuse

treatments. [¶2 6 ]		The	plaintiff	argues	that	the	identities	of	the	other	patients	would be	 protected	 by	 redacting	 the	 patient	 information	 to	 which	 they	 may	 have access.		How	those	records	would	be	redacted,	by	whom,	and	who	wou ld	pay the	costs	for	recovery,	review,	and	redaction	of	perhaps	thousands	of	pages	of electronic	patient	records	is	unclear.		The	inquiring	party	likely	would	have	to13 see	the	records to ensure that she gets	the	information	that	a	court	ha s	ordered that she shall	have. [¶ 27 ]		As	 the	 treatment	at	issue	necessarily	would	be	identified	in	any records	 reviewed	 and	 provided,	 the	 likelihood	 of	 actual	 confidentiality	 of identification	of	patients,	at	least	in	smaller	Maine	communities	where	only	a few	treatments may	be	provided	per	year,	would	be	uncertain. [¶ 28 ]		The	example	presented	by	this	case	is	particularly	troubling.		The plaintiff	is	seeking	access	to	the	medical	records	of	fifteen	as	yet	unidentified patients	who	received	similar	treatment	before	the plaintiff’s	treatment	and	the medical	 records	 of	 fifteen	 as	 yet	 unidentified	 patients	 who	 received	 similar treatment	after	the	plaintiff’s	treatment.		Review	of	the	limited	information	in the	 file	 suggests	 tha t	 potentially	 identifying	 information related	 t o	 each patient’s	 physical	 characteristics	 and	 health	 conditions	 may	 be	important	in determining	if	other	patients’	records	are	relevant	to	the	claim	of	negligence	for identifying	and	cutting	the	wrong	duct. [¶ 29 ]	 	 The	 records that the	 trial	 court	 has	 order ed	 to	 be	 disclosed regarding	 patients	 who	 received	 treatments	 after	 the	 plaintiff’s	 treatment might	only	be	relevant	on	a	narrow	credibility	question.		That	question	would be	 whether,	 after	 the	 plaintiff’s	 treatment,	 the	 medical	 provider	 engaged	 in14 subsequ ent	 remedial	 measures, see M.R.	 Evid.	 407, 3 to	 create	 the	 medical records

— not	 the	 treatments	 but	 the	 medical	 records

— to	 reflect	 differently how	events	during	the	procedure	were	reported. [¶ 30 ] There	are	several	statutes	and	rules	that	the	trial	court’s	ma ndate to	disclose	other	patients’	records	may	violate:

• Title	 42	U.S.C.S.	 § 1320d

- 6	 (LEXIS	 through	 Pub.	 L.	No.	 115

- 185)	 of	 the Health	Insurance	Portability	and	Accountability	Act	of	1996	(HIPAA),	and implementing	regulations	published	at	45	C.F.R.	pts.	160 and	164	(2017), paint	 with	 a	 very	 broad	 b rush,	 mandating	 privacy	 of	 patient

- specific medical	information	and	confidentiality	of	medical	records.		The	statute and	 implementing	 regulations	 are	 voluminous	 and	 complicated.	 	 No exception	 to	 the	mandated	privacy and	confidentiality	is	apparent	 that would	 authorize	 an	 individual	 dissatisfied	 with	 medical	 treatment	 to discover	the	redacted	or	unredacted	medical	records	of	others	who	have received	similar	treatments	to	determine	if	those	records	might	include some	i nformation	to	support	a	negligence	claim.

• The	Maine	statute	entitled	“[c]onfidentiality	of	health	care	information,” 22 M.R.S.	§	1711

- C	(2017),	provides	similar	protection	for	patient	privacy and	the	confidentiality	of	medical	records.		“An	individual’s	h ealth	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.” Id. §	 1711

- C(2).	 	 None	 of	 the	 listed subsections	authorize	the court	mandated	access	to	individuals’	medical records	at	issue	here.

• Other	state	statutes	limiting	access	to	medical	records	regarding	physical health	 conditions	 by	 persons	 other	 than	 the	 person	 being	 treated	 and their	treatment	providers	include	5	M.R.S .	§§	200

- E,	4572(2)	and	4573(2)

3 Pursuant	to	M.R.	Evid.	407,	evidence	of	subsequent	remedial	measures	is	inadmissible	to	prove negligence	and	culpability.		Neither	the	trial	court	nor	the	p laintiff	have	addressed	in	any	detail	how the	ordered	discovery	of	other	patients’	records	created	after	the	plaintiff’s	treatment	would	lead	to the	development	of	admissible	evidence.15 (2017).		These	statutes	may	apply	to	protect	the	medical	records	of	one or	more	of	 the	individuals	whose	medical	records	 the	plaintiff	seeks	in this	case.		Many	other	statutes	limiting	disclosure	of	records	relating	to menta l	 health	 conditions	 may	 also	 apply	 to	 some	 medical	 records	 the plaintiff	seeks. See,	e.g. ,	1	M.R.S.	§	402	(2017);	34

- A	M.R.S.	§	1216	(2017); 34

- B	M.R.S.	§	1207	(2017).

• Maine	Rule	of	Evidence	503	gives	individual	patients	a	privilege	to	refuse to	 disclose confidential	 communications	 made	 for	 the	 purpose	 of diagnosing	 or	 treating	 medical	 conditions.	 	 Such	 communications are indicated	in	McCain’s	medical	record,	which	she asserts	are	similar	to	the records	of	other	patients	that	she	wants	to	access. [¶ 31 ] The	 briefs	 of	 the	 parties	 cite	 to	 many	 opinions	 from	 other jurisdictions	 that	 reach	 differing	 results	 on	 whether	 plaintiffs	 in	 medical negligence	actions	may	discover	the	medical	records	of	other	patients	who	have had	similar	procedures	or	have	been	treate d	by	the	same	medical	professional or	facility.		Some	of	those	opinions	indicate	that	if	the	medical	records	sought are	“redacted”

— whatever	that	means

— then	the	requested	discovery	of	other patients’	 medical	 records	 will	 be	 allowed. See,	 e.g. , Staley	 v.	 Jo lles , 230 P.3d 1007,	1013	(Utah	2010).		Few	of	those	opinions	indicate	how,	or	by whom,	 or	 at	 what	 cost,	 record	 search,	 review,	 and	 redaction	 will	 be accomplished.		And	few	of	those	opinions	seem	to	consider	how	easily	a	person may	be	identified	by	descrip tive	information	in	a	 record,	 even	if	 the	 specific identifying	information	has	been	removed.16 [¶3 2 ]	 	 The	 contrary	 opinions	 of	 other	 jurisdictions	 ref using	 to	 allow discovery of	other	patients’	records	to	see	if	they	might	contain	evidence	that might	support a	particular	plaintiff’s	claim	have	the	better	argument. See,	e.g. , Roe	 v.	 Planned	 Parenthood	 Sw.	 Ohio	 Region ,	 912	 N.E.2d	 61,	 71	 (Ohio 2009) (“Redaction	of	personal	information	.	.	.	does	not	divest	the	privileged	status	of confidential	 records.	 	 Redacti on	 is	 merely	 a	 tool	 that	 a	 court	 may	 use	 to safeguard	 the	 personal,	 identifying	 information	 within	 confidential	 records that	have	become	subject	to	disclosure	either	by	waiver	or	by	an	exception.”). [¶3 3 ]		Open

- ended	fishing	expedition	discovery,	invading other	patients’ privacy	and	authorizing	review	of	confidential	medical	records	to	see	if	those records	contain	information	that	might	support	an	individual	plaintiff’s	medical negligence	claim , violates	M.R.	Evid.	503	and	violates	federal	and	state	statute s mandating	patient	privacy	and	the	confidentiality	of	patients’	medical	records. We	 should	 reach	 the	 merits	 of	 this	 appeal	 applying	 exceptions	 to	 the	 final judgment	rule.		Reaching	the	merits,	for	the	reasons	discussed	above,	we	should vacate	 the	 Superio r	 Court’s	 discovery	 order	 so	 that	it	 cannot	 be	 enforced	in pretrial	discovery	to	mandate	disclosure	of	other	patients’	confidential	medical records potentially	leading	to	use	of	those	records	in	a	public	trial.17 James	 F.	 Martemucci,	 Esq.,	 and	 Robert	 P.	 Hayes,	 Esq.	 (orally),	 Germani Martemucci	&	Hill,	Portland,	for	appellant	John	F.	Vanadia Mark	G.	Lavoie,	Esq.,	and	Jennifer A.W.	Rush,	Esq.	(orally),	Norman,	Hanson	& DeTroy,	LLC,	Portland,	for	appellant	St.	Joseph	Hospital Benjamin	R.	Gideon,	Esq.,	and	Taylor	A.	Asen,	Esq.	(orally),	Berman	&	Simmons, P.A.,	Lewiston,	for	appellee	Dorothea	B.	McCain Karen	 Frink	 Wolf,	 Esq.,	 and Rachel	 M.	 Wertheimer,	 Esq.,	 Verrill	 Dana	 LLP, Portland	 for	 amici	 curiae	 Maine	 Hospital	 Association	 and	 Maine	 Medical Association

Penobscot	County	Superior	Court	docket	number	CV

- 2016

- 117 F OR C LERK R EFERENCE O NLY