Arnold v. Am. Natl. Red Cross3/14/1994
retion in ordering disclosure of the donor's name, last known address, and Social Security number. As will be seen, a review of the trial court's protective order reveals that it should be more narrowly drawn to protect the donor's legitimate privacy rights. At this stage of the proceedings, and given the parties' relative positions, appellee has failed to demonstrate, by clear and convincing evidence, a compelling need for discovery of the donor's identity. Instead, this court finds that appellee has demonstrated a compelling need for the donor's medical records. While, at this stage of the proceedings, these records may be subject to the physician-patient privilege, a protective order may be fashioned which allows for discovery of the donor's medical records and, at the same time, protects against discovery of the donor's identity. See R.C. 2317.02(B)(1)(b). A review of the competing interests sub judice is, therefore, appropriate.
Appellants assert that the donor and his family have a substantial privacy interest at stake and that the trial court's order impermissibly infringes on this interest. This court agrees but finds, however, that the donor's right to privacy has been undermined somewhat due to his death. Nonetheless, appellants' argument that disclosure of the donor's identity violates his constitutional right tsprivacy, which protects against public disclosure of highly sensitive medical, social and personal information, is not entirely without merit.
Although the United States Constitution does not specifically mention an inherent right to privacy, the Supreme Court has recognized such right as a fundamental constitutional right. Griswold v. Connecticut (1965), 381 U.S. 479, 485, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510, 515-516. A constitutional right to privacy in the context of disclosure of personal information was first explicitly recognized in Whalen v. Roe (1977), 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64; Doe, supra, 42 Ohio App.3d at 231, 538 N.E.2d at 423-424. The Ohio Supreme Court has also found a state constitutional right to privacy absent an explicit textual foundation. See e.g., Housh v. Peth (1956), 165 Ohio St. 35, 59 O.O. 60, 133 N.E.2d 340; Doe, supra, 42 Ohio App.3d at 231, 538 N.E.2d at 423-424. Moreover, several courts have recognized that the constitutional right to privacy, which protects sensitive medical records and the identity of patients, is a factor to be considered in balancing the interests supporting liberal discovery against the potential resulting harm. See Rasmussen v. S. Florida Blood Serv., Inc., supra; John Doe v. Am. Natl. Red Cross (Aug. 8, 1988), Tenn. (Davidson) App. No. 88C-169, unreported; Doe v. Borough of Barrington (D.N.J.1990), 729 F.Supp. 376, 382. Other courts have explicitly declined to extend a donor's constitutional right to privacy to protect sensitive medical records or a patient's identity, see Roche v. Am. Red Cross (1989), Mass.S.Ct. No. 87-3923, unreported; Tarrant Cty. Hosp., supra; and Gulf Coast Regional Blood Ctr., supra. Still other courts merely acknowledge that the donor may have a constitutional right to privacy. See Doe v. Univ. of Cincinnati, supra, 42 Ohio App.3d at 231, 538 N.E.2d at 423-424 ("In addition to any constitutional right the donor may have * * *.").
In the present case, this court acknowledges that the donor has a constitutional right to privacy which protects against public disclosure of the results of an HIV test or diagnosis of AIDS or an AIDS-related condition. We also believe that the trial court's protective order adequately safeguards against public disclosure of such information. Tarrant Cty. Hosp. v. Hughes, supra; Gulf Coast Regional Blood Ctr. v. Houston, supra. Additionally, although
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