commenced an inquiry to determine whether any substance normally found in the specified, complained places of employment had potentially toxic effects in such concentration, as used, upon any employees and accordingly arranged for a site visit.
On April 21, some physicians performed a walkthrough and after their inspection, pursuant to the Standard Health Hazard Evaluation request submitted by the employees' authorized representative, the physicians reported that there were only two areas that were requested to be evaluated, where there was a potential for respiratory problems the bushing area, TC-72 and the epoxy area, TC-74. They recommended that the exposed people in the TC-74 area undergo further testing, as was essentially performed later by Dr. Thomas Wilcox, a medical officer in the Hazard Evaluation and Technical Assistance Branch of NIOSH. These were the providing of tests for the presence of antibody in the blood to the substance hexahydrophthalic anhydride (referred to as HHPA).
It is necessary that the experts making the study make findings in the HHPA potential causes with allergic reactions in a certain number of individuals exposed to it, which in some individuals caused a condition of asthma, possible occupational asthma induced by chemical exposure received at work. Also, this study would be required to determine whether other chemicals caused occupational asthma snydromes accelerating decrease in a person's ability to breathe. While the effects may be variable from slight to serious, individuals who are allergic to HHPA may gradually develop the snydrome and over a period of time develop breathing difficulties affecting them in their everyday life.
On October 19, Dr. Wilcox and G. Edward Burroughs, an industrial hygienist employed by NIOSH, visited the Westinghouse facility and informed the respondent's Director of Accident Prevention, Gerald Brady, that access would be needed to complete medical records of potentially affected employees working in the complained of areas. While the respondent's representative questioned its right to present NIOSH with the records of the potentially affected employees, certain employees examined during the Health Hazard Evaluation, before and after their work days, indicated that pulmonary function and blood tests had been performed on workers in the TC-74 area.
The employee representative complained of exposure to methyl ethyl ketone and other harmful substances in the specified employment areas. The inquiry by NIOSH's Director was more broadly instituted and was intended to inquire whether any substance normally found in the specified place of employment had potentially toxic effects in such concentration as used in the employment areas as to affect such employees. Thus, while the employees mentioned methyl ethyl ketone, the investigation, must of necessity, have included "other harmful substances."
Methyl ethyl ketone is a "flammable liquid compound CH 3COC 2H 5 resembling acetone made usually by dehydrogenation of secondary butyl alcohol and used chiefly as a solvent . . ." Webster's New Third International Dictionary, Unabridged, 1971, at page 1423.
There are evidently twelve ketones,
some of which have a wide and varied use in industry, "(Criteria) for a recommended standard . . . Occupational Exposure to Ketones", U.S. Department of Health, Education and Welfare, National Institution for Occupational Safety and Health, document for sale by Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402.
Thus, the petitioner under law is not here precluded from making its inquiry on any potential hazard to employees on ketone alone, but may inquire into other hazardous chemicals which may affect the health of employees in these two areas of the respondent's premises. However, this question has not been raised by the respondent and it needs no further consideration. It is presented only for the purpose of indicating the greater responsibility which the petitioner in this case is required to assume in its study, as authorized and directed by this statute.
It is with the medical records of those employees who were, may now, or in the future be affected and who are, in a sense, clues and facts required by the petitioner to accomplish its study for the purposes which Congress has imposed on it and for such study.
As relates to the personal medical records, the respondent admits that it refused to supply these to the petitioner, without (1) individual employee authorization for such a release, and (2) written government assurance that these records will not be disclosed to third parties conditions to which the petitioner would not agree. The respondent argues that the subpoena is presently unenforceable because disclosure of such personally identified medical records breaches the constitutionally protected right to privacy of the employees in the absence of employee consent and adequate prohibitions upon further dissemination of the information received. The respondent asserts that NIOSH has not demonstrated authority for the issuance of the subpoena and has not defined its demand with requisite specificity, nor that it has proven that its request for the entire medical records of the potentially affected employees is relevant and not overbroad. Finally, the respondent claims that NIOSH has violated its own regulations governing the conduct of Health Hazard Evaluations by seeking to compel the production of the medical records.
The common law recognizes no physician-patient privilege, nor do the federal courts as a general evidentiary principle. In re Grand Jury Subpoena, 460 F. Supp. 150 (W.D.Mo.1978); Mariner v. Great Lakes Dredge & Dock Co., 202 F. Supp. 430 (N.D.Ohio, 1962). If the respondent is to prevail in its objections to the petitioner's subpoena duces tecum, it must do so on pertinent authority of Pennsylvania law, or upon specific holdings by the federal courts. The Pennsylvania statute which relates to the doctor-patient privilege is contained in 28 Purdon's Penn.Stats. § 328.
However, that statute relates directly to communications made by a patient to a physician. In Woods v. National Life and Accident Insurance Co., 347 F.2d 760, C.A. 3, 1965, it was held that that statute did not prevent even a doctor from disclosing
"the purpose of his examination, his diagnosis and treatment. The Act applies only to communications made by a patient to a physician in a civil action: Phillips' Estate, 295 Pa. 349, 145 A. 437 (1929), and then only if they tend to blacken the character of the patient. Soltaniuk v. Metropolitan Life Ins. Co., 133 Pa.Super. 139, 143-144, 2 A.2d 501 (1938). With the exception of the name, address, and so forth, and a few items concerning the patient's health history entered in his records, Dr. Greenlee's testimony did not and would not have revealed any information obtained by communications from the patient. The revealing of a name, address and other identifying data given by a patient is not a communication which tends to blacken the character of the patient. Sweeney v. Green, 116 Pa.Super. 190, 176 A. 849 (1935)."
The Supreme Court of Pennsylvania held also in In re B, 482 Pa. 471, 394 A.2d 419 (1978) that the privilege protects only "communications", disclosure of which would "tend to blacken the patient's (reputation)". In In re B, the subject matter was completely different from that of the present case of employer and employee potential privileges, because in In re B the doctor-patient privilege related to a relationship of a psychotherapeutic process where the patient's most intimate emotions, fears and fantasies were required to be disclosed to the therapist, and so the court held that such a relationship has deeper roots than does the Pennsylvania doctrine of the patient privilege statute and as such was constitutionally protected.
The respondent in the instant case has no similar claim to resist the subpoena duces tecum by the government. Its argument is that personally identifiable information need not be disclosed by the employer, unless the employee consents, and unless the government gives written assurance of non-disclosure. This argument by the respondent is based upon General Motors v. Director of NIOSH, 459 F. Supp. 235, 239 (S.D.Ohio, 1978), which held that NIOSH has the power to demand that an employer provide it with medical records of the company's employees, but need not provide the names and addresses of those employees. This reliance by the respondent, however, on the General Motors case is misplaced. The decision of Judge Rubin of the Southern District of Ohio was based upon Ohio's physician-patient privilege law and not upon general principles protecting the right of privacy itself.
The respondent nowhere in its briefs has asserted a similar claim to a Pennsylvania physician patient privilege on which to base its refusal to provide the desired information. But even if it had, the existence of such a privilege would be irrelevant on the authority of Kerr v. United States, District Court for Northern District of California, 511 F.2d 192, 197, C.A. 9, 1975, and Heathman v. United States District Court for the Central District of California, 503 F.2d 1032, C.A. 9, 1974, which stated,
" "(In) federal question cases the clear weight of authority and logic supports reference to federal law on the issue of the existence and scope of an asserted privilege. 2B Barron & Holtzoff, Federal Practice and Procedure (Wright Ed.1961), § 967 at 243; 4 Moore's Federal Practice, § 26.60(7) at 26-255; 8 Wright & Miller, Federal Practice & Procedure, Civil § 2016 at 123; Proposed Federal Rules of Evidence, Rules 501-02.' "
Accord, Osterneck v. E. R. Barwick Industries, Inc., 82 F.R.D. 81, 87 (N.D.Ga., 1979); Lewis v. United States, 517 F.2d 236, 237, C.A. 9, 1975. No physician-patient privilege exists as a matter of federal common law. Robinson v. Magovern et al., 83 F.R.D. 79, 90 (W.D.Pa., 1979).
In opposition to the respondent's position, the petitioner cites E. I. DuPont de Nemours & Co. v. Finklea, 442 F. Supp. 821 (S.C.W.Va.1977). There Judge Knapp held valid a subpoena duces tecum served on DuPont by NIOSH. NIOSH's demand for employee medical records was based upon an employee's request that NIOSH investigate a possible high cancer rate among employees at a particular DuPont plant. The DuPont case upheld the authority of NIOSH to obtain the records, including the names and addresses of the employees. The court's decision was based on Whalen v. Roe, 429 U.S. 589, 601, 97 S. Ct. 869, 872, 51 L. Ed. 2d 64 (1977) decision that where there is no evidence that a governmental agency would improperly administer this power, the authority of the agency to subpoena private medical records, including the names and addresses of the persons involved, will be upheld.
Thus, regarding the evidence presented in the matter before me, there has been no demonstration by the respondent that individually identifiable medical records would be improperly disclosed. On the contrary, the evidence indicates that NIOSH's procedures of safekeeping the records and of removing the names and addresses of the individuals in its compilation of published data represents sufficiently adequate assurance of non-disclosure by the petitioner (even without a written assurance), such assurance being comparable to the assurance given by NIOSH in DuPont, supra, at page 825 and commensurate with the result in that case.
The respondent further argues that NIOSH's petition for enforcement of the subpoena duces tecum fails to meet all three of the requirements of United States v. Morton Salt Co., 338 U.S. 632, 70 S. Ct. 357, 94 L. Ed. 401 (1940),
(1) the inquiry must be within the scope of the authority of the agency;