The Bush administration is making a prima facie case for rewriting the rules it issued less than a year ago on the privacy of medical records. No, it doesn't want to change the rules, but heavy-handed subpoenas issued by the Justice Department have shown how little regard administration officials have for patients' rights.
As first reported Feb. 6 by Modern Healthcare's Daily Dose, the administration has sought the medical records of scores of patients from at least six hospitals around the country. The administration is fighting a lawsuit filed by abortion rights activists and some physicians against the Partial Birth Abortion Ban Act of 2003. Attorney General John Ashcroft, a steadfast foe of abortion, is demanding that case histories of the patients be made available so a federal court in New York can determine whether the late-term abortion procedure has been performed on women to preserve their lives or as an elective procedure.
There are so many problems with this approach that it's hard to know where to start. Neither the hospitals nor their patients are parties to the lawsuit. Ashcroft and the New York judge believe that hospitals can protect the patients simply by blacking out their names and addresses, but that begs the question of whether the medical histories carry other identifying information that would be embarrassing if it were the subject of court testimony. A federal judge in Chicago thinks the answer is yes, and that's why he threw out a subpoena aimed at Northwestern Memorial Hospital, calling it a "significant intrusion" into patient privacy. And previous litigation on specific procedures has involved expert medical testimony on current clinical practices, not on the case histories of patients not involved in the lawsuits.
The Justice Department said in its motion that "there is no federal common law" protecting physician-patient privilege. "Individuals no longer possess a reasonable expectation that their histories will remain completely confidential."
Contrast this with the statement by HHS Secretary Tommy Thompson last April in touting his agency's rewrite of Clinton-era patient confidentiality rules, "These new federal health privacy regulations set a national floor of privacy protections that will reassure patients that their medical records are kept confidential."
It appears that a HIPAA provision granting supremacy to tougher state laws may help some hospitals quash these subpoenas, but that doesn't help facilities in states with laws weaker than the federal statute.
The New York federal judge, Richard Casey, has threatened sanctions against those resisting the subpoenas. "I will not let the doctors hide behind the shield of the hospital," he said at a hearing earlier this month.
Meanwhile, a federal judge in Philadelphia heard arguments in December from patient groups, physicians and privacy advocates seeking to overturn the Bush administration's medical privacy regulations. The plaintiffs believe the rules allow too much leeway to providers to share medical information without patient consent. At least one bill to toughen the rules has been introduced in Congress.
We have argued on this page that the Bush regulations should be given a fair test, but the attorney general's actions have given us second thoughts.
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We invite you to read our first quarterly Modern Physician special section, which begins on p. 42 (print edition). The section is another outgrowth of the merger earlier this year of Modern Healthcare and our sister publication, Modern Physician. The highlight of the 13-page special section is a cover story on efforts-successful and otherwise-to connect hospitals and physicians through information technology and the exclusive results of a survey on hospital-physician connectivity. The next Modern Physician section will appear in our April 26 issue, which will be distributed at the American College of Physician Executives meeting in Las Vegas.