The privacy of hospital patient medical records appears safe from the prying eyes of government prosecutors, at least for now, in ongoing trials addressing the legality of some late-term abortion procedures.
However, while healthcare lawyers, pri- vacy experts and hospital association officials breathed a sigh of relief last week when U.S. Attorney General John Ashcroft dropped his request for the medical records of abortion patients from two New York-Presbyterian Healthcare System hospitals, they warned of possible future confrontations.
American Hospital Association spokesman Richard Wade said the government's action was appropriate. "That's what we expected would happen," he said. However, as the government and healthcare organizations continue to grapple with the Health Insurance Portability and Accountability Act of 1996, he predicted other battles. "We're in for a long line of learning here, and I think other cases will crop up until we learn more about the limits, or lack of limits, of HIPAA."
The day after an April 25 abortion-rights march by an estimated 500,000 people in Washington, Sheila Gowan, an assistant U.S. attorney in New York, withdrew the Justice Department's November 2003 subpoenas requesting medical records from women who allegedly had a controversial abortion procedure performed at the two system hospitals. Gowan told U.S. District Judge Richard Casey that the lengthy effort to produce the medical records was holding up the trial on the legality of the Partial Birth Abortion Ban Act of 2003, according to court transcripts. While the government thought obtaining the medical records was necessary, it also wanted to proceed in its defense of the abortion law.
"There is an important and substantial public interest in having a prompt decision on the constitutionality of the Partial Birth Abortion Ban Act of 2003," Gowan said. "To that end we have determined to voluntarily withdraw the subpoena to New York-Presbyterian Hospital."
While the government did not explicitly say it would not appeal decisions in several other subpoena requests from hospitals in Chicago and Philadelphia, sources said by asking the judge to close its arguments in the next few days, the Justice Department is throwing in the towel on the hospital medical-records search.
Shortly after the law was signed last November, the Planned Parenthood Federation of America, the Center for Reproductive Rights and the National Abortion Federation joined seven physicians to file separate constitutional challenges to the law in Lincoln, Neb., New York and San Francisco. The parties argued that the law does not safeguard the lives of pregnant women and said the procedure is sometimes medically necessary. Ashcroft said partial-birth abortion procedures are never medically necessary and to prove his point subpoenaed the medical records of seven hospitals where the doctors in the New York trial allegedly performed those procedures. Federal courts in Chicago and Philadelphia quashed the subpoenas, saying Ashcroft didn't need the information and that the requests would violate patient privacy. While a judge in Michigan ordered the University of Michigan Hospitals and Health Centers to produce medical records, that system proved the procedure had not been performed there. Two other hospitals in New Jersey and New York also showed the procedures had not been performed at their hospitals. On April 21 Casey cited New York-Presbyterian with contempt, compelling the system to produce the medical records. The 2nd U.S. Circuit Court of Appeals in New York pushed back the deadline on that order and set a May hearing.
New York-Presbyterian spokeswoman Myrna Manners said the system is pleased that the government has dropped the request. "We will always do our utmost to protect the privacy of our patients' medical records," Manners said.
Kirk Nahra, a healthcare privacy lawyer with the Washington office of Wiley Rein & Fielding, said hospitals must recognize that HIPAA privacy rules are "not very patient-protective. Patients have a lot of interest in this issue but were not parties to it and were not in a position to defend themselves. These hospitals took a courageous stand to defend their patients, and that was pretty gutsy," he said. "By advocating for their patients, they won."