Administration Sets Forth a Limited View on Privacy

[Dave Farber <dave () farber net>]

Administration Sets Forth a Limited View on Privacy

March 6, 2004
 By ROBERT PEAR and ERIC LICHTBLAU





WASHINGTON, March 5 - In a sharp departure from its past
insistence on the sanctity of medical records, the Bush
administration has set forth a new, more limited view of
privacy rights as it tries to force hospitals and clinics
to turn over records of hundreds and perhaps thousands of
abortions.

Federal law "does not recognize a physician-patient
privilege," the Justice Department said last month in court
papers that sought abortion records from Planned Parenthood
clinics in California, Kansas, Missouri, Pennsylvania, New
York City and Washington. Moreover, the department said in
another abortion case, patients "no longer possess a
reasonable expectation that their histories will remain
completely confidential."

Health lawyers and privacy experts said that position
reflected a significant shift after six years in which Bush
and Clinton administration officials had promised to
strengthen the confidentiality of medical records.

Two federal judges have also expressed alarm over the
government position. The latest blow to the government was
on Friday, when a federal district judge in San Francisco
denied a demand by the Justice Department for access to
abortion records from a public hospital there and from six
Planned Parenthood affiliates in the county.

The judge, Phyllis J. Hamilton, said forcing the providers
to turn over the records would undermine the privacy rights
of patients and could dissuade some from seeking treatment.


"There is no question that the patient is entitled to
privacy and protection," Judge Hamilton said. "Women are
entitled to not have the government looking at their
records."

Judge Hamilton said the records included "potentially
identifying information of an extremely personal and
intimate nature" like age of first sexual experience, types
of contraception used and details of abuse or sexually
transmitted diseases.

The city said federal officials were seeking the records of
2,700 patients.

What began late last year as a fairly modest government
effort to obtain records appears to have ballooned into a
systematic effort in courts around the country to define
the limits of medical privacy.

Health care professionals and privacy advocates say the
government's position has broad implications beyond
abortion. If patients have no reasonable expectation of
privacy, the critics say, the government may be more
aggressive in seeking records from hospitals, insurance
companies and other businesses in criminal, civil and
administrative cases.

The Justice Department says it needs the records to defend
a new law that prohibits what opponents call partial-birth
abortions. Doctors and clinics have challenged the law,
saying it bars them from performing certain medically
needed abortions.

A spokesman for the White House, Trent D. Duffy, defended
the subpoenas. The administration is "strongly committed to
medical privacy," and the subpoenas are "completely
consistent" with federal privacy rules, Mr. Duffy said.

A spokeswoman for the Justice Department, Monica M.
Goodling, said, "We are respecting patient privacy by
having hospitals delete any information that identifies
specific patients."

President Bush was elected on a platform that proclaimed
support for medical privacy. In April 2001, he said he
would protect "the right of every American to have
confidence that his or her personal medical records will
remain private."

At the time, Tommy G. Thompson, secretary of health and
human services, said, "We are giving patients peace of mind
in knowing that their medical records are confidential and
their privacy is not vulnerable to intrusion."

The federal rules, adopted under a 1996 law, have touched
off a quiet revolution in health care. Doctors, hospitals
and drugstores routinely give "notices of privacy
practices" to patients, assuring them that personal
information will be protected.

Privacy advocates say the administration has rolled back
some safeguards adopted by President Bill Clinton, and the
Justice Department says now that the 1996 law is no
obstacle to its efforts to obtain abortion records. In
court papers, the Justice Department says the records are
needed to show that the banned procedure is almost never
medically necessary and "poses serious risks."

Dennis J. Herrera, the city attorney for San Francisco,
said he was deeply troubled by Washington's stance.

"Any reasonable person has an expectation that their
medical records are going to be kept private," Mr. Herrera
said. "If physicians and patients are left wondering
whether their records are going to be made public, that has
a real chilling effect. How candid are people really going
to be with their doctors?"

The abortion recipients are not directly involved in the
litigation, and the government has not told them that it
wants their records.

The Justice Department says the federal rules allow the
disclosure of medical records in judicial proceedings, with
safeguards to protect patients' names. But doctors and
hospitals say state laws often prohibit such disclosures,
even with deleted names.

Representative Edward J. Markey, the Massachusetts Democrat
who is co-chairman of the Congressional Privacy Caucus,
said the records would have clues that could identify
patients.

"How many hundreds of women, or thousands, will have the
frightening experience of their medical records being
handed over to the Justice Department as part of a fishing
expedition?" Mr. Markey asked.

Representative Nita M. Lowey, Democrat of New York, said:
"This administration claims to have taken great pride in
adopting regulations aimed at ensuring the sanctity and
privacy of medical records. But in an attempt to defend the
so-called partial-birth abortion ban, it seems to have lost
sight of its promises."

The demand for files is not limited to records of that type
of abortion, known medically as intact dilation and
extraction. The government also seeks these materials for
the last three years:

¶Records of any second-trimester abortion in which the
patient suffered a medical complication, regardless of the
technique.

¶Records of any case in which a doctor caused a fetus's
death by injecting chemical agents in the womb in the
second or third trimester.

¶Documents related to any medical malpractice claims
arising from certain abortions.

¶The names of all doctors who have performed any type of
abortion.

The recent subpoenas appear to have struck a nerve with
Attorney General John Ashcroft's critics, because of his
history as an outspoken opponent of abortion in almost all
cases. Advocates of abortion rights said they did not trust
his department to judge whether abortions were medically
necessary.

The federal standards have real-life implications for
people like Sally Scofield, a legal secretary in Manhattan,
Ill., who has joined a suit to fight the rules. After knee
surgery and spinal injections in 2002, Ms. Scofield said,
she was shocked to learn that her records had been given
without her consent to a medical research business, an
investigation company and a photocopying service.

"I have nothing to hide about my knee or my spine," Ms.
Scofield said. "But every woman will tell you she has
medical records she does not want shared. Rape victims,
child molestation, incest, H.I.V., there are a lot of
things people don't need to know about."

Carolyn Marshall contributed reporting from San Francisco
for this article.

http://www.nytimes.com/2004/03/06/politics/06PRIV.html?ex=1079586388&ei=1&en=6029025f14bf51b8

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