more on Wow... no privacy left, is there? - DoJ, subpoenas & HIPAA

[Dave Farber <dave () farber net>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Sat, 14 Feb 2004 09:25:20 -0500
From: Ethan Ackerman <eackerma () u washington edu>
Subject: RE: [IP] more on Wow... no privacy left, is there? - DoJ,
 subpoenas & HIPAA
To: dave () farber net
Greetings Dave,
for IP, if you find it informative enough  - most people (lawyers included)
don't understand when or what laws protect their medical privacy at the
federal level.
(*I am not advocating that HIPAA is a good or bad law, just giving a little
background on what it says in this case.*)

While most every state has some form of law protecting doctor-patient
confidentiality in court proceedings - commonly referred to as a
"doctor-patient" privilege - the U.S. federal court system DOESN'T recognize
such a privilege -  a fact that shocks most Americans when they hear about
it.

The main (and almost only) federal medical privacy protection, then, is in
portions of the Health Insurance Portability and Accountability Act, or
HIPAA - much of which only has been in effect since April 2003.

In this case, HIPAA requires the hospitals to comply with the DOJ subpoenas
only if the DOJ or hospital (1)notifies the patients first, or (2)gets a
protective order from a court.
(Apparently the NY Court DID issue a protective order along with the
subpoena, but the Chicago court held that the protective order wasn't
"protective" enough, it didn't redact enough, didn't comply with stricter
provisions in Illinois law, etc. - that is where the conflict is.)

In a previous comment, Brock's point that the "medical necessity" of the
particular procedure is being called into question - that the doctors have
"opened the door" to the DOJ looking at the records by relying on them in
their case - is _relevant_ to the dispute between the doctors and the DOJ
(and he is wise to pick up on it), BUT the hospitals are still bound by
HIPAA - they still cannot turn over the records without first notifying the
patients or getting a protective order - regardless of who is asserting
what.


It is worth noting that this DOJ _did_ assert that individuals no longer
possess a reasonable expectation that their medical histories will remain
confidential - see:
http://www.nysd.uscourts.gov/courtweb/pdf/D07ILNC/04-01090.PDF
(the Chicago court decision)

Nine years ago, the DOJ was singing a different tune, and actually asking
the Supreme Court to adopt one type of doctor-patient privilege at the
federal level - see:
http://www.usdoj.gov/osg/briefs/1995/w95266w.txt

Times have changed things...

-Ethan Ackerman



-----Original Message-----
From: owner-ip () v2 listbox com [mailto:owner-ip () v2 listbox com] On Behalf
Of Dave Farber
Sent: Friday, February 13, 2004 3:20 PM
To: ip () v2 listbox com
Subject: [IP] more on Wow... no privacy left, is there?



From: "Meeks, Brock (MSNBCi)" <Brock.Meeks () MSNBC COM>

[...]

--Brock
-----

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