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Patient Privacy

Aid for Women v. Foulston, 441 F.3d 1101 (10th Cir. 2006)

Outcome:    Unfavorable

Also under Abortions, Minors' rights

Issue

The issue in this case was whether health care professionals in Kansas must report abortions on girls under 16 years of age, without exception, to the Department of Social and Rehabilitation Services.

AMA interest

The AMA believes that the reporting of possible child abuse should fall within a physician’s professional judgment.

Case summary

The Kansas child abuse reporting statutes require health care professionals to report suspected injury from sexual abuse to the Kansas Department of Social and Rehabilitation Services.  Also, Kansas law considers sex with a child less than 16 years of age to be statutory rape.  In response to a question from a member of the state legislature, the Kansas Attorney General stated that, under these laws, health care professionals must report any girls under the age of 16 who had an abortion to the Department of Social and Rehabilitation Services.  The Attorney General opinion further opined that any sexual activity by an unmarried person under the age of 16 must be reported.

A coalition of health care professionals sued in federal court to have the Attorney General’s opinion deemed a violation of the children’s right of privacy under the federal constitution.  The judge found that the opinion was such a violation, and he entered a preliminary injunction against prosecution of health care professionals for failing to report “sexual activity between adolescents under the age of sixteen and persons of similar age in which injury is not reasonably suspected.”  The defendants, the county and district attorneys in Kansas appealed.  The Tenth Circuit vacated the preliminary injunction and remanded to the trial court, finding an abuse of discretion by the trial court in failing to adequately analyze the several factors required for a preliminary injunction.

AMA involvement

The AMA, the Kansas Medical Society, several specialty medical societies, and numerous other public health organizations filed an amicus curiae brief on January 6, 2005, to advise the court of the importance of maintaining confidentiality in the relationship between physicians and their minor patients.  The brief argued that adolescent sexual activity, even for children under the age of sixteen, is not necessarily injurious, so long as it is consensual and between children of similar ages.  Reporting of such activity, therefore, should be within the discretion of the health care professional and not mandatory.

United States Court of Appeals for the Tenth Circuit brief

Behar v. Pennsylvania Department of Transportation (M.D. Pa.)

Outcome:    Very unfavorable

Also under Confidentiality

Issue

The issue in this case was whether Pennsylvania laws that require physicians to report impaired patients to the Department of Transportation (DOT) conflict with various provisions of the United States and Pennsylvania Constitutions and with federal laws and are therefore invalid.

AMA interest

The AMA believes that the reporting of impaired patients to departments of transportation should be a matter of professional judgment, undertaken after discussion between physicians and their patients.

Case summary

The statutes and regulations of the Pennsylvania Department of Transportation require physicians to report certain physical and mental impairments of their patients to the DOT.  This obligation extends to patients over the age of 16 (and even some patients under the age of 16), even if they do not have and have no intention of applying for a driver's license.  In this lawsuit, David Behar, MD contending that those laws conflict with various provisions of the United States and Pennsylvania Constitutions and with federal statutes and are therefore invalid.   

Pursuant to a DOT motion, the trial court dismissed most of the counts in Dr. Behar's complaint.  It held that several claims are barred under the Eleventh Amendment to the United States Constitution (which prohibits lawsuits being brought in federal court against a state by citizens of another state or citizens of a foreign country), as well as various other considerations, some substantive and some technical. One of the counts survived the DOT motion, but the court ultimately entered summary judgment against Dr. Behar on that count.

Litigation Center involvement

The Litigation Center and the Pennsylvania Medical Society (PMS) filed an amicus brief to support Dr. Behar. 

District Court brief.

City of Charleston v. Ferguson, 532 U.S. 67 (2001)

Outcome:    Very favorable

Also under Confidentiality, Ethics, and Patient rights

Issue

The issue in this case was whether mandatory drug testing of pregnant women seeking obstetrical care at a state funded hospital was permissible on constitutional and statutory grounds.

AMA interest
The AMA supports protection of patient privacy.

Case summary
This case challenged a policy fashioned largely by Charleston, South Carolina law enforcement officials whereby pregnant women who sought obstetrical care at the Medical University of South Carolina ("MUSC) were subjected to warrantless and non-consensual drug testing designed and used to facilitate arrest and prosecution of mothers who tested positive for cocaine. MUSC was a state-funded hospital and the only medical facility in the Charleston area to treat indigent and Medicaid patients, a majority of whom were African-American. When the policy was implemented, drug treatment was unavailable for pregnant women. Mothers and expectant mothers who tested positive at the hospital were simply jailed. The drug testing policy was not used in any of the other Charleston area hospitals.

Ten women, including nine women who had been arrested for testing positive for illegal substances, challenged the policy on various constitutional and statutory grounds. In upholding the policy, a divided panel of the Fourth Circuit Court of Appeals held that, because urine drug screens may serve a medical purpose, there was no need for a warrant or consent, even though the testing had been done to further law enforcement objectives.

The Supreme Court reversed and remanded, holding that the Fourth Amendment to the U.S. Constitution’s general prohibition against nonconsensual, warrantless and suspicionless searches necessarily applied to the policy.

Litigation Center involvement
The AMA filed an amicus brief in the U.S. Supreme Court, arguing that the policy mandating drug testing of pregnant women violated the patients’ expectations of privacy when they consulted with their physicians, discouraged drug-abusing women from seeking prenatal care, and was generally ineffective in preventing drug abuse.

Louisiana Attorney General v. Janssen Pharmaceutical (St. Landry Parish, Louisiana)

Outcome:    Very favorable

Issue
The issue in this case was whether physicians could adequately protect patient privacy in the face of a pharmaceutical company’s subpoena for physicians’ medical records relating to those patients.

AMA interest
The AMA supports protection of patient privacy.

Case summary
The Louisiana Attorney General sued Janssen Pharmaceutica, a subsidiary of Johnson & Johnson, for the fraudulent marketing of Risperdal to Medicaid patients. Measured in sales, Risperdal is a multibillion dollar per year drug. It has been FDA approved for certain mental illnesses, including bipolar disorder and some types of autism. It has not been approved for other types of mental illnesses. Also, it can cause severe side effects.

The complaint alleged that Janssen marketed the drug for purposes other than those that had been FDA approved, it did not properly disclose the known side effects, and it even covered up certain side effects. As a result, according to the Attorney General, physicians over-prescribed the drug, and Medicaid patients suffered the side effects in situations where they never should have received the medication. This caused the Louisiana Medicaid program to spend more money than was appropriate for the drug, and it also caused the Medicaid program to spend additional funds to treat the side effects.

The suit sought to recover (a) the unnecessary expenditures for the Risperdal prescribed as a result of the unlawful marketing, (b) the money spent to pay for the side effects of those patients who were improperly dosed with Risperdal as a result of the unlawful marketing, and (c) substantial monetary penalties. The claims were based on the Louisiana version of the False Claims Act, the Louisiana Unfair Trade Practices and Consumer Protection Law, and various common law/civil law causes of action.

Janssen originally wanted to send discovery subpoenas to all physicians who had been reimbursed under the Louisiana Medicaid program for prescribing Risperdal. It sought the complete medical records of all patients who received the drug, going back to 1994. After objections from the Attorney General and following various pretrial conferences, the court ordered production of medical records from 150 physicians, covering 6000 patients. Janssen also planned to depose each of those 150 physicians. The discovery plan, however, is still tentative.

Although the court entered a protective order to preserve confidentiality and, apparently, comply with HIPAA requirements, the Louisiana State Medical Society ("LSMS) filed an amicus brief on January 30, 2008, to address discovery issues of particular concern to the affected physicians. The Litigation Center’s support was cited in the LSMS brief. In late February 2008, the court quashed the subpoenas to the 150 physicians.

Litigation Center involvement
The Litigation Center supports LSMS’s position regarding the patient privacy issues arising from discovery requests for patients’ medical records and will join in any further LSMS amicus briefs, should they be necessary.

McCullen v. Coakley (S.Ct.)

Also under Abortions and Access to medical facilities

Issue

The issue in this case is whether a Massachusetts statute making it a crime to enter or remain on a public way or sidewalk within 35 feet of an entrance to an abortion clinic in order to “counsel” those having abortions is constitutional.

AMA interest

The AMA supports the right of access to medical care and opposes acts of intimidation that may impede physicians’ ability to care for their patients. Further, the AMA believes that physicians should protect patient privacy in all its forms, including the physical privacy of patients and respect for their personal space.

Case summary

The plaintiffs in this case are “pro-life” sidewalk counselors and demonstrators, who characterize themselves as “peaceful” and “non-confrontational.” They park their cars near various abortion clinics in Massachusetts and attempt to persuade patients of the clinics not to have abortions. They festoon their cars with pro-life signage, carry placards and other signs, pray aloud, sometimes with the assistance of loudspeakers, and occasionally wear evocative garments (such as a costume of the Grim Reaper). Whey they can, they speak with prospective patients and hand out anti-abortion literature. The defendants are the Massachusetts Attorney General and various county prosecutors.

The plaintiffs are challenging a Massachusetts “buffer zone law,” which prohibits persons from encroaching within a specified distance of abortion facilities or the patients at those clinics. The plaintiffs contend that the Massachusetts law infringes their rights under the First and Fourteenth Amendments to the United States Constitution. Both the trial court and the United States Court of Appeals held the buffer zone law constitutional, but the plaintiffs are now appealing to the United States Supreme Court.

Litigation Center involvement

The Litigation Center joined the Massachusetts Medical Society and the American Congress of Obstetricians and Gynecologists in an amicus brief to the Supreme Court. The brief argued that the buffer zone law is reasonable and does not unduly infringe the plaintiffs’ constitutional right to communicate with the abortion facility patients.

United States Supreme Court brief

Medical Mutual of Ohio v. Schlotterer, 909 N.E.2d 1237 (Ohio 2009)

Outcome:   Very unfavorable

Also under Confidentiality

Issue
The issue in this case was whether a physician could be required to disclose confidential patient-physician communications in response to a health insurance company’s discovery requests in litigation.

AMA interest
The AMA believes that, absent patient consent, patient-physician communications should be kept confidential.

Case summary

Medical Mutual of Ohio (Med Mutual), a managed care organization, sued William Schlotterer, DO for fraud and breach of contract, alleging that he persistently upcoded his claims to Med Mutual for medical services to patients.  Med Mutual asked Dr. Schlotterer to produce his patients' medical records so that it could substantiate its claims.  Dr. Schlotterer refused, and Med Mutual moved to compel production.  Med Mutual proferred a protective order, under which Dr. Schlotterer would have to waive his patients' right to confidentiality. The trial court granted the motion, and Dr. Schlotterer appealed to the Ohio Court of Appeals.

The Court of Appeals found that Ohio law prohibits physicians from testifying about their communications with patients absent exceptional circumstances (none of which were present in the case), that Med Mutual's pecuniary interests did not outweigh the patients' privacy interests and that the requested discovery was overly broad. Additionally, the appellate court found that Med Mutual was required at least to attempt to obtain releases of the information sought directly from the patients. Consequently, the Court of Appeals reversed the trial court order requiring production of the patient records. Med Mutual appealed to the Ohio Supreme Court.

The Ohio Supreme Court, in a split decision, reversed the Court of Appeals and ordered the discovery.  It noted that the patients had consented to the release of otherwise privileged information when they signed an application for insurance, enrolled in a plan, or presented the insurance company's identification card to a physician at the time of service.  This consent was broad enough to cover the present fraud investigation.

Litigation Center involvement
The Litigation Center has joined the Ohio State Medical Association in an amicus curiae brief in the Ohio Supreme Court supporting the need for patient-physician confidentiality.

Ohio Supreme Court brief.

Paul v. Providence Health System-Oregon, 273 P.3d 106 (Or. 2012)

Outcome:    Very favorable

Also under Electronic Medical Records

Issue

The issue in this case was whether, under Oregon law, a hospital could be liable for damages for the loss of unencrypted patient records if the patients whose records were lost had not suffered tangible economic harm.

AMA interest

The AMA advocates for and supports initiatives to minimize the financial burden of adopting electronic medical records.

Case summary

A hospital employee took home and then had stolen computer disks and tapes which contained unencrypted records.  These included names, addresses, telephone numbers, Social Security numbers, and health care information.  A few weeks after the theft, the hospital sent letters to each of the affected patients alerting them to the loss of data and advising them to take precautions to protect themselves.

A class action was filed on behalf of the patients affected by the theft.  The plaintiffs claimed they suffered loss of privacy, expenses associated with monitoring of credit reports, placing and maintaining fraud alerts, and general “costs of credit damage.”  They sought relief based on common law negligence and the Oregon Unlawful Trade Practices Act.

The hospital moved to dismiss the suit for failure to state a cause of action, and the trial court granted that motion .  The plaintiffs then appealed to the Oregon Court of Appeals.  The Court of Appeals affirmed, holding that under Oregon law neither a risk of future injury, not yet realized, nor the expense of monitoring for a possible injury is a compensable damage.

The plaintiffs then appealed to the Oregon Supreme Court, which affirmed.

Litigation Center involvement

The Litigation Center, along with the Oregon Medical Association, filed an amicus brief in the Oregon Supreme Court, supporting the hospital.

Oregon Supreme Court brief

Roe v. Planned Parenthood of Southwest Ohio Region, 912 N.E.2d 61 (Ohio 2009)

878 N.E.2d 1061 (Ohio App. 2007)

Outcome:  Very Favorable

Also under Abortion notification

Issue

The issue in this case is whether a teenage girl and her parents could obtain production of redacted non-party medical records in a suit claiming an improper abortion.

AMA interest

The AMA believes that communications between physician and patients should be confidential.

Case summary

A 14-year old girl who became pregnant by her 21-year old soccer coach obtained an abortion by deceiving Planned Parenthood into a belief that the girl's father consented to the abortion.  The soccer coach eventually was convicted of sexual battery and sentenced to prison.

The girl, through her parents, sued Planned Parenthood and the obstetrician-gynecologist (Ob-Gyn) who had performed the abortion.  The plaintiffs alleged violations of various Ohio statutes requiring parental notice and consent.  They asserted that the defendants regularly violated these statutory requirements, and they requested discovery from Planned Parenthood and the Ob-Gyn of medical records of all minors who had sought abortions and on whom abortions had been performed during the previous ten years.  Over the defendants' objections, the trial court ordered production of the documents with specific patient-identifying information removed.

On an interlocutory appeal, the Ohio Court of Appeals reversed the trial court, holding that a private plaintiff's interest in attempting to bolster a speculative punitive damages award alone does not outweigh the patient's interest in maintaining confidentiality.  The plaintiffs then appealed to the Ohio Supreme Court.  By a spilt decision, The Ohio Supreme Court affirmed the Court of Appeals and upheld the privileged character of the medical records. 

Litigation Center involvement

The Litigation Center, along with the Ohio State Medical Association and the American College of Obstetricians & Gynecologists, filed two amicus curiae briefs in the Ohio Supreme Court supporting Planned Parenthood and the Ob-Gyn.

Original Ohio Supreme Court brief

Supplemental Ohio Supreme Court brief