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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.

Lewis v. Superior Court (Medical Board of California) (Cal. S.Ct.)

Issue

The issue in this case is whether the California Medical Board infringed patients’ constitutional right of privacy when it obtained information, without a prior showing of good cause, about prescribing patterns from a California Department of Justice (DOJ) database of controlled substance prescriptions.

AMA interest

Patients have a basic right to privacy of their medical information and records. Access to state databases of controlled substance prescriptions by non-health care individuals should be limited to those instances in which there is probable cause that an unlawful act or a breach of the standard of care may have occurred.

Case summary

California established a computerized database of controlled substance prescription records known as the Controlled Substance Utilization Review and Evaluation System (“CURES”). The DOJ maintains the CURES database.

During their initial meeting, Dr. Alwin Carl Lewis recommended to a prospective patient that she follow a diet he proposed for her. The patient considered this advice “unhealthful” and complained to the Medical Board. Pursuant to its routine procedure following patient complaints, the Medical Board obtained CURES reports on Dr. Lewis from November 1, 2005 through approximately the end of December 2009. This was notwithstanding that Dr. Lewis had not prescribed any medications to the complaining patient.

Following an eight day hearing, an administrative law judge concluded that Dr. Lewis had failed to maintain adequate records regarding the patient who had complained about him, and two of his other patients had been over-prescribed controlled substances for a short period of time. The Medical Board placed Dr. Lewis on probation for three years.

Dr. Lewis appealed to the Superior Court of Los Angeles County. He did not challenge the factual findings or legal conclusions as to the initial, prospective patient (for whom he had advised the diet), but he did challenge the findings and conclusions as to the additional patients. He argued that the decision of the Medical Board to review the CURES prescription records of patients as to whom there was no reason to believe there was any wrongdoing – and without any complaint from any patient as to his prescribing practices – was an invasion of his patients’ privacy. The Superior Court denied his appeal.

Dr. Lewis then appealed to the California Court of Appeal. The Court of Appeal observed that the validity of the CURES database would depend on whether the interest of the patients in maintaining the privacy of their prescription records outweighed the interest of the State of California in maintaining the data and the interest of the Medical Board in obtaining the data.

As to the first part of this test, the Court of Appeal held that the privacy interest of the patients was minimal. Controlled substances are inherently dangerous and subject to abuse. Therefore, patients should reasonably expect that controlled substances are just that: controlled under government supervision. Governments must have some means of exercising that control and supervision, and the CURES database was specifically designed for that purpose. Moreover, the CURES statute prohibited any unauthorized disclosure of the information in the database. Also, the Court of Appeal noted that in this case there was no contention that the Medical Board had improperly disclosed any patient information.

As to the second part of the constitutionality test, the Court of Appeal found that the State of California and the Medical Board each had a compelling interest both in preventing the diversion and abuse of controlled substances and in protecting the public against incompetent, impaired, or negligent physicians. The Medical Board should not have to show reasonable cause before accessing the CURES records. If Dr. Lewis was incompetent in one area of medical practice, he might also be negligent in his prescribing practices, or he might personally have a substance abuse problem which could endanger the public health. The Court of Appeal denied the petition of Dr. Lewis to reverse the trial court decision, which had upheld the Medical Board’s disciplinary action.

The California Supreme Court has agreed to hear the appeal of Dr. Lewis from the Court of Appeal.

Litigation Center involvement

The Litigation Center joined an amicus letter brief with the California Medical Association, asking the California Supreme Court to hear the appeal of Dr. Lewis. In order to protect patient privacy, the brief argued, access to the CURES database by Medical Board investigators should be limited to instances in which the Medical Board had found probable cause to believe the standard of care was breached.

The Litigation Center, along with CMA, will also file an amicus brief on the merits.

California Supreme Court letter brief

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, 189 L. Ed.2d 502 (2014)

Also under Abortions and Access to medical facilities

Outcome:    Very unfavorable

Issue

The issue in this case was 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 were “pro-life” sidewalk counselors and demonstrators, who characterize themselves as “peaceful” and “non-confrontational.” They parked their cars near various abortion clinics in Massachusetts and attempted to persuade patients of the clinics not to have abortions. They festooned their cars with pro-life signage, carried placards and other signs, prayed aloud, sometimes with the assistance of loudspeakers, and occasionally wore evocative garments (such as a costume of the Grim Reaper). When possible, they would speak with prospective patients and hand out anti-abortion literature. The defendants were the Massachusetts Attorney General and various county prosecutors.

The plaintiffs challenged 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 contended 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 appealed to the United States Supreme Court.

On June 26, 2014, the Supreme Court reversed, holding that the Massachusetts buffer law was insufficiently tailored to accommodate the free speech rights of the plaintiffs.

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.

Oregon Prescription Drug Monitoring Program v. US Drug Enforcement Administration (9th Cir.)

Issue

This issue in this case is whether, in violation of Oregon law, the Drug Enforcement Administration (DEA), a division of the United States Department of Justice, can access the information in the Oregon Prescription Drug Monitoring Program (Oregon PDMP), an agency of the State of Oregon, through an administrative subpoena, without a showing of probable cause.

AMA interest

Patients have a basic right to privacy of their medical information and records. Access to state databases of controlled substance prescriptions by non-health care individuals should be limited to those instances in which there is probable cause.

Case summary

Oregon, like many other states, established a computerized database of controlled substance prescription records. The Oregon PDMP was created primarily as a public health tool for use by physicians and pharmacists to identify signs of drug addiction and diversion in their patients. It is maintained by the Oregon Health Authority.

The DEA, through an order of a federal magistrate judge, was able to have one of its subpoenas enforced against the Oregon PDMP. The Oregon PDMP then sued in federal court for a declaratory judgment as to whether the federal subpoena statute could override the state-law warrant provision.

The American Civil Liberties Union of Oregon (ACLU) intervened in the case, along with one physician and four patients, who had confidential prescription records in the Oregon PDMP. The ACLU argued that there is a reasonable expectation of privacy in prescription records held in the PDMP. Under the Fourth Amendment to the U.S. Constitution, therefore, the federal government required a warrant to search those records.

The DEA countered that patients and physicians have no reasonable expectation of privacy in their prescription records. The DEA relied in part on the “third party doctrine,” taking the position that because people disclose medical information to a pharmacist they therefore forfeit their privacy interest in that information vis-a`-vis law enforcement.

The district court granted summary judgment in favor of the intervenors on Fourth Amendment grounds, without reaching the question of whether federal law conflicted with and overrode state law. The court concluded that the Fourth Amendment prohibited the DEA from issuing administrative subpoenas for Oregon PDMP records. The DEA was permanently enjoined and required, if it sought prescription records from the Oregon PDMP, to request a judicial warrant, based on probable cause.

The DEA has now appealed to the Ninth Circuit.

Litigation Center involvement

The Litigation Center, along with the Oregon Medical Association, will file an amicus brief supporting the lower court decision.

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