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Physicians' Privacy Rights

Alley v. United States Department of HHS, 590 F.3d 1195 (11th Cir. 2009)

Also under Freedom of Information Act

Outcome:    Very favorable

Issue

The issue in this case was whether the Freedom of Information Act ("FOIA") authorized the federal government to release information that could be used to calculate the amounts received by specific physicians under the Medicare program.

AMA interest

The AMA seeks to protect physicians' privacy interests.

Case summary

Jennifer Alley and her closely held company, Real Time Medical Data, LLC, submitted a series of FOIA requests to the Centers for Medicare and Medicaid Services ("CMS"), requesting disclosure of records for Medicare claims from the United States Department of Health and Human Services ("HHS").  The requests sought physician identifying information linked to payments for Medicare services.  HHS opposed the FOIA request, contending that production of the requested documents would infringe physicians' privacy rights.  It also asserted that the document production would violate an injunction that had been entered in a similar lawsuit against the United States Department of Health, Education and Welfare, the predecessor to HHS, and in favor of the Florida Medical Association and a class of physicians.  Florida Medical Association v. HEW, 479 F.Supp. 1291 (M.D. Fla. 1979).

The plaintiffs sued HHS, seeking an order to compel production.  When it learned of the lawsuit, the AMA intervened as an additional defendant.  The district court overruled the objections of HHS and the AMA, and it ordered HHS to produce the requested documents.  HHS and the AMA appealed.

The United States Court of Appeals for the Eleventh Circuit vacated the order of the district court, holding that the 1979 Florida injunction prohibited HHS from producing the requested documents.  It remanded the case for a further determination of whether the injunction excused HHS from producing any documents or whether it only excused HHS from producing documents pertaining to AMA members or to physicians licensed in Florida.

On remand, the trial court entered summary judgment in favor of HHS and against the plaintiffs.

AMA involvement

The AMA intervened at the district court level and then, along with HHS, successfully prosecuted the appeal.

Consumers' Checkbook v. United States Department of HHS, 554 F.3d 1046 (D.C. Cir. 2009)

Also under Freedom of Information Act

Outcome:    Very favorable

Issue

The issue in this case was whether the Freedom of Information Act ("FOIA") authorizes the government to release information that could be used to calculate the amounts received by specific physicians under the Medicare program.

AMA interest

The AMA seeks to protect physicians' privacy interests.

Case summary

Consumers' Checkbook, a non-profit organization headquartered in Washington, D.C., provided information to consumers.  Consumers' Checkbook submitted a FOIA request to the Centers for Medicare and Medicaid Services ("CMS"), requesting disclosure of records for Medicare claims from the United States Department of Health and Human Services ("HHS").  The request sought physician-identifying information linked to each Medicare service or procedure provided to unidentified patients. The information was requested so that Consumers' Checkbook could help consumers determine "(1) whether the government is allowing and paying for Medicare physicians with less-than-optimal levels of experience to perform difficult procedures .... , (2) whether the government is allowing Medicare physicians with insufficient board certifications, histories of disciplinary actions, or poor scores on independent quality assessments to perform high volumes of difficult procedures for which they may not be qualified .... , and (3) whether Medicare physicians are exhibiting practice patterns that conform with existing guidelines."

HHS opposed the FOIA request, contending that production of the requested documents would infringe physicians' privacy rights. It also asserted that the document production would violate an injunction that had been entered in a similar lawsuit against the United States Department of Health, Education and Welfare, the predecessor to HHS, and in favor of the Florida Medical Association, the AMA, and a class of physicians. Florida Medical Association v. Department of HEW, 479 F. Supp. 1291 (M.D.Fla. 1979).

Following a period of negotiations, Consumers' Checkbook sued HHS, seeking an order to compel production.  The district court ordered HHS to produce the requested documents, and HHS appealed.

The United States Court of Appeals for the District of Columbia Circuit, by a split decision, held that physicians could maintain the confidentiality of their payments from Medicare, thus reversing the federal district court. The majority found that the physician interest in the privacy of Medicare payments outweighed the public interest in disclosure.  It explicitly stated that it was not considering the effect of the 1979 Florida injunction.  Consumers' Checkbook  petitioned the Supreme Court for certiorari, but its petition was denied.

AMA and Litigation Center involvement

The AMA intervened in the appeal in order to protect its adjudicated rights under FMA v. HEW. The Litigation Center and several medical associations filed an amicus curiae brief seeking reversal of the order that had been entered in favor of Consumers' Checkbook.

AMA brief to the United States Court of Appeals for the District of Columbia Circuit

Litigation Center amicus brief to the United States Court of Appeals for the District of Columbia Circuit.

Florida Medical Association v. United States Department of HEW

85 Fed.R. Serv.3d (Callaghan) 1029 (M.D. Fla. 2013)

Also under Freedom of Information Act

Outcome:  Very unfavorable

Issue

The issue in this case was whether the Freedom of Information Act (“FOIA”) authorizes the federal government to release information that could be used to calculate the amounts received by specific physicians under the Medicare program.

AMA interest

The AMA seeks to protect physicians’ privacy interests.

Case summary

In 1979, an injunction was entered against the United States Department of Health, Education and Welfare (the predecessor to the Department of Health and Human Services) and in favor of the Florida Medical Association, the AMA, and a class of physicians.  This injunction prohibited HEW/HHS from making information public that would identify specific physicians and disclose how much those physicians received in Medicare payments.

In 2011, Dow Jones & Company, the publisher of the Wall Street Journal, moved to reopen this case, intervene, and have the judgment vacated.  It asserted that the public interest in disclosure of governmental activities outweighed the physicians’ privacy interest.  Two less prominent persons, Jennifer Alley and her company, Real Time Medical Data, LLC (RTMD), also sought to intervene and reopen the case for the same purpose.

On September 26, 2011, the court reopened the case and allowed Dow Jones (and Alley and (RTMD) to intervene.  On May 31, 2013, the court vacated the injunction, but without reaching the merits of whether the public interest in disclosure outweighed physicians' privacy interests.  Rather, the court held, a continuing injunction against future disclosure of documents was improper.  Instead, each FOIA request would have to be considered separately, with the competing interests for and against disclosure weighed anew for each such request.

The AMA and FMA elected not to appeal from the court's order of vacature, so this case is now concluded.

AMA involvement

The AMA, along with the Florida Medical Association, is trying to prevent the judgment from being vacated.

Jensen v. Sawyers, 130 P.3d 325 (Utah S. Ct. 2005)

Also under Ethics

Outcome:    Unfavorable

Issue

The issue in this case was whether a physician has a protectible right of privacy in connection with a patient examination.

AMA interest

The AMA supports physicians' privacy right.

Case summary

A television reporter, Mary Sawyers, used a hidden video camera to tape Dr. Jensen prescribing phentermine and fenfluramine (“Phen-Fen”) for weight loss without undertaking a complete physical examination. During a news broadcast, Ms. Sawyers showed portions of her recordings and charged Dr. Jensen with promising “illegal” medication. In fact, while Dr. Jensen's examination was less thorough than it should have been under acceptable medical standards, he did make a partial evaluation of her physical condition. Also, he did not prescribe any illegal medications for Ms. Sawyers.

As a result of this report, Dr. Jensen lost his job and his hospital privileges. The Utah Division of Occupational and Professional Licensing placed his medical license on probation for one year and ordered him to attend classes on medical ethics. Although Dr. Jensen continued to maintain his license, he was unable to develop patients outside of the nursing home at which he was practicing medicine. The “punishment” that Dr. Jensen received from the damaging publicity far exceeded any transgression on his part.

Dr. Jensen sued the television reporter and the television station and the jury rendered a verdict in his favor.  However, the trial court reduced the verdict.  Both sides appealed.

The Utah Supreme Court partially vacated the verdict and damages awards based on Dr. Jensen's invasion of privacy claims from the first and second broadcasts as time-barred by the statute of limitations. Further, the Court modified the economic loss and damages award based on Dr. Jensen's claims relating to the third broadcast. The Court affirmed the trial court on all other issues raised on appeal.

Litigation Center involvement

The Utah Medical Association and the Litigation Center filed an amicus curiae brief to support Dr. Jensen. The brief highlighted several sections of the Code of Medical Ethics, emphasizing the personal, collaborative nature of the patient-physician relationship and the need for mutual candor and trust in that relationship.

Unfortunately, Dr. Jensen brought this case to the Litigation Center's attention long after the ordinary time for briefing had lapsed. The defendants objected to the amicus brief as untimely, and the Utah Supreme Court denied the  motion for leave to file it.

Levin v. WJLA-TV, 564 S.E.2d 383 (Va. 2002)

Also under Peer review

Outcome:    Very favorable

Issue

The issue in this case was whether peer review proceedings should be privileged from legal discovery.

AMA interest

The AMA seeks to preserve the confidentiality of the peer review process.

Case summary

Following a supposed expose of his medical practices, Dr. Levin sued a television station and others for defamation and related common law claims. The trial court judge ordered that the peer review records of three hospitals be produced in pre-trial discovery at the request of the television station, notwithstanding a statutory privilege against production of such records. She believed that the privilege applies only to medical malpractice suits. The judge also felt that Dr. Levin had waived the privilege by filing suit. Because of their failure to produce the records, she found the hospitals in contempt of court and fined them $150 per day until they complied with her order.

The Virginia Supreme Court reversed the trial court’s decision. Consistent with arguments advanced by AMA/VMS, the court held that (1) the peer review statute grants an unqualified privilege to peer review records, (2) the privilege belongs to the hospital and cannot be unilaterally waived by a physician and (3) the facts of this case did not constitute “extraordinary circumstances” sufficient to warrant disclosure of the privileged information.

Litigation Center involvement

The Litigation Center, along with the Medical Society of Virginia filed an amicus brief in the Virginia Supreme Court, supporting the hospital and a broad reading of the peer review privilege.