Protect patient privacy

Why the AMA and the Utah Medical Assn. have filed a friend-of-the-court brief over the use of medical records in a grand jury investigation.

Editorial. Feb. 14, 2000.

The wall that should surround patient privacy is crumbling at an alarming rate. It doesn't help the situation when government prosecutors decide to take a turn at punching a hole in it.

That's why the AMA and the Utah Medical Assn. have filed a friend-of-the-court brief over the use of medical records -- at least those complete with patient names -- in a grand jury proceeding looking into a possible violation of the federal False Claims Act. Prosecutor demands that the files be turned over with the names intact are overkill in this case and one more attempt at cheapening the idea of patient privacy. The clinic that is the target of the probe -- AMNews has agreed to withhold its name for now -- is holding on to the records until a judge rules on the matter.

In backing up the patients' right to the privacy of their medical records, the AMA and the Utah association propose a sensible three-part test, stemming from a civil rights class action suit in the same jurisdiction, that should apply in the matter at hand and in similar cases: Do patients have a legitimate expectation of privacy concerning their medical records? Will disclosing the records serve a compelling government interest? Can the government achieve its objective in a less intrusive way?

The correct answers, in this case, are yes, no and yes.

The notion of patient privacy is not a matter of courtesy. It is central to the ability to diagnose and deliver effective medical care. It was true at the time of Hippocrates and is even more so today. Patient and physician must be able to have a frank and full discussion of symptoms, behaviors and clinical test results that are relevant to treatment.

Moreover, the setting of this case underscores that the release of such information always carries a risk. The brief argues that the setting of this case is a tight-knit community. There are 23 jurors on the grand jury and, at this point, 27 patient files are slated to be entered into evidence -- although the subpoena allows for the number to grow to many times that figure. In our six-degrees-of-separation world, it is hardly unreasonable to think that a juror might see the medical file of someone he or she knows.

The second question is a corollary to the first. It is well recognized that the right to privacy is not absolute. The patient with a gunshot wound who is brought to the hospital emergency department quickly finds that out.

But the compelling government interest in revealing patient names is missing. From all appearances, this is a credit balance case, basically having to do with the return of overpayments. There is no reason to believe that collusion with patients is a factor or that this is a situation where stripping the patients' names would somehow help the target of the investigation alter the record.

The third question points to how this matter should be settled. There exists an adequate mechanism for the government to meet its goal. It is called "de-identification," and in this case it would require simply removing patient names and replacing them with numbers. Both would be kept on a list to reveal patient identities if it were ever truly necessary.

The prosecutors are expected to scoff at these arguments when oral arguments are heard this month. Prosecutors like to retain as much latitude as possible in grand jury probes, and this case is no exception.

Moreover, it is true that the trend in the courts has been to favor the confidentiality of psychiatric records (not likely an issue in this case) vs. those of other medical conditions. But advances in science are expanding the range of what information can be damaging to someone -- genetic test results that stigmatize someone with no outward signs of illness come to mind.

What must also be kept in mind is that patient confidence is an issue that goes beyond the nuances. What matters is if patients come to generally believe that what they tell the doctor will become evidence in court in a case where they are only tangentially involved. That's when the damage will be done.

While the friend-of-the-court brief is limited to the case at hand, it is possible that the judge's decision will become a precedent that other courts will follow. Too much is already taking place to compromise privacy -- employers wanting to take a peek at patient records, computer databases that capture intimate details of patient lives and send them heaven knows where. The courthouse, where a certain respect for individual rights is supposed to reside, should not be where privacy rights are compromised even more.