There appears to be a wide-spread belief among those in the business and profession of medicine that the Privacy rules propounded under the Healthcare Insurance Portability and Accountability Act of 1996, 42 U.S.C.A. § 1320d-2 (C)(2) (“HIPAA”), created a new federal privilege buttressing the privacy of personal medical records from unauthorized disclosure.
In Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 923 (7th Cir. 2004), the Seventh Circuit Court of Appeals, held that the State Law preemption provision in HIPAA which permits more stringent state law privacy regulations to trump HIPAA’s less restrictive provisions had no impact on federal question suits. It held that a state was free to enforce its more stringent medical records privilege in its state courts and in federal court cases, such as diversity case, where state law provides the rule of decision, but not in federal question cases such as ERISA cases, Medicaid fraud cases, employment discrimination cases, etc. There exists no blanket medical records privacy privilege under federal law. See Fed. Rev. Civil § 501.
In Northwestern, the U.S. Dept. of Justice sought to subpoena the medical records of patients at Northwestern Memorial Hospital upon whom late term abortion procedures had been performed. The government wanted to possibly use the information in litigation challenging the constitutionality of the Partial-Birth Abortion Ban Act. The subpoenaed records were patients of Dr. Cassing Hammond, a plaintiff physician in the case who had performed late term abortions at the hospital using controversial methods (dilation and extraction) and (dilation and evacuation).
In overturning the quash of the governmental procedures based on HIPAA, the court stated that HIPAA was largely procedural in nature and created no new substantive rights.
"All that, 45 C.F.R. § 164.512(e) [HIPAA section on use of medical records in litigation] should be understood to do, therefore is to create a procedure for obtaining authority to use medical records in litigation . . . . We do not think HIPAA is rightly understood as an Act of Congress that creates a privilege."
The court further declined Northwest Memorial’s invitation to adopt a new federal law privilege for abortion records similar to that of psychotherapists treating privileges held privileges by the United States Supreme Court in Jaffee v. Redmond, 518 U.S. 1 (1996). The creation of new common law evidentiary privileges is permitted by Fed. R. Evid. 501 and Jaffee, but the court was “reluctant to embark on a case by case determination of the relative sensitivity of medical records of different ailments or procedures.” The Circuit Court, however, did seize upon a commonplace procedural device to affirm the lower courts quash of the subpoena on different grounds, finding that the burden of compliance with the subpoena would exceed the benefits of production under F.R.C.P. 45, governing federal court subpoenas. The court noted that the government attorney “drew a blank” at oral argument when asked what the government hoped to learn from the records and failed to convince the court they provided any information of probative value in the case. Weighing against the government’s interest was the significant impact and burden of the production of the records, even in redacted from, on the individual patients.
"Even if there were no possibility that a patient’s identity might be learned from a redacted medical record, there would be an invasion of privacy. Imagine if nurse pictures of a woman, uploaded to the Internet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her. She will still feel that her privacy had been invaded. The revelation of the intimate details contained in the record of a late-term abortion may inflict a similar wound. " (Posner, J. at 929)
In a strongly worded dissent, Justice Manion dismissed the “sensitivity” to the privacy issue of the majority.
"The 'de-identification' (redaction) of all identifying information from the medical records and the extensive protective order in place also eliminates any privacy interest in the records."
In Northwestern, the U.S. Dept. of Justice sought to subpoena the medical records of patients at Northwestern Memorial Hospital upon whom late term abortion procedures had been performed. The government wanted to possibly use the information in litigation challenging the constitutionality of the Partial-Birth Abortion Ban Act. The subpoenaed records were patients of Dr. Cassing Hammond, a plaintiff physician in the case who had performed late term abortions at the hospital using controversial methods (dilation and extraction) and (dilation and evacuation).
In overturning the quash of the governmental procedures based on HIPAA, the court stated that HIPAA was largely procedural in nature and created no new substantive rights.
"All that, 45 C.F.R. § 164.512(e) [HIPAA section on use of medical records in litigation] should be understood to do, therefore is to create a procedure for obtaining authority to use medical records in litigation . . . . We do not think HIPAA is rightly understood as an Act of Congress that creates a privilege."
The court further declined Northwest Memorial’s invitation to adopt a new federal law privilege for abortion records similar to that of psychotherapists treating privileges held privileges by the United States Supreme Court in Jaffee v. Redmond, 518 U.S. 1 (1996). The creation of new common law evidentiary privileges is permitted by Fed. R. Evid. 501 and Jaffee, but the court was “reluctant to embark on a case by case determination of the relative sensitivity of medical records of different ailments or procedures.” The Circuit Court, however, did seize upon a commonplace procedural device to affirm the lower courts quash of the subpoena on different grounds, finding that the burden of compliance with the subpoena would exceed the benefits of production under F.R.C.P. 45, governing federal court subpoenas. The court noted that the government attorney “drew a blank” at oral argument when asked what the government hoped to learn from the records and failed to convince the court they provided any information of probative value in the case. Weighing against the government’s interest was the significant impact and burden of the production of the records, even in redacted from, on the individual patients.
"Even if there were no possibility that a patient’s identity might be learned from a redacted medical record, there would be an invasion of privacy. Imagine if nurse pictures of a woman, uploaded to the Internet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her. She will still feel that her privacy had been invaded. The revelation of the intimate details contained in the record of a late-term abortion may inflict a similar wound. " (Posner, J. at 929)
In a strongly worded dissent, Justice Manion dismissed the “sensitivity” to the privacy issue of the majority.
"The 'de-identification' (redaction) of all identifying information from the medical records and the extensive protective order in place also eliminates any privacy interest in the records."
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