Holland & Hart Healthcare Law Blog

HEALTH CARE DATA CHASE: THE ARRIVAL OF HEALTH CARE ALL CLAIMS DATA BASES.

    The Colorado legislature is about to address a proposal to develop a state health care all claims data base as part of Governor Rittter’s health care initiative package. The pending bill, HB 1330, provides for the structure and development of a claims data base in the state with the hope of joining a number of other states that have already or are in the process of developing their data bases.  

HOSPITAL PRIVACY BREACH -- DELIVERY OF MEDICAL RECORDS TO GRAND JURY.

 In responding to government or grand jury subpoenas for medical records, analysis under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), may not be the end of the road. HIPAA specifically authorizes a hospital to release a patient’s medical records in response to a grand jury subpoena. 45 C.F.R. Sec. 164.512(f)(1)(ii)(B). Unlike most federal statutes that pre-empt conflicting state laws, HIPAA specifically permits more stringent state medical privacy laws to pre-empt HIPAA. In the recent case of Turk v. Brian Oiler, et al., in the U.S. District Court for the Northern District of Ohio, a U.S. District Judge held that Ohio’s physician-patient privilege did not permit delivery of medical records to a grand jury and thus preempted HIPAA and exposed the Cleveland Clinic to potential exposure for delivery of the mental health and substance abuse records of the plaintiff James Turk to a state grand jury. 

E-PATIENTS AND ELECTRONIC PERSONAL HEALTH RECORDS (“EPHR”)

 The cost of health care is an enormous drag on the productivity of American business. When the cost of health care for employers rises to 20% of the cost of doing business in some industries, the structural handcuffs of health care costs can make the difference in economic survival or not.  The advent of electronic medical records (“EMR”) has been received in some quarters as a panacea for the achievement of improved quality of health care delivery and reduction of the crushing runaway costs of the system.

MONTANA SUPREME COURT AFFIRMS INJUNCTION AGAINST HOSPITAL SUSPENSION OF PHYSICIAN WHO DENIED IT ACCESS TO HIS FAMILY’S PRIVATE MEDICAL RECORDS.

 The Montana Supreme Court affirmed the issuance of a preliminary injunction restraining Community Medical Center, a hospital in Missoula, Montana for suspending the medical staff privileges of a hospitalist whose only offense was to refuse to grant unrestricted access to his family’s medical records to a hospital subcommittee. The physician designated as “Dr. Doe,” in the case of John Doe, M.D. v. Community Medical Center, Inc., DA08-0397, decided on November 24, 2009, asserted that that Community Medical Center  (“CMC”) breached the terms of its contract with him embodied in CMC’s medical staff bylaws and policies by summarily suspending his privileges with no demonstration of “ a substantial likelihood of imminent impairment of the health or safety of any patient, perspective patient, employee or other person present in the medical center” –the sole designated basis for summary suspension at CMC.

PERSONAL MEDICAL RECORDS (“PHR”): PROMISE AND PITFALL

 Hospitals, Physicians and other health care providers continue to struggle with the cost, interoperability, access and security issues related to adoption of Electronic Health Records (“EHR”). The Obama administration is very much behind the development of EHR for its anticipated quality improvement and cost reduction benefits. Healthcare providers are very touch about their medical records control and are somewhat wary of the easy portability of records in digital format.  There is a lot of inertia among patients who are reluctant to change physicians to new ones who are not aware of their history and do not have direct access to their charts.  Those charts have an economic value to the providers who own them.

 

“VULGAR” MYSPACE BLOGING NURSING STUDENT ORDERED REINSTATED BY FEDERAL COURT.

Nina Yoder was a nursing student at the University of Louisville on an obstetrics rotation. In February 2, 2009, she posted a blog article on her MySpace page entitled “How I witnessed the Miracle of Life.”  The article, despite its uplifting title was largely snarkey, even vulgar as described by the defendants and even the judge in Nina Yoder v. University of Louisville, et al., Case No.3:09-CV-205-S (W.D. KY at Louisville),issued on August 3, 2009. The University dismissed Ms. Yoder for violating the School of Nursing Honor Pledge in a Memorandum Opinion  granting summary judgment reinstating Ms. Yoder. The blog article described a difficult birth in the context of the frustrations and emotional reaction of a tired and conflicted nursing student using graphic and unattractive descriptions of the participants and family awaiting the arrival of “the Creep.”

VIGILANTE NURSE SUIT NEEDLES STIMULUS ACT WITH CONTRIVED HEALTH CARE REFORM VENOM

Something about the State of New Hampshire sometimes attracts odd adherents to the “Live Free or Die” philosophy of which the state is proud.  In the recently filed case of Beatrice M. Heghmann v. Kathleen Sebelius, Secretary of Health and Human Services, Nancy-Ann Deparle, Director, White House Office of Health Reform, and Charlene Frizzera, Administrator, Centers for Medicare and Medicaid Services, 09 CV 5880, filed by Ms. Heghmann’s husband Robert Heghmann in the U.S. District Court for the Southern District of New York,  the Heghmann’s inartfully cobble together a number of perceived grievances emanating from the American Recovery and Reinvestment Act of 2009, colloquially known as the Stimulus Act or ARRA depriving Ms. Heghmann and “all others similarly situated” from constitutional protections of privacy and from medical privacy and security protections under the Health Insurance Portability and Security Act of 1996 (“HIPAA”). This complaint seems more designed to attract attention and notoriety to the Heghmanns than any serious challenge to the implementation of the provisions of ARRA.

INTERNET MEDICINE: PART VII – PUBLIC, PROPRIETARY AND PRIVACY TENSIONS IN MEDICAL DEVICES.

The front page of the New York Times today carried a story by Pam Belluck on a hospital’s promotional webcast of Shila Renee Mullins’s brain surgery to extract a malignant tumor, which raised conflicting opinion is about the wisdom, benefit and ethics of the public dissemination of personal medical information, even if consensual, and the public access to dramatic interventional medical procedures. Some hospitals are featuring twittering during operations in order to apprise relatives and others of the progress of thee procedure in real time.

INTERNET MEDICINE: PART VI –CHALLENGES TO DATA SECURITY IN INTERNET MEDICAL DEVICE INFORMATION LINKS.

The growing interoperability between medical devices and electronic medical records gives rise to new opportunities in the transmittal and collection of vital medical data. New vulnerabilities arise as well. Last month, the Internet Storm Center sponsored by SANS (SysAdmin, Audit, Network, Security Institute) warned that the Conflicker worm had infected approximately ten million internet devices including MRIs. SANS is a cooperative research and education organization that since 1989 has specialized in information security technology training and awareness.

The Conflicker worm attacks holes in Windows OS with advanced malware techniques. It is the largest worm infection since the SQL Slammer worm. Many of the infected devices were not designed for internet connectivity. The efficacy of the infection repair is complicated by a FDA regulation which limits the ability to issue an internet “patch” for 90 days, and apparent triumph of law over common sense in crisis with a unique and unanticipated need.

INTERNET MEDICINE PART III: FTC issues Notice of Rule Regarding Breach of Security of Personal Health Records.

There is a growing proliferation of on-line personal health records companies who undertake to warehouse and store personal health records for  consumers on line. Four of the most  prominent of these companies are Google Health, Microsoft Health Vault, RevolutionHealth Health Records and WebMD Personal Health Records. On April 20, 2009, the FTC took a first step in providing notice of breach standards for these companies by offering a proposed rule for public comment. The Rule will be available for public comment until June 1, 2009, with the intent to make the final rule effective in September, 2009. The Proposed Rule can be found at 74 Fed. Reg. 17914. and is slated to be included in the Code of Federal Regulations at 16 CFR § 318. The FTC's action is a mandate under the American Recovery and Reinvestment Act of 2009