In the "reality" series of Rush Limbaugh’s life..., we need to learn that unless we speak out against the abuse and misuse of law enforcement access to medical records, our medical secrets could be the subject of the next witch hunt. Why Should We Rush To Rush’s Defense?

Radio commentator Rush Limbaugh is guilty of many things, not the least of which is being an influential political conservative. Mr. Limbaugh disclosed this fall that he was addicted to prescription drugs for the treatment of excruciating back pain, then voluntarily entered and completed a comprehensive drug treatment program. Now, he is under investigation by the Florida State Attorney’s Office for violation of an obscure state law prohibiting doctor shopping. How obscure? The Palm Beach Post revealed this week that there has been only "one case in the past five years in which Palm Beach County prosecutors charged a defendant with illegally acquiring overlapping prescriptions."

Why so few cases? Could it be, as Mr. Limbaugh’s counsel claims, that "Rush Limbaugh has been singled out for special prosecution because of who he is?" Or, could it be that most patients comply with the law and disclose to their practitioners that they have received a prescription for a controlled substance of like therapeutic use from another practitioner within the previous 30 days? The latter is doubtful, as most patients probably don’t even know that such a law exists.

Remember, however, that ignorance of the law is no excuse. Yet, even if you read all 3,000 pieces of paper the federal and state governments require your physician’s office to provide to you before the doctor can talk to or touch you, you likely still will be ill-informed. Even the pamphlet outlining the practice’s privacy policy and your rights under the Health Insurance Portability and Accountability Act (HIPAA), the first comprehensive federal privacy rule protecting your medical information, won’t save you from your ignorant self.

That’s because most Americans have been lulled into believing that their relationships with their doctors are confidential. The physician’s duty to maintain confidences traces back as far as ancient Greece when the Hippocratic Oath established a duty of confidentiality on the medical profession. Some time later, the American Medical Association’s Code of Medical Ethics and the Council of Ethical and Judicial Affairs continued the requirement that patient communications and information be kept confidential.

Moreover, a patient’s right to privacy has long been protected by state laws, which was thought by many to get a well-needed shot in the arm when the federal government passed HIPAA, proclaiming to expand these state privacy protections to encourage full, uninhibited disclosure by the patient in order to maximize efficient treatment.

What we now know from Mr. Limbaugh’s unfortunate situation is that our long-held beliefs that the physician-patient privilege is sacred and our medical records protected are not absolute. In fact, under current federal law it appears that a person’s rentals at the video store are actually more protected by the law than their medical records.

In addition to the 400 people that the Congressional Research Service estimates to have access to a patient’s medical records during a typical hospital stay, the laws permit medical record disclosures in unsuspecting instances, including access to employees’ medical records where companies are self-insured.

Indeed, even though HIPAA regulations were promulgated in part to ensure confidence in the security of consumers' medical records, the forced betrayal of confidential communications remains status quo. Despite then-Secretary of Health and Human Services Donna Shalala’s statement of concern before the Senate Committee on Labor and Human Resources that we must decide whether "our health records [will] be used to heal us or reveal us," news sources indicate that she bowed to pressure from the Department of Justice, which was eager to protect law enforcement’s easy access to private medical records. ("Privacy Proposals Include Controversial Surprises," Health Data Mgmt., Oct. 1997, at 1, 1 ("Capitol Hill insiders say Shalala lost a battle with the Justice Department over the law enforcement/intelligence provisions.")).

More recently, and perhaps more troubling, the USA PATRIOT Act, passed in the aftermath of the terrorist attacks of September 11, 2001, permits law enforcement increased access to medical, educational, and financial information without the pre-existing appropriate procedural safeguards. Originally sought as a tool to fight terrorism, the Justice Department acknowledges that it routinely uses the law’s provisions against suspects in all sorts of other investigations and it has greatly increased the government’s ability to gather personal information.

With polling data consistently showing that Americans are concerned about the privacy of their medical data – 78% of respondents felt it is very important that medical records be kept confidential (The Gallup Org., Inst. for Health Freedom, Public Attitudes Toward Medical Privacy 2 (2000)) – how is it that increased unauthorized access to medical records is occurring?

Part of the answer is found in our courts, where judges succumb to political pressure and permit the use of medical information for purposes unrelated to patient care, thereby abridging individual rights. Although the Constitution does not explicitly speak of any right of privacy, the U.S. Supreme Court has decreed that personal privacy exists under the Constitution. Moreover, the Court has recognized that the Fourth Amendment is implicated whenever a government "search" infringes upon an individual’s expectation of privacy. Inasmuch as the Fourth Amendment does not prohibit all government searches and seizures, it does proscribe those which are unreasonable, using a balancing test that weighs the intrusion on the individual’s Fourth Amendment interests against the promotion of legitimate governmental interests.

The core problem may actually lie in what we as a society are prepared to accept as a reasonable expectation of privacy. Few types of information are more sensitive than our medical records and, not surprisingly, Americans expect and assume that medical records privacy is a primary and well-defended right in our society. Yet, with the passage of HIPAA and the USA PATRIOT Act, the slippery slope of "docs to cops," has become a reality, unbeknownst to some of us or agreed to by more of us in the name of "security."

So what do we need to do if we are no longer willing to forfeit these privacy rights? First, we must insist that judges and legislators adhere to the basic rule that a health care provider only disclose protected health information to a law enforcement official based on a court order, grand jury subpoena, or special administrative subpoena that certifies compliance with privacy-protective criteria. And we must insist that in all of these legal proceedings, medical records cannot be turned over without review by an independent magistrate under the Fourth Amendment’s standard of probable cause.

It’s time we stop relying on "Law and Order" or any other court television series to understand patients’ rights and physicians’ obligations. In the "reality" series of Rush Limbaugh’s life playing out in newspapers and on television shows across America, we need to learn that unless we speak out against the abuse and misuse of law enforcement access to medical records, our medical secrets could be the subject of the next witch hunt.

January 8, 2004
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