Re: CPT Comments on S. 1360 - November 14, 1995

[Robert Gellman <rgellman@cais.cais.com>]

     Jamie Love of the Consumer Project on Technology recently 
posted here some comments on H.R. 1360, the bill introduced by Senator
Bennett to improve the confidentiality rules for medical records. 
There is also a similar bill that was introduced earlier by Rep.
Gary Condit (H.R. 435).  I don't disagree with everything that
Jamie Love said in his comments, but I find much of what he said
to be wrong, misleading, or unfairly inflammatory.  My response
to Jamie Love's posting and some of the reasons for my
disagreements follow.

     1. You talk about all of the disclosures that are permitted
by the legislation.  This is highly misleading about what changes
the legislation will produce.  ALL of these disclosures are
commonplace today, with little control, few rules, and virtually
no protections for patients. 

     The legislation mandates NO disclosures (except for the
right to see your own record).  Just about everyone who receives
protected health information under the Bennett or Condit bills
will be subject to strict rules on use and disclosure.  There is
no question that records will be better protected under these
bills than they are today.  You can argue that stronger
protections are necessary, but you can't say honestly that either
bill would make things worse in any way.  Both bills represent
major improvements over current law.

     2. You argue that consumers lose their right to sue under
common law.  The common law rights aren't worth much.  Here is
what the Privacy Protection Study Commission said in its 1977
report:

          Although the courts have found the disclosure of
     medical-record information by a physician to be
     actionable in a number of different cases, they have
     also consistently held that such disclosures are
     justifiable if they are made either in the best
     interest of the patient or to foster a supervening
     societal interest.  An individual can clearly bring
     suit against a physician and probably against any other
     medical-care professional for disclosing information in
     a medical record about him without his authorization,
     but he is likely to lose.

     The right to sue your physician isn't worth much.  Whether
there is any common law right to sue your insurance company
(remember that you have signed a waiver!), researchers, or others
who obtain medical records is unclear and highly unlikely.

     The Bennett and Condit bills allow an aggrieved record
subject to sue any health information trustee and to receive
actual, liquidated, and punitive damages.  That's a lot better
than any common law right.

     3. You make a big deal about the development of computerized
databases with patient information, suggesting somehow that the
proposed legislation will be responsible for increased
computerization.  Computerization is already well underway, and
databases are already being constructed RIGHT NOW with few, if
any, statutory controls.  The legislation would establish rules
for all of the treatment and payment databases.  It would
restrict how providers and private companies could use the
databases.  It is unfair and wrong to suggest that the
legislation will make things worse in this respect. 

     4. You reject the argument that something is better than
nothing.  That is more respectable than some of your other
arguments, but you should be aware that legislation was
considered fifteen years ago and was rejected in part because it
wasn't perfect.  We have no legislation now as a result, and much
of the computerization and many of the non-treatment uses of
records that you rail against developed in the absence of any
rules.  That is one reason why things are so out of control
today.  You can wait fifty years until the climate is right for
the perfect bill, but in the meantime things will continue to
deteriorate.

     5. You suggest that doctors should exercise greater control
over records.  Are these the same doctors that are turning their
patient records over to drug companies in exchange for free
computer services?  Are these the same doctors that don't know
what the laws are in their own states?  Are these the same
doctors that have done nothing to prevent the massive loss of
control over medical records that has occurred in the last twenty
years?  You have a lot more faith in doctors than I do.  

     Also, your proposal for greater restrictions on use of
payment records would wipe out much of the cost containment and
outcomes research activities that are underway.  The result would
be significantly higher health care costs.  If you are against
these activities (legally authorized or even required today),
then go fight them elsewhere.  If these activities are so
terrible, why didn't you object when they were proposed and
implemented over the last few years?  Why are you coming along
after-the-fact and blaming privacy proponents for decisions that
were made elsewhere and that have widespread public support?

     6. On law enforcement, you constantly make reference to the
large number of law enforcement officials who might be able to
obtain records under the bill.  This is terribly misleading.  In
many states, law enforcement officials can and do walk into any
health facility or insurance company and ask for records, without
any limits, without any subpoena or warrant, without any notice,
and without any protections for patients.  This happens today. 

     The Bennett bill requires a subpoena or warrant.  If you
think that a dog catcher or building inspector has the authority
to obtain a warrant or subpoena for medical records, then please
show me the state laws that authorize it.  There is NOTHING in
the bill that gives any law enforcement agency subpoena power. 
They either have it today or they don't.  If they do have it, the
Bennett bill restricts it.

     The Bennett bill also requires notice to the subject of the
records.  That is not a requirement today.  Patients will have
notice and the opportunity to protect their own rights to prevent
all of the harms that you claim will result.  Today, law
enforcement authorities have greater authority to obtain records,
and patients have almost no rights.  The Bennett bill makes
things better.  You are welcome to say that it is not good
enough, but you cannot fairly say or even hint that it makes
patients worse off than they are today.  If you don't think that
the legislation limits law enforcement, wait until you hear the
cops scream about the restrictions.


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+   Robert Gellman          rgellman@cais.com   +
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