Re: S. 1360 - Medical Priva

[deirdre@cdt.org (Deirdre Mulligan)]

Marc Rotenberg wrote:

>Bob's postings about the need to have federal privacy legislation
>are helpful, but they do not actually tell us what type of legislation 
>we should we have.
>
>I found very interesting the opinion of the federal court that
>recently considered the question of whether there should be
>a privilege for non-certified therapists.  The case concerned the
>records of counseling that a Chicago policewoman received after
>she shot a suspect in the course of criminal investigation.  The
>family of the deceased  brought a wrongful death action and
>sought to obtain the records of the counseling session through
>civil discovery.  The federal appeals court had this to say:
>
>   "Reason tells us that psychotherapists and patients share 
>   a unique relationship, in which the patient's ability to 
>   communicate freely without the fear of public disclosure 
>   is the key to successful treatment," Jaffe v. Redmond, 
>    51 F.3d 1346,  (CA7 1995), cert. granted.
>
>I read section 206 to permit this type of disclosure after
>subpoena and notice with opportunity to quash. The question
>is why should this information ever be disclosed, or to
>be more legislative, why doesn't S. 1360 extend rule 501
>to cover this situation?
>
>Marc.


Marc:
       As the bill does not preempt State or Federal privilege law your
read is wrong. (Sec. 401(b))  In fact, the establishment of subpoena and
notice requirements, and the opportunity to object improve the individuals
chance of withholding information in the litigation context.  With notice
that the records are being sought the individual is in a much better
position to assert their privilege.  This gives them 2 shots at withholding
information if the State at issue recognizes a privilege -- which it may
not -- in which case the individual at least gets one shot at withholding
which they currently do not have.

        Second, Rule 501 can not be extended to cover this situation, as
the Rules in general do not delineate what privileges will be recognized. 
Rule 501 of the Federal Rules of Evidence states that as a general matter,
those rules will not specify privileges but will recognize those extant
under the Constitution, statues, common law and state law.  Anotherwords,
an individual or a litigator must make reference to materials beyond the
Rules to establish a privilege.  

        Therefore, the Bill has not changed in anyway the individuals
ability to assert the privilege that they did in this case, and in fact
where a State has a doctor patient privilge it is explicitly affirmed by
this Bill.


****  
        Section 401(b) of S.1360:

        PRIVLEGES:  -- Nothing in this title shall be construed to preempt or  
         modify State common or statutory law to the extent such law concerns a 
        privilege of a witness or person in a court of the State.  This title 
        shall not be construed to supersede or modify Federal common or 
        statutory law to the extent such law concerns a privilege of a witness 
        or person in a court of the United Sates.  Authorizations pursuant to 
        sections 202 and 203 shall not be contrued as a waiver of any such 
        privilege.  

Clearly Doctor-Patient privileges are specifically maintained under the Bill.

****
Privileges have proven woefully inadequate in protecting information
privacy. Most importantly, privileges generally protect individuals only in
the setting of a Court proceeding, ie. during discovery, trial, and a few
other litigious contexts. In general,to invoke a privilege the individual
must establish that the communication was made in confidence, that society
has an interest in respecting the expectation of confidentiality, and that
disclosure would undermine those expectations.  Often the individual can
not even get over the first barrier because the nurse was in the office,
the information went to the insurance company or for some other reason. 
There are very few individuals who's health information is held solely by
their provider, if someone else has it the privilege is gone in many
states. 

A last point, many of the injuries that occur due to disclosures are not
due to disclosures in the Court setting. Perhaps even more importantly, a
privilege isn't neccessarily protection against your doctor and to
paraphrase a statement of Aimee Berenson, LD of the AIDS Action Council, at
the hearing, it is frequently the Doctors who are the bad actors.

Deirdre

Deirdre K. Mulligan
Staff Counsel
Center for Democracy and Technology
1001 G Street, NW
Suite 500 East
Washington, DC
20001
(202)637-9800
(202)637-0968
http://www.cdt.org/