[Med-privacy] Austin Statesman: Patients hold ultimate right to decide privacy issue

Fri, 20 Feb 2004 13:39:01 EST

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Dr. Deborah C. Peel
Patients hold ultimate right to decide privacy issue
SPECIAL TO THE AMERICAN-STATESMAN
Friday, February 20, 2004

If President Bush can block access to his military medical records, why can't 
the rest of us
can't block access to our civilian hospital and emergency room records?

Texas Attorney General Greg Abbott blew it when he ruled that the state's 
public
information law trumps Texans' longstanding rights to consent to the release 
of their
personal health information.

Texas laws built on 2,000 years of medical ethics require that patients 
decide what is
revealed about their medical care and to whom, not government officials. So 
why is Texas'
top lawyer making that call for all of us?

Why did he give the media the right to report on the medical condition of 
patients who
have been injured or celebrities who land in the hospital without asking 
those people's
permission? Could he really believe that media rights override patient rights?

Somehow, our attorney general came to the bizarre conclusion that Texas' 
freedom of
information laws are stronger than Texas' medical privacy laws. But state and 
federal
courts, and even the U.S. Supreme Court, have always provided the strongest 
privacy
protections of all for sensitive medical records.

How did we get to this strange place?

This whole mess started when gross misinterpretations of the federal medical 
privacy rules
known as the Health Information Portability and Accountability Act (HIPAA) 
created
confusion about how to protect patient privacy.

By enacting the first national medical privacy law, the government gave every 
American
the right to medical privacy. The government expected patients to have more 
control over
their medical records as a result of HIPAA, not less. In fact, HIPAA states 
that more
stringent privacy protective state laws and medical ethics should prevail 
over weaker
standards in HIPAA. HIPAA was to be a floor for medical privacy.

Hospital attorneys wrongly translated the federal HIPAA Privacy Rule into 
restrictive and
bad hospital policies nobody wants. Stories of how heavy-handed the 
government was in
dealing with fraud and abuse -- assessing such huge advance penalties that 
the alleged
criminals were often forced to settle rather than risk litigation -- made 
hospital attorneys
prone to "just say no" to requests for information from the press out of fear 
of violating
HIPAA.

The media, long used to being able to report details about car wrecks and 
shooting or
crime victims, found that hospitals would no longer tell them much of 
anything. So they
appealed to Abbott for access to our medical information. And he gave it to 
them.

Abbott, the people's lawyer, should have insisted that patients be asked what 
they want,
as required by Texas law and medical ethics. He should have insisted that 
hospitals and
the media ask patients permission to release information. Most of us would be 
happy to
give it.

The "right to be let alone" by the state and to choose who knows our most 
personal
information is really the right to liberty and the foundation of all human 
and civil rights.

In the words of U.S. Supreme Court Justice Louis Brandeis, "the right to be 
let alone -- (is)
the most comprehensive of rights, and the right most valued by civilized 
men." Brandeis
saw the framers of the U.S. Constitution as protecting the privacy and 
sensibilities of the
single person against the state, as a part of "the more general right to the 
immunity of the
person --the right to one's personality."

We need privacy to be free. We desire to be known only to those we choose for 
ourselves.

The Texas attorney general should guarantee that we are let alone by making 
sure we are
asked if we want privacy when we are sick or injured.

Peel is an Austin psychoanalyst. She is president of the Appeal for Patient 
Privacy
(www.patientprivacyrights.org).
http://www.statesman.com/opinion/content/auto/epaper/editions/friday/editorial
_1453eb0be148d1cc0089.html

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<DIV>
 Dr. Deborah C. Peel P=
atients hold ultimate right to decide privacy issue <FONT=
 size=3D4>SPECIAL TO THE AMERICAN-STATESMAN Friday, February 20, 2=
004
 If President Bush can block access to his military medical records, w=
hy can't the rest of us can't block access to our civilian hospital and e=
mergency room records?
 Texas Attorney General Greg Abbott blew it when he ruled that the sta=
te's public information law trumps Texans' longstanding rights to consent=
 to the release of their personal health information.
 Texas laws built on 2,000 years of medical ethics require that patien=
ts decide what is revealed about their medical care and to whom, not gove=
rnment officials. So why is Texas' top lawyer making that call for all of=
 us?
 Why did he give the media the right to report on the medical conditio=
n of patients who have been injured or celebrities who land in the hospit=
al without asking those people's permission? Could he really believe that=
 media rights override patient rights?
 Somehow, our attorney general came to the bizarre conclusion that Tex=
as' freedom of information laws are stronger than Texas' medical privacy=20=
laws. But state and federal courts, and even the U.S. Supreme Court, have=
 always provided the strongest privacy protections of all for sensitive m=
edical records.
 How did we get to this strange place?
 This whole mess started when gross misinterpretations of the federal=20=
medical privacy rules known as the Health Information Portability and Acc=
ountability Act (HIPAA) created confusion about how to protect patient pr=
ivacy.
 By enacting the first national medical privacy law, the government ga=
ve every American the right to medical privacy. The government expected p=
atients to have more control over their medical records as a result of HI=
PAA, not less. In fact, HIPAA states that more stringent privacy protecti=
ve state laws and medical ethics should prevail over weaker standards in=20=
HIPAA. HIPAA was to be a floor for medical privacy.
 Hospital attorneys wrongly translated the federal HIPAA Privacy Rule=20=
into restrictive and bad hospital policies nobody wants. Stories of how h=
eavy-handed the government was in dealing with fraud and abuse -- assessi=
ng such huge advance penalties that the alleged criminals were often forc=
ed to settle rather than risk litigation -- made hospital attorneys prone=
 to "just say no" to requests for information from the press out of fear of=20=
violating HIPAA.
 The media, long used to being able to report details about car wrecks=
 and shooting or crime victims, found that hospitals would no longer tell=
 them much of anything. So they appealed to Abbott for access to our medi=
cal information. And he gave it to them.
 Abbott, the people's lawyer, should have insisted that patients be as=
ked what they want, as required by Texas law and medical ethics. He shoul=
d have insisted that hospitals and the media ask patients permission to r=
elease information. Most of us would be happy to give it.
 The "right to be let alone" by the state and to choose who knows our=20=
most personal information is really the right to liberty and the foundati=
on of all human and civil rights. 
In the words of U.S. Supreme Court Justice Louis Brandeis, "the right to=20=
be let alone -- (is) the most comprehensive of rights, and the right most=
 valued by civilized men." Brandeis saw the framers of the U.S. Constitut=
ion as protecting the privacy and sensibilities of the single person agai=
nst the state, as a part of "the more general right to the immunity of the<B=
R>person --the right to one's personality."
 We need privacy to be free. We desire to be known only to those we ch=
oose for ourselves.
 The Texas attorney general should guarantee that we are let alone by=20=
making sure we are asked if we want privacy when we are sick or injured.<=
/P>
 Peel is an Austin psychoanalyst. She is president of the Appeal for P=
atient Privacy (<A href=3D"http://www.patientprivacyrights.org">www.patie=
ntprivacyrights.org</A>).
<A href=3D"http://www.statesman.com/opinion/content/auto/epaper/editions/=
friday/editorial_1453eb0be148d1cc0089.html">http://www.statesman.com/opinion=
/content/auto/epaper/editions/friday/editorial_1453eb0be148d1cc0089.html</A>=

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