[Med-privacy] more on litigation
peter marshall
pwm@comcast.net
Wed, 8 Jul 2009 11:39:36 -0700
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TECHNOLOGY AND THE BUSINESS OF GOVERNMENT
Nurse files privacy suit against IT sections in stimulus spending law
By Bob Brewin 07/07/09
A New Hampshire nurse filed a lawsuit late last month against the =20
Health and Human Services Department, claiming the health information =20=
technology sections of the 2009 stimulus bill violate her privacy =20
protections in federal and state laws, including the Health Insurance =20=
Portability and Accountability Act and the Hippocratic oath.
Beatrice Heghmann, a nurse in Durham, N.H., alleged in the lawsuit =20
that because the health IT sections of the 2009 American Recovery and =20=
Investment Act mandate every health care provider in the nation create =20=
an electronic health record for all patients, the law puts her =20
personal health information "a mouse-click away from being accessible =20=
to an intruder."
In the complaint, filed in the U.S. District Court for the Southern =20
District of New York, Heghmann asked for a preliminary and permanent =20
injunction against the health IT sections of the stimulus bill to =20
prevent "unconstitutional exposure of her personal health information."
The suit named Kathleen Sebelius, HHS secretary; Nancy-Ann DeParle, =20
director of the White House Office of Health Reform; and Charlene =20
Frizzera, acting administrator of the Centers for Medicare and =20
Medicaid Services, as defendants. She also asserted the stimulus bill =20=
gives the HHS secretary wide latitude to determine the kind of =20
"minimum necessary information" that can be extracted from a patients =20=
health care record and provided to third parties.
An HHS spokeswoman did not return a call for comment on the lawsuit.
The lawsuit highlights one of the key problems with the health IT =20
sections of the stimulus bill, said Twila Brase, president of the =20
Citizens' Council on Health Care, a nonprofit group in St. Paul, =20
Minn., that advocates confidentiality of patient-doctor relationships. =20=
The law "facilitates creation and sharing of electronic medical =20
records without consent," she said. Allowing the HHS secretary to set =20=
minimum standards for sharing health information "puts privacy in the =20=
hands of a political appointee," rather than a doctor, Brase added.
The stimulus law also takes away states' rights to enact tougher =20
privacy protections than those contained in the federal statute. In an =20=
interview, Robert Heghmann, the lawyer who filed the suit and =20
Beatrice's husband, said New Hampshire's privacy law has stricter =20
provisions on the sharing of health care information than federal law.
Asked if the lawsuit had a slim chance of a judge ruling in favor of =20
it, Robert Heghmann said, "This is not a long shot," and said they =20
would prevail.
But the suit is "hyperbolic and a bit over the top," said Karl =20
Thallner Jr., a partner at Reed Smith LLP law firm in Pittsburgh, who =20=
specializes in health care litigation.
Dr. Deborah Peel, founder of Patient Privacy Rights, a medical privacy =20=
watchdog group in an Austin, Texas, predicted more lawsuits against =20
the health IT section of the stimulus bill would follow the Heghmann =20
case. "Lawsuits over privacy rights will continue to be filed because =20=
Americans expect to control their electronic health information, just =20=
as they have always controlled their paper health records," she said.
Peel added that patient rights are reflected in state laws covering =20
privacy protection, as well as common law, tort and contract law, the =20=
physician-patient privilege, the psychotherapist-patient privilege, =20
and constitutional rights to health privacy. Congress must ensure =20
consumer control over electronic health information, she added.
=A9 2009 BY NATIONAL JOURNAL GROUP, INC.
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<span id=3D"headline"><h2 class=3D"story_head">Nurse =
files privacy suit against IT sections in stimulus spending =
law</h2></span><br><span id=3D"byline">By <a =
href=3D"mailto:bbrewin@nextgov.com">Bob =
Brewin</a></span> <span =
id=3D"time_stamp">07/07/09</span><br><br>
<span id=3D"content_text"><p>A New Hampshire nurse filed a =
lawsuit late last month against the Health and Human Services =
Department, claiming the health information technology sections of the =
2009 stimulus bill violate her privacy protections in federal and state =
laws, including the Health Insurance Portability and Accountability Act =
and the Hippocratic oath.</p>
<p>Beatrice Heghmann, a nurse in Durham, N.H., alleged in the <a =
href=3D"http://www.govexec.com/pdfs/070709bb1.doc">lawsuit</a> that =
because the health IT sections of the <a =
href=3D"http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=3D111_co=
ng_reports&docid=3Df:hr016.111.pdf%5C">2009 American Recovery and =
Investment Act</a> mandate every health care provider in the nation =
create an electronic health record for all patients, the law puts her =
personal health information "a mouse-click away from being accessible to =
an intruder."</p>
<p>In the complaint, filed in the U.S. District Court for the Southern =
District of New York, Heghmann asked for a preliminary and permanent =
injunction against the health IT sections of the stimulus bill to =
prevent "unconstitutional exposure of her personal health =
information."</p>
<p>The suit named Kathleen Sebelius, HHS secretary; Nancy-Ann DeParle, =
director of the White House Office of Health Reform; and Charlene =
Frizzera, acting administrator of the Centers for Medicare and Medicaid =
Services, as defendants. She also asserted the stimulus bill gives the =
HHS secretary wide latitude to determine the kind of "minimum necessary =
information" that can be extracted from a patients health care record =
and provided to third parties.</p>
<p>An HHS spokeswoman did not return a call for comment on the =
lawsuit.</p>
<p>The lawsuit highlights one of the key problems with the health IT =
sections of the stimulus bill, said Twila Brase, president of the =
Citizens' Council on Health Care, a nonprofit group in St. Paul, Minn., =
that advocates confidentiality of patient-doctor relationships. The law =
"facilitates creation and sharing of electronic medical records without =
consent," she said. Allowing the HHS secretary to set minimum standards =
for sharing health information "puts privacy in the hands of a political =
appointee," rather than a doctor, Brase added.</p>
<p>The stimulus law also takes away states' rights to enact tougher =
privacy protections than those contained in the federal statute. In an =
interview, Robert Heghmann, the lawyer who filed the suit and Beatrice's =
husband, said New Hampshire's privacy law has stricter provisions on the =
sharing of health care information than federal law.</p>
<p>Asked if the lawsuit had a slim chance of a judge ruling in favor of =
it, Robert Heghmann said, "This is not a long shot," and said they would =
prevail.</p>
<p>But the suit is "hyperbolic and a bit over the top," said Karl =
Thallner Jr., a partner at Reed Smith LLP law firm in Pittsburgh, who =
specializes in health care litigation.</p>
<p>Dr. Deborah Peel, founder of Patient Privacy Rights, a medical =
privacy watchdog group in an Austin, Texas, predicted more lawsuits =
against the health IT section of the stimulus bill would follow the =
Heghmann case. "Lawsuits over privacy rights will continue to be filed =
because Americans expect to control their electronic health information, =
just as they have always controlled their paper health records," she =
said.</p>
<p>Peel added that patient rights are reflected in state laws covering =
privacy protection, as well as common law, tort and contract law, the =
physician-patient privilege, the psychotherapist-patient privilege, and =
constitutional rights to health privacy. Congress must ensure consumer =
control over electronic health information, she added.</p>
</span><br><br> <hr style=3D"width:100%;">
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<span id=3D"print_copyright">=A9 2009 BY NATIONAL =
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