{"id":54452,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/when-privacy-kills.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"when-privacy-kills","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/when-privacy-kills.html","title":{"rendered":"When Privacy Kills"},"content":{"rendered":"\n
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WHEN PRIVACY KILLS<\/h1><\/td>\n <\/tr>\n

By PAUL DUEFFERT<\/h2><\/a><\/td>\n <\/tr>\n

Friday, Sep. 07, 2001<\/td>\n\n <\/tr>\n <\/table>\n

Rights to privacy usually are a good thing. Except when they kill.<\/p>\n\n

Unnecessary deaths will almost certainly be the result of medical privacy regulations implemented in April by the Department of Health and Human Services, pursuant to the Health Insurance Portability and Accountability Act of 1996. These regulations make it a crime for health care workers to disclose “individually identifiable health information” to a third party without the prior consent of the patient involved.<\/p>\n\n

The regulations make no exception for disclosure in response to legitimate newsgathering activities. And they impose draconian penalties equivalent to those faced by experienced drug dealers. As a result, even when the disclosure of medical information is strongly in the public interest \u0097 exposing doctors’ or health care institutions’ crime, fraud or blatant malpractice \u0097 such disclosure often will not be made, and the media stories that can act to end dangerous practices will never be written.<\/p>\n\n

In these and other situations, the public interest can sometimes outweigh individuals’ privacy concerns. Yet the regulations not only tip the balance always and irrevocably in favor of privacy, they also employ criminal, rather than civil, penalties to ensure that privacy will always win, no matter the cost to the public.<\/p>\n\n

Harsh Penalties, But Little Protest<\/b><\/p>\n\n\n\n\n
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Under the HIPAA regulations, divulging a patient’s health information exposes a health care worker to a felony conviction, a fine of up to $50,000, and up to a year in jail. If the information was obtained under “false pretenses,” the fine can be up to $100,000, and the length of imprisonment up to five years. And if a jury finds that the disclosure was motivated by the health care worker’s seeking “personal gain,” the offense can result in up to ten years in prison and a fine of $250,000.<\/p>\n\n

There is little evidence that preexisting legal protections for medical privacy were inadequate. Yet Washington implemented the new regulations almost entirely without public controversy.<\/p>\n\n

The regulations were first proposed last year by the Clinton administration. After the election, the ACLU and other organizations \u0097 emphasizing the current outcry for greater privacy rights \u0097 urged President Bush to implement the regulations without delay. Rather than repudiate the regulations, as he did others proposed by his predecessor, Mr. Bush essentially adopted them as his own. In a column this May, William Safire then lauded Mr. Bush as the “Privacy President” for doing so.<\/p>\n\n

Although a number of press organizations objected, their voices were mostly ignored. This is hardly surprising. In a Gallup survey last fall, 78% of those polled felt it “very important” that their medical records be kept confidential.<\/p>\n\n\n

\n\nIn short, most people strongly want medical information kept private. In such circumstances, how can anyone oppose tough criminal penalties for hospital workers who share information about their patients with outsiders?<\/p>\n\n

You should. According to a 1999 report by the National Institute of Medicine, at least 44,000 people are killed in any given year by medical errors. History teaches that hospitals and clinics \u0097 particularly the few that are so badly run as to be routinely dangerous to their patients \u0097 are badly in need of diligent watchdogs.<\/p>\n\n

That is where reporters step in. There is a distinguished tradition of newspapers’ exposing systematic incompetence and malfeasance in health care institutions. For example:<\/p>\n\n