Health Information Compliance Alert

The ruling, issued by Orange County Chief Circuit Judge Belvin Perry Jr., asserted that the patient privacy rights of addicts who relapse in treatment programs outweigh law enforcement interests.

Noelle Bush, 25, was ordered into the Center for Drug-Free Living in January after she was charged with attempting to obtain the anti-anxiety drug Xanax using a fraudulent prescription. Orlando police Sept. 10 indicated that Bush was under investigation for drug possession after they received a complaint from within the facility.

According to the Washington Post, an employee at the Center initially wrote up a statement for investigators indicating that a small lump of crack cocaine was found in Noelle Bush's shoe. The statement, however, was soon destroyed when a supervisor at the facility instructed employees to protect patient confidentiality and not to cooperate with the police and their investigation.

Perry agreed with the Center's decision, stating in his ruling that "[i]f the Court were to grant the State's motion in this case, then all patients who suffer relapses could be hauled out of treatment programs and into criminal courts on the whim of a state prosecutor or police officer." Without providing patients in drug rehabilitation centers any assurances of privacy, Perry argued, "the treatment-based intervention program would be rendered meaningless."

Jeff Ashton, the Assistant State attorney assigned as prosecutor, maintained that privacy laws should not have applied to this case, and criticized Perry's ruling for granting "a license to commit crimes with immunity." Ashton confirmed that his office plans to appeal the decision.

The New York Court of Appeals ruled that permitting prosecutors such access to medical records infringes on patient confidentiality, the New York Times reported Oct. 16. The ruling stems from a May 1998 murder case in which investigators believed that the suspect had been stabbed and was bleeding when he took off from the crime scene.

Early last year, the Manhattan district attorney's office issued subpoenas to 23 New York City hospitals, looking for records on men who sought treatment for stab wounds around the time of the murder.

The DA's office attempted to avoid any and all privacy issues by requesting only non-medical information such as patients' names and addresses, but several hospitals refused to hand over any records.

Siding with the hospitals, Justice Albert Rosenblatt ruled that "the inherently medical nature of this judgment is not obviated by attempting to qualify it in terms of what a layperson might plainly observe," adding that "patients should not fear that merely by obtaining emergency medical care they may lose the confidentiality of their medical records and their physicians' medical determinations," the Times reports.

The decision only affects cases that involve a doctor's medical judgment. In cases where information about a possible crime is apparent to the public, prosecutors are permitted to issue a subpoena for records.

In a related story, a recent Middlesex Co., NJ Supreme Court Judge's ruling means prosecutors won't be able to subpoena patients' medical records at least for now.

The Medical Society of New Jersey won a trial court ruling in September that will bar the use of subpoenas to obtain an individual's treatment records.

Superior Court Judge Robert Feldman in Middlesex County ruled to limit access to patients' medical records, saying that the only way for a litigant to get records is to send the doctor a patient authorization, according to the New Jersey Law Journal. If that fails, the lawyer should get a court order, the ruling explained.

According to the Journal, Feldman ruled in Simms v. Bradach that sending a subpoena that requires the doctor to appear at a deposition with the records is unacceptable.