DOJ Dismisses Doctor-Patient Privilege

As the relationship between Americans and their doctors grows more mediated and complex, long-standing concepts of physician-patient privilege (search) are being questioned.

In the last year, the Department of Justice, in an effort to obtain abortion records from several Planned Parenthood (search) operations, has taken the position that there is no federal physician-patient privilege. The DOJ’s stated purpose is to locate evidence of statutory rape (search), because a pregnant girl of 16 or younger is regarded as proof that this crime has occurred.

The physician-patient privilege, reduced to its essence, allows a person to prevent his statements from being used as evidence against him in a criminal prosecution provided they are made to his doctor for the purpose of diagnosis or treatment. Though there are volumes of case law addressing every possible variation on this kind of conversation, it has been a long standing principle of law that the patient is the holder of this privilege and it cannot be waived by the physician.

Statements not made for the purpose of diagnosis and treatment generally are not privileged, nor are statements not made in confidence, even if they are purely medical in their nature. The most often cited example of a statement not made for the purpose of diagnosis or treatment would be the murder confession made during the course of a routine checkup.

But who is a “physician?” It’s notable that the privilege was once labeled “doctor-patient,” and is now called “physician-patient.” Under the rubric of health benefits, greater numbers of American companies encourage their employees to consult mental health professionals, some of which are social workers who, while undoubtedly superb at what they do, have no medical training at all.

Should the privilege be extended to social workers, for example, when a person consults one for depression?

Planned Parenthood is undoubtedly the custodian of records that contain statements made for the purpose of treatment. The DOJ’s position--beyond its non-recognition of a physician-patient privilege--is that a woman who makes the same statements to the non-physician entity of Planned Parenthood as she would make to the doctor to whom she is referred cannot expect those statements to be private. The statement, made to both, in which the DOJ seems to be interested is “I’m pregnant.” (Is the DOJ is also combing public birth records for the age of new mothers?)

Other federal legislation might give her that expectation of privacy, though. You might have noticed that while once a call to your mortgage holder, bank or health insurance carrier was quick and painless, you now encounter a tedious three minute interrogation on your pedigree before anything in your medical or financial records can be discussed. This is the result of the ongoing implementation of the Gramm-Leach-Bliley Act (search) and the Health Insurance Portability and Accountability Act (search) (HIPAA), which mandate that any custodian of medical or financial information keep it private unless the person to whom the information pertains has agreed to let it be disclosed.

Some companies take a very stringent view of the law’s requirements. Some life insurance companies, for instance, will not reveal whether even a price quote for a life insurance policy (not the amount of the price quote, only whether or not one was sought) has been given to an individual, while many have pointed out that it’s not apparent that seeking a life insurance quote constitutes medical or financial information.

Property and casualty insurance companies have abolished the long standing practice of sending a policyholder’s medical file, without authorization, to its own liability claims department to adjust the policyholder’s liability claim. Companies are spending millions of dollars on implementing procedures to protect personal financial and medical information.

Gramm-Leach-Bliley and HIPAA were passed in response to a public outcry that personal financial and medical information was bought, sold and disseminated at will by the companies who happened to be in possession of it. Their sponsors held press conferences in which they assured Americans that their medical information would from then on be kept private.

Is it beyond the realm of possibility that a woman entering a Planned Parenthood clinic should think that the organization is covered by the acts’ protections?

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He is the author of the soon to be published, "The New Immigration Law and Practice."

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