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[Replaced_Texan]

http://www.nytimes.com/2004/02/12/politics/12ABOR.html

WASHINGTON, Feb. 11 — The Justice Department is demanding that at least six hospitals in New York City, Philadelphia and elsewhere turn over hundreds of patient medical records on certain abortions performed there.

Lawyers for the department say they need the records to defend a new law that prohibits what opponents call partial-birth abortions. A group of doctors at hospitals nationwide have challenged the law, enacted last November, arguing that it bars them from performing medically needed abortions.

The department wants to examine the medical histories for what could amount to dozens of the doctors' patients in the last three years to determine, in part, whether the procedure, known medically as intact dilation and extraction, was in fact medically necessary, government lawyers said.

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A federal judge in Manhattan last week allowed the subpoenas to go forward and threatened to impose penalties, and perhaps even lift a temporary ban he had imposed on the government's new abortion restrictions, if the records were not turned over.

But, also last week, the chief federal judge in Chicago threw out the subpoena against the Northwestern University Medical Center because he said it was a "significant intrusion" on the patients' privacy.

A woman's relationship with her doctor and her decision on whether to get an abortion "are issues indisputably of the most sensitive stripe," and they should remain confidential "without the fear of public disclosure," the judge, Charles P. Kocoras, wrote in a decision first reported by Crain's business journal in Chicago.

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Judge Richard Conway Casey of Federal District Court in Manhattan, who issued an order in December enforcing the government subpoenas, said at a hearing last week that the department had good reason to want the records, and he threatened to sanction the opposing lawyers in the case unless the hospitals turned them over.

"I will not let the doctors hide behind the shield of the hospital," Judge Casey said, according to a transcript of the hearing. "Is that clear? I am fed up with stalls and delays."

Judge Casey issued a temporary injunction in November preventing the government from enforcing the Partial-Birth Abortion Ban Act. He said last week that he was prepared to lift that injunction and possibly clear the way for the government to enforce the law if the records were not produced.
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Citing federal case law, the department said in a brief that "there is no federal common law" protecting physician-patient privilege. In light of "modern medical practice" and the growth of third-party insurers, it said, "individuals no longer possess a reasonable expectation that their histories will remain completely confidential."

Frankly, I'm sympathetic to the physicians, because HIPAA is very complicated and if they do not have control of the medical records, then they cannot produce them. I do not know the status of New York, Pennsylvania and Michigan law regarding the subpoena of medical records in a case where the plaintiff is not bringing his or her own health at issue. I'd be pretty pissed off if I had undergone a perfectly legal (at the time) procedure with no complications and my records were demanded in court.

ETA
That last quoted section really, really pisses me off. That same Department of Justice is supposed to impose criminal sanctions under HIPAA, and HIPAA's privacy regs were specifically written to restore an expectation of privacy to individuals in an era when health care information is exchanged with multiple entities. This same DoJ is charged with prosecuting the criminal violations of the Privacy Rule, and they assert in a brief that there is no longer an expecation of privacy? I imagine when they prosecute their first HIPAA Privacy Criminal Case, this statement will be presented by the defense.