Health Insurance Portability and Accountability Act of 1996 (HIPAA) and The First Amendment: Censorship in the guise of patient privacy—violation and victimization
Mark A. Hurt, MD
Introductory quotation
Censorship, in its old-fashioned meaning,
is a government edict that forbids the discussion of some specific
subjects or ideas—such, for instance, as sex, religion,
or criticism of government officials—an edict enforced
by the government's scrutiny of all forms of communication
prior to their public release. But for stifling the freedom of men's
minds the modern method is much more potent; it rests on the power
of non-objective law; it neither forbids nor permits anything; it
never defines or specifies; it merely delivers men's lives,
fortunes, careers, ambitions into the arbitrary power of a bureaucrat
who can reward or punish at whim. It spares the bureaucrat the troublesome
necessity of committing himself to rigid rules—and it places
upon the victims the burden of discovering how to please him, with
a fluid unknowable as their only guide. (Ayn Rand, 1962 [1 ])
The story
It happened in 2002 in a courtroom,
at a trial of physicians for medical negligence. For one who has
not encountered the emotional stress of a trial for medical negligence,
the words that follow are a poor substitute for that unhappy experience.
Worse than that, however, was the stress of such a trial in which
a "colleague" serving as an expert witness committed perjury repeatedly.
Worse, yet, than even that, if the reader can conceive of such a
"worse," was having to prepare for a trial in which no negligence occurred,
in which an expert committed perjury repeatedly, and which, when
an attempt was made to "out" the false testimony, the HIPAA statute
(Health Insurance Portability and Accountability Act of 1996) censored
a "covered entity" [2 ] (or,
officially, a "covered health-care provider" ), namely me, from
speaking out against the injustice of perjury.
I do not use the term "censorship" lightly;
I use it in its proper sense, to wit, government suppression of
one's right to speak or write in open forum. In the case
in which I was involved, my ability to speak and
write about the case was censored by the nature of the HIPAA law
as it was conveyed to me by my attorneys.
As many readers know, HIPAA, Public
Law 104-191, the HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY
ACT OF 1996, has the following stated purpose:
"It is the purpose
of this subtitle to improve the Medicare program under title XVIII
of the Social Security Act, the Medicaid program under title XIX
of such Act, and the efficiency and effectiveness of the health
care system, by encouraging the development of a health information
system through the establishment of standards and requirements for
the electronic transmission of certain health information."
The law, as stated in its essence, says
nothing about censorship—explicitly.
How did HIPAA censor me in this case?
Here is the logic from its perspective:
HIPAA
applies to "covered entities," which can be any person involved
in the direct care of a patient and who has electronic data stored
on the patient. Other "covered entities" are health care clearinghouses
and health plans. In this case, I was considered a "covered entity"
because I was a partner in the group against which the suit was
filed and had been consulted on a biopsy specimen from the patient.
HIPAA precludes disclosure of
"individually identifying health care information" by "covered entities"
without the patient's consent for matters outside of the
care of the patient. For instance, if I were involved in the patient's
care, I could discuss freely the information with others involved
in that care, but not those outside of the "loop."
There is, apparently, no provision
in HIPAA that excepts the disclosure of public trial information
for "covered entities." Thus, the assumption is (at least as conveyed
to me by attorneys) that the "covered entity" is bound to silence
despite the fact that the information in the trial is public information.
Because the First Amendment to
the United States Constitution states that "Congress shall make
no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and
to petition the Government for a redress of grievances," the suppression
of my full disclosure of this very public trial is censorship.
Congress should not be able to pass a law, such as HIPAA, that abridges freedom
of speech or press, especially when the patient brought the lawsuit
into the public arena.
In short, HIPAA is a Federal law
that establishes censorship of "covered entities" in the disclosure
of public information, despite the fact that nowhere in that law
is censorship denoted explicitly.
What has been the aftermath of the case
in which I was involved? That story, with some background, and with
the names, dates, and specific references withheld (due to HIPAA)
are as follows:
A patient (plaintiff) filed a lawsuit
against two pathologists in the pathology group that I own, in part,
as well as the group itself, thus making me a defendant also in
the suit. The case proceeded to a trial by jury, which resolved
it with a defendant's verdict, despite the perjury by one
of the expert witnesses hired by the plaintiff. After the trial,
attorneys for the defense indicated to me that the plaintiff waived
the right to privacy (including those of a confidential relationship
between doctor and patient) by bringing forth the lawsuit, thus
the proceedings were public information and could be "published
in the newspaper." As I learned later, however, it was publishable
legally by anyone except me (or my defendant colleagues).
Parenthetically, I have no complaint
against the patient in the matter; a mistake was made.
A melanoma was diagnosed as a melanocytic nevus by colleagues, in
consultation with each other. Approximately 1 year later, the lesion,
not having been removed fully, regrew at the site of the biopsy. Via
knowledge of its excision a year after the error occurred, my colleagues
consulted me on the original case. I confirmed the diagnosis of
melanoma on the original case, thus bringing the error to light.
That new information was disclosed honestly and without hesitation
to the patient through the appropriate physicians. There was no
attempt to cover it up.
The nature of the perjury was that the
expert witness for the plaintiff testified, repeatedly, that the prognosis
at 5 years was poor, similar to patients with metastatic melanoma,
and based on a small cohort of patients with known metastatic melanoma,
all the while agreeing with my associate expert witness and me that
the melanoma was a persistent primary melanoma
(with a good prognosis according to the AJCC Staging Handbook), not metastatic
melanoma. The plaintiff's expert admitted, repeatedly,
that the patient was not like the patients with
metastatic melanoma in the cohort study, yet still this expert averred
under oath that the patient plaintiff had a poor prognosis, similar
to those with metastatic melanoma.
I and a colleague set out to tell the
full story of the case. We obtained transcripts from depositions and
trial testimony. We edited only for clarity, not for content or
meaning. We pointed out where the testimony was misleading or outright
perjury. I sent a copy of the manuscript to the perjurer for official
comment, ad libitum, before it was to go to press.
It was made clear that the perjurer had carte blanche to
compose a reply and it would be published verbatim. After
a brief period of time, I received a letter from the attorneys of
the perjurer, the text of which follows:
We
note that you have apparently attached [the plaintiff's] confidential
health care information to you initial letter. We believe your dissemination
of [the plaintiff's] medical records could
be a violation of federal and state law. Please advise our office
upon what authority you have disseminated [the plaintiff's] health
care information.
My coauthor and I considered this missive
a threat of lawsuit or of a possibility that I, or both of us, might
be reported to federal or state authorities, and thus we consulted
attorneys to interpret it. Our attorneys, in essence, believed that
there would probably not be a lawsuit, but there might be a challenge under
HIPAA, for reasons given above in the "logic" section of this article.
As the case was not settled privately,
however, and because it went to trial, its facts became part of the
public record, available to anyone desiring to read the proceedings.
This meant (and means) that the patient's identity was
(and is) not a secret, the patient's attorneys were (and
are) not secret, the defendant's attorneys were (and are)
not secret, and none of the testimony was (and is) secret. Under
HIPAA, however, I could not (and still cannot) disclose legally
those facts because I am a "covered entity." In short, the "expert"
witness was a perjurer who got away with it! The expert witness
lied, and HIPAA was an accessory to the lies.
I found it difficult to believe that
the original intention of the HIPAA law was to violate the First Amendment
to the Constitution of the United States, yet that is what has happened.
I am not allowed to tell the full story of this lawsuit, which is
now in the public domain. My rights have been violated by the Federal
Government of the United States of America in the name of patient
privacy. However, in this particular case, the patient brought suit
and nothing about it is private truly.
Nonetheless, I heeded the advice of
my attorneys, withdrew my name from an article about the case [3 ] and the perjury
in it, and made certain that all identifying information about the
specific case number and the patient's identity was removed.
While waiting to learn about the status
of my attorney's publication on the subject, I queried
the Office of Civil Rights (OCR), which has jurisdiction over HIPAA.
The following is the text of my letter to the OCR:
I
write in an attempt to clarify a question that has arisen recently
regarding disclosure of testimony in the HIPAA statute.
Specifically, is there any restriction
under HIPAA that prohibits a "covered entity" from disclosing public
testimony?
As an example, if a physician, a "covered
entity," were sued for medical negligence by a patient, and the
suit resulted in a public jury trial with a verdict, is there any
restriction under HIPAA that prohibits disclosure of the patient's
name, trial case number, and testimony from the trial if the "covered
entity" were to publish an article about the trial?
As of this writing (April 22, 2006),
I have received no response to this letter (other than the fact that
is has been received), one that I posted initially in late 2005.
Thus far, there have been three victims
in the lawsuit: the patient, me, and the American People via the
First Amendment violation by HIPAA.
The
patient was a victim because there should have been disclosure about the
truth of the case from the plaintiff's own expert before
it ever went to trial. The patient, of course, could have pursued
the matter still, but would not have been misled about the nature
of the situation before pursuing it further.
I was a victim because of the
reasons stated above, despite the fact that I and my associates won
our case in front of the jury; others will not be so fortunate in
the presence of false expert witness testimony.
HIPAA's infringement
of the First Amendment, however, makes our situations pale in comparison,
and everyone in America is worse off because of it.
If other physicians in my situation
are silenced, a silence of this magnitude is incentive for expert witnesses
to continue to perjure themselves without penalty—with
the sanction of the government. This is a situation that cannot
be tolerated; it is neither moral nor practical.
Let readers of this Journal know this
promise of mine: When this censorship issue is resolved so that
I can speak openly without fear of fine and imprisonment (both of
which can be substantial), I will disclose the proceedings of this
case in full, with all names included, as a matter of justice. This
"teaser" is only a prelude to that definitive article, when and
if it ever can be published.
Dr.
Hurt is a dermatopathologist who practices in Maryland Heights,
Missouri, and is the Secretary of TruthfulTesimony.org, www.truthfultestimony.org. Contact
him at markhurt@aol.com.
References
1. Rand A. Have gun,
will nudge. The Objectivist Newsletter 1962; 1(3):9-12.
2. A "covered entity," according
to CMS (Centers from Medicare and Medicaid Services) is as follows,
quoted directly from the "Covered Entity Decision Tools": The Administrative
Simplification standards adopted by HHS under the Health Insurance
Portability and Accountability Act of 1996 (HIPAA) apply to any
entity that is: -a health care provider that conducts certain transactions
in electronic form (called here a "covered health care provider")
- a health care clearinghouse - a health plan. An entity that is
one or more of these types of entities is referred to as a "covered
entity" in the Administrative Simplification regulations. Available
at: http://www.cms.hhs.gov/apps/hipaa2decisionsupport/default.asp
3. Ackerman AB. A Trial in Saint
Louis County. Available at www.derm101.com and www.truthfultestimony.org.
