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What happens when a person's right to keep their medical records private under HIPAA collides with a sports reporter onto a story about a MLB player taking steroids?

Apparently the public's right to know trumps HIPAA and law enforcement officers have no obligation to follow medical privacy laws and regulations.

The Rick Ankiel story bothers me. How did the Sports Illustrated writer find out that Rick Ankiel received:

  • a legal drug, Saizen®,
  • prescribed by a licensed physician,
  • from a pharmacy "under investigation",
  • the drug is delivered to a clinic, not Ankiel's home
  • in 2004 before the MLB ban on HGH ocurred in 2005

On one hand I could say,

professional athletes who use performance enhancing drugs shouldn't be entitled to medical privacy; but what if Rick Ankiel qualified as an acceptible candidate for Saizen®? I suppose that would mess up the SI story.

Nobody would believe it anyway.

Mike Lupica wrote a sneering, sarcastic assessment of Rick ankiel's possible medical condition based upon facts that were illegally obtained. The comment threads in the sports blogs are piling on Rick Ankiel and Troy Glaus. The scorn is palpable.

As a health care professional I'm outraged at the breach in confidentiality. Health care workers have an obligation to keep patients medical records private. It's no one's business what treatment choices the patient makes with their doctors and it's no one's business who the patient chooses to be their doctor (as long as they are licensed in good standing with the state).

Where is the outrage over the illegal disclosure of confidential medical records? How would you feel if the details of your hemorrhoid treatment were posted on the web?  Maybe you have cancer or are HIV positive and don't want anybody to know yet, or maybe something debilitating like lupus or rheumatoid arthritis? What would you think if those details about you were publicized? The courts generally find that people who live public lives aren't entitled to as much privacy as others, but HIPAA doesn't make any distinction between famous and non-famous.

What would you think if some right wing anti-abortion site illegally obtained the medical records of women who had abortions and publicized them on the web? At least once a week I read a comment about the right to privacy when facing an abortion decison. The fight over abortion pits one side saying it's the woman's private business against the other that thinks it's perfectly appropriate to get in a woman's face as she enters an abortion clinic and publicly humiliate her for her choice in medical treatment.

How would you feel if someone you know or know of found out about your medical treatment then published their opinion of who you chose for your doctor and the treatment options you selected with your doctor? Then how would you feel after that embarrassment and you decide to not talk about your health with anyone; and more people criticize you? - this time for not being open about your medical treatment? We can rationalize why we are entitled to know the medical records of people who live public lives (like candidates, office holders, athletes, public role models and suspected  criminals), but really we're just being nosy.

In another highly publicized case, Rush Limbaugh had his medical records seized and months of court proceedings surrounded those confidential records. Law enforcement had no problem publicizing what they were convinced they would find in those records. I was torn during that case as I don't like the garbage that comes out of Limbaugh's mouth and was glad that his hypocrisy was exposed; but as a health care professional, I was upset over the breach of confidentiality. Law enforcement wanted to prosecute Limbaugh as an example, the MSM wanted a salacious story and HIPAA? What does HIPAA have to do with it? HIPAA got in the way of other people's agendas.

I had the same problem with the Lance Armstrong story a few years back. EPO was approved for use in cancer patients to help them take their chemo treatments on schedule. Armstrong denied ever taking EPO, but if he did; it was medically necessary. If he did, I wouldn't be surprised at his denial, because I doubt if any cancer patient knows all the drugs they take while undergoing cancer treatment; the number of drugs would have been TNC (too numerous to count). ...and one more thing, why do we allow athletic organizations decide what drugs can and cannot be given to restore people to health? Why do we allow athletic organizations to ban people for a year or ban people for life for taking drugs that save the athlete's life?

Then again, who knew? An agency that was obligated to keep the information confidential. The story was leaked. The proof, if there ever was any, was destroyed and Lance Armstrong will never convince people he didn't cheat, but since when is making a full recovery from a life threatening condition, cheating? ...cheating death is a good thing to cheat. Where is the outrage against a medical lab that was so upset that a foreigner kept winning "their" race that they felt they could breach confidentiality with impunity. ...and the public? They read the titillating details with glee.

  • Why did the lab think it was justified in leaking confidential lab test results about Armstrong?

French medical labs have no obligation under HIPAA, but there are corresponding French laws about privacy. They were violated and there was no French government investigation into the possible violation of French law. I guess they didn't want to know the answer.

  • Why did the police investigators feel entitled to disclose confidential medical information about Ankiel?

The pharmacy had an obligation under HIPAA to maintain Ankiel's privacy as did the clinic. The drug was not delivered to Ankiel's home. It was delivered to a physician's clinic. The drugs were always under a physician's supervision, so who leaked the story? Medical personnel? Law enforcement? Law enforcement wanted a new Limbaugh? The pharmacy? An employee needed some money while they looked for another job? Someone in the clinic?

  • It's apparent that law enforcement can disregard at will any obligation to keep investigations secret.

Law enforcement has no obligation to maintain privacy under HIPAA. They might have an obligation under other laws, but public disclosure helps make their case. Ankiel is convicted in the court of public opinion.

I wrote a diary last week end about electronic medical records. The comment thread is full of thoughtful insight. jd in nyc came in nearly a day later and posted some fine commentary; however TNZ2010 gave me the idea for this diary when s/he wrote:

In fact, I would argue that current state of electronic health records is such that everyone should assume their records are damn near public.

and bthespoon later wrote:

How can we support electronic records when so many of us live in a country where our medical records can and will be used to discriminate against us by health insurers?  Why make it easier for them to work their dastardly deeds?

I concur with jd in nyc, that's all the more reason to support Universal Health Care.

More than that. I think patients need to get tough on breaches of confidentiality. I think the most annoying part about what happens to people with their medical records is that patients often have a horrible time getting copies of their records, then I see stories like Ankiel's where his records are released for all to see and no one gives so much as a ho hum. No one should tolerate improper handling of medical records. So, please take the time to read the CMS links listed below that explain your medical record privacy rights.

Then,....

If you think either the pharmacy or the clinic that treated Rick Ankiel violated HIPAA, you can file a complaint on his behalf. To file a complaint you need to know where the breach occurred, which would be either the pharmacy or the clinic. It is likely that the writer was able to confirm the story with employees at both businesses. Here's a link to several addresses for Signature Pharmacy. I think #3 is the one they are talking about in the article as it is the one closest to Orlando. Here's a link for the address of the Health and Rejuvenation Center in Palm Beach Gardens, FL.

If you believe that HIPAA needs to be expanded to include law enforcement, you will need to write to your representatives and senators to get a change to HIPAA or have a separate law to protect patient privacy during criminal investigations involving medical records.

---------------------------------------------------------------------------------------------------- -

CMS.gov has easy to read links about HIPAA
http://www.hhs.gov/...
http://www.hhs.gov/...
http://www.hhs.gov/...

---------------------------------------------------------------------------------------------------- ---

Here's a smattering of the stories surrounding Rick Ankiel this week.

Rick Ankiel
http://apnews1.iwon.com/...
http://www.miamiherald.com/...
http://sportsillustrated.cnn.com/...
http://www.nydailynews.com/...
http://www.nydailynews.com/...

---------------------------------------------------------------------------------------------------- --------

I have the links for the HIPAA Privacy Rule here.

If you want the informal, unofficial, but, easier to read version; click here.

To look up the official CFR use this format:

45 CFR 164 306

Revision Year = Most Recent Available
Title = 45
CFR
Part = 164
Section = 306, 308, 310, 312, 314, 316 (Enter each 3 digit number separately. You have to read it one section at a time using the back button to go on to the next section.)

Originally posted to JDWolverton on Mon Sep 10, 2007 at 12:39 PM PDT.

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Comment Preferences

  •  Tips and perhaps a flame or two.... (10+ / 0-)

    When you are a health care professional, The confidentiality rules apply to everyone.

    If a nation expects to be ignorant and free, in a state of civilization, it expects what never has and never will be. Thomas Jefferson

    by JDWolverton on Mon Sep 10, 2007 at 12:35:29 PM PDT

  •  Question... (3+ / 0-)
    Recommended by:
    Catte Nappe, nightowl724, JDWolverton

    I am an EMT and well-schooled enough in HIPAA to know what I'm allowed and not allowed to say about the calls I go on.  I was having a very similar conversation the other day.  

    In many of the newsworthy medical stories, the hospitals hold press conferences to give status updates.  Do these hospitals need explicit permission to release information (it would seem to me that they would) on condition or is this another case of MSM trampling on HIPAA?

    •  yes, they do. (4+ / 0-)
      Recommended by:
      splashy, Catte Nappe, VClib, kicks82

      They have to get a specific Release of Information that specifies that they may speak to the press/media about the patient's condition. This would be separate from the Release obtained to send in insurance claims. Without the release you're not supposed to release anything more than what you can find in a phone book.

      Some HIPAA privacy officers in some cases (mostly when minors seek treatment for STD's or birth control) won't even allow employees to verify that someone is their patient without a release of information.

      If a nation expects to be ignorant and free, in a state of civilization, it expects what never has and never will be. Thomas Jefferson

      by JDWolverton on Mon Sep 10, 2007 at 01:36:00 PM PDT

      [ Parent ]

  •  Great diary, by the way... (2+ / 0-)
    Recommended by:
    VClib, JDWolverton

    Very insightful

  •  Interesting diary, I agree with you (0+ / 0-)

    Some things should be private. The sooner that universal health care without the corporate insurers, the better.  I don't trust them at all.

    -6.75,-6.67
    Karl Rove, Republican Agnostic

    by splashy on Mon Sep 10, 2007 at 07:09:12 PM PDT

  •  Rush Limbaugh (0+ / 0-)

    Rush was defended by the ACLU and his medical records were proetected from law enforcement.  

  •  Thanks for writing about this important topic (0+ / 0-)

    As the daughter of a medical professional, and as someone who has dealt with the medical system quite often as a patient, I think this topic is extremely important. The media does not have a right to a person's private medical information.

    After the horrible massacre at Virginia Tech this past spring, I noticed there was a lot of talk in the media about pushing back medical privacy regulations. I heard people arguing that if privacy regulations hadn't been in place, then the tragedy wouldn't have happened. I find this argument to be ridiculous and frankly, very scary. We need more health resources in order to prevent situations like that. Less privacy regulations would only deter people from getting help, especially in the mental health field. Very sad.

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