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Medical privacy is endangered -- but not as you
might think
Mark Schiller
Thursday, April 25, 2002
©2002 San Francisco
Chronicle
URL: -
THE BUSH administration's proposals to amend pending medical privacy
regulations have provoked a firestorm but the real problem lies with the
regulations that remain in place.
The Bush administration plans to eliminate requirements to obtain written
patient consent before health records can be disclosed even to other doctors.
Under the current rule, physician A could not discuss a patient that he is
referring to physician B for consultation without the patient first going to
physician B's office and signing a consent form.
To keep track of patient consent, and avoid regulatory violations, doctors
will have to purchase the computer systems and software necessary to manage
consent records, which would likely cost tens of thousands of dollars. This is
a tremendous burden for physicians in small practices.
These rules do little to protect privacy, and everything to hinder the
ability of doctors to provide quality care, so the Bush administration is
right to discard them.
On the other hand, nobody seems to be talking about the regulations that
will really destroy any expectation of medical privacy. These come as the
result of the mandate of the Health Insurance Portability and Accountability
Act of 1996 (HIPAA), which in part paves the way for the development of a
massive federal database of patient information.
The act mandates that all Americans be assigned a unique patient
identification number, and focuses on promoting and standardizing the
electronic transmission of patient visit information to do so. Efforts to
block the patient identification number, largely led in Congress by Rep. Ron
Paul, R-Texas, have at least temporarily halted this dangerous development.
Congress instructed the Department of Health and Human Services, however,
to develop medical privacy regulations as part of the electronic transmission
provisions of the accountability act. The Clinton administration used this
opportunity to give the government tremendous control and nearly uninhibited
access to patient records.
The regulations state that if any physician electronically transmits any
bill for any of his patients whatsoever, then the statute pertains to all of
the physician's patient records. The statute permits the government to access
any and all of a doctor's patient records -- without a warrant. The
regulations are so vague that it appears that just about any government
official at any level can seize the records.
If allowed to go into effect, these regulations will have a devastating
impact on the patient-physician relationship and will ultimately harm the
quality of patient care. Patients will quite rightly be reluctant to provide
correct medical histories to their doctors for fear that any low-level
bureaucrat who wishes could gain access to their embarrassing or potentially
damaging information.
In one national physician survey, 87 percent of physicians responded that
patients had asked them to keep information out of their medical record.
Nearly 78 percent of physicians reported that they had indeed kept patient
information out of the record because of privacy concerns.
In the face of the privacy regulations, patients may even choose not to use
their insurance coverage or go so far as to provide false names to their
doctors. The problem is that patients don't always know what information their
doctors will find important. Accurate medical records are also critical to
doctors communicating among themselves about a patient's treatment. Leaving
out details may damage the patient's care and endanger his or her health.
Why the Bush administration accepted the core of these regulations in the
first place is anyone's guess, but most likely it was to avoid a nasty
political assault. They're getting one anyway.
Democrats such as Sen. Edward Kennedy, D-Mass., are claiming that the
administration's move "cuts the legs off the privacy regulation" and are
casting themselves, as usual, as defenders of patients against the evil
private sector.
Meanwhile, they show little or no concern about the risks posed by an
unprecedented, massive government database of personal health care
information, and the obvious violations of Fourth Amendment protections
against unreasonable government search and seizure.
Medical privacy is one of the oldest and most important medical traditions,
part of the foundation of medical ethics. This was recognized more than 2, 000
years ago in the Oath of Hippocrates: "Whatever, in connection with my
professional practice, . . . , I may see or hear in the lives of men which
ought not to be spoken abroad I will not divulge, as reckoning that all such
should be kept secret." Even before electronic transmission and computer
databases, doctors understood the primacy of privacy.
Health and Human Services is accepting public comment on the revised rules
through this Friday. Americans should let their elected representatives know
that medical privacy is in danger and that they want it secured. The
regulations can be revoked through political action before all of the various
provisions become effective in October of next year. The clock is ticking.
Mark Schiller, M.D., is a practicing San Francisco psychiatrist and a
senior fellow in medical studies at the Pacific Research Institute in San
Francisco.
©2002 San Francisco
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