[kenrexford]

Yesterday, I had the opportunity to argue two cases in an Ohio appeals court that involved the same issue and that may interest people here.

The issue is the constitutionality of an Ohio law that allows access to medical records for law enforcement. The classic case (and that in my cases) is a car accident. The police want to know if the driver was drunk. After the hospital completes treatment, the officer asks for the blood test results. If the person was drunk, dui charges are filed.

My challenge is simple. We have a right to privacy in our medical records, per the Ferguson and Whalen cases decided by SCOTUS. As the request is for medical records, the law must have "procedural safeguards. " As the Ohio law has none, the Ohio law is unconstitutional. The Ohio legislation puts no hurdles before the cop. The cop need no cause and no judge review. The suspect never can object and might never even know.

For example, a rogue cop might order up blood test results for political opponents because he just wants to know if the person uses marijuana. Or maybe to blackmail rich people. No one except the cop is involved in the request. No report is required afterwards.

The discussion was frightening. The prosecutor concedes that there are no safeguards. However, they claim that this is OK because we don't have a right to privacy in medical records.

We have as a country a debate on privacy. The NSA at least has a secret court involved. Widespread local action, however, has been going on for years in many States with even less protection. Now, we're going to have a medical records setup for law enforcement to snoop whenever they want, with no court involved and with easy abuse potential.

I have a 2-to-1 record (2 losses 1 win) in lower ohio courts on this issue. The argument yesterday seemed like 2-to-1 in my favor, but hard to read.

This seems like more than a few guys trying to get out of a dui to me. I thought I would share.

[Winstonm]

Seems to me too many people automatically "side with the good guys", i.e., the cops in this case, instead of critically thinking about what is in question. Seems there is a genuine lack of understanding that a vital purpose of the US Constitution is to prevent a tyranny of the majority.

[kenberg]

I probably need to think about this some. An early thought: Is it the presecutor's view that medical information must be revealed upon request whenever an accident occurs? Or was there some evidence of erratic driving leading to the accident? I suppose in any accident there was some sort of erratic behavior but still it seems that this could be quantified in some way.

Here is another question. Many years ago a young woman ran into my car while I was stopped at a red light. It turned out that she was driving her boyfirend's car, she was not used to driving a stick shift, and she put her foot on the clutch instead of the brake. Now we settled this without the intervention of the police, but suppose the police had been called. Could they have insisted on a breathalyzer test? I don't know much about these things so I don't know the answer. But I am thinking that if they could have insisted on a breathalyser test, based on nothing more than the occurrence of an accident, then it's not such a big leap to say that they can insist on medical records of alcohol content if she had been hauled off to a hospital in no shape to have a breathalyser test.

I gather that we do give up certain privacy rights when we get behind the wheel of a car. But your argument that there should be some sort of protocol to protect medical and other privacy rights makes sense to me.

So I guess some limited form of intrusion on privacy makes sense to me, unbridled does not.

In short, pending more detail, I think I am on your side here.

[helene_t]

Cops being allowed to insist on a test, and cops being allowed access to medical records or samples that have been produced for medical (not legal) purposes are two very different things.

In the first case, it doesn't erode trust in the caregivers. The breath test is a police thing. The fact that they happen to use a technology similar to what is used at hospitals doesn't make it a medical thing.

In the second case, it is very worrying because once the police (who else? insurance companies involved in a civil law suit against you?) can access your medical record, you cannot safely answer your doctor's question honestly and you cannot safely let the doctor take the samples needed for a medical test.

So I am all for the first - within reason, of course, but I don't see a reason to legislate too specifically about it. The second I would oppose in all but extreme cases.

[mycroft]

Not American, but seriously - HIPAA is simply to hurt employees who screw up and make it harder to do IT in hospitals, is it? It's not actually relevant for, you know, privacy? Or does law enforcement have a blanket exemption that they all stick in the fine print so that nobody actually notices?

[barmar]

We frequently hear of "doctor-patient confidentiality". Is this enforced by law, or is it merely a professional standard. Does it depend on the state?

[mike777]

Good discussion

How much privacy do we give up for the right to drive a car on a public street.
Clearly we do not have unlimited rights to privacy with our medical records.

Clearly we have much less privacy in public than we do in our homes.
Clearly we give up some privacy rights when we drive compared to when we are home.
When we drive on a public street and are in an accident how much or little privacy rights do we give up in exchange to be allowed to drive?

What are the limits?

Clearly this is a clash of rights, privacy versus public safety is just one such example.

[kenrexford]

Here's the thing. Had the Ohio law said that law enforcement can ask for test results in the event of a motor vehicle accident, then at least there would be some limitation on law enforcement. However, in the actual law, law enforcement need only certify to the hospital that the officer is "officially" investigating the person, for any possible offense.

Thus, as examples of what would be legitimate:

1. An officer thinks that people are smoking weed. So, he starts investigating weed use in the town by ordering up test results for all people who get blood work done at the hospital.

2. An officer thinks that people who apply for disability are druggies. So, they order up blood tests from hospitals who reviewed people for disability coverage.

3. An officer wants to avert pregnancy while using pot. Order up test results for pregnant people.

Thus, the law as drafted in Ohio has no tie to a DUI. The fact that my two cases happened to have involved a DUI is coincidental.

When you consider that the officer never reports to anyone (unless charges are brought) and never seeks approval before hand, and never notifies the patient, this is disturbing from a checks-and-balances perspective.

When you add in that the request need not have any basis for suspicion, needing only to be "official," meaning done by an official officer, this is really a complete fishing expedition.

When you consider the alternatives, this is outrageous, IMO. As weeks can pass before the request for records, the main alternatives include (1) a warrant, or (2) a request from a court for a subpoena, with records sent to the court under seal and notice to the suspect of a right to challenge the subpoena. Either alternative avoids rogue cops, keeps the judge in the loop, and lets the citizen object if he has cause.

[mike777]

It would seem weird to pass a law saying the police have access to any or all of your medical records for any I repeat any official investigation. They never repeat never need a court order or warrant.

I find it difficult to believe that is what the law says but if so ok....nuts.

[kenberg]

I gather that in Ken's court case the blood test showed alcohol and dui was filed (if not, I don't imagine that this whole issue would have arisen in court).. Suppose the blood test is inadmissible. Then here is where we are: If the drunk had caused a minor accident the police could have given him a breathalyser. But he caused a major accident and was in no condition to be breathalised. So he skates. The conclusion: If you are going to have an accident when driving drunk make it a really big one. Or, if lacking serious injury, make sure you moan and scream and get hauled away in an ambulance as soon as possible. You will be home free.

Some years ago I got a ticket in downtown Baltimore. I was going to park in a ramp, but it was full. Directly ahead, across the street, was another ramp so I carefully pulled back into the traffic and headed over there. Unfortunately, when I was at the first ramp I was in a right turn only lane and I got a ticket for not turning right. In Maryland, when you get a ticket you go to court and explain. The judge does not listen, but he reduces the charge, usually to something without points. So I did this and got my fine reduced and no points. There were several of us in court, all had done the same thing, but one guy got off scot free. When he had pulled out of the right turn lane he didn't look and pulled out directly in front of a car that plowed into him. He argued that when the car hit him it carried him down the street some ways, the lane was not marked as a right turn only lane for the whole block, and there was no way to demonstrate that when he veered out and caused the accident that the lane was already a right turn only lane.The judge dismissed the case.

"The law is an ass". or so I am told. If you are in the wrong, cause an accident, and if you are drunk cause a big one and make a dash for the sanctuary of a hospital.

[y66]

kenrexford, on 2014-March-12, 05:35, said:

Yesterday, I had the opportunity to argue two cases in an Ohio appeals court that involved the same issue and that may interest people here.

The issue is the constitutionality of an Ohio law that allows access to medical records for law enforcement. The classic case (and that in my cases) is a car accident. The police want to know if the driver was drunk. After the hospital completes treatment, the officer asks for the blood test results. If the person was drunk, dui charges are filed.

My challenge is simple. We have a right to privacy in our medical records, per the Ferguson and Whalen cases decided by SCOTUS. As the request is for medical records, the law must have "procedural safeguards. " As the Ohio law has none, the Ohio law is unconstitutional. The Ohio legislation puts no hurdles before the cop. The cop need no cause and no judge review. The suspect never can object and might never even know.

Did your clients consent to have blood drawn for the purpose of determining blood alcohol concentration levels?

If yes, did they also consent to release the results to the cops?

When you say 'the law must have "procedural safeguards."', what law are you referring to?

[Trinidad]

kenberg, on 2014-March-12, 11:20, said:

"The law is an ass". or so I am told. If you are in the wrong, cause an accident, and if you are drunk cause a big one and make a dash for the sanctuary of a hospital.

I understand your point of view. But the way I see it something needs to give way. Either you respect privacy at the cost that some (injured) bad guy doesn't get convicted. Or you get more of the bad guys, at the cost of good guys' privacy.

I would happily let a few bad guys off the hook if that ensures that the medical records of good guys are secure, private and only meant for their doctor and themselves.

Rik

[1eyedjack]

Speaking with no legal training whatsoever, and one whose knowledge of Ohio law can be consigned to the back of a postage stamp, this is the way I approach it.

The question on which all y'all have been concentrating is whether the cop has a lawful right to the information requested. A court order or subpoena would do the trick but absent that there would have to be something in the criminal code that delegates to the cop not just the power to ask but the authority to insist. That statutory power would have to be positively coded. If the cop insisted that you inform him whether you had changed the water in your goldfish tank last Saturday, you could confidently tell him to get stuffed without fear of punitive consequences. The question of privacy is not, I feel, so relevant to the powers of the police as would be the statutory framework under which the information is requested.

But I think that the above question may be entirely irrelevant anyway. Either the police have a right to the information or they do not. If they have that right (which may be contentious) then end of chat. But let us consider for a moment the possibility that they do not have that right. In that case, they would certainly still have the right to request the information; they would simply not have the right to insist on a response. In that event, were they to receive a response, effectively voluntarily surrendered by the hospital administration, then that would be a breach of privacy, for sure, but that breach is one of a duty falling between the hospital and the patient. I don't see how it would render the information inadmissible once in the hands of the police.

In other words, lacking formal powers to insist on the information, the receipt of that information requires some co-operation on the part of a willing communicator. But if that communicator is indeed willing, even if he ought not to be, then the recipient of the information can make use of it. The patient may then have an action against the hospital for any perceived breach of privacy, but it would not help him in defence to a dui charge.

I suppose it could get more complicated if the police held itself out to the hospital, at the time of the request, as having powers (that in practice it lacked) to insist on a response on pain of sanctions. But I would have thought that hospitals, particularly in USA, have rank upon rank of lawyers to advise them, and this is hardly an isolated situation that will never have been considered.

[Trinidad]

This is also a question of ownership.

When the police has somebody take a breathalyzer test then the police does the test, they carry the costs for the testing, they evaluate the data, and they report. It is their work and they own it in a creative, economic and legal sense.

When the hospital carries out the blood tests then the hospital does the test, the patient pays for it (through his insurance), the hospital evaluates the data and the hospital reports. The "creative" ownership belongs to the hospital, the economic and legal ownership belongs to the patient. Law enforcement doesn't have any ownership.

As a researcher, these differences are important to me. (I do commercial analysis and consultancy for a living.) Suppose a customer wants me to analyze something in an attempt to gather evidence in a legal case. Unfortunately for him, my test results are unhelpful for him (either inconclusive or incriminating). He pays for the analysis (I have to pay the mortgage, you know). Now the police comes and says: "We heard that you ran an analysis. We want the results." My reply would be very simple: "If you want analytical results, you will provide the samples, and you will pay for the tests yourself. Then I will gladly run the tests and you will hear those results." Give me one good reason why a person or organization (the police in this case) should get what somebody else paid for?

It's like "We heard you bought donuts. We want them."

Rik

[kenrexford]

mike777, on 2014-March-12, 11:18, said:

It would seem weird to pass a law saying the police have access to any or all of your medical records for any I repeat any official investigation. They never repeat never need a court order or warrant.

I find it difficult to believe that is what the law says but if so ok....nuts.

Ohio revised code section 2317.022. Google it.

[kenrexford]

kenberg, on 2014-March-12, 11:20, said:

I gather that in Ken's court case the blood test showed alcohol and dui was filed (if not, I don't imagine that this whole issue would have arisen in court).. Suppose the blood test is inadmissible. Then here is where we are: If the drunk had caused a minor accident the police could have given him a breathalyser. But he caused a major accident and was in no condition to be breathalised. So he skates. The conclusion: If you are going to have an accident when driving drunk make it a really big one. Or, if lacking serious injury, make sure you moan and scream and get hauled away in an ambulance as soon as possible. You will be home free.

Some years ago I got a ticket in downtown Baltimore. I was going to park in a ramp, but it was full. Directly ahead, across the street, was another ramp so I carefully pulled back into the traffic and headed over there. Unfortunately, when I was at the first ramp I was in a right turn only lane and I got a ticket for not turning right. In Maryland, when you get a ticket you go to court and explain. The judge does not listen, but he reduces the charge, usually to something without points. So I did this and got my fine reduced and no points. There were several of us in court, all had done the same thing, but one guy got off scot free. When he had pulled out of the right turn lane he didn't look and pulled out directly in front of a car that plowed into him. He argued that when the car hit him it carried him down the street some ways, the lane was not marked as a right turn only lane for the whole block, and there was no way to demonstrate that when he veered out and caused the accident that the lane was already a right turn only lane.The judge dismissed the case.

"The law is an ass". or so I am told. If you are in the wrong, cause an accident, and if you are drunk cause a big one and make a dash for the sanctuary of a hospital.

the bad accident is not a problem. A warrant works. The only reason for the Ohio law is to avoid asking the judge.

[kenrexford]

y66, on 2014-March-12, 11:44, said:

Did your clients consent to have blood drawn for the purpose of determining blood alcohol concentration levels? NO. They didn't even know.

If yes, did they also consent to release the results to the cops? No

When you say 'the law must have "procedural safeguards."', what law are you referring to?

Procedural safeguards is a ruling by the United States supreme court. Examples would be a judge approval of the request and notice to the citizen of the request and opportunity to object.

[Bbradley62]

How about if the law is changed to say that blood alcohol/drug tests will always be done on all drivers involved in any traffic accident, and that if medical situations prevent police from conducting such tests before drivers are brought to the hospital, then the hospital is required to perform certain tests (at police expense)? I'd be good with this.

[mike777]

"....) If an official criminal investigation has begun regarding a person or if a criminal action or proceeding is commenced against a person, any law enforcement officer who wishes to obtain from any health care provider a copy of any records the provider possesses that pertain to any test or the result of any test administered to the person to determine the presence or concentration of alcohol, a drug of abuse, or alcohol and a drug of abuse in the person's blood, breath, or urine at any time relevant to the criminal offense in question shall submit to the health care facility a written statement in the following form...."

http://codes.ohio.gov/orc/2317.022
-------------------

Ok for starters this code does not allow unlimited access to all of your medical records.

With that said it does seem to allow access to a heck of a lot of your medical records without a court order or warrant for almost any police investigation.

A clash of rights, privacy and public safety and perhaps other rights are involved.
Why public safety demands such a sweeping law without a court order or warrant is unclear.

However it sounds like you are only raising one issue at this time, the right of privacy but I can see other issues involved also.

[mike777]

Bbradley62, on 2014-March-12, 13:51, said:

How about if the law is changed to say that blood alcohol/drug tests will always be done on all drivers involved in any traffic accident, and that if medical situations prevent police from conducting such tests before drivers are brought to the hospital, then the hospital is required to perform certain tests (at police expense)? I'd be good with this.

This is entirely a different issue. YOu want to require tests...this code is talking about if you have tests done on your own. A different issue.