Release of names of pregnant women being challenged
A state district court order requiring an Iowa Planned Parenthood clinic to turn over the names of all women receiving positive pregnancy tests during a designated nine-month period has significant implications for all health care providers, even those not practicing reproductive medicine, say experts in health law and medical ethics.
"This cases raises profound questions about who we serve as health care providers and about trust," says Susan Tolle, PhD, director of the Center for Ethics at Oregon Health Sciences University in Portland. "There is a price to be paid every time we decide to breach patient confidentiality — and we need to carefully examine whether the public will truly benefit from the release of such information in this case."
In July, law enforcement officials in Storm Lake, IA, sought the test results from the Planned Parenthood clinic and several other clinics in town following the discovery of the dismembered body of an infant at a recycling center there.
The police claim that its only chance of continuing an investigation into the baby’s death is to identify women who had positive pregnancy tests in the hopes of finding the mother.
Planned Parenthood refused to turn over the information on the grounds that the tests were privileged medical information. Law enforcement officials argued that because the tests could be administered and read by personnel who are neither doctors nor nurses, the information was not covered by doctor-patient privilege.
Clay County District Court Judge Frank Nelson ruled in law enforcement’s favor and ordered the clinics to turn over the information. Planned Parenthood officials have appealed to the state Supreme Court, which has agreed to hear the case.
If upheld, the trial court ruling will end up having a detrimental effect on the health of more women and babies in the Clay County area, and such a "broad and invasive fishing expedition" provides little chance of finding the dead child’s mother, clinic officials say.
"Immediately after local law enforcement tried to force Planned Parenthood to open its records, the Storm Lake clinic saw a 70%-80% drop in women seeking pregnancy tests there," reports Gloria Feldt, president of Planned Parenthood Federation of America Inc. in Washington, DC. "This poses a serious health concern, considering these women may be pregnant and may not return for early prenatal care or other vital reproductive health services provided at the center."
Undermining the health care team
Health care providers also should be aware that this case has implications for medical records privacy that extend far beyond reproductive rights, say Tolle and others.
"When patients call and speak to a receptionist, is that information not to be kept private?" asks Tolle. "If a receptionist is asked to call someone about the care they will receive, is there information that should be kept from [the receptionist] in order for it to remain private?"
At a time when health care providers are attempting to build teams of personnel to oversee and coordinate care of patients, this decision undermines their ability to function in the best interests of their patients, she says.
Health care providers are sometimes ethically and legally compelled to violate patient confidentiality to protect either the public health or an identified third party, Tolle admits.
For example, known contacts of patients with tuberculosis are told of their possible exposure. Some states have laws requiring providers to report all gunshot or stab wounds to the police or to report suspected cases of child abuse without obtaining the patients’ consent.
But the price of breaking confidentiality is always an erosion of patients’ trust in the health system, Tolle notes.
"We have to look at the intent here to see whether this is a matter of protecting the public health, or an identified third party, or whether we are just asked to be agents of the police," she says. "We should be very careful about agreeing to be agents of the police, because health records have a lot of information that they might find useful if they were allowed to just go on a fishing expedition through patient files."
Balancing public need with patient privacy
When health care providers violate confidentiality, they should always be able to determine who will benefit from the release of the information and weigh that benefit against the damage that the release of the information will do to the patient.
A key factor in this is the ability to identify a person who will benefit, Tolle says.
For example, patients who present in Oregon emergency rooms with gunshot or stab wounds automatically have their visit reported to law enforcement officials, according to state law, she says.
But in that situation health care providers have an identified victim, the patient, who has obviously been attacked, and both that patient and the general public will benefit from police determining who attacked that person and why.
The patient has already had someone try to shoot or stab them, so there is clear evidence of danger — at least to them, she says.
"In this case, they don’t know who the mother is, and they are not trying to help or protect any specific person," says Tolle. "They don’t even know that the mother sought prenatal care or pregnancy testing, or whether they will be able to determine this by going through the records."
What is certain, however, is that thousands of women will have their confidentiality violated, which may cause them significant harm.
"They [law enforcement officials] have said they would focus on women who had positive pregnancy tests, but were unable to produce a baby," says Tolle. "There could be any number of reasons that a woman could not, including pregnancy termination, putting the child up for adoption, or miscarriage."
Many early pregnancies, and some later ones, end in miscarriage, she notes. It is almost inevitable that, out of thousands of tests, officials will end up knocking on the doors of women who have suffered miscarriages, possibly hundreds of them.
"And that may involve the disclosure to her family, friends, and community this information, which she may have wished to keep private," Tolle illustrates. "Does the benefit to public health outweigh the damage that violation of privacy will involve?"
Other information vulnerable
Tolle says she has been discouraged at the lack of public reaction in the bioethics community.
"I think a lot of people are looking at the Planned Parenthood angle and don’t see the bigger picture," she says. "What if police wanted to obtain all the positive drug and alcohol tests performed in a hospital ED? What if they wanted to subpoena medical records of paroled criminals for evidence they used drugs or alcohol — often a parole violation?"
Providers should ask themselves whether they would feel comfortable allowing law enforcement officials to engage in broad searches through their medical records — without an identified patient or an identified third party at risk — in order to find information they might find useful.
For example, people who are not doctors or nurses often conduct mammograms, blood tests, and X-rays.
Physician extenders are also nonlicensed medical personnel and provide a wide variety of services under the supervision of a physician, says Thomas P. O’Donnell, JD, a health law attorney with the firm Polsinelli, Shalton and Welte in St. Louis.
"The prosecutor’s rationale in this case has far-reaching implications on any services provided by a non-physician," he notes. "The position is interesting since many states license or certify physician extenders who are nurse practitioners and physician assistants. In many instances, they must work under the supervision of a physician in order to be reimbursed for the service."
The argument attributed to the county attorney — that pregnancy tests are not medical records simply because they were not administered by physicians or nurses — is a red herring, agrees Dale Moore, JD, professor of law and ethics at Albany (NY) Law School at Union University.
However, privacy rights of the sort being defended by the clinic are not absolute, she warns. "A death investigation is under way and official investigations into unexplained or suspicious deaths sometimes must override wishes that would otherwise be respected."
For example, although an individual’s or next of kin’s objection to the performance of an autopsy ordinarily would be honored, suspicion that the death is a homicide will require that it be investigated and much more likely that the investigation will require an autopsy, she says.
"In such circumstances, as much care as possible should be taken to avoid intruding unnecessarily into the private interests of the decedent and family," she says.
"If the police are able to demonstrate that having the names is truly likely to help them identify the party or parties responsible for the infant’s death, then I think a balancing of the public interest in death investigation and the private interest in confidentiality of medical information ought to be achievable," she adds. "It is doubtful, however, that those seeking the names truly need the names for the entire 9½-month window.
Forensic evidence should enable police to identify a much narrower window of time to explore, she says. "In addition, it should be possible to limit disclosure to a very small audience that is charged with protecting it from further disclosure and using it only for the purposes of that particular investigation.
Currently, clinic officials are right about their responsibility to safeguard the information until and unless they are ordered to release it as a result of legal proceedings in which all routes to appeal have been pursued, she says.
"The patients’ expectations and entitlements to the privacy and confidentiality of the resulting diagnoses are not diminished by the professional status of the personnel who administered the tests, and the same should be true of the information sought in Storm Lake."
- Susan Tolle, Center for Ethics in Health Care, Oregon Health & Science University, 3181 S.W. Sam Jackson Park Road, Mail Code UHN-86, Portland, OR 97201-3098.
- Thomas P. O’Donnell, Polsinelli, Shalton, and Welte, 100 S. Fourth St., Suite 1110, St. Louis, MO 63102.
- Dale Moore, Albany Law School, Union University, 80 New Scotland Ave., Albany, NY 12208.