Iowa judge withdraws order for pregnancy test results

State Supreme Court refuses to decide protected info issue

An Iowa district court judge has rescinded his order requiring a local Planned Parenthood clinic to turn over the names of women receiving positive pregnancy tests to law enforcement officials investigating the death of a newborn.

On Oct. 24, District Judge Frank Nelson lifted his order at the request of Phil Havens, Buena Vista county attorney, the official who initially sought the clinic files. Fighting the legal appeals over the court order would enmesh the county in an "endless court battle" that the county could ill afford, Havens told the court.

In withdrawing the original order, Nelson also formally dissolved the orders to prevent their being used by law enforcement officials in the future.

In June, Havens obtained subpoenas for five area hospitals and clinics, including the Storm Lake Planned Parenthood Clinic, following the discovery of the body of an infant by a recycling center worker. The baby was in such poor condition that medical officials could not determine the child’s gender or whether the child was born alive.

The subpoenas ordered administrators to release identifying information about all women receiving positive pregnancy tests between Aug. 15, 2001, and May 30, 2002, in an effort to help law enforcement officials find the infant’s mother.

Although at least one area hospital and several other clinics are known to have complied, Planned Parenthood officials contested the order in court, arguing that the test results were private medical information protected by state and federal privacy laws.

Nelson, however, twice rejected the clinic’s arguments and ordered the records turned over. The clinic appealed to the state Supreme Court, which agreed to review Nelson’s ruling.

Havens then decided to withdraw the case, and the Supreme Court has since decided not to rule on the matter.

"We are certainly glad to see this case coming to an end, and the privacy of our clients is protected," Kendall Dillon, communications director for Planned Parenthood of Greater Iowa in Des Moines told Medical Ethics Advisor. "However, it does not set a precedent for protecting privacy in the future — that is the only negative part of it."

Planned Parenthood officials had hoped that the court would agree to decide the case anyway, says its attorney, Mark McCormick, LLB, LLM.

Clinic officials have indicated they have received another broad subpoena for medical information — though this request does not pertain to pregnancy tests — and they hoped this case would decide the issue once and for all.

"We filed a statement noting that the District Court had entered an order allowing the withdrawal of the subpoena and also vacating its two orders in which it refused to quash the subpoena," McCormick says. "We told the court we believed the case was moot and should be dismissed unless they decided to retain it under its mootness exception,’ in which a case of great public importance and a situation that is likely to reoccur will be decided even if the case is moot."

Clinic officials want a definite ruling on whether Iowa’s state statute mandating confidentiality of physician-patient communications covers pregnancy test results. In disputing the efforts to quash the original subpoena, county officials had argued that the test results were not protected medical information because the tests did not have to be given by a physician.

"We have that issue and we have the issue of whether or not our statute on physician-patient privilege is applicable to a county attorney’s subpoena," McCormick continues. "And potentially, there is a Constitutional issue of privacy."

Iowa state law requires the targets of a subpoena issued by a grand jury to have certain protections — one being that private medical information cannot be released without the person’s consent.

A previous court ruling indicated that county attorney’s subpoenas do not carry the same protections.

"We feel that ruling is in error," McCormick says. "The statute itself, that the subpoena is obtained under, specifically says that a witness subpoenaed by the country attorney has exactly the same rights as someone subpoenaed by the grand jury. Apparently, no one called this to the attention of the court when the other case was before it."

Protections not uniform

Contrary to popular opinion, laws governing the confidentiality of medical information are not uniform from state to state, says Joy Pritts, JD, research assistant professor at the Institute for Health Care Research and Policy at Georgetown University in Washington, DC.

The federal Health Insurance Portability and Accountability Act (HIPAA) of 1996 is the only federal regulation dealing with the privacy of medical information. Although it does mandate that medical information not be disclosed without the patient’s consent, it does contain several exceptions, one of which includes complying with legal subpoenas.

"However, the HIPAA language is largely permissive, indicating that providers may comply with an a subpoena. It does not say they have to," says Pritts. "It also leaves in place any state protections that are stricter than the ones contained in the federal law. If you have stronger state laws, they remain in place."

When someone serves a subpoena on a health care provider, depending on what state the provider is in, he or she is entitled to assert, on behalf of the patient, the concept known as "privilege," she explains. However, the definition of who is considered to be a medical provider and what information and communications may come under the umbrella of privileged information varies widely from state to state.

"Some states limit physician-patient privilege strictly to traditional medical doctors — even chiropractors may not be included," she continues. "Some states do not even recognize physician-patient privilege. In any individual state it must be set out by statute. It is not part of common law and it is not part of constitutional law; it is a statutory creature."

The argument that medical tests must be performed by physicians in order for the results obtained to be considered private is a disturbing one, Pritts says, although she does not think that Nelson’s original decision will have wide impact.

"What they are saying is that a pregnancy test is not covered by privilege because it does not have to be administered by a physician," she notes. "That argument would knock out an entire body of medical privilege. When you visit your physician’s office, most of the time it is not the doctor giving the diagnostic or screening tests."

However, because Nelson’s original ruling was only in the Iowa district court, was appealed, and was later withdrawn, Pritts doubts it will have any widespread impact.

"It doesn’t set any legal precedent or legal rules for looking at these kind of cases," she says.

HIPAA issues

A more disturbing problem is how the protections outlined in HIPAA were used in this case, she says. According to some published reports, county officials instructed health care providers that the federal regulations required them to comply with the subpoena, which is incorrect, she says.

"That is an inaccurate interpretation of the regulation," she notes. "But I think you may see people try to use it to support these kind of efforts. They can go in somewhere and wave the statute around and say, I have this legal authority behind me.’ If the [health care administrators] are good, they’ll say, I’ll check it out and get back to you.’ But, if they are intimidated they are just going to turn the information over. I think, in the next year or so, we are going to see more and more attempts to use the HIPAA privacy regulation as a sword."

Some providers did comply

Apparently, several health providers and clinics in the Storm Lake area did comply with the initial subpoena and turned over the names of women without their knowledge or consent, says Randall Wilson, JD, legal director of the Iowa Civil Liberties Union (ICLU), which filed an amicus curiae ("friend of the court") brief in support of Planned Parenthood’s action.

In one case, a woman’s information was turned over by clinic administrators within 24 hours of receipt of the subpoena and without the knowledge or consent of the woman or her physician, Wilson says.

"They found the baby on the 30th; and by the 31st, her clinic had turned over the records without consulting, according to the clinic administrator, her, or her doctor," he states.

Under HIPAA, had the subpoena been an administrative subpoena, for example, in a fraud investigation, the clinic would have been under federal obligation to make inquiries about whether the subpoena was justified, he says.

"A subpart of the HIPAA regulation on complying with administrative subpoenas for law enforcement purposes says that the subpoena should be reasonably limited in scope and that there should be evidence that obtaining just the nonidentifying information would not be sufficient for the [subpoena’s] purpose. But those conditions specifically modify only requests from agency subpoenas."

At any rate, it seems only right that the clinic would at least notify a patient before turning over medical information, Wilson says.

Several other women were contacted by law enforcement officials who went to their homes to inquire about whether they had a baby, according to reports in the Des Moines Register. Women without a child were asked to give DNA samples. A match for the abandoned child has not been found.

Whether health care providers believe it is ethical to violate patient confidentiality when asked to do so by law enforcement, they should make sure they are very familiar with the finer points of the HIPAA law and any applicable state laws before doing so, say both Pritts and Wilson.

The woman whose records were turned over a day later contacted the ICLU and was the basis for their amicus filing, he says. The woman, known in court documents as Janice Roe, has since consulted her own attorney and is considering legal action against the health clinic in question.

Sources

  • Kendall Dillon, Planned Parenthood of Greater Iowa, 851 19th St., Des Moines, IA 50314.
  • Mark McCormick, LLB, LLM, Belin, Lamson, McCormick, Zumbach and Flynn Attorneys at Law, The Financial Center, 666 Walnut St., Suite 2000, Des Moines, IA 50309-3989.
  • Joy Pritts, JD, Institute for Health Care Research and Policy, Georgetown University, 2233 Wisconsin Ave. N.W., Suite 525, Washington, DC 20007.
  • Randall Wilson, JD, Iowa Civil Liberties Union. Telephone: (515) 243-3988.

Want to know what your state law says about the privacy of medical information and physician-patient privilege? Visit the web site of the Health Privacy Project at Georgetown University, www.healthprivacy.org. A database gives a summary of each state’s legal protections