Personal Privacy in an Information Society. References

07/12/1997

1 1975 data conveyed to staff of the Privacy Protection Study Commission by staff at the National Center for Health Statistics.

2 National Center for Health Statistics, Health: United States 1975, (Rockville, Maryland: Department of Health, Education, and Welfare, 1975), p. 3.

3 Section 5(c)(2)A) of the Privacy Act of 1974 authorized the Commission to include "medical records" in its examination of governmental and private-sector record-keeping policies and practices.

4 Testimony of the American Hospital Association, Medical Records, Hearings before the Privacy Protection Study Commission, June 10, 1976, p. 83 (hereinafter cited as "Medical Records Hearings").

5 The term medical-care provider has been used throughout the chapter to refer to both medical professionals and medical-care institutions. For the Commission's purposes the term medical professional refers to any person licensed or certified to provide medical services to individuals, including, but not limited to, a physician, dentist, nurse, optometrist, physical or occupational therapist, psychiatric social worker, clinical dietitian or clinical psychologist. The term medical-care institution means any facility or institution that is licensed to provide medicalcare services to individuals, including, but not limited to, hospitals, skilled nursing facilities, home-health agencies, clinics, rehabilitation agencies, and public-health agencies or health maintenance organizations (HMOs).

6 1n a survey conducted in 1918, the American College of Surgeons discovered that only 89 out of 5,323 hospitals registered in the U.S. by the American Medical Association kept . . Accurate and complete case records. . .written for all patients and filed in an accessible manner." Edna K. Huffman, Medical Record Management, (Berwyn, Ill: Physicians Record Co., 1972 p. 21.

7 For the purposes of this study, the Commission has defined a medical record as a record, file, document, or other written material relating to an individual's medical history, diagnosis, condition, treatment or evaluation which is created or maintained by a medical care provider. Conversely, the term medical-record information is used here to refer to information obtained from a medical record or from the individual patient, his spouse, parent, or guardian, for the purpose of making a non-medical decision about him. The circumstances in which medicalrecord information is gathered, maintained, and used to make non-medical decisions are summarized in this chapter, but details will be found in the chapters on insurance, employment, public assistance and social services, and research and statistics. The Commission's detailed recommendations regarding medical-record information held by such third-party users will also be found in those chapters. As in all other aspects of the Commission's inquiry, the attention here is to medical records and medical-record information collected, maintained, used, and disseminated in individually identifiable form.

8 Alfred M. Freedman, "Protection of Sensitive Medical Data," Patient Centered Health Systems, Michael A. Jenkin, ed., (Minneapolis, Minnesota: Society for Computer Medicine, 1975), p. 3.

9 Testimony of the American Hospital Association, Medical Records Hearings, June 10, 1976, p. 84.

10 National Center for Health Statistics, op. cit., p. 3.

11Ibid, p. 60. By 1970 employers were paying all of the group-health premiums for 39 percent of the families covered by such plans, and at least partially paying the premiums for 53 percent more.

12Ibid, p. 2.

13 Epidemiology is the medical science responsible for investigating the impact of both man's genetic endowment and his environment on his physical health.

14 Testimony of Andrew Bailey, Director, Medical Record Department, Stanford University Hospital, Medical Records Hearings, June 10, 1976, p. 98.

15 Written statement of Mayo Clinic, Medical Records Hearings, August 25, 1976.

16 Written statement of Micro-Reproduction Services, Inc., Medical Records Hearings, August 26, 1976.

17 Written statement of Maurice Grossman, M.D., Clinical Professor of Psychiatry, Stanford University, Medical Records Hearings, June 11, 1976, p. 4.

18 "Gatekeeping function," as the term is used in this report, connotes the use of recorded information to determine whether individuals should be allowed to enter into different types of social, economic, and political relationships, and if so, under what circumstances.

19 Alan F. Westin, Computers, Health Records, and Citizen's Rights, (Washington, D.C.: United States Department of Commerce, 1976). p. 60.

20 Ibid, p. 60.

21 Medical Records Hearings, June 10, 1976, p. 137.

22 Natalie Davis Spingarn, Confidentiality, (Washington, D.C.: American Psychiatric Association, 1975), p. 1. See also, Carmault B. Jackson, "Guardian of Medical Data," Prism, Vol. 2 (June 1974), pp. 404 1.

23 It has been estimated that medical-record information is used as evidence in about threequarters of all civil cases and in about one-quarter of all criminal trials. Harold L. Hirsch, "Medical Records -Medicolegal Implications," Southern Medicine, Vol. 63, No.4 (August 1975), p. 11.

24 Testimony of the American Medical Association, Medical Records Hearings, June 10, 1976,p.179.

25 Cited in Robert M. Veatch, et. al, The Teaching of Medical Ethics, (New York: Hastings Center Publications, 1973), p. 146.

26 Ibid, pp. 145-46.

27 Richard Henry, ed. "A Summary of Freedom of Information and Privacy Laws of the 50 States," Access Reports (December 1975), p. l.

28 Ann H. Britton, "Rights to Privacy in Medical Records," The Journal of Legal Medicine, Vol. 3, No. 7 (July-August 1975), p. 32.

29 Westin, op. cit., p. 29. Analysis of the relevant case law also indicates that gaining a judgment against a physician for an unauthorized disclosure of medical-record information is no mean feat. There are only 16 jurisdictions in the United States that have adjudicated cases pertaining to a physician's liability for the disclosure of confidential information. In these cases, a cause of action for unauthorized disclosure has been justified under a number of different theories: breach of statutory duty; invasion of privacy; libel; malpractice; breach of trust; and breach of contract. (John J. Fargo), "Medical Data Privacy: Automated Interference with Contractual Relations," 25 Buffalo Law Review 493 (August 1976). See also Judith Lenable Elder, "Physicians and Surgeons: Civil Liability for a Physician Who Discloses Medical Information Obtained Within the Doctor-Patient Relationship in a Nonlitigation Setting," 28 Oklahoma Law Review 658-673, No. 3 (Summer, 1975).

30 In his treatise on evidence, Wigmore argued that the privilege is not justified. Ninety-nine percent of the cases in which it has been invoked, he noted, involve personal injury cases where the patient voluntarily placed the extent of his injury before the court; actions on life insurance policies where the deceased was alleged to have misrepresented his health to the insurer; or actions on wills where the deceased's mental capacity was in question. Thus, in none of these instances could one say that the absence of the privilege would have hindered the individuals involved from seeking medical care, while in all of them the medical-record information sought was necessary to reach a decision. Wigmore, Evidence ? 2380a (McNaughton rev. 1961).

31 For example, in Clark v. Geraci, [208 N. Y.S. 2nd 564 (S. Cc. N. Y. 1960)], an employee, seeking an excuse for his absenteeism, asked his physician to provide a general medical excuse. In doing s0, however, the physician also disclosed that the employee was an alcoholic, thereby causing the employee to be dismissed. According to the court, the employee's request for a general excuse constituted a waiver by estoppel, authorizing the disclosure for an undistorted account of the employee's condition, including his alcoholism. In another case, Hague v. Williams, [181 A.2nd (N.J., 1961)], a court construed an application for life insurance as a waiver of confidentiality. In this case, an infant's pediatrician told an insurance company that the child suffered from a congenital heart defect, even though he had never made this condition known to the baby's parents.

32 Written statement of Dale Tooley, District Attorney, Denver, Colorado, Medical Records Hearings, June 11, 1976.

33 Medical Records Hearings, June 11, 1976, p. 374. For examples of injuries suffered by patients as a result of breaches of confidentiality, see also, Maurice Grossman, Confidentiality and Third Parties, (Washington, D.C.: American Psychiatric Institute, 1975).

34 Testimony of Jerome S. Beigler, M.D., Chairman, American Psychiatric Association Committee on Confidentiality, Insurance Records, Hearings before the Privacy Protection Study Committee, May 20, 1976, p. 37 1.

35 Joint Commission on the Accreditation of Hospitals, Accreditation Manual for Hospitals, 1976 ed. (Chicago, Ill: JCAH, 1976) p. 98.

36 Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970, as amended by P.L. 93-282, and the Drug Abuse Office and Treatment Act of 1972, as amended by P.L. 93-282.

37 National Center for Health Statistics, op. cit., p. 257.

38 Westin's 1976 study, previously cited, is the most recent contribution to the medical record-keeping literature on practices and problems.

39 Ralph Crawshaw, "Gossip Wears a Thousand Masks," Prism, Vol. 2, No. 6 (June 1974), pp. 45-47.

40 Testimony of Feminist Women's Health Center, Medical Records Hearings, June 11, 1976, p. 323.

41 In testimony before the Privacy Protection Study Commission, Dr. Catherine Elkin Rosen described an experiment she conducted to determine if the manner in which a consent form is presented affects the rate of compliance. From the study she concluded that individuals sign such forms only because they believe it will increase the likelihood of receiving services. Nearly all the clients in four mental health centers agreed to sign the authorization unless they were informed that they had the alternative of refusing. Testimony of Catherine E. Rosen Ph.D., Director, Research and Evaluation, Northeast Georgia Community Mental Health Center, Medical Records Hearings, June 11, 1976, p. 433. The results of this study have also been reported by Dr. Rosen in an article, "Signing Away Medical Privacy," The Civil Liberties Review, Vol. 3, No. 4, (Oct-Nov. 1976), pp. 54-59.

42 Written statement of the Health Services Administration, Public Health Service, DHEW, Medical Records Hearings, July 20, 1976.

43 Testimony of the Department of Defense, Medical Records Hearings, July 21, 1976.

44 Submission of the Public Health Service, DHEW, Medical Records Hearings, June 10, 1976.

45 Testimony of the Health Services Administration, Public Health Service, DHEW, Medical Records Hearings, July 20, 1976, p. 125.

46 Marcia Opp, "The Confidentiality Dilemma," Modern Health Care, (May 1975), p. 52.

47 Westin, op. cit.

48 This argument has been espoused by the staff of the Given Health Care Center in Vermont and is supported by a study reported by them in Applying the Problem Oriented Record. One hundred people were given their medical records and asked to review and audit the "subjective" data in their file. Reportedly, 78 percent of the patients indicated changes in their living, eating, and drinking patterns and 97 percent indicated less worry about their health after review of their record. Richard E. Bouchard, et al. "The Patient and His Problem-Oriented Record," Applying the Problem-Oriented System, H. Kenneth Walker, J. Willis Hurst, and Mary F. Woody, eds. (New York: MEDCOM, 1975).

49 Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970, as amended by P.L. 93-282, and the Drug Abuse Office and Treatment Act of 1972, as amended by P.L. 93-282.

50 Testimony of Dale Tooley, District Attorney, Denver, Colorado, Medical Records Hearings, June 11, 1976, p. 474.

51 Colo. Rev. Stat. ? 25-1-801.

52 Okla. Stat. Ann. tit. 76, ? 19.

53 Fla. Stat. Ann. ? 458.16.

54 Conn. Gen. Stat. Ann. ? 4.104 (1969); Ind. Code Ann. ? 343-15.5-4; La. Rev. Stat. Ann. ? 44.31(1951); Mass. Gen. Laws Ann. ch. 111 ? 70 (1971).

55 Miss. Code Ann. ? 7146-53 (Supp. 1971); Tenn. Code Ann. ? 53-1322.

56 Ill. Ann. Stat. ch. 51 ? 71; Maine: Letter from Robert B. Calkins, Assistant Attorney General to the Secretary's Commission on Medical Malpractice, June 19, 1972; Missouri Division of Health, Hospital Licensing Law, ch. 197; Montana Board of Health Regulations, ?31.106; Nev. Rev. Stat. ?433.721; N.J. Stat. Ann. ?30:424.3; N. M. Stat. Ann. ?32-2-18; N.D.Rules and Regulations for Hospitals and Related Institutions R. 23-16-8S.1-.3; Utah Code Ann. ?647-50; and Wis. Stat. Ann. ?269.57(4).

57 N.Y. Official Compilation of Codes, Rules and Regulations, ?? 720.20(p)(1971).

58 Wallace v. University Hospital, 171 Ohio St. 487,172 N.E.2d 459 (1961).

59 Arizona Hospital Association Consent Manual, 1969.

60 Office of Management and Budget, Privacy Act Guidelines, issued as a supplement to Circular A-108,40 Federal Register, 132, p. 28957.

61 U.S. Veterans Administration, Manual MP-1, Part 11, Chapter 21, Section 6.d.

62 Except in the case of the social-service provider that uses medical-record information to make an (adverse) eligibility determination.

63 According to the Director of the Professional Services Division of the American Medical Record Association, the total membership of the Association at the beginning of 1977 was approximately 19,500 individuals. It was estimated by the Bureau of Health Manpower of the Department of Health, Education, and Welfare in 1974 that there were 53,000 individuals employed in the management and administration of medical records, 11,000 of whom were working in an administrative capacity. U.S. Department of Health, Education and Welfare, The Supply ofHealth Manpower (Washington, D.C.: DREW, 1974), p. 144.

64 American Hospital Association, Hospital Medical Records (Chicago: AHA, 1972), p. 8.

65 Berry v. Moench, 331 P.2d 814 (Utah 1958).

66 Testimony of the American Public Health Association and Mayo Clinic, Medical Records Hearings, June 10 and 11, 1976, pp. 297 and 567.

67 Testimony of National Institute of Mental Health, Medical Records Hearings, July 20, 1976, p. 83.

68 Dennis Helfman, et al, "Access to Medical Records," Appendix: Report of the Secretary's Commission on Medical Malpractice (Washington, D.C.: Department of Health, Education, and Welfare, 1973), p. 181.

69 Mass. Gen. Laws Ann. ch. 111, ? 111 (1971); Neb. Rev. Stat ? 84712 (1966).

70 Cited in Westin, op. cit., p. 77.

71 Written Statement of Maurice Grossman, M.D., Clinical Professor of Psychiatry, Stanford University, Medical Records Hearings, June 11, 1976, p. 10.

72 Harvard Community Health Plan, "Group Service Agreement," Section XII E.

73 American Psychiatric Association, Confidentiality and Third Parties (Washington, D.C.: APA, 1975), p. 13.

74 Testimony of Dr. Catherine E. Rosen, Medical Records Hearings, June 11, 1976.