Judge orders hospitals/clinics to turnover records

Great Debates
21

MsRobyn:

You hit it on the nose by saying:

**If the police show up with a valid court order to produce certain information, then the facility has no other choice but to release the information requested. **

The point is, this isn’t a vaild court order. It is ABSOLUTELY not ok for them to draw upon the medical records of people who are not part of this case. As I said with my earlier example of fingerprinting. You can’t just fingerprint everyone for the purpose of making police work easier. Sacrificing your rights just to make police work easier gets us into all sorts of trouble. Some people are content to move toward a police state, well I am not. These are police state tactics, and people can claim that they aren’t, but it is, it’s relaxing basic rights to make police more powerful and make their jobs easier.

Besides the knee-jerk horror at an atrocity such as this, what reason is there to want to seek this girl out? Are we afraid she’s gonna get knocked up again so she can kill another baby? Or is it simply “society needs revenge for the death of a baby, this bitch needs to be locked up.”?

Erek

22

That should read: What reason is there that it’s so important to relax our fundamental rights as citizens to such a high degree…

Also, another question, what if these were psychiatric records? And please don’t cop out with the “psychiatric records are different” excuse, because medical records are medical records.

Erek

23

The fact that a woman has been tested for pregnancy is private matter, completely aside from the results of that test.

This is the classic “fishing expedition” through a whole segment of the population. And every woman who tested pregnant during that time period will be subject to MORE investigation, because of course, it’s only the FIRST question the police want to ask.

First, they’ll need to correllate these women’s names to all live births in the area. Since that info is likely to be recorded on birth certificates and is a matter of public record, no real privacy problem here.

But next you run into real problems. What does that really tell the cops? The infant could have been born and legally recorded on a birth certificate. So they will have to check verify that all infants recorded as being born in the right time frame are accounted for, because it’s possible that a new mother could have walked out of a hospital and dumped it.

And there will be a substantial proportion (possibly 1/3 or more, that’s a WAG however) of women who DON’T show up listed as mothers on birth certificates. Maybe they gave birth elsewhere, maybe they miscarried (this happens a lot more than most people realize), maybe they had an abortion.

Every one of them will need to be personally questioned, unless the police try something even MORE oafish like sending out a mass mailing questionnaire. They will all make their various statements, or refuse to, and then the cops will go to their doctors, or their partneers, or their parents or friends, for verification of their stories.

Almost certainly the identities of some of these women will become known, simply because the police are trying to contact them if for no other reason. Many women who have miscarried or had abortions never breathe a word of it to anyone BUT their doctor.

And, as noted, there is no evidence whatsoever the mother ever had contact with the local medical community.

I’m not sure what the SDMB rules anout placing bets are, but I’ll bet that a higher court, maybe even the US Supreme court if it gets that far, will toss this ruling out.

24

Don’t confuse valid meaning legal with valid meaning moral and ethical.
:slight_smile:

How about they find blond hairs at a murder scene and ask to slam everyone with blond hair into the hood of a police car?

25

This is false. All you have to do is say “I want my attorney to review this” and they have to sit on their heels and wait (unless it’s a seizure order, which is rare). The law requires that the custodian of the documents sought by a subpoena be allowed to object to the disclosure. For federal subpoenas, the law even requires that the subpoena explicitly state as much in the subpoena itself.

This is a fishing expedition; there’s no way that this is a reasonable discovery order. It should be, and probably will be, quashed.

26

Does that vary by state?
When I was employed by a public Library, “they” came with a court order and the lawyers said we had to give whatever the order asked for.
Fortunately it was the defense asking for records and I wasn’t working the desk at the time.

27

Not as far as I know.

The library’s lawyers, or the lawyers for whoever demanded the documents? That aside, it’s entirely possible that the library’s lawyer reviewed the subpoena and found nothing objectionable, or simply didn’t want to bother with it. The law allows you to object, but doesn’t require you to.

IMO, doctors have a moral duty to object to the disclosure (whether or not the law permits the objection) because the doctor-patient privilege is one of the sacred trusts of the profession. The librarian-bookborrower relationship is not exactly endowed with the same degree of trust, although I personally would prefer that it, too, be held in more respect than it often is.

In my legal ethics class, we were instructed that the rules of conduct require an attorney to resist any effort to subpoena client papers, to the maximum extent possible including risking incarceration for contempt, until final review of the order by the applicable court of last resort has determined that the order does not induce a breach of attorney-client privilege. I see no reason why medical records should not receive the same consideration.

28

I agree that this is a stupid order, and is overly broad. They are not all that likely to find what they want, anyhoo.

Who says the woman is a local? If she is local, who said she had treatment. If she had treatment, who says she had it done locally?

29

By whose definition was this not a valid court order? Yours? I am aware that there are people fighting these orders, however, that does not make them any less valid.

The point here, people, is that there is suspicion that a CRIME was committed. The state requested these records as part of that investigation.

And, for that matter, what would you like the police to do? Knock on EVERY door to see who had a baby during that time period? Advertise in the paper? The use of medical records in criminal investigations is not a police-state tactic. It’s a widely-used, legally recognized tool that can probably save a lot of time, energy and grief. It’s not an issue of making police work easier, it’s an issue of not making it impossible.

As for the question, “What if these were psych records,” either medical records are the same, or they’re not. What’s got people squeamish in this particular case is that this involves reproduction, which most people (including myself) regard as being a very private matter. If you’re going to treat all medical records as identical, regardless of subject, then do so. (And as it happens, records involving psychiatric conditions, substance abuse, HIV testing and treatment all fall under a different set of regs and are VERY highly restricted as to access.)

Robin

30

They did not request the records. They demanded them, under penalty of incarceration for failing to comply. There’s a huge difference between the two.

You can obviously tell that this is an inappropriate method, but do you understand why? Is it because it’s inefficient, or because it’s intrusive?

If having my privacy secure means that the police won’t be able to solve some crimes, then too bad for the police. My privacy is more important.

31

Ya know, nobody ever says this when they are the victim of a crime.

32

You obviously never talked to the Ameican Library Association. :slight_smile:

I don’t know what the specifics were about the order; one of the Library board members did the legal stuff. Hell, maybe he was a Nazi or something.

33

So I should have a right to have every man between the ages of 20 and 50 called into the Austin Police Department and photographed so I can identify the guy who raped me? I think not.

Oops. Try again.

34

Ahem? The public’s interest in apprehending criminals trumps all other concerns? Of course it doesn’t. If it did, there wouldn’t be any such thing as the 4th Amendment, 5th Amendment, 6th Amendment, Miranda warnings, attorney-client privilege, priest-penitent privilege, and on and on.

But not medical records.

A pretty bizarre presumption. Pick up your morning’s paper. Scan for the words “police sources say”. (Not bashing cops in particular; confidential information gets improperly released all the time.
And what, exactly, does disciplining the cop do for the daughter who’s been beaten by dear old Dad for having had an abortion?

Sua

35

[Cheering section] Extra points for Sua. [/Cheering section]

36

From what I am seeing here, it’s not valid under federal law. It’s invalid constitutionally, as well as being invalid logically, morally, and ethically.

There is not reasonable suspicion on the people who are having their records requested for this matter, other than that they are part of the same demographic as the lack of suspect. As Sua said, we can’t violate three amendments to the bill of rights just to go on a fishing expedition that has about a 2% chance of success anyway. (Not that if it had a 100% chance of success it would be reasonable) You don’t just violate all of societies rights to catch one criminal. The damage done by that one criminal remaining at large is much less than police state tactics. I’m amazed that you fail to see this. Police state tactics are generally looked at as being bad and have caused much of the civil unrest in the last twenty years. If you need some good examples of what police state tactics can do look at Communist China, England in it’s tactics against the IRA, the USSR, and even (godwin) Nazi Germany.

Here’s another thing that hasn’t been brought up. What if the cops going through the records find evidence of something other than this crime while just going through the records? Would it be reasonable to start an investigation on that? Legally no, the evidence would not be admissable in court because it was not gained through kosher methods.

I fail to see any difference between this and knocking on EVERY door.

Alright, I don’t know the regs on this sort of thing.

Erek

37

Originally posted by MsRobyn:
The paper records, however, belong to the physician or hospital. If the police show up with a valid court order to produce certain information, then the facility has no other choice but to release the information requested.

KellyM,You’re confusing a subpoena and an order. Yes, you can say I want my attorney to review this subpoena and the attorney can file a motion to quash and THEN the judge can issue an ORDER granting the motion to quash or an ORDER to release the records. Compliance with a subpoena can be postponed or subject to further court action; compliance with an order is required or the subject of the order will be penalized. You can’t quash an order.

We routinely file motions to quash subpoenas for information which can include patients’ medical records, and are almost always successful. If it is a criminal case, however, we have to give over the records. We usually are allowed to delete patient identifiers, ask that the records be reviewed in camera (only the Judge sees them) or at least get a protective order so it does not become public record. This, however, is in cases already in the courts, with a defendant identified. The case here that is the subject of the OP does not have a defendant, and the judge’s order is not to release any specific witness, defendant or plaintiff’s medical records which might be germaine to the issue; therefore, I agree that the order should be vacated because of the violation of privacy for these patients and because of the potential for abuse.

38

More legal falderal, for anyone who’s interested: the order must be complied with unless a higher court judge stays the lower court judge’s order pending an appeal. So if a motion to stay the order is not granted, the clinics have to give up the names, even if the issue is on appeal in a higher court. If the higher court then reverses the lower court and vacates the order, it’s really too late; these people’s privacy has been violated, and the police can’t use any of the information garnered as a result of the order.

KellyM, correct me if I’m wrong, I am not a lawyer but do have some experience with the courts.

39

I never took criminal procedure, but in general the same rights of objection apply to criminal discovery as to civil. There is always a means to object to an improper discovery order, if by no other means than a federal writ of prohibition.

40

Also, I don’t trust that the police won’t use information that they gain via an order subsequently vacated. Once they’ve had a look at it, they make use of it and find ways to get around it, usually by arguing “inevitable discovery” or some such nonsense. The Rehnquist Court has been aggressive at chopping away at the restrictions on police conduct as part of its “tough on crime” stance.