Physicians' privacy rights

• Consumers' Checkbook v. United States Department of HHS
• Jensen v. Sawyers

Consumers' Checkbook v. United States Department of HHS (D.C. Cir.)

Issue

The issue in this case is whether the Freedom of Information Act ("FOIA") allows a consumer  to obtain physician-identifying information regarding Medicare payments.

AMA interest

The AMA supports protection of physicians' privacy interests.

Case summary

Consumers' Checkbook is a non-profit organization headquartered in Washington, D.C. that provides information to consumers.  On March 27, 2006, Consumers' Checkbook submitted a FOIA request to the Centers for Medicare and Medicaid Services (“CMS”), requesting disclosure of records for Medicare claims from a United States Department of Health and Human Services (“HHS”) database.  The request sought physician-identifying information linked to each Medicare service or procedure provided to unidentified patients. The information was requested so that Consumers' Checkbook could help consumers determine “(1) whether the government is allowing and paying for Medicare physicians with less-than-optimal levels of experience to perform difficult procedures …. , (2) whether the government is allowing Medicare physicians with insufficient board certifications, histories of disciplinary actions, or poor scores on independent quality assessments to perform high volumes of difficult procedures for which they may not be qualified …. , and (3) whether Medicare physicians are exhibiting practice patterns that conform with existing guidelines.”

HHS opposed the FOIA request, contending that production of the requested documents would infringe physicians' privacy rights. It also asserted that the document production would violate an injunction that had been entered in a similar lawsuit against the United States Department of Health, Education and Welfare, the predecessor to HHS, and in favor of the Florida Medical Association, the AMA, and several individual physicians. That earlier case is reported at Florida Medical Association v. Department of HEW, 479 F. Supp. 1291 (M.D.Fla. 1979). Following a period of negotiations, Consumers' Checkbook sued HHS in the United States District Court for the District of Columbia, seeking an order to compel production.

On Aug. 22, 2007, the district court granted a motion by Consumers' Checkbook for summary judgment against HHS and ordered HHS to comply with the FOIA request. It weighed the public interest in the requested disclosure against the physicians' privacy interests and determined that the public interest in disclosure was more important. It found the injunction in FMA v. HEW to be inapplicable.

HHS appealed from this ruling. Briefing has been completed and oral argument was heard on October 8, 2008.

Litigation Center involvement

After initially asking the United States Court of Appeals in the D.C. Circuit for leave to file an amicus brief to seek reversal of the order entered in favor of Consumers' Checkbook, the AMA asked the Court of Appeals to allow it to intervene in the appeal as an additional appellant, since the AMA should be entitled to protect its adjudicated rights under FMA v. HEW. The AMA filed a brief in support of its motion to intervene and amici medical associations filed their brief seeking reversal of the order entered in favor of Consumers' Checkbook.

View the brief in support of the motion to intervene. (PDF, 149KB)

View the brief in support of reversal. (PDF, 2MB)

Jensen v. Sawyers, 130 P.3d 325 (Utah S. Ct. 2005)

Issue

Dr. Jensen prevailed at trial in a lawsuit in which he alleged defamation and invasion of privacy against an undercover television reporter and the television station that employed her. The issue in this case for the Litigation Center was whether a physician has a protectible right of privacy in connection with a patient examination.

AMA interest

The AMA supports the notion that a physician has a protectible right of privacy in connection with a patient examination.

Case summary

In 1995, a television reporter, Mary Sawyers, used a hidden video camera to tape Dr. Jensen prescribing phentermine and fenfluramine (“Phen-Fen”) for weight loss without undertaking a complete physical examination. During a news broadcast, Ms. Sawyers showed portions of her recordings and charged Dr. Jensen with promising “illegal” medication. In fact, while Dr. Jensen's examination was less thorough than it should have been under acceptable medical standards, he did make a partial evaluation of her physical condition. Also, he did not prescribe any illegal medications for Ms. Sawyers.

As a result of this report, Dr. Jensen lost his job and his hospital privileges. The Utah Division of Occupational and Professional Licensing placed his medical license on probation for one year and ordered him to attend classes on medical ethics. Although Dr. Jensen continued to maintain his license, he became unable to develop patients outside of the nursing home at which he was practicing medicine. The “punishment” that Dr. Jensen received from the damaging publicity far exceeded any transgression on his part.

The television reporter and the television station appealed the jury verdict in favor of Dr. Jensen and Dr. Jensen cross-appealed the trial court's reduction of part of his damages award and the denial of attorney fees and costs.

The Utah Supreme Court partially vacated the verdict and damages awards based on Dr. Jensen's invasion of privacy claims from the first and second broadcasts as time-barred by the statute of limitations. Further, the Court modified the economic loss and damages award based on Dr. Jensen's claims relating to the third broadcast. The Court affirmed the trial court on all other issues raised on appeal.

Litigation Center involvement

Because the Code of Medical Ethics implies that a physician has a protectible right of privacy in connection with a patient examination, the Utah Medical Association and the Litigation Center filed an amicus curiae brief to support Dr. Jensen. The brief highlighted several sections of the Code of Medical Ethics, emphasizing the personal, collaborative nature of the patient-physician relationship and the need for mutual candor and trust in that relationship.

Unfortunately, Dr. Jensen brought this case to the Litigation Center's attention long after the ordinary time for briefing had lapsed. The defendants objected to the Litigation Center's amicus brief as untimely, and the Utah Supreme Court denied the Litigation Center's motion for leave to file it.