Patient privacy

• City of Charleston v. Ferguson
• Louisiana Attorney General v. Janssen Pharmaceutica
• Medical Mutual of Ohio v. Schlotterer

City of Charleston v. Ferguson, 532 U.S. 67 (2001)

Issue

The issue here was whether mandatory drug testing of pregnant women seeking obstetrical care at a state funded hospital was permissible on constitutional and statutory grounds.

AMA interest

The AMA supports protection of patient privacy.

Case summary

This case challenged a policy fashioned largely by Charleston, South Carolina law enforcement officials whereby pregnant women who sought obstetrical care at the Medical University of South Carolina ("MUSC) were subjected to warrantless and non-consensual drug testing designed and used to facilitate arrest and prosecution of mothers who tested positive for cocaine. MUSC is a state-funded hospital and the only medical facility in the Charleston area to treat indigent and Medicaid patients, a majority of whom are African-American. When the policy was implemented no drug treatment was available for pregnant or parenting women. Mothers who tested positive at the hospital were simply jailed. The drug testing policy was not used in any of the other Charleston area hospitals.

Ten women, including nine women arrested for testing positive, challenged the policy on various constitutional and statutory grounds. In upholding the policy, a divided panel of the Fourth Circuit Court of Appeals held that, because urine drug screens may serve a
medical purpose, there is no need for a warrant or consent, even though the testing is done to further law enforcement objectives.

The Supreme Court reversed and remanded, holding that the Fourth Amendment to the U.S. Constitution’s general prohibition against nonconsensual, warrantless and suspicionless searches necessarily applied to the policy.

Litigation Center involvement

The AMA filed an amicus brief in the U.S. Supreme Court, arguing that the policy mandating drug testing of pregnant women violated the patients’ expectations of privacy when they consulted with their physicians, discouraged drug-abusing women from seeking prenatal care, and was generally ineffective in preventing drug abuse.

Louisiana Attorney General v. Janssen Pharmaceutica
(St. Landry Parish, Louisiana)

Issue

The issue in this case is whether physicians can adequately protect patient privacy in the face of a pharmaceutical company’s subpoena for physicians’ medical records relating to those patients.

AMA interest

The AMA supports protection of patient privacy.

Case summary

The Louisiana Attorney General sued Janssen Pharmaceutica, a subsidiary of Johnson & Johnson, for the fraudulent marketing of Risperdal to Medicaid patients. Measured in sales, Risperdal is a multibillion dollar per year drug. It has been FDA approved for certain mental illnesses, including bipolar disorder and some types of autism. It has not been approved for other types of mental illnesses. Also, it can cause severe side effects.

The complaint alleges that Janssen marketed the drug for purposes other than those that had been FDA approved, it did not properly disclose the known side effects, and it even covered up certain side effects. As a result, according to the Attorney General, physicians over-prescribed the drug, and Medicaid patients suffered the side effects in situations where they never should have received the medication. This caused the Louisiana Medicaid program to spend more money than was appropriate for the drug, and it also caused the Medicaid program to spend additional funds to treat the side effects.

The suit seeks to recover (a) the unnecessary expenditures for the Risperdal prescribed as a result of the unlawful marketing, (b) the money spent to pay for the side effects of those patients who were improperly dosed with Risperdal as a result of the unlawful marketing, and (c) substantial monetary penalties. The claims are based on the Louisiana version of the False Claims Act, the Louisiana Unfair Trade Practices and Consumer Protection Law, and various common law/civil law causes of action. Although suit was filed in 2004, serious discovery is only now being undertaken.

Janssen originally wanted to send discovery subpoenas to all physicians who had been reimbursed under the Louisiana Medicaid program for prescribing Risperdal. It sought the complete medical records of all patients who received the drug, going back to 1994. After objections from the Attorney General and following various pretrial conferences, the court ordered production of medical records from 150 physicians, covering 6000 patients. Janssen also planned to depose each of those 150 physicians. The discovery plan, however, is still tentative.

Although the court entered a protective order to preserve confidentiality and, apparently, comply with HIPAA requirements, the Louisiana State Medical Society ("LSMS) filed an amicus brief on January 30, 2008, to address discovery issues of particular concern to the affected physicians. The Litigation Center’s support was cited in the LSMS brief. In late February 2008, the court quashed the subpoenas to the 150 physicians.

Litigation Center involvement

The Litigation Center supports LSMS’s position regarding the patient privacy issues arising from discovery requests for patients’ medical records and will join in any further LSMS amicus briefs, should they be necessary.

Medical Mutual of Ohio v. Schlotterer (Ohio S.Ct.)

Issue

The issue in this case is whether a physician should be required to disclose confidential patient-physician communications in response to a health insurance company’s discovery requests in litigation.

AMA interest

The AMA believes that, absent patient consent, patient-physician communications should be kept confidential.

Case summary

Medical Mutual of Ohio (Med Mutual), a managed care organization, sued William Schlotterer, DO for fraud and breach of contract, alleging that he persistently upcoded his claims to Med Mutual for medical services to patients (i.e., sought higher payments from the insurer than that to which he was entitled). Med Mutual asked Dr. Schlotterer to produce his patients’ medical records so that each side could substantiate its claims. When Dr. Schlotterer refused, Med Mutual moved to compel production, subject to a protective order in which Dr. Schlotterer would have to waive his patients’ right to confidentiality. The trial court granted the motion, and Dr. Schlotterer appealed to the Ohio Court of Appeals.

The Court of Appeals found that Ohio law prohibits physicians from testifying about their communications with patients absent exceptional circumstances (none of which were present in the case), that Med Mutual’s pecuniary interests did not outweigh the patients’ privacy interests and that the requested discovery was overly broad. Additionally, the appellate court found that Med Mutual was required at least to attempt to obtain releases of the information sought directly from the patients. Consequently, the Court of Appeals reversed the trial court order requiring production of the patient records. Med Mutual appealed to the Ohio Supreme Court, where the case is now pending.

Litigation Center involvement

The Litigation Center has joined the Ohio State Medical Association in an amicus curiae brief in the Ohio Supreme Court supporting the need for patient-physician confidentiality.

View the brief. (PDF, 929KB)