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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto

August 17, 2005

Dear New York City Department of Health and Mental Hygiene,

These comments are submitted on behalf of the Association of American Physicians & Surgeons, Inc. ("AAPS"), a nonprofit group of thousands of physicians that was founded in 1943. AAPS is one of the oldest and largest physician organizations funded virtually entirely by its members, including many in New York. For more than sixty years, AAPS has been dedicated to the protection of the practice of ethical and private medicine. As General Counsel of AAPS and a practicing New York attorney, I respectfully submit these comments on your tracking proposal.

We strenuously object to the proposed tracking by the New York City Health Department of A1c lab test results without patient consent. In addition, we object to the proposed unauthorized contact with each patient's physician to discuss treatment plan and education. This is a blatant invasion of patient privacy that will cause many patients to avoid testing and treatment. The resultant injury to the patients and the costs to the City from a lack of early, voluntary testing and treatment will be staggering.

The sanctity of the patient-physician relationship has been frequently recognized and upheld by our courts. See, e.g., Whalen v. Roe, 429 U.S. 589 (1977); Olmstead v. United States, 277 U.S. 438, 487 (1928) (Butler, J., dissenting) (declaring a Fourth Amendment right against wiretaps because telephone conversations can contain "private and privileged" information, particularly "those between physician and patient"). Yet the New York Times reported on July 8, 2005 that, under the proposal, as many as 500,000 patients' information would be accessed without patient consent. The accessible information would include the patient's and physician's names, and the highly personal results of testing.

Not only is this plan unconstitutional, it is also unwise. The chilling effect on patient's voluntary and preventive visits to physicians could be catastrophic. Many patients live in fear of their medical information falling into the hands of the government, employers, insurance companies, political rivals, or even ex-spouses. The mere chance that strangers will be able to access their lab results will cause many to decline having tests performed. Even those who do not fear a loss of benefits or embarrassment will still want to keep private their most personal medical information.

This plan explicitly proposes replacing individualized medical care with population-based medicine for patients having one of our nation's most significant chronic diseases. Its purpose is to reallocate resources to a public health agenda instead of to priorities determined by patients and their physicians. While there is evidence that Hgb A1C is correlated with diabetes control, which is correlated with better patient outcome, there is no evidence to show that focusing on this surrogate outcome will improve overall health as measured by mortality, visual function, renal function, amputations, and ability to work. It is possible that outcomes will be worsened, as by increasing episodes of hypoglycemia, or by diverting funds to laboratory tests and away from meeting patients' perceived needs. Attainment of "good" levels of Hgb A1C may be primarily a function of the disease process and patient behavior, or other factors minimally influenced by medical interventions.

In addition to deprivation of confidentiality, patients are essentially being enrolled in a massive, poorly designed experiment with the effect of fundamentally altering the process of obtaining their medical care, substituting a public health model. For such experimentation, fully informed consent should be obtained.

The experimenters themselves acknowledge the serious potential effects of having the diagnosis of diabetes disclosed. Yet once this information is in an electronic data base, it is impossible to guarantee that disclosures will never occur.

We urge you to reconsider and withdraw this tracking proposal. Please feel free to contact me at 212-292-4510 if you would like to discuss this further.

Andrew Schlafly, Esq., AAPS General Counsel