FOR IMMEDIATE RELEASE:
Contact: Kathryn Serkes, 202-333-3855
Association of American Physicians and Surgeons
e-mail: [email protected]

JUDGE RULES MEDICAL PRIVACY LAWSUIT NOT RIPE

AAPS Will Appeal

June 19, 2002

A federal judge in Houston has dismissed a lawsuit filed last year by a physician group that challenged the constitutionality of the medical privacy regulations enacted under the Health Insurance and Portability Act of 1996 (HIPAA).

The lawsuit was filed last August by the Association of American Physicians and Surgeons, Congressman Ron Paul of Texas, a physician, and three individual patients. These so-called �privacy regulations� give the government virtually unrestricted access to patient medical records, and force physicians to comply or risk jail and/or fines up to $250,000.

Judge Sim Lake ruled that because the regulations were not fully in force, that the legal issues were not "ripe" for litigation, and further that the plaintiffs had no standing to bring the lawsuit because "plaintiffs have not yet suffered any injury from enforcement of the Privacy Rule. Defendants also argue that chances are extremely remote that plaintiffs will ever be affected by the Rule. The court agrees."

�We find it difficult to understand a conclusion that our chances of being affected are �remote� when the privacy rules that must be followed by every physician in the country,� said Jane M. Orient, M.D., Executive Director of AAPS. �We will appeal.�

AAPS argued that the HIPAA privacy rules enable a government database of medical records, and violate the Fourth Amendment by requiring physicians to turn over to the government medical records in which patients and physicians have a reasonable expectation of privacy, thereby authorizing mandatory unwarranted disclosures to government entities.

But the judge ruled that "because these 'unwarranted disclosures' have not occurred and plaintiffs have suffered no actual injury, the court concludes that plaintiffs lack standing to pursue this claim, and the claim is not ripe for review.� The judge also found that the extension of the regulations to paper, as well as electronic records, was proper.

"The judge has dismissed this case because these particular plaintiffs haven't been hurt yet," said Dr. Orient. �So we�ll have to wait until after someone is hurt, in which case we can't undo the damage already done. In medicine, it's malpractice when a doctor fails to act to prevent harm to the patients. Unfortunately, government isn't held to the same standard to �do no harm.� �

AAPS General Counsel, Andrew Schlafly, summarized the legal issues:

1. We will appeal.
2. As to our constitutional claims, the judge merely said that those were not yet ripe. When they are ripe, we'll assert them again.
3. As to our statutory claim, the judge gave the federal government too much power over our paper medical records.
4. We won on the issue of prompt patient access to medical records as defined by state law, which is important for patients to go outside their HMOs and networks.
5. We disagree with the judge's narrow view of the Paperwork Reduction Act.

Other Links:

• US District Court's Ruling on Motion to Dismiss - 6/18/2002
• DOJ's Memorandum in Support of Defendants' Motion to Dismiss - 02/06/2002
• Summaries of Briefs Filed in AAPS v. HHS et al - 1/16/2002
• AAPS Memorandum in Opposition to Defendants' Motion to Dismiss - 01/15/2002
• Physician Declaration Opposing Privacy Regulations - 01/09/2002
• Patient Declaration Opposing Privacy Regulations - 01/09/2002
• Department of Justice Memorandum in Support of Motion to Dismiss AAPS Suit - 12/10/2001
• Text of AAPS Complaint Filed in Houston - 8/30/2001
• Ron Paul Joins AAPS Lawsuit - 8/30/2001
• More Information on HIPAA Privacy Rules