On Monday July 13, 2015, AAPS filed an amicus brief asking the United States Fifth Circuit Court of Appeals to overturn a lower court ruling allowing patient medical records be turned over to the federal government without a warrant.
Without a warrant and without initially identifying themselves, federal agents searched patient medical records in an office of Dallas-area physicians, based merely on a state administrative subpoena. A month later the Drug Enforcement Administration (“DEA”), based on representations by one of those federal agents, sought to enforce an administrative subpoena demanding production of records on 35 specific patients for the period between October 1, 2012, and November 25, 2013 (the “Subpoena”). None of the checks and balances against overreaching by one branch of government existed for this warrantless demand for medical records. There is apparently no emergency or any other justification for the federal government to fail to satisfy the conditions inherent in a warrant prior to this search.
Unconsented access to one’s medical records is a trap door to his or her most private information, typically more personal than what is commonly said on a phone call or what may be found in one’s home. Moreover, the ability of someone to obtain optimal medical care depends on full confidence in the privacy of the medical record. There would be a pronounced chilling effect from allowing nearly unlimited access by the federal government to examine and copy one’s medical records without probable cause, without a search warrant, and with little more than a curiosity of a federal investigator to see what is there.
Dating back nearly 2,500 years to the Oath of Hippocrates, an essential element of the patient-physician relationship is trust, and the Fourth Amendment stands as a bulwark to protect that trust against erosion by the federal government. A mere federal administrative subpoena should not trump the patient-physician relationship, the Fourth Amendment, and state sovereignty over medical record privacy. Yet that would be the result if the district court decision allowing enforcement of the Subpoena below were affirmed.
The precedent sought by the federal government here would disrupt both the patient-physician relationship and state sovereignty over medical care. Patient confidences would then be vulnerable to exposure and even publicity contrary to the protections of medical ethics and state policy. The fundamental level of trust that is vital to the practice of medicine would be diminished by allowing federal access to patients’ medical records with so meager a showing as held below.
The ruling by the district court was specifically in error in denying that there is a clear “presumption against preemption” by federal regulations with respect to state law in the medical field. (Slip op. 7, RE 15-10195.346) Fifth Circuit precedent is clear that there continues to be a presumption against preemption, as explained in Point II below. For centuries the States have held virtually exclusive autonomy over the regulation of medical care, and the expansive encroachment into this field sought by the federal government here should not be allowed. The executive branch of the federal government does not properly regulate the practice of medicine, and federal administrative subpoenas should not trump Texas policy to protect medical record privacy.
Full Amicus Brief: