FC: Robert Gellman flames "lazy" reporters for blaming HIPAA

[Declan McCullagh <declan@well.com>]

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http://www.politechbot.com/p-04964.html

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Date: Wed, 16 Jul 2003 18:18:24 -0400
From: Robert Gellman <rgellman@netacc.net>
To: declan@well.com
Subject: Re: FC: HIPAA medical privacy rule hinders reporting of Chicago 
disaster

I want to respond to the article that you circulated complaining about the 
effect of the HIPAA rule on the press.

First, HIPAA allows for the public disclosure of some patient information 
if the patient has not objected.  If a hospital chooses to have a more 
restrictive policy, that is its business.  Yell at the hospital if you 
like.  It's not a HIPAA issue.

Second, Illinois has for some years had a law on the books that prohibits 
health care providers from "from disclosing the nature or details of 
services provided to patients." 410 Ill. Comp. Stat. Ann. 50/3.  HIPAA did 
not change this state law.

Third, the disclosure of personal medical information may be actionable.  A 
prudent hospital may have decided not to risk a private lawsuit in today's 
privacy-sensitive environment.  That has nothing to do with HIPAA, which 
does not provide a private right of action.

Fourth, I am tired of hearing reporters complain because they can't get a 
handout of information.  Whatever happened to being a real reporter and 
collecting information for yourself?  HIPAA doesn't apply to the press and 
doesn't restrict what the press can report. In this context, HIPAA mostly 
applies to health care providers, who were always supposed to protect 
patient confidentiality.  Many others had information about the Chicago 
victims, including witnesses, neighbors, relatives, police, and the victims 
themselves.  HIPAA did not restrict what any of these people could 
say.  Lazy reporters blame HIPAA for their own inadequacies.

Fifth, the disclosure of private medical information has nothing to do with 
access to government records, where the public and the press have a 
legitimate interest in much information.  The First Amendment gives the 
press great ability to publish, but it provides few rights to access to 
government information and no rights of access to private information.
Just because someone is a victim of an accident doesn't mean that the 
details of their lives, including home address and age, should be given to 
reporters.  If you think otherwise, consider what information reporters for 
supermarket tabloids would seek about hospitalized movie stars, 
politicians, and other public figures.

Bob

-- 
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+ Robert Gellman                            +
+ Privacy and Information Policy Consultant +
+ 419 Fifth Street SE			    +
+ Washington, DC 20003			    +
+ 202-543-7923        <rgellman@netacc.net> +
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