Records of minors' sex-related care ruled private by Indiana court

A column analyzing the impact of recent court decisions on physicians

By Bonnie Boothis a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08. Posted Feb. 12, 2007.

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When a physician talks to an Indiana minor about treatment for a reproductive health condition related to sexual activity, the Court of Appeals of Indiana has said the conversation is private.

The decision late last year in Planned Parenthood v. Carter stymied Indiana Attorney General Steve Carter's effort to force Planned Parenthood of Indiana to turn over medical records of 73 low-income girls who sought medical services that could have ranged from counseling to pregnancy tests. After the ruling, a Carter spokesperson said the attorney general would not appeal the court's ruling to the state Supreme Court. That decision effectively ended a standoff that began in spring 2005 when the Indiana Medicaid Fraud Control Unit started demanding the records.

The ruling is good news for Indiana physicians, who now have a stated right to keep their minor patients' records confidential, and it adds to a growing body of law across the country holding that there is a privacy right for medical records.

Physicians often are associated with medical clinics named as plaintiffs in these types of lawsuits, or doctors become plaintiffs themselves in an effort to keep their patients medical records private.

In fact, while the courts rarely grant third parties the right to make a legal claim on behalf of someone else, physicians and other health care professionals often are the exception. Doctors traditionally have been able to sue on behalf of their patients in privacy cases like this, because they can show they have suffered a concrete injury that can be remedied, that there is a close relationship with the third-party patient and that the patient is hindered from protecting his or her own interests.

For example, in Kansas in 2003, two medical clinics sued to keep private the medical records of 90 women and girls who received abortions at the clinics in 2003. Also, physicians and nurses sued the Kansas attorney general after he issued an opinion stating that any sexual activity by a minor younger than 16 is inherently injurious and that the state's child abuse reporting statute requires physicians to file a report whenever they believe a minor has been involved in sexual activity. The Kansas Supreme Court recognized the right to privacy in the clinic case, and the reporting statute case is still wending its way through the judicial system with appeals of the trial court's rulings from both sides.

And physicians were the plaintiffs in Griswold v. Connecticut, in which the U.S. Supreme Court held in 1965 that the Connecticut law prohibiting the use or provision of contraceptives was an invasion of a married couple's privacy -- one of the first cases to find a right to privacy in the United States Constitution.

Indiana court follows others' lead

In Carter, the Indiana court ruled that Planned Parenthood met the conditions needed to sue on behalf of patients, and the reasoning in the opinion highlights why physicians are granted third-party standing. The court ruled that the interests of Planned Parenthood of Indiana and its patients, "most of whom are minors with limited means who might be hesitant to assert their privacy rights because of fear of parental reprisal and/or the sensitive nature of their medical records," are closely aligned.

The decision overruled the July 2005 trial court decision that Planned Parenthood couldn't sue on behalf of their patients.

The lawsuit stemmed from a demand letter an Indiana Medicaid fraud investigator delivered in the first week of March 2005 at three of Planned Parenthood of Indiana's 40 health care clinics. In court documents, the fraud unit said it wanted the records to investigate complaints that Planned Parenthood had failed to report child sexual abuse as required by law. But the Appellate Court noted that the state did not indicate in its written brief that its initial review of the complaint indicated a "substantial potential for criminal prosecution." This would be necessary for an investigation conducted under the statute that IMFCU said required Planned Parenthood to turn over the records.

In a concurring opinion, one of the appellate court judges went a step further, saying that "there is not a whit, not an iota, and not a scintilla of evidence in the record" that Planned Parenthood had failed to report suspected child abuse.

The investigator requested records of 11 patients who according to Medicaid billing records had received, when they were younger than 14, Medicaid-reimbursable services "of a type usually only required by patients who are sexually active, such as prescriptions for birth control pills or other contraception and treatment for sexually transmitted diseases," court records stated.

Initially, Planned Parenthood complied with the requests by providing limited information about eight patients. But when the state asked for records for 73 additional patients from 19 Planned Parenthood Centers, the organization filed its lawsuit. Planned Parenthood requested an injunction so it wouldn't have to turn over any more records; it also asked IMFCU to return records the clinics already provided.

Weighing each side's rights

Although the U.S. Supreme Court has not held that there is a specific right to medical records privacy, several federal courts have inferred such a right from other Supreme Court decisions regarding medical records and private papers.

But the right is not an absolute constitutional right.

All courts use a test that balances the nature and extent of the privacy intrusion against the government's interest in obtaining the information that it seeks. In the Carter case, it was IMFCU's interest in investigating possible patient neglect by Planned Parenthood for not reporting suspected abuse.

The appellate court ruled that the balance fell in favor of the minor patients, saying, in part, that "the records may contain sensitive patient confidences and medical test results relating to their reproductive health and sexual history, which may or may not include sexual intercourse," and that "there is significant potential for harm in a subsequent nonconsensual disclosure, given the sensitive nature of the records at issue."

In addition, the court said there were much less intrusive options for investigating the complaint at issue, including issuing a subpoena or turning the matter over to the appropriate criminal investigating unit, such as a local law enforcement agency that would know whether abuse had been reported in a particular case.

The court noted that a subpoena also would be subject to a motion to quash or modify based on informational privacy concerns, but it indicated that the review of the requested medical records, either by lawyers or physicians before disclosure, would allow IMFCU to pursue its neglect investigation and safeguard the privacy rights of the minor patients.

Carter did not return calls seeking comment by press time, but Planned Parenthood said Carter had agreed to return all medical records and withdraw more requests for patient records.

Bonnie Booth is a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08.

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