Res Ipsa Loquitur

Second-year law student?

Heck, even /I/ understand that, and I am most certainly not the brightest light in Law Harbor.

That should definitely tell you something about the judges.

This the reason liberals are fighting so hard to un-seat Bush. They have ruled by legal edict and their plurality of judgeships is now in jeopardy. The rehetorical hate spewing is founded in their insecurity and fear of losing "the Power", and they will go to whatever lengths necessary to maintain their control.

Posner ruled that the records should remain private? I wonder what his reasoning was? I feel like I'm not getting the whole story about the controversy from the linked article.

Well I got curious and looked the stuff up on westlaw. From Hamilton's decision, for anyone who cares ...

"the government generally sought ... (1) records of "partial-birth abortions" or PBAs, as defined by the government; (2) records of abortions involving the use of chemical injections to effect intrauterine fetal demise; (3) any abortions during which complications arose; and (4) documents related to medical malpractice claims arising out of the performance of PBAs."

further on ...

"the government's motions should be denied as irrelevant, unduly burdensome, and based on a balancing of the individual patients' right to privacy with the government's interest in disclosure. ... Based on the declarations submitted by the plaintiffs and CCSF, and the court's review of the sample medical record submitted under seal, this court finds that the individual medical records are not relevant because they do not contain the information that the government seeks. Moreover, even if the records did contain such information, they are marginally relevant at best because the presence or absence of medical risks and their likelihood and nature are going to be made not on the basis of individual patients' records but on the basis of expert testimony at trial."

And finally ...

"Although the government has agreed to the redaction of names, addresses, birthdates, and other objectively identifying information, the records nevertheless contain other potentially identifying information of an extremely personal and intimate nature, including, among others, types of contraception, sexual abuse or rape, marital status, and the presence or absence of sexually transmitted diseases. Moreover, the potential for injury to the relationship between patient and provider is significant given the providers' pledge of confidentiality. As set forth in the amicus brief filed by the California Medical Association, allowing disclosure of the records will have a chilling effect on communications between patients and providers. It is also particularly troubling that under the circumstances of this case, it is unlikely that the individual patients whose records are being produced would have notice or an opportunity to contest disclosure."

Aaron,
That decision is bullshit and based in no law. HIPAA specifically allows this type of use for management and analysis of health care service levels, for medical research and to defend or prosecute a lawsuit.

Health data is not "disclosed" unless it contains PII (personally identifiable information) and this data will be sanitised with all PII removed by the health care provider. This proposed exposure is called "use".

This situation was specifically addressed in the law and this one will be overturned on appeal. There are well defined standards for doing this (it's required for all data used in statistical analysis of medical research) which will be followed. The elimination of PII will be done by the health care provider under the supervision of court proctor.

This is a blatant attempt to stack the deck in a lawsuit by putting all data pertinant to the core question of the suit beyond the reach of one party.

In the end, all the data will be on the table and we will see if the procedure can be justified by the facts or if it's just another way to dump an inconvenient child.

I know you don't want the judges confused by the facts but that's the way courts are supposed to work...

I agree that it still seems sketchy; I was just offering up the parts of the opinion that included reasons, for consideration, since the article didn't really give any reasons at all.

Apparently the U of Michigan hospital records were examined & found to contain no record that the procedure had ever been performed by one of the doctor/plaintiffs. Unfortunately, the records were examined by said doctor/plaintiff and not an independent proctor as they should've been.

But even assuming that this is true and the doctor/plaintiff hadn't performed partial-birth abortions, doesn't that raise the very real issue of whether he even has standing to challenge the law?

I find the (California?) court's argument that such things as contraceptive information is potentially identifying absolutely absurd. But I would agree under HIPAA's 'minimum necessary' standard, that type of information should be redacted as well....absent some showing that it was relevant to the issues in the case.

There's also the issue of whether California's medical privacy laws are more strict than HIPAA. If that's the case, and it wouldn't surprise me if it was, then California's law would supercede HIPAA.

And y'all thought HIPAA was dry and boring administrative law crap.