Wednesday, October 04, 2006

A Bad Case of Loving You

Here is an example of a guy with a ton of credentials in another field missing something entirely:

One particularly outrageous aspect of these cases is the way HIPAA's privacy provisions tie the hands of defense attorneys. We're only now finding out about these women's histories with other doctors because defense attorneys were prevented by HIPAA from knowing of or viewing their medical records, even when a man's freedom was at stake. The prosecution was free to make spurious claims to the jury -- claims they knew or should have known were inaccurate -- but the defense was barred from looking at the very medical records that would have rebutted many those spurious charges.

Of course, is the prosecution knew of potentially exculpatory evidence -- that is, their witnesses' dealings with other doctors -- and didn't disclose it to the defense, Ms. Buchanan's office might soon be forced to answer some difficult questions about prosecutorial misconduct.

Medical privacy is important, of course. But if the DEA is going to continue to go after these doctors with charges that hinge on the medical histories of some of their witnesses, defendant doctors ought to be able to peruse those histories for evidence that could help proove their innocence.

I read Balko occasionally, and several of my more conservative friends are big fans of his. In this case he misses the very important point that the HIPAA Privacy Rule allows for this very type of case. The problem had nothing to do with HIPAA. It was a failure of the prosecution during the discovery phase to disclose what they knew. HIPAA did not hamper the defense; a dishonest prosecution did.

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