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NATIONAL ABORTION FEDERATION v. ASHCROFT

February 5, 2004.

NATIONAL ABORTION FEDERATION, et al., Plaintiff,
v.
JOHN ASHCROFT, Defendant; NORTHWESTERN MEMORIAL HOSPITAL, Movant



The opinion of the court was delivered by: CHARLES KOCORAS, District Judge

MEMORANDUM OPINION

This matter comes before the court on Northwestern Memorial Hospital's ("Northwestern") motion to quash a subpoena pursuant to Federal Rule of Civil Procedure 45(c)(3)(A). For the reasons set forth below, the motion is granted.

BACKGROUND

  In November 2003, the National Abortion Federation ("NAF"), a professional organization of abortion providers, and seven individual physicians commenced a civil action against the U.S. Attorney General in the Southern District of New York. Page 2 National Abortion Federation et al. v. Ashcroft, Case No. 03 Civ. 8695 (RCC) (S.D.N.Y. 2003). This pending lawsuit challenges the constitutionality of the recently enacted Partial Birth Abortion Ban Act of 2003 ("PBABA"), 18 U.S.C. § 1531, which prohibits certain late-term abortion procedures. The NAF and the physician plaintiffs allege that the PBABA is unconstitutional under Supreme Court precedent because it contains no exception for preserving a woman's health. One of the plaintiffs is Dr. Cassing Hammond, an attending physician at Northwestern who performs abortions that would be banned under the PBABA. Northwestern is a large teaching hospital in Chicago which maintains no facilities in New York and is not a party to the lawsuit. Dr. Hammond has privileges to practice at Northwestern but he is not a Northwestern employee.

  In support of the NAF plaintiffs' motion for a temporary restraining order, which was filed concurrently with the complaint, Dr. Hammond submitted a declaration in which he made assertions concerning his practice as an abortion provider. Dr. Hammond's declaration states that he provides PBABA-banned abortions to women with a variety of medical conditions for the protection of their health.

  On November 21, 2003, government attorneys representing the Attorney General served Dr. Hammond with interrogatories and document requests. These requests asked Dr. Hammond to identify the patient medical record numbers for the medically Page 3 necessary abortion procedures that Dr. Hammond described in his declaration. The government also requested Dr. Hammond to produce the medical records of the patients who received the above-described abortions. The government's document request asked only for the medical records of patients having abortions during the past two years. The requests appear to have been sought for the purpose of testing the assertions in Dr. Hammond's declarations. At best, the government is seeking possible impeachment material. Dr. Hammond responded to the government that he does not possess or control the medical records in question as they are the property and in the possession of Northwestern.

  After learning that Northwestern possessed and controlled the medical records to be identified by Dr. Hammond., on December 18, 2003, the government served Northwestern with a subpoena pursuant to Federal Rule of Civil Procedure 45. The subpoena sought production of "[a]ll medical records associated with those medical record numbers to be identified by [Dr. Hammond] in response to the discovery demand served upon him" in NAF. Accompanying the subpoena was an Order signed by District Judge Richard Conway Casey, who is presiding over the litigation in New York. The Order authorizes Northwestern, as a non-party witness, to disclose to the government the medical records sought by the attached subpoena in accordance with the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), Pub.L. Page 4 No. 104-191, §§ 261-264, 110 Stat. 1936 (Aug. 21, 1996), and 45 C.F.R. § 164.512(e)(1)(i). The government has agreed that if Northwestern is ordered by this court to produce the medical records in question, it may initially redact "all patient identifying information" from the records, except for the state of residence of the patient. However, the government has reserved the right to request or subpoena additional patient identifying information in the future. On January 23, 2004, Judge Casey issued an Agreed Protective Order holding that if Northwestern is compelled to disclose the records of Dr. Hammond's patients, it may redact such information as a patient's name, address, phone number, and the like, but the Order does not authorize redaction of a patient's medical history.

  Northwestern now moves to quash the subpoena pursuant to Federal Rules of Civil Procedure 45(c)(3)(A)(iii) and (iv). Northwestern asserts that the medical records sought by the subpoena are privileged from disclosure under HIPAA as well as Illinois and federal statutory and common law. Northwestern also claims that production of the medical records in accordance with the subpoena would impose an undue burden on Northwestern and its patients.

  DISCUSSION

  A district court must quash or modify a subpoena if it "requires disclosure of privileged or otherwise protected matter and no exception or waiver applies." Fed.R. Page 5 Civ. P. 45(c)(3)(A)(iii); Abbott v. Kidder. Peabody & Co., 1997 WL 337228, *2 (N.D. Ill. 1997). Northwestern argues that the medical records sought by the government cannot be released under Illinois law, which provides for strict disclosure protections under the physician-patient privilege, and are therefore protected under HIPAA. The government counters that federal law governs this case and because federal common law does not recognize a physician-patient privilege, the medical records of Dr. Hammond's patients must be disclosed subject to the subpoena.

 HIPAA

  Recognizing "the importance of the privacy of medical records," U.S. v. Sutherland, 143 F. Supp.2d 609, 612 (W.D. Va. 2001), Congress addressed the issue when it enacted HIPAA in 1996. One provision of HIPAA directed the Secretary of Health and Human Services (the "Secretary") to promulgate final regulations setting standards "with respect to the privacy of individually identifiable health information" such as patient medical records. HIPAA, Pub.L. No. 104-191, § 264(a), 110 Stat. 1936 (1996); Sutherland at 612. The federal regulation covering the disclosure of protected patient medical records is 45 C.F.R. § 164.512. Sutherland at 612; U.S. ex rel. Stewart v. Louisiana Clinic, 2002 WL 31819130, *3 (E.D. La. 2002).*fn1 This Page 6 regulation allows for the disclosure of non-party medical information "in the course of any judicial or administrative proceeding . . . in response to an order of the court." 45 C.F.R. § 164.512(e)(1)(i). Judge Casey's December 18, 2003, Order thus granted Northwestern the authority to disclose to the government Dr. Hammond's patient's medical records pursuant to 45 C.F.R. § 164.512.(e)(1)(i). However, Judge Casey's authorization Order does not end our inquiry into whether the medical records at issue are privileged from disclosure under other aspects of HIPAA.

  HIPAA contains a preemption provision that the statute and the regulations promulgated by the Secretary thereunder expressly "supercede [sic] any contrary provision of State law," 42 U.S.C. § 1320d-7(a)(1) (implemented by 45 C.F.R. § 160.203). HIPAA's preemption over state medical privacy laws is not absolute, as HIPAA and its subsequent regulations do not preempt state law if the state law is "contrary" to HIPAA and "relates to the privacy of individually identifiable health information" such as patient medical records. Id. § 1320d7-(a)(2)(b) (implemented at 45 C.F.R. § 160.203(b)); Louisiana Clinic at *3. A state law is "contrary" to HIPAA and its regulations if a "covered entity would find it impossible to comply with both the State and federal requirements." 45 C.F.R. § 160.202. A contrary state health Page 7 information privacy law will not be preempted by a HIPAA regulation if the state law is "more stringent" than HIPAA's requirements. 45 C.F.R. § 160, 203(b); Louisiana Clinic at *3. A state privacy law is "more stringent" than a HIPAA requirement if the state law "prohibits or restricts a use or disclosure in circumstances under which such use or disclosure otherwise would be permitted" under HIPAA. 45 C.F.R. § 160, 202. We must then ask if Illinois medical information privacy laws are more stringent than HIPAA's requirements.

  As mentioned above, HIPAA allows a hospital such as Northwestern to disclose patient medical records subject to a court order. 45 C.F.R. § 164.512(e)(1)(i). HIPAA does limit the authority of a court by requiring that the order:
[p]rohibit[] the parties from using or disclosing the protected health information for any purpose other than the litigation and proceeding for which such information was requested [and r]equires the return . . . or destruction of the protected ...

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