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