United States District Court, N.D. Illinois
February 5, 2004.
NATIONAL ABORTION FEDERATION, et al., Plaintiff,
JOHN ASHCROFT, Defendant; NORTHWESTERN MEMORIAL HOSPITAL, Movant
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 health information
(including all copies made) at the end of the
litigation or proceeding.
45 C.F.R. § 164.512(e)(1)(v).
In other words, HIPAA's regulations clearly allow a hospital to
disclose patient medical records, when ordered in judicial proceedings,
subject to the above limitations.
ILLINOIS MEDICAL PRIVACY LAW
Illinois law concerning when nonparty patient medical records may be
disclosed by hospitals or doctors is far more restrictive. The Illinois
Code of Civil Procedure
states that "[n]o physician or surgeon shall be permitted to disclose any
information he or she may have acquired in attending any patient in a
professional character, necessary to enable him or her professionally to
serve the patient" unless one of eleven enumerated conditions exist. 735
ILCS 5/8-802. This medical privacy protection extends to hospitals that
possess nonparty patient medical records. Parkson v. Central DuPage
Hospital, 435 N.E.2d 140, 142 (Ill. App. Ct. 1982). Unless one of these
conditions is satisfied, absent the patient's consent, a hospital may not
disclose a patient's medical records, even in response to a subpoena.
Dep't of Professional Regulation v. Manos, 761 N.E.2d 208, 216-17
(Ill.App. Ct. 2001) (citing People v. Bickham, 89 Ill.2d 1, 6 (Ill.
1982)). Illinois courts have continued to hold that 735 ILCS 5/8-802's
protection applies even if the patients' names and identification numbers
are deleted or redacted from their medical records. See Manos at 216;
Ekstrom v. Temple, 553 N.E.2d 424, 430 (Ill.App. Ct. 1990); Parkson at
143-44. These courts have reasoned that even if a patient's name and
identification number are redacted from his or her file, because prior
and present medical history would still be disclosed, the patient's right
to confidentiality could potentially be compromised. Manos at 216.
While the government states that it would permit Northwestern to redact
"all patient identifying information," its subpoena requests information
medical necessity of abortions performed by Dr. Hammond. By demanding the
rationale behind the abortions he performed, the subpoena would thereby
require Northwestern to disclose medical history information of Dr.
Hammond's patients. Further increasing the possibility that Dr. Hammond's
patients could be identified despite the government's redaction proposal
is the fact that it only seeks patient records from the past two years
and requires that the patient's state of residence not be deleted. The
proposal simply offers less security of confidentiality than other
redaction plans that have been found to infringe on Illinois residents'
right to privacy guaranteed by the state's Constitution. Manos at 217.
While Illinois does not differentiate between the types of medical
information that is subject to protection, it is only reasonable that the
privilege should not be diluted in a case involving procedures as
sensitive and personal as late-term abortions.
Neither Northwestern nor the government asserts that any of the
conditions of 735 ILCS 5/8-802 have been met that would allow
Northwestern to disclose Dr. Hammond's patients' records under the
Illinois Code of Civil Procedure. The parties also do not dispute that
disclosure of the medical records would violate other provisions of
Illinois law such as the Medical Patients Rights Act, 410 ILCS 50/3a(a)
and (d), and the Hospital Licensing Act, 210 ILCS 8576.17(d). Because we
find that Illinois law is more stringent than HIPAA's disclosure
requirements and that it would
be impossible for Northwestern to comply with both Judge Casey's
HIPAA-pursuant Order and various provisions of Illinois law, Illinois's
nonparty patient privacy laws are not preempted by HIPAA and its
HIPAA, F.R.E. 501, and the SUPREMACY CLAUSE
The government argues that because NAF is a federal case that applies
federal law, the Supremacy Clause, U.S. Const. Art. VI, cl. 2, and
Federal Rule of Evidence 501 dictate that Illinois's strict privacy laws
should be trumped by federal common law, which does not recognize a
physician-patient privilege.*fn2 The Supremacy Clause commands that state
laws that "interfere with, or are contrary to the laws of Congress . . .
must yield" to federal laws. Gibbons v. Ogden, 22 U.S. 1, 211 (1824). The
Seventh Circuit has recently described the Supremacy Clause's application
in the following manner: "A conflict between state and federal law, even
if not over goals but merely over methods of achieving a common goal, is
a clear case for invoking the [Supremacy Clause] to resolve the conflict
in favor of federal law." Wisconsin Bell, Inc. v. Bie, 340 F.3d 441, 443
(7th Cir. 2003), cert. denied, 2004 WL 47558 (Jan. 12, 2004).
According to the government, this is a clear case for applying the
Supremacy Clause to invalidate Illinois' privacy laws by relying on
Federal Rule of Evidence 501, which states:
Except as otherwise required by the Constitution of
the United States or provided by Act of Congress or in
rules prescribed by the Supreme Court . . . the
privilege of a witness, person, government, State, or
political subdivision thereof shall be governed by the
principles of the common law as they may be
interpreted by the courts of the United States in the
light of reason and experience.
F.R.E. 501. As we have already stated, and the parties recognize, there
has never been a federal common law physician-patient privilege. Under
this proposition the government cites a litany of cases, beginning with
Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058
1981), where federal courts have relied on the Supremacy Clause and
Federal Rule of Evidence 501 to hold that state privilege laws cannot be
used to hinder discovery in cases governed by federal law. However, it is
important to note that all of the cases cited by the government either
predate April 14, 2003, the date when HIPAA's regulations became
effective, or deal with privileges that are outside of HIPAA's scope.
Because the authorities cited by the government do not contemplate
HIPAA, they cannot be read in a vacuum. Federal Rule of Evidence 501 does
state that evidentiary privileges should be governed by federal common
law, but only "except
as otherwise . . . provided by Act of Congress." For this reason,
HIPAA and the regulations promulgated thereunder, not Federal Rule of
Evidence 501, control the protections provided to patient medical records
held by hospitals. If the case were otherwise, Congress' directive to the
Secretary of Health and Human Services to set standards and regulations
"with respect to the privacy of individually identifiable health
information," HIPAA, Pub.L. No. 104-191, § 264(a), 110 Stat. 1936
(1996), would be rendered meaningless in a regime where Federal Rule of
Evidence 501 recognizes no privilege as to such records.
The government contends that to quash its subpoena as a result of
Illinois' privacy laws would violate the Supremacy Clause by a state law
trumping federal law. However, because Illinois' privacy protections are
activated only through HIPAA's anti-preemption provision, this not a case
of Illinois law trumping federal law but instead a case of one federal
law displacing another. It surely cannot be the case that the Supremacy
Clause is violated when state law is followed pursuant to a federal
statute that demands its application. As the government itself points
out, state and federal laws are in conflict where state law "stands as an
obstacle to the accomplishment and execution of the full purposes and
objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67 (1941). The
application of Illinois' medical privacy laws is not an "obstacle" to
achieving Congress' aims in enacting HIPAA, but rather
appears to be Congress' desired outcome under a statute that contemplates
that state medical privacy laws supersede less protective federal
regulations. Because HIPAA, not Federal Rule of Evidence 501, governs how
individually identifiable health information, such as medical records,
should be kept private, Illinois law controls and the government's
subpoena must be quashed.
F.R.E. 501 and the PHYSICIAN-PATIENT PRIVILEGE
The government contends that state privileges are honored in federal
litigation only when state law supplies the rule of decision. It asserts
that when federal law governs, as it does here, only privileges
recognized by the national government matter. It argues that because no
physician-patient privilege exists under federal common law, Northwestern
must produce the records.
As pointed out above, HIPAA's preemption over state privacy laws must
yield when state law is stricter than and contrary to HIPAA and the
material sought relates to the privacy of individually identifiable
health information. That is reason enough to quash the government's
subpoena to Northwestern. Beyond that, however, the government's reliance
on the absence of an express declaration that Federal Rule of Evidence
501 includes a physician-patient privilege is, in the context of this
Federal Rule of Evidence 501 speaks to privileges recognized under
"principles of the common law as they may be interpreted by the courts of
the United States in the light of reason and experience." The Court of
Appeals for the Seventh Circuit concluded that "reason and experience,"
the touchstones for acceptance of a privilege under Rule 501, compelled
recognition of a psychotherapist-patient privilege. Jaffee v. Redmond,
51 F.3d 1346, 1355 (7th Cir. 1995). Psychotherapists and patients share a
unique relationship, in which the ability to communicate freely without
the fear of public disclosure is the key to successful treatment. The
Supreme Court agreed with that holding and the recognition of the
It can be no less when dealing with a woman, her doctor, and the
necessity to make a decision on abortion, issues indisputably of the most
sensitive stripe. American history discloses that the abortion decision
is one of the most controversial decisions in modern life, with
opprobrium ready to be visited by many upon the woman who so decides and
the doctor who engages in the medical procedure. An emotionally charged
decision will be rendered more so if the confidential medical records are
released to the public, however redacted, for use in public litigation in
which the patient is not even a party. Patients would rightly view such
disclosure as a significant intrusion on their privacy.
That result is to be contrasted with the loss to the government if the
physician-patient privilege were found to exist in these circumstances.
The government seeks these records on the possibility that it may find
something therein which would affect the testimony of Dr. Hammond
adversely, that is, for its potential value in impeaching his credibility
as a witness. What the government ignores in its argument is how little,
if any, probative value lies within these patient records and the ready
availability of information traditionally used to challenge the veracity
of Dr. Hammond's scientific assertions and medical opinions. The presence
or absence of medical risks, their likelihood and nature are undoubtably
described and discussed in available medical literature. Challenges to
Dr. Hammond's views would be readily available, as would the enlistment
of experts supporting contrary opinions. The search for the truth that
any hearing or trial seeks to produce would hardly be infringed by
finding that a physician-patient privilege exists in these
circumstances. When contrasted with the potential loss of privacy that
would ensue were these medical records used in a case in which the
patient was not a party, the balance of harms resulting from disclosure
severely outweighs the loss to the government through non-disclosure.
Reason and experience dictate that Federal Rule of Evidence 501 indeed
recognizes a physician-patient privilege in the circumstances of this
case, that is, matters relating to abortion. We so hold.
Based on the foregoing analysis, Northwestern's motion to quash the
government's subpoena is granted.