So it is specifically after certain types of information, but I assume
your concern goes to the fact that, in the process of finding that spe-
cific information, you throw open all the hospital files that will reveal
information concerning other people who are not even involved in
Dr. Grossman. That did happen at the Stanford area office. They
went through everything tliere. So it is not mere conjecture that this
is the way they searched.
Senator Bayh. Let me ask you â€” I remember â€” and it takes a good
memory to remember that far back â€” but I remember from my fresh-
man criminal law, one of the basic principles that there are certain
privileged relationships, such as doctor/patient, or a lawyer/client
husband/wife. Why is it that kind of precedent established for cen-
turies in British common law would not protect the doctor/patient
relationship and therefore keep this kind of thing from happening.
Dr. Beigler. There are only seven or eight States now that have
privilege laws, and the laws that pertain to privilege for physicians
usually have so many exceptions to the privilege that the privilege
is really quite limited.
When it comes to psycliiatrist privilege, there are only a few States
that have specific privilege laws for psychiatrists so that, in the other
States, those communications are really not protected. One of the
strengths of the model law on confidentiality that I have submitted
for the record, is that we tried to draw an optimal line between ac-
cess to information that is validly required for the function of society,
and yet, to protect another function of society, such as this very spe-
cial, medical situation, the execution of which is very much in the
interest of society.
Wc have to have this protection in order for sick people to be re-
stored as contributing members of society.
Senator Bayh. Excuse me. Isn't the key point here and what we
are trying to provide with this legislation that, if certain information
is necessary to see that justice is done, then that information has to be
made available but, by the warrant procedure outlined in the Stan-
ford Daily case, privileged information will be violated whereas if
you have a subpena duces tecum, as you have mentioned, then you
litigate what information is necessary and what protections are ne'c-
essary, and then you go forth and get the infonnation you need, while
at the same time you protect the innocent parties from umiecessary
disclosure. Isn't that the distinction that we are talking about?
Dr. Grossman. That is right on, Senator. May I make another
Senator Bayh. Please.
Dr. Grossman. In this particular case, if you view the affidavits I
have presented, you will note that the district attorney already had all
the information they needed from the victim himself that could pos-
sibly have gotten into the psychiatric records. In other words, there
could not have been any additional evidence that they did not already
have firsthand from the victim himself; whereas, whatever the psy-
chiatrists had, would have merely been a record of what the victim had
They already had all of the evidence. It was not a case of seeking ad-
ditional evidence in this particular case.
Senator Bayh. Would you hazard a guess as to what, given the kind
of problems that you appeared to have had up to now, would be the
situation now that the court has approved a looser standard? What
would be the incidence of this kind of problem in the future?
Dr. Beigler. I can give you the specific instance. In Chicago right
nowâ€” it is called the Lakeshore Hospital case â€” which I mentioned as
an aside when I was giving my testimony.
Last year, the State's attorney in the process of investigating a valid
suspicion of fraud and abuse in a hospital, subpenaed all of the 2,000
case records which, from a law enforcement point of view, is a valid
procedure. Yet, from a professional aspect and, also, from the aspect
of the privacy of patients on a constitutional basis, is completely con-
trary to the interest of patients and the interest of society to enable
doctors to help patients.
The hospital resisted, according to the criteria of due process, and
the psychiatric society entered as an amicus and marshalled all sorts of
legal evidence. It was a very expensive procedure, and I believe we
have made some progress in legal research, and we have defined previ-
ously gray areas and have nailed down some important legal concepts
all in due process. It is now up before the appellate court of the State
These 2,000 case histories are impounded pending the results of this
If a search warrant had been issued, all of this could have been by-
passed. All sorts of injuries would have been perpetrated. The privacy
of many of these patients who have nothing to do with the fraud and
abuse aspect of this hospital's practices would have been breached.
There have been letters to the doctors and to the newspapers. One
housewife was complaining, for example, that, if this got out as a
matter of public record that she had been in a psychiatric hospital, she
just could not walk in her neighborhood as comfortably as she had
previously. She lived in a remote suburb of Chicago, and they were not
sure where she had been for the month that she was in the hospital ;
whereas, now it would become a matter of public record and gossip.
There were other patients who had been employed, and, it was not a
matter of public knowledge as to the nature of their hospitalizations or
their leave of absences from work.
All of that would have been breached if the search warrant had been
From my own experience, I do not think one can rely on good will.
Even if the people who were executing the search warrant were well-
intentioned to maintain confidentiality â€” which is a little bit difficult
to conceptualize â€” the records would be kept in places in which the per-
sonnel are not trained to observe the confidentiality of these records.
It is a highly hazardous, unconstitutional, in my view, and uncertain,
undemocratic procedure to have such a blatant, open procedure avail-
able, as this unrestricted searcli warrant. I believe it breaches due
process. We have to protest strongly.
Dr. Grossman. My comment on your question, also, Senator, the Su-
preme Court in its decision comment about the fact how few search
warrants have been issued up to now. Somehow they did not see fit to
state, or it did not occur to them the reasons there were so few, is by
and large the country as a whole respected the fourth amendment and
the first amendment, and felt that a search warrant was simply out of
place. That is why there are so few.
The best evidence of that is, if the executive branch did not think this
as the rest of the country did at the time of Dr. Fielding's office robbery,
they could have gotten a search warrant. The reason why they didn't is
because they knew it was inappropriate for I lie lirst and foiirtli niuoiid -
Up to now, by reason of my discussions with attorneys about the con-
fidentiality privilege, California does have a psychotherapist privilege
I called an attorney who had a subpena issued on one of my patients.
I pointed out that, according to the law, none of the exceptions of that
privilege applied to my patient. He said, "Well, that is too bad. In an
adversary system, I have to use every tactic that I can, and you go to
court and plead that situation. Don't tell me what the law says. I will
use every tactic that I can."
I think that, witli this Supreme Court decision, there are enough
district attorneys and other attorneys, if they can, will get search war-
rants who would never have thought of the possibility or even consid-
ered it before this particular time.
Senator Bayh. If there ever was an argument that found itself in
major contradiction or which ignored the answer, it was that argu-
ment. There have not been very many search warrants. Why ? Well,
because it has been perceived as being illegal â€” as being beneath the
standard established. Lower the standard, and there are going to be
more of them, it would seem to me.
Dr. Grossman. These people respected the first and fourth a-mend-
ments, I feel, a little bit more than the Supreme Court did â€” if I may
be allowed to say so.
Senator Bayh. Well, with all respect to whoever they may be, it
may have been because prior to this time the Supreme Court had a
higher degree of respect for privacy and that was the law of the land.
Dr. Grossman and Dr. Beigler, you have been very helpful here.
You have given us a good idea of the broad horizons of the possible
abuse here. Thank you very much.
Dr. Grossman. Thank you, Senator.
Dr. Beigler. Thank you. Senator.
Senator Bayh. I appreciate very much the inconvenience you have
been put to.
[Additional materials submitted for the record follow:]
[From the Congressional Record â€” Senate, Aug. 23, 1978]
By Mr. Javits (for himself, Mr. Muskie, and Mr. Ribicoff) :
S. 3450. A bill to amend the Privacy Act of 1974 to provide for the confiden-
tiality of medical records, and for other purposes ; to the Committee on Gov-
THE PRIVACY ACT AMENDMENTS OF 1978
Mr. Javits. Mr. President, one of our most precious rights In a free society is
our right to privacy â€” the right to be free from the inquisitive prying into our
most personal affairs by those who are, for one reason or another, curious about
us. but who do not have a right to know. This fundamental right, grounded in
the Constitution, has been seriously eroded in recent years, until now, nearly
every aspect of our lives is open to public viewing by those who have the persist-
ence and desire to learn about us.
Last summer, the Privacy Protection Study Commission issued its report,
"Personal Privacy in an Information Society." It identified a number of areas
in which it thought legislation was necessary to halt the erosion of personal
privacy, and strike the proper balance between the individual's expectation of
confidentiality, and society's need to know certain information about each of us.
The bill I am introducing today seeks to address these concerns in one of the
most sensitive areas of recordkeeping examined by the Commission â€” personal
medical records. The Commission pointed out the unique nature of medical
records, noting :
"The physician-patient relationship is an inherently intrusive one in that the
patient who wants and needs medical care must grant the doctor virtually un-
constrained discretion to delve into the details of his life and his person. As a
practical matter, because so much information may be necessary for proper diag-
nosis and treatment, no area of inquiry is excluded. In addition to describing
the details of his symptoms, the patient may be asked to reveal what he eats,
how much he drinks or smokes, whether he uses drugs, how often he has sexual
relations and with whom, whether he is depressed or anxious, where and how
long he has worked, and perhaps what he does for recreation."
Traditionally, the family doctor learned much of this information about his
patient by treating him or her over the years, and retained a good part of it
in his memory. The family doctor's discretion was almost always sufficient to
protect the patient's medical history from disclosure. Over the last three decades,
however, the traditional doctor-patient relationship has been breaking down,
and is gradually being replaced by a system whereby medical care is provided
often by an impersonal institution, and payment for medical services is made by
third parties. Such service-providing institutions, because they lack the extended
personal relationship of the family doctor, require far more extensive written
records about a patient's condition, in order properly to treat the individual.
Simultaneously, the great advances in c'omputer technology that we have seen
over recent years have made the collection, maintenance, and dissemination of
highly detailed personal medical information far easier than it has ever been
Not surprisingly, the existence of a large pool of confidential information about
individuals has proved attractive to those who are outside the medical care rela-
tionship. Insurance companies, employers, the Government, researchers, and credit
bureaus all have varying degrees of interest in obtaining access to the data. As
the Privacy Protection Study Commission noted, it is "staggering â€” how many
people besides the medical care providers who create a medical record have access
to it." At the same time the subject of the records is almost always the one person
denied access to them. Thus, he is often unaware of what is in his records, and
to whom they are being disclosed.
This system has inevitably led to abuses, a number of which have been brought
to my attention by the National Commission on the Confidentiality of Health
Record, a privately funded group interested in health confidentiality problems,
and other sources. The following are representative of the types of problems that
have been encountered :
A railroad company employee was fired after his company learned he was an
epileptic. Another person was mistakenly diagnosed as an epileptic. The mistaken
diagnosis was placed in her records, and discovered by an insurance company,
which then refused her application.
A couple was denied disability insurance when the insurance company learned
they had previously had marital counseling provided by a local minister. With
one denial, and the fear that "this information is forever available to any in-
surance company" the couple wants to "add a statement of our side" or to remove
the information from any computerized information bank.
Nurses in a New York abortion clinic allegedly sold the names of patients to
"pro-life" groups, which then would call the patients at home to "discuss"
An ex-psychiatric patient wants a divorce, but her husband threatens to use
the newly learned information about her psychiatric condition against her in a
child custody fight. The husband's father, a lawyer, had obtained the psychiatric
information "through his own sources."
An individual who was briefly a patient in an Ohio mental institution 10 years
ago was denied access to her records. She fears future discrimination in hiring,
and feels she has a right to know what is in her files.
Security police in another Ohio mental health center follow the policy of citing
or quoting directly from patient's records upon request of any law enforcement
or related agency, such as the fire department.
A physician reports harassment by several representatives of an investigative
reporting agency. The representatives wanted confidential medical information to
be given over the telephone, refusing to first identify who they were working for
or why they wanted the information.
Mr. President, there are many other examples of abuses of confidentiality that
I could cite. The bill I am introducing here today is intended to help eliminate
those abuses. But it is also intended to do more than that â€” it is intended to
clarify the rights and obligations of the patient, the medical care provider and
third parties with respect to such confidential information. As the medical care
relationship continues to change and become less personalized, all parties should
know how confidential medical information is to be treated.
The bill prohibits the disclosure of confidential information by medical care
service providers, except as expressly authorized in the bill. Confidential informa-
tion is defined broadly to include the fact than an individual is receiving or has
sought medical care, and any information relating to that individual's treatment
or attempt to secure treatmen.
The "service providers" covered by he bill are defined to include non-Federal
hospitals, nursing facilities, or intermediate care facilities that receive medicare
or medicaid funds, or any other non-Federal facilities that receive such funds
to which the Secretary of HEW may make the act or portions thereof, applicable
by regulation. Also included are health maintenance organizations that receive
loans, grants or contracts under the Public Health Service Act. Once an entity
is covered by the bill, all of its patient records are covered, regardless of whether
the individual patient involved had his or expenses reimbursed by medicare or
The bill does not apply to Federal entities. These are already covered under
the Privacy Act of 1974. More time is necessary to evaluate the effect of that act
on Federal medical care facilities before a decision is made on whether it is
appropriate to subject them to special legislation.
Also I wish to make clear that the bill does not apply to recordkeeping by the
single practitioner. To my knowledge, most of the abuses that have occurred have
not been at this level, and I am very reluctant to impose Federal regulation on
the family doctor unless and until a need to do so has been demonstrated.
The bill recognizes that there are certain instances when a patient may wish
to authorize the disclosure of confidential infoi-mation about himself. This is
usually the case where the individual expects to obtain a benefit, such as reim-
bursement by an insurance company, in return for disclosure of certain informa-
tion. Thus, the bill provides a procedure by which the patient may provide such
consent. The consent must be in writing, and as specific as possible as to the
nature of the data to be disclosed, the use to which it is to be put, and the persons
who are to have access to it. Consent may be withdrawn at any time, and may
not extend beyond 2 years.
The bill also recognizes that there are a limited number of situations where
obtaining an individual's consent is impossible or impractical. The bill spells out
those situation in detail, and provides safeguards against the redisclosure of
confidential information by persons who receive such information.
The bill provides individuals who are aggrieved by an actual or attempted
violation of the act with a cause of action in Federal district court for injunctive
relief or monetary damages. Further, as in the 1974 Privacy Act, any person who
knowingly and willfully violates this act, or requests or obtains information
under false pretenses, is subject to criminal prosecution. Finally, the service
provider must satisfy the Secretary of HEW that it is in substantial compliance
with the act in order to continue to receive medicare or medicaid funds or
funding under the Public Health Service Act.
One of the major problems with our cuiTent system of recordkeeping is that
the patient is denied access to his own records, does not know what is in them
when he consents to their disclosure, and has no way of correcting any inaccurate
information they may contain. The bill rectifies this situation by providing the
patient with the right to see any medical records the service provider maintains
on him. If the patient disagrees with an aspect of the record, the bill would
permit him to add, pursuant to regulations issued by the Secretary, a brief
statement presenting his view of the disputed portion of the record. Whenever
the disputed record is disclosed, it would have to be accompanied by the patient's
The bill follows the recommendation of the Privacy Protection Study Com-
mission by recognizing that there may be some instances in which disclosure to
the patient may, in the judgment of the health professional, harm the patient's
condition. In such cases, the liealth professional may withhold the record from
the patient. In such cases, however, the patient has the right to appoint a repre-
sentative of his own choosing, who must be granted access to the records by the
Finally, the bill would preclude state and local governments from enacting or
continuing in effect any laws or regulations that would pro^-ide the patient a
lesser degree of protection than this legislation.
Mr. President, I believe legislation on this subject is both timely and necessary,
and hope that this bill will, after due consideration, lead to such legislation. I
recognize that many of the issues covered in this bill, particularly patient access
to their own records, and circumstances under which disclosure without consent
is appropriate, are the subject of widely divergent views. As the bill moves
through the hearing process, I will carefully consider any suggestions or com-
ments that might help improve it.
Mr. President, I ask unanimous consent that a section-by-section analysis of
the bill be permitted in the Record.
There being no objection, the bill and analysis were ordered to be printed in
the Record, as follows :
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assemUed, That this Act may be cited as "The Privacy
Act Amendments of 1978".
AMENDMENT TO THE PRIVACY ACT
Sec. 2. The Privacy Act of 1974 is amended by inserting at the end thereof the
"Title II â€” Confidentiality of Medical Records
FINDINGS AND PURPOSES
Sec. 201. (a) The Congress finds that â€” ^
( 1 ) The right to privacy is a i)ersonal and fundamental right.
(2) Rapidly changing technology permits record keepers to compile and dis-
seminate more detailed and highly personal information aibout individuals than
(3) The collection, maintenance, use, and dissemination of confidential infor-
mation about individuals by private isector organizations can threaten the in-
dividual's right to privacy.
(4) The Report of tlie Privacy Protection Study Commission ("Report")
established a need for the extension of statutory privacy protection to the
relationship between patients and health care providers.
(5) The Report finds that the number of pervple other tihan the medical care
provider who have access to individually identifiable medical records is very
large, while the patient himself is often denied access to them.
(6) Testimony by the Privacy Protection Study Commission before the Senate
Governmental Affairs Committee established that existing statutory protection
of the right of privacy in the medical care relationship is inadequate.
(7) It is essential that individuals be able to exercise more direct control over
confidential information, particularly since tihe availability of such information
to third parties often affects the individual's ability to obtain employment,
insurance, medical care and other important societal benefits.
(h) The purposes of this Act are to â€”
(1) clearly define the circumstance under which confidential medical infor-
mation in individually identifiable form will be available, and to whom it will
(2) provide procedures by which the subject of medical records may have
access to those records, and may take steps to assure the fairness and objectivity
of those records.
(3) carefully balance the legitimate need of certain governmental and private
sector organizations for access to confidential information, with the individual's
expectation of, and right to, the privacy of such information.
Sec. 202. All confidential information is subject to the provisions of this Act.
Except as hereafter provided, or otherwise specifically required by law, no
person subject to this Act shall, without the authorization of the patient :
(a) disclose or transmit any confidential information together with a patient
identifier to any person, or
(b) disclose or transmit a patient identifier to any person, or
(c) disclose or transmit confidential information if tlie person disclosing or
tran.'^mitting it has reason to believe that the recipient may have a patient
Identifier for such information.
Sec. 203. (a) "t'onlidential iiifonnation" means modical (includins doiital and
mental health Â» data or information that reveal.s or coutaims :
(1) The fact that a persim is or has been a patient ;
(2) Information transmitted between tlie patient and service provider in the
course of service provision, or the attempt to secure such service provision :
(3) Information relating to diagnosis, facts revealed in connection witii tlie
provision of services, or treatment, transmitted between members of the patient's
family and the service provider ;
(4) Information relating to diagnosis, facts revealed in connection with the
provision of service, or treatment, transmitted between any of the persons speci-