Editorial: Protect medical files now

Tuesday, June 22, 1999 | 10:08 a.m.

Congress is finding it exceedingly difficult to pass legislation to protect the privacy of medical records. Just last week, Sen. James Jeffords, R-Vt., had to postpone committee action for a third time on a medical privacy bill he is drafting because he was unable to forge a bipartisan consensus. Jeffords, chairman of the Senate Health, Education, Labor and Pensions Committee, said he was close to forging an agreement and believed it wouldn't be helpful to hold a meeting until a compromise was reached.

Competing bills have been introduced in the Senate -- one favored by insurers and employers while another was embraced by privacy advocates and physicians -- so Jeffords decided to seek compromise legislation. While it is hoped that common ground ultimately can be found on this important legislation, privacy advocates and medical professionals are right to be worried that the legislation that Jeffords is working on does not afford adequate privacy guarantees that medical records won't be misused.

For instance, Jeffords' bill is supposed to prevent the unauthorized and inappropriate use of medical information, but some are concerned by a provision that they say essentially forces patients to give their consent to the release of medical information -- or risk losing their insurance coverage if they refuse. "The bill recognizes a right to confidentiality, but essentially eliminates it by compelling the consent as a condition of obtaining insurance or even treatment in some cases," James C. Pyles, who represents the American Psychoanalytic Association, told the New York Times. "That's not really consent; it's submission."

Another worrisome development is that under Jeffords' bill, police officers could obtain medical records if they were only trying to find and identify a material witness in an investigation. Dr. E. Ratcliff Anderson, executive vice president of the American Medical Association, warns that the legislation essentially deputizes physicians as police officers, requiring doctors to turn their backs on their ethical responsibilities to their patients. "The power that would be vested with law enforcement is nothing short of breathtaking," Anderson told the Times.

The clock is ticking. If Congress doesn't act by August, then the responsibility for drafting the privacy-protection rules falls to Donna Shalala, the secretary of Health and Human Services. As has been noted before, while some states have privacy laws, there is no federal law governing the distribution of someone's medical records. In fact, the situation is so bad that there are more privacy protections for a customer's video rental records than there are for a patient's medical records. Congress should act now and ensure that unless a patient gives his consent, the only people with access to his records are those who are involved in his care.