NORTHWESTERN MEMORIAL HOSPITAL v. JOHN ASHCROFT, Attorney General of the United States
No. 04-1379
United States Court of Appeals for the Seventh Circuit
Argued March 23, 2004—Decided March 26,
Before POSNER, MANION, and WILLIAMS, Circuit Judges. POSNER, Circuit Judge.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 C 55—Charles P. Kocoras, Chief Judge.
OPINION
POSNER, Circuit Judge. The government appeals from an order by the district court quashing a subpoena commanding Northwestern Memorial Hospital in Chicago to produce the medical records of certain patients on whom Dr. Cassing Hammond had performed late-term abortions at the hospital using the controversial method known variously as “D & X” (dilation and extraction) and “intact D & E” (dilation and evacuation). We accelerated briefing and argument, and now accelerate our decision, in view of the pressures of time discussed later in the opinion.*
The subpoenaed records, apparently some 45 in number, are sought for use in the forthcoming trial in the Southern District of New York of a suit challenging the constitutionality of the Partial-Birth Abortion Ban Act of 2003,
Section 264 of HIPAA,
The particular focus of the appeal is an HHS regulation entitled “Standard: Disclosures for Judicial and Administrative
The district judge presiding over the case in New York issued an order authorizing, although not directing, the hospital to provide the records to the government after redaction to remove information identifying the patients. The parties agree that his order is an “order” within the meaning of the “in response” provision. It hardly matters; the government didn‘t need such an order because it had obtained a protective order, thus qualifying under the alternative procedure for disclosure of medical records. But under Illinois law, even redacted medical records are not to be disclosed in judicial proceedings, with immaterial exceptions.
Although the issue is not free from doubt, we agree with the government that the HIPAA regulations do not impose state evidentiary privileges on suits to enforce federal law. Illinois is free to enforce its more stringent medical-records privilege (there is no comparable federal privilege) in suits in state court to enforce state law and, by virtue of an express provision in
All that
The purely procedural character of the HIPAA standard for disclosure of medical information in judicial or administrative proceedings is indicated by the procedure for disclosure in response to a subpoena or other process; the notice to the patient must contain “sufficient information about the litigation or proceeding in which the protected health information is requested to permit the individual to raise an objection to the court.”
This conclusion is buttressed by a HIPAA regulation which says that the “more stringent” clause applies only to “individually identifiable health information,”
As an alternative basis for quashing the subpoena, the district judge undertook to craft a new federal common law privilege for abortion records. He based this ruling on their sensitivity, which he compared to that of psychotherapists’ treatment records, held privileged in Jaffee v. Redmond, 518 U.S. 1 (1996). The creation of new common law evidentiary privileges is authorized by
The district court did not reach a further ground urged by Northwestern Memorial Hospital for quashing the government‘s subpoena, which is simply that the burden of compliance with it would exceed the benefit of production of the material sought by it.
These findings were solidly based. The hospital had urged both the lack of probative value of the records and the loss of privacy by the patients. The government had responded in generalities, arguing that redaction would eliminate any privacy concern and that since Dr. Hammond had “made assertions of fact about his experience and his patients that plaintiffs are using to support their claim that, without a health exception, the Act is unconstitutional,” the government should be permitted to test those assertions; but the government had not indicated what assertions these were or how the records might bear on them. Although on appeal the hospital repeated at length its reasons for believing that the records sought by the government would have little or no probative value, the government‘s response in both its opening brief and its reply brief remained vague to the point of being evasive.
At the oral argument we pressed the government‘s lawyer repeatedly and hard for indications of what he hoped to learn from the hospital records, and drew a blank. (Contrary to our usual practice, we did not limit the length of the oral argument.) The lawyer did suggest that if Hammond testified that patients with leukemia are better off with the D & X procedure than with the conventional D & E procedure but the medical records indicate that not all abortion patients with leukemia undergo D & X abortions, this would both impeach Hammond and suggest that D & X is not the only medically safe abortion procedure available to pregnant women afflicted with leukemia. But such information would be unlikely to be found in Hammond‘s records, given his strongly expressed preference for using the D & X method in the case of patients in fragile health. The information would be much more likely to be found in the records of physicians who perform D & E rather than D & X abortions on such
We learned at argument for the first time that Dr. Hammond has been deposed in the New York litigation. The questions and answers in his deposition might illuminate the relevance of the medical records for impeachment of his testimony at the trial. But the government has made no effort to make the deposition a part of the record.
Ordinarily when a district judge has not addressed an issue committed to his discretion, such as the balance of benefit and burden in complying with a subpoena, e.g., Peate v. McCann, 294 F.3d 879, 884 (7th Cir. 2002); Deitchman v. E.R. Squibb & Sons, Inc., supra, 740 F.2d at 563; Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 729 (8th Cir. 2002), and the issue becomes critical to the disposition of the appeal, the appellate court must remand to give the judge a chance to exercise his discretion. Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709 (1986). We do not follow that course, here, however, for two reasons. The first is that the judge, in the passages we quoted from his opinion, struck the balance—in other words, “weigh[ed the] competing hardships.” Deitchman v. E.R. Squibb & Sons, Inc., supra, 740 F.2d at 563. True, he did so in the course of addressing a different issue from whether Rule 45(c) required that the subpoena be quashed; but, realistically, the result of a remand is foreordained.
The second reason is that with the trial in New York scheduled to begin on March 29 and to last only four weeks, the practical effect of a remand would be to moot the issue of compliance with the subpoena. The time factor is unfortunate, and is not the fault of the government (or of anyone else, so far as appears). If time permitted a remand, the judge would on remand examine the records, or at least a sample of them, in camera, as in the parallel subpoena case of Planned Parenthood Federation of America, Inc. v. Ashcroft, No. C03-4872 PJH, 2004 WL 432222 (N.D. Cal. Mar. 5, 2004), to determine whether they are likely to have any probative value. Time does not permit. The government has not suggested that the case be remanded if we reject the district court‘s grounds for quashing the subpoena. A remand would be tantamount to mooting its appeal; in the government‘s words, “a remand would entirely frustrate the Government‘s interest in preparing a timely defense in the New York trial, which will begin on March 29.” We take this as a waiver of any objection to our weighing the hardships ourselves, and we proceed to the weighing. See Beer Nuts, Inc. v. Clover Club Foods Co., 805 F.2d 920, 923 n. 2 (10th Cir. 1986); McCord v. Bailey, 636 F.2d 606, 613 (D.C. Cir. 1980); cf. International Ins. Co. v. Caja Nacional De Ahorro y Seguro, 293 F.3d 392, 401 (7th Cir. 2002); Dillard v. City of Greensboro, 213 F.3d 1347, 1355-57 (11th Cir. 2000).
Like the district judge, we think the balance weighs in favor of quashing the subpoena. The government does not deny that the hospital is an appropriate representative of the privacy interests of its patients. Parkson v. Central DuPage Hospital, supra, 435 N.E.2d at 142. But it argues that since it is seeking only a limited number of records and they would be produced to it minus the information that would enable the identity of the patient to be determined, there is no hardship to either the hospital or the patients of compliance. The argument is unrealistic and incomplete. What is true is that the administrative hardship of compliance would be modest. But it is not the only or the main hardship. The natural sensitivity that
Some of these women will be afraid that when their redacted records are made a part of the trial record in New York, persons of their acquaintance, or skillful “Googlers,” sifting the information contained in the medical records concerning each patient‘s medical and sex history, will put two and two together, “out” the 45 women, and thereby expose them to threats, humiliation, and obloquy. As the court pointed out in Parkson v. Central DuPage Hospital, supra, 435 N.E.2d at 144, “whether the patients’ identities would remain confidential by the exclusion of their names and identifying numbers is questionable at best. The patients’ admit and discharge summaries arguably contain histories of the patients’ prior and present medical conditions, information that in the cumulative can make the possibility of recognition very high.” In its opening brief, as throughout the district court proceeding, the government expressly reserved the right, at a later date, to seek the identity of the patients whose records are produced. Pressed at argument, the government‘s lawyer abandoned the reservation; but we do not know what would prevent reconsideration should the government, the subpoena having been enforced, discover that particular medical records that it had obtained were incomplete, opaque, or ambiguous.
Even if there were no possibility that a patient‘s identity might be learned from a redacted medical record, there would be an invasion of privacy. Imagine if nude pictures of a woman, uploaded to the Internet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her. She would still feel that her privacy had been invaded. The revelation of the intimate details contained in the record of a late-term abortion may inflict a similar wound.
If Northwestern Memorial Hospital cannot shield its abortion patients’ records from disclosure in judicial proceedings, moreover, the hospital will lose the confidence of its patients, and persons with sensitive medical conditions may be inclined to turn elsewhere for medical treatment. It is not as if the government were seeking medical records from every hospital and clinic that performs late-term abortions, in which event women wanting assurance against the disclosure of their records would have nowhere to turn. It is Dr. Hammond‘s presence in the New York suit as plaintiff and expert that has resulted in the government‘s subpoenaing Northwestern Memorial Hospital.
The merits of the dispute are for determination at trial. The only issue for us is whether, given that there is a potential psychological cost to the hospital‘s patients, and a potential cost in lost goodwill to the hospital itself, from the involuntary production of the medical records even as redacted, the cost is offset by the probative value of the records. The district judge presiding at the trial has said that the records are “relevant,” and no doubt they are—in the attenuated sense in which non-privileged materials may be sought in discovery. “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”
The government has had repeated opportunities to articulate a use for the records that it seeks, and it has failed to do so. What it would like to prove at the trial in New York, to refute Dr. Hammond, is that D & E is always an adequate alternative, from the standpoint of a pregnant woman‘s health, to the D & X procedure. But the government has failed to explain how the record of a D & X abortion would show this. And it is not as if Hammond had relied on the medical records of his patients in preparing his expert testimony. (Had he done so, they would have had to be disclosed to the government under
None of the records is going to state that Dr. Hammond said that he performed a D & X although he believed that a D & E would be just as good. We thought the government might be hoping to find in the records evidence that Hammond had lied when he said he had performed a D & X on a woman who had leukemia or a woman who had breast cancer, but at argument the government disclaimed any such suggestion. We‘re still at a loss to understand what it hopes to gain from such discovery. (We begged the government‘s lawyer to be concrete.) Of course, not having seen the records, the government labors under a disadvantage, although it has surely seen other medical records. And of course, pretrial discovery is a fishing expedition and one can‘t know what one has caught until one fishes. But
The Partial-Birth Abortion Ban Act was passed, as we said, in response to the Supreme Court‘s decision in the Stenberg case. Stenberg was one of a number of “first generation” partial-birth cases. The others were Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999) (en banc); Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463 (7th Cir. 1998); Planned Parenthood of Greater Iowa, Inc. v. Miller, 195 F.3d 386 (8th Cir. 1999); Little Rock Family Planning Services, P.A. v. Jegley, 192 F.3d 794 (8th Cir. 1999); Summit Medical Associates, P.C. v. Pryor, 180 F.3d 1326 (11th Cir. 1999); Richmond Medical Center for Women v. Gilmore, 144 F.3d 326 (4th Cir. 1998); Women‘s Medical Professional Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997); Armstrong v. State, 989 P.2d 364 (Mont. 1999); WomanCare of Southfield, P.C. v. Granholm, 143 F. Supp. 2d 827 (E.D. Mich. 2000); Rhode Island Medical Soc. v. Whitehouse, 66 F. Supp. 2d 288 (D.R.I. 1999), affirmed, 239 F.3d 104 (1st Cir. 2001) (per curiam); Richmond Medical Center for Women v. Gilmore, 55 F. Supp. 2d 441 (E.D. Va. 1999), affirmed, 224 F.3d 337 (4th Cir. 2000) (per curiam); Causeway Medical Suite v. Foster, 43 F. Supp. 2d 604 (E.D. La. 1999), affirmed, 221 F.3d 811 (5th Cir. 2000); A Choice for Women v. Butterworth, 54 F. Supp. 2d 1148 (S.D. Fla. 1998); Planned Parenthood of Central New Jersey v. Verniero, 22 F. Supp. 2d 331 (D.N.J. 1998); Planned Parenthood of Central New Jersey v. Verniero, 41 F. Supp. 2d 478 (D.N.J. 1998), affirmed, 220 F.3d 127 (3d Cir. 2000); Eubanks v. Stengel, 28 F. Supp. 2d 1024 (W.D. Ky. 1998), affirmed, 224 F.3d 576 (6th Cir. 2000) (per curiam); Midtown Hospital v. Miller, 36 F. Supp. 2d 1360 (N.D. Ga. 1997); Planned Parenthood of Southern Arizona, Inc. v. Woods, 982 F. Supp. 1369 (D. Ariz. 1997); Evans v. Kelley, 977 F. Supp. 1283 (E.D. Mich. 1997). In one of the cases decided by this court, Hope Clinic v. Ryan, supra, Dr. Hammond was both a plaintiff and an expert witness. Hope Clinic v. Ryan, 995 F. Supp. 847, 849-550 (N.D. Ill. 1998). Yet in none of these many cases, so far as either we or the government is aware, was it so much as suggested that patient records might contain information that would help answer the question, crucial then as now, whether the D & X procedure is ever medically necessary.
Although Hammond is a plaintiff in the New York case, presumably because he actually performs D & X abortions and wants to be allowed to continue doing so, he will be testifying as an expert medical witness. Of all experts who testify in court, physicians are probably the most
Were the government sincerely interested in whether D & X abortions are ever medically indicated, one would have expected it to seek from Northwestern Memorial Hospital statistics summarizing the hospital‘s experience with late-term abortions. Suppose the patients who undergo D & X abortions are identical in all material respects (age, health, number of weeks pregnant, and so on) to those who undergo procedures not forbidden by the Partial-Birth Abortion Ban Act. That would be potent evidence that the D & X procedure does not have a compelling health rationale. No such evidence has been sought, in contrast to the Planned Parenthood case, supra, at Transcript 26 (Mar. 5, 2004). A variant of the suggested approach would be to obtain a random sample of late-term abortion records from various sources and then determine, through good statistical analysis, whether the patient characteristics that lead Dr. Hammond to perform a D & X lead other physicians to perform a conventional D & E instead, and whether there are differences in the health consequences for these two groups of women. If there are no differences, the government might have a good defense of the Act. Gathering records from Hammond‘s patients alone will not be useful; but if the government has other records (say, from VA hospitals) already in its files, then records of Hammond‘s procedures might enable a useful comparison. The government hasn‘t suggested doing anything like that either. Its motives in seeking individuals’ medical records remain thoroughly obscure.
The question whether the D & X procedure is ever medically indicated will be resolved as a matter of legislative fact not requiring the taking of trial-type testimony at all (see Hope Clinic v. Ryan, supra, 195 F.3d at 885 (dissenting opinion)), or will pivot on the clash of expert witnesses at the New York trial, or perhaps, as suggested in Stenberg, will be answered by some combination of these two approaches to determining facts. The medical records of expert witnesses are irrelevant to the first inquiry; and, so far as we can determine after having listened to the government‘s arguments at length, those records will not figure significantly in the resolution of experts’ disagreements either.
The fact that quashing the subpoena comports with Illinois’ medical-records privilege is a final factor in favor of the district order‘s action. As we held in Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981), comity “impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy.” See also United States v. One Parcel of Property Located at 31-33 York Street, 930 F.2d 139, 141 (2d Cir. 1991) (per curiam). Patients, physicians, and hospitals in Illinois rely on Illinois’ strong policy of privacy of medical records. They cannot rely completely, for they are not entitled to count on the state privilege‘s being applied in federal court. But in a case such as this in which, so far as we can determine, applying the privilege would not interfere significantly with federal proceedings,
AFFIRMED.
MANION, concurring in part, dissenting in part. I agree with the court that HIPPA does not adopt state privilege law in a federal question suit brought in federal court, but rather
As the court recognizes, in section 264 of HIPPA, Congress authorized the Secretary of Health and Human Services to promulgate regulations to protect the privacy of medical records. Opinion at 2 (citing
Section 164.502, which sets forth the general rules for the use and disclosure of “protected health information,” provides that “[a] covered entity may not use or disclose protected health information, except as permitted or required by this subpart or by subpart C of part 160 of this subchapter.”
In this case, the government seeks only redacted medical records and agrees that all identifying information may be removed before Northwestern makes the records available for its review. Because the records will be redacted, they will not identify the individual. Nor is there a reasonable
- Names;
- All geographic subdivisions smaller than a State, including street address, city, county, precinct, zip code, and their equivalent geocodes, except for the initial three digits of a zip code if, according to the current publicly available data from the Bureau of the Census:
- The geographic unit formed by combining all zip codes with the same three initial digits contains more than 20,000 people; and
- The initial three digits of a zip code for all such geographic units containing 20,000 or fewer people is changed to 000.
- All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, date of death; and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older;
- Telephone numbers;
- Fax numbers;
- Electronic mail addresses;
- Social security numbers;
- Medical record numbers;
- Health plan beneficiary numbers;
- Account numbers;
- Certificate/license numbers;
- Vehicle identifiers and serial numbers, including license plate numbers;
- Device identifiers and serial numbers;
- Web Universal Resource Locators (URLs);
- Internet Protocol (IP) address numbers;
- Biometric identifiers, including finger and voice prints;
- Full face photographic images and any comparable images; and
- Any other unique identifying number, characteristic, or code, except as permitted by paragraph (c) of this section;
Once these identifiers are redacted, the medical records are no longer “individually identifiable health information.”
the regulations confirm this conclusion.
Uses and disclosures of de-identified information. Health information that meets the standard and implementation specifications for de-identification under § 164.514(a) and (b) is considered not to be individually identifiable health information, i.e., de-identified. The requirements of this subpart do not apply to information that has been de-identified in accordance with the applicable requirements of § 164.514 . . . .
identities of the patients. Therefore, it is only seeking the relevant redacted medical records. Such redacted records are afforded no privacy protection under HIPPA, logically so because the redacted records have no identifiably private information to expose. And although Illinois law has adopted an expansive view of privilege that includes redacted medical records, as the court recognizes, Illinois law does not govern this question.
That should end the inquiry. But instead the court resurrects the privacy question through the “undue burden” language of
Initially, to reiterate, HIPPA and the implementing regulations recognize that there is no loss of privacy where the medical records are redacted (or in HIPPA jargon, “de-identified“). Nor is it reasonable to believe that the unidentified 45 women have “acquaintances . . . who will put two and two together, ‘out’ the 45 women, and thereby expose them to threats, humiliation, and obloquy.” Opinion at 9. In fact, there is no reason to believe that the women themselves have any idea that their records are among the few sought by the government in this case.3 But even if they knew,4 no one else
The court‘s erroneous conclusion that a privacy interest exists in the redacted documents leads to the unnecessary attempt to assess the probative value of the evidence. Notably, the district court (Judge Kocoras) did not reach the undue burden of compliance issue of
value in the requested documents. Based on the complaint, Dr. Hammond‘s declaration, the congressional findings when it passed the law, and the arguments made by the government and the hospital (both very limited since privilege, not probative value, was the issue argued below), there is significant probative value. But that is not for us to decide, as the probative value of the evidence has already been determined. District Court Judge Casey, who is presiding over the underlying case, believes the information is relevant, so much so, that he has indicated that if it is not produced, he would consider lifting the stay and dismissing the case (or at least dismissing Dr. Hammond from the case). This should also make clear that Judge Casey believes the evidence is not just relevant “in the attenuated sense,” opinion at 11, but highly probative to the difficult question he will face starting on March 29. If any deference is owed, it is to the presiding judge—the judge who handled this case pre-trial and who knows the arguments presented by both sides, and the judge who will need all (non-privileged) relevant evidence available to allow him to make the necessary factual findings to determine this difficult and contentious constitutional case.
However, while recognizing that “[t]he merits of the dispute are for determination at trial,” opinion at 7, the court nonetheless interjects its own theory of the case and its own judgment of the probative value of the evidence. For instance, the court states: “What the government would like to show, in refutation of Dr. Hammond‘s impending testimony, is that D & E is always an adequate alternative, from the standpoint of a pregnant woman‘s health, to the D & X procedure. The government has failed to explain how the record of a D & X abortion would show this.” Opinion at 11. But the government‘s document request was not so structured:
The government did not ask for the records of the D & X abortions identified by Dr. Hammond, but rather requested the redacted medical records of patients who had abortions—both the D & E and D
The court rejects this theory, stating: “But such information would be unlikely to be found in Hammond‘s records in view of his strongly expressed preference for using the D & X method on patients in fragile health. It would be much more likely to be found in the records, not
sought by the government, of physicians who perform D & E rather than D & X abortions on such women.” Opinion at 7. But that is exactly the point: The government does not know what is to be found in Dr. Hammond‘s medical records. It only knows what could be found there—evidence that, notwithstanding Dr. Hammond‘s declaration that he strongly prefers using the D & X method of abortion on patients in fragile health, in practice, he does not use that procedure. Such evidence would be highly probative, as the court itself implies by recognizing it “would be unlikely to be found in Hammond‘s records in view of his strongly expressed preference for using the D & X method.”
In fact, the relevance here cannot be overstated: Congress made explicit findings that a partial-birth abortion is never medically necessary to protect a women‘s health. Yet, Dr. Hammond claims Congress is wrong. The court concisely lays out Dr. Hammond‘s argument: In a D & X (partial-birth) abortion, “the fetus is destroyed after the lower extremities, and sometimes the torso, have emerged from the womb and only the head remains inside,” and this, according to Dr. Hammond is safer then the D & E procedure, where “the fetus is destroyed while it is still entirely within the womb . . . . ” Opinion at 7. Dr. Hammond seeks to testify accordingly, and it is therefore imperative that the government be able to determine the veracity of his testimony. There is no better way than by determining if Dr. Hammond‘s actual practice supports his testimony. And this is not a question only of impeachment, but rather concerns the heart of this case.
Moreover, as the government explained during oral argument, the medical records are highly relevant to its case because its experts must be able to review Dr. Hammond‘s files to
determine whether, in their expert opinion, a D & X procedure was the most appropriate procedure, as Dr. Hammond claims. The court recognizes that “[t]he need for a health exception to the ban in the Partial-Birth Abortion Ban Act will pivot on the clash of expert witnesses
The medical records are also highly relevant to a second congressional finding, namely, that a “partial-birth abortion poses serious risks to the health of a woman undergoing the procedure.”
The court also questions whether the government sincerely wants to determine “whether D & X abortions are ever medically indicated,” because the government did not seek summary statistics of all circumstances in which such abortions are performed. Opinion at 9. But as the government pointed out at oral argument, it was trying to limit the burden on Northwestern by
confining its document request to those specific situations where Dr. Hammond claimed a partial birth abortion was necessary to preserve the mother‘s health. See
In any event, the limited scope of the document request, and the government‘s agreement to redact the records—something not required by HIPPA—if anything, refutes any questioning of the government‘s motives or the court‘s implication that the government is on a fishing expedition. Opinion at 12. Although contradictory, the court also chastises the government for not asking for enough records, implying that since the government did not ask for all relevant documents, the documents it did request were somehow less than relevant. Granted, there were many more relevant records that the government did not seek, but the government should not be impugned for prudently limiting its document request to those few medical records Dr. Hammond directly referenced.6
Finally, contrary to the court‘s conclusion, quashing the subpoena in this case does come at a “substantial cost to federal substantive and procedural policy.” The court‘s ruling may well be the death knell for Dr. Hammond‘s claim, as the district court made clear that it believed the records relevant and that it would consider dismissing the case if the records were not produced. Given that the government cannot adequately cross-examine Dr. Hammond, the district court would be well within its rights to bar Dr. Hammond‘s testimony, which will not only harm his case, but also the other plaintiffs‘. The court‘s decision also comes at a substantial cost to the federal policy adopted by HIPPA. Lastly, and most significantly, it comes at a cost to the truth of Congress’