Monday, January 11, 2010

Federal court denies suppression on HIPAA violation

In U.S. v. Elliot (Case No. 08-4160M), a decision published late last month, a federal court in Maryland held that even though the government violated a defendant's rights under HIPAA by issuing a trial subpoena without a court order, HIPAA does not mandate that the evidence be suppressed.

An officer of the U.S. Park Police received a report of an accident on the Baltimore-Washington Parkway. Upon arriving he noticed two cars: one parked partially on the roadway and partially on the shoulder, and the other, driven by the defendant, Ms. Adrian Elliot, against a retaining wall. Ms. Elliot was taken to an area hospital where blood was drawn per hospital protocol. Upon receiving the results of the blood test, the Park Police obtained a warrant and arrested Ms. Elliot.

As the Federal Courts have decided that a person's right to privacy of his medical records in not absolute but must, instead, be balanced against the state's interest in obtaining information, the Maryland court conducted a balancing test and determined that the government's interest in obtaining incriminating evidence outweighed Ms. Elliot's right to privacy.

Keep in mind we are talking about a misdemeanor. Police and prosecutors are tripping over themselves to issue subpoenas for blood records for a crime with a maximum punishment for a first offense of six months in jail. Police and prosecutors are finding complicit judges to sign "carbon copy" search warrants on "No Refusal" weekends for a crime that is one step above a speeding ticket.

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