NEWS ANALYSIS: MEDICAL PRIVACY AT ISSUE IN POT CLUB RECORDS SEIZURE

Civil liberty groups, doctors denounce San Jose police raid

It is one of an AIDS patient's worst nightmares: Medical records bearing
the intimate details of illness are seized by police and pored over by
strangers.

Last week, it happened in San Jose to some 270 patrons of the Santa Clara
County Medical Cannabis Center, a club that provides marijuana to
chronically ill patients under the rules established by Proposition 215.

As San Jose police began sifting through the files, medical and civil
liberties groups across the country denounced the seizure as a major breach
of the confidential doctor-patient relationship. ``This is potentially a
grave threat to everyone,'' said Ben Schatz, executive director of the Gay
and Lesbian Medical Association --a national organization based in San
Francisco. ``No physician, even indirectly, wants to be part of a police
probe."

Santa Clara County Deputy District Attorney Kristina Warcholski reiterated
the agency's determination to keep the materials found in the files
confidential. "We don't want the AIDS community to be in fear," she said.
"We're just looking for evidence of a crime."

The crime that prosecutors believe took place at the cannabis center is
that some patients may have gotten pot for their conditions without
obtaining a doctor's recommendation. To prove their case, they are calling
doctors listed on the medical records to see if the recommendations to
obtain marijuana are genuine.

Warcholski dismisses the notion that the privacy of patient medical records
has been breached. She contends that the copies of files that patients
brought to the club cannot be shielded by privacy laws because they are not
medical records in the strict sense of the law. They were not stored in a
doctor's office or hospital and had been turned over voluntarily to the
club by patients.

"There is no doctor-patient privilege here" she said. "These are not
considered medical records. They are considered `client files.' " Dorothy
Ehrlich, executive director of the American Civil Liberties Union of
Northern California, called that logic ``very disturbing'' and said her
organization is closely monitoring the case.

"We would hope that they would bend over backwards to assure that medical
records are given the highest level of protection,'' she said. ``Renaming
them `client files' doesn't fix that.''

Ehrlich said that there should be no blanket shielding of medical records
from law enforcement but that such breaches of privacy should be rare --
requiring the same sort of judicial review as wiretapping, for instance.

The case also has drawn the attention of the state's largest organization
of doctors. ``What's going on down there now puts patients and their
doctors in a very difficult position,'' said Alice Mead, attorney for the
California Medical Association.

Although the association opposed Proposition 215 during the November
elections, Mead said, the issues raised by the raid go beyond the debate
over the value of medical marijuana. ``We have always opposed wide-scale
intrusion into patient medical information.''

The police raid has angered and frightened clients of the club, many of
whom felt they were acting responsibly and following state law. ``I am
thinking about starting a business,'' said ``Hilda,'' a woman in her late
20s who is infected with the AIDS virus. She asked that her name be changed
for this article. ``It requires a background check with the police
department. Will they hold this against me?''

After the seizure of the medical records, San Jose police have been making
scores of calls to physicians named on the medical records in an attempt to
confirm the information provided. However, state law forbids doctors from
discussing patient records without permission from the patients or a court
order.

Even if the patient files at the pot club are deemed to be medical records,
there is no guarantee that either federal or state law would shield them
from the eyes of prosecutors.

California's constitution is one of the few in the country that contains a
right to privacy, but prosecutors have prevailed in challenges to seizures
of patient records in Medicare fraud cases. Although a 1993 Harris Poll
found that most Americans believe federal law protects the privacy of their
medical records, in fact no such law exists.

"Californians enjoy much greater privacy protections than people in most of
the rest of the states," said Janlori Goldman, director of the Health
Privacy Project at Georgetown University.

"The federal government has really fallen down on its responsibilities,''
she said. ``We have stronger privacy laws for video rental records.''

Nevertheless, Congress was mandated to come up with privacy protection
legislation for medical records by August 1999 under a provision of a
health insurance reform package passed last year. When the Clinton
administration issued its proposed package in September, however, privacy
advocates howled because the plan would give law enforcement agencies free
rein to rifle through medical records -- without even notifying the
patient.

Supporters of laws to maintain the privacy of medical records say such
protection is essential for the health and safety of the public. ``When
people don't trust that information shared with doctors will be treated
confidentially, they withhold information,'' said Goldman. ``They lie, they
ask doctors to lie on claim forms, or they avoid care all together.''

With the stakes so high for both doctors and patients, the seizure of the
pot club medical records appears destined for a court challenge. The
outcome may determine not only the fate of San Jose's pot club but the
degree of privacy afforded any medical record in the state.

Meanwhile, patients who thought their medical records were sacrosanct must
adjust to the idea that nonmedical personnel are perusing them. "It will
have a chilling effect," said cannabis center attorney Riccardo Ippolito.
"People will think it's safer for me to buy on the street because drug
dealers are not going to ask if I have AIDS."

)1998 San Francisco Chronicle