Wes Vernon
Tuesday, June 12, 2001

WASHINGTON – When you have a medical emergency, you may end up with the worst of both worlds: Your doctor won't be able to treat you without a federally approved consent form, AND your personal medical history will be available to the government.

Furthermore, to block this double-barreled assault, you have a very few days, until Friday, to act. That makes it urgent that you act now if your voice is to be heard in the short time left. Why the urgency? An explanation is provided below.

The Association of American Physicians and Surgeons (AAPS) says that, as the rule stands now, "it will be a federal crime (after April 2003) to use covered information for any purpose such as treating a patient without" a consent form approved by the federal government. Furthermore, "There are huge fines and prison terms for [violation of]each and every incident."

NewsMax.com, in recent months, has documented the manner in which the Health and Human Services (HHS) "privacy" regulation, supposedly being "fine tuned" until April 2003, actually violates basic privacy assumptions assumed by most patients when they seek the help of a professional health-care provider.

There are those who have argued that certain privacy advantages can and should be traded off in the interest of swift and effective medical help.

But Dr. Jane Orient, AAPS executive director, says even the "trade-off" argument does not wash. You could lose both your privacy AND quick, efficient medical care, she told NewsMax.com on Sunday.

In her legislative alert issued this past weekend, AAPS said doctors could go to federal prison for using a patient's history to treat him.

Thus, connecting the dots, the new rule not only deprives the patient of privacy protection and threatens to delay badly needed medical help, it could also put physicians under the threat of prison simply for doing their jobs.

This no-win dilemma, according to Orient, means that if a referring doctor, usually a general practitioner or family physician, sends a letter to a specialist, the specialist physician can file it but may not use the information until the patient comes in and signs the proper federally approved consent form.

Directing her remarks to physician-members of the AAPS, Orient warns, "If an ambulance driver tells you something, and it's a true emergency, you may use that information – providing that you get the consent later, or document why that is impossible."

"Everybody thinks [the 1996 Kennedy-Kassebaum bill] was supposed to protect against unauthorized release of information," notes the AAPS release. "Surprise! The emphasis now is on use."

The American Medical Association insisted on requiring patient consent for use of information, according to Orient, who cites legal expert Donna Boswell of the Washington firm Hogan and Hartson, LLP. Boswell says the AMA "has been absolutely adamant about that."

An AMA official of a large state denied this when specifically asked about it. But a search of the AMA Web site turned up a letter contradicting that denial.

AAPS cites a Nov. 3, 1999, AMA letter to then HHS Assistant Secretary Margaret A. Hamburg spelling it out.

Orient urges you to call or e-mail your congressman today, and demand that he or she co-sponsor or support H.J. Res. 38, "which repeals these disastrous Clinton-Shalala rules under the Congressional Review Act." The Capitol Hill switchboard number is 202-224-3121.

This House legislation must be passed by Friday if it is to go directly to the Senate floor without facing "the formidable blocking powers of the Kennedy-[Hillary] Clinton forces."

The question is: Why would the AMA want to impose this red tape on its own physician members? Fear of being victimized by trial lawyers, of course, could play a role in that, and is probably the reason for advocating it.

Orient suggests the possibility of another motive. "Does the AMA want to supplement its lagging dues income by selling compliance advice?" Some reports indicate AMA membership has shrunk to a mere one-third of all physicians.

In was the AMA that told President Bush to go ahead and implement what Orient calls "these abominable regulations," even though HHS Secretary Tommy Thompson was prepared to put the entire measure on hold. This followed a groundswell that included a petition by NewsMax.com that was signed by thousands.

Not only would the rule compromise patient privacy, says Dr. Orient, but it would end up "criminalizing the normal practice of medicine."