Vested Interest - February 2002 Issue

The President’s Thoughts

Unlike the majority of our country’s population, I have never been much of a sitcom watcher. My after work activities have always gravitated more to either participating in sports or watching them. However, several years ago I became a victim of the “Seinfeld” craze and soon found myself either glued to my television or programming my VCR at 8 o’clock on Thursday nights so that I did not miss the next episode. For those of you who have never seen this show, you have not missed much of social significance. It was a show whose writers prided themselves in “writing about nothing” and making it funny. They did a very good job at both for a number of years until the show finally ended with only reruns to maintain its life. The characters in the show lived lives that were both meaningless and neurotic with a good deal of self-centeredness thrown in for good measure. They had job problems, parent problems, dating problems, religious problems, and many other problems that were always turned into very cleverly conceived comedic moments that were seldom resolved and left the characters in the show perplexed and confused. However, on other occasions, the problems showed insight into issues of great social significance.

One of the characters on the show was named Elaine. She had some medical malady, which escapes me at this moment, and sought the advice of her doctor. While she was waiting in the examining room for her doctor to arrive she saw her chart on the chair and picked it up and read it. Upon reading it, she was quite surprised to learn that in her records the doctor stated she was a “difficult patient.” When the doctor entered the room to examine her, she lived up to the billing of “difficult patient” and immediately confronted him with his statements in her record. She then fired him as her doctor and found another doctor who requested her previous medical records. When Elaine went to her new doctor’s office we see the doctor reading her chart from the previous doctor stating that Elaine is a “difficult patient.” He immediately forms the appropriate stance for encountering such a patient as he enters the room. As expected, another confrontation with this doctor ensues with yet another termination. In the next scene, Elaine comes to the realization that she may never escape the “difficult patient” label.

The principal writers of this show, Larry David and Jerry Seinfeld, either thought there was great humor in Elaine’s dilemma or had never been the victim of a bad medical history. For their sakes, I hope it is the former. Watching this episode has always made my skin crawl not because of the records being read by the next doctor, but because of what happens to people when those very same remarks in medical records become public. And if we know anything in our practice, we know that hundreds of thousands of pages of medical records are made public everyday. And when they are made public, they cause embarrassment, job loss, and other hardships on the patient. And just like Elaine’s records, once they are public, they are public forever.

I believe most people in our country sense that medical privacy is becoming a huge problem. Whenever I show my clients their own medical records for the first time I always notice they are a little ill at ease over the fact that their medical lives are such an open book. Often they see statements in their records they believe the doctor never said or they never said to the doctor. Or worse, they discover that even though they believed the medical records ordered would be limited to their broken hand, they are shocked to discover that records involving some other embarrassing medical history were included with records about the hand. Often these records would never have been seen in the absence of a lawsuit.

When a “Patient’s Rights” bill was vehemently supported by both candidates in our last Presidential election, I actually had hopes that this problem would be dealt with on a national level and protect the medical privacy of our country’s citizens. Unfortunately, the winning candidate’s vehemence proved to be a lot more bark than bite. When the House version of the bill was discussed at the White House, it somehow lost all of the bite it ever had and became nothing more than a bill in name. Insurance companies were given more rights than patients. The Senate bill was better; although it still included caps on damages and was not the broad sweeping bill protecting patients we had been promised during the Presidential campaign. So we are left with the protection of our courts.

If you travel around the country and speak to injury lawyers in other states, you will be surprised to know how many of them are aware of the Best case. Besides holding many aspects of the 1995 “tort deform” act unconstitutional, it addressed the issue of medical privacy and strongly supported its existence. The plaintiff's bar believed our Supreme Court recognized the right of medical privacy at the state level and that it would be protected. Unfortunately, Burger v. Lutheran General has undercut our confidence in this protection. For any of you unfamiliar with this case, I would strongly urge you to read it. It is based upon another statute that carves away the doctor-patient privilege. I find the reasoning of this case antithetical to Best and feel that it could erode its holding. It does not support doctor-patient privilege and it does not support the other decisions of this court.

What also confuses me is that the issue of medical privacy has become such a partisan issue with Republicans and Democrats. It seems almost uniformly that Republicans vote against patient’s rights and Democrats vote to protect them. I cannot understand where the Libertarian arm of the Republican Party has hidden on this issue. I cannot understand why they are not outraged by what their party leaders are doing on this issue. How can a party that believes you have a right to conceal your gun not believe you have a right to conceal your medical records?

I am told by my friends in Washington D.C. that the “Patient’s Rights” bill is dead. Terrorist legislation, bailing out airlines, investigating large corporate campaign contributors like Enron, and protecting insurance companies from catastrophic losses have all become much more important issues than the protection of patients and their health. I sometimes wonder if my grandchildren will be required to wear some kind of electromagnetic card chained around their neck with their entire medical and legal history recorded in its memory. Or maybe a memory chip implanted in their neck like my dog that cannot be removed without surgical intervention, so that people can be scanned before they are hired or allowed in certain public places. Orwellian paranoia? Perhaps.

We stand together for the rights of victims.

Kim E. Presbrey, President
Illinois Trial Lawyers Association