Academic journal article The Journal of Law in Society

The Battle between Healthcare Laws and Subpoenas in Child Sexual Abuse Cases

Academic journal article The Journal of Law in Society

The Battle between Healthcare Laws and Subpoenas in Child Sexual Abuse Cases

Article excerpt

I. INTRODUCTION

This Note explores how Michigan and federal healthcare laws prevent prosecutors from subpoenaing medical records of a defendant in child sexual abuse cases. Medical records of the defendant are relevant in child sexual abuse cases in situations in which the child victim receives a communicable disease. Medical records of the defendant, which reveal that the defendant had the same communicable disease as the child victim, could be the direct link the prosecution needs to prove the guilt of the defendant. While certain individuals and professionals have the responsibility of alerting authorities when a child has a communicable disease because the disease is an indicator of child sexual abuse, federal and state laws prohibit law enforcement agents and prosecuting attorneys from accessing the very records that implicate the perpetrator via a subpoena. This Note discusses the relationship between federal and state healthcare laws and analyzes the specific laws that prevent a prosecutor's access to the defendant's medical records. The Note also gives an in-depth analysis on why those records are vital in child sexual abuse cases.

The Note takes the position that healthcare laws should allow law enforcement agents and prosecutors to access the defendant's medical records in child sexual abuse cases involving communicable diseases. Both federal and state laws create many exceptions to protect children, as society views children as being those most vulnerable and in need of extra protection. Michigan has already created exceptions in its healthcare laws to protect children in other criminal proceedings, and laws releasing the defendant's medical records in child sexual abuse cases should just be another exception promulgated to protect children. To support the argument that those elected to represent us should alter Michigan law to create the exception, this Note also analyzes the current exceptions to federal healthcare laws, Michigan's physician-patient privilege statute, and other exceptions states have created in order to protect children. This Note contends that while privacy of medical records is vital to ensuring an environment where individuals feel safe seeking treatment, any possible negative effects that may occur in creating this exception would be substantially outweighed by the good the exception would create.

II. BACKGROUND

A. The Health Insurance Portability and Accountability Act of 1996 and Michigan's Patient-Physician Act

In 1996, Congress promulgated the Health Insurance Portability and Accountability Act (2) (HIPAA). HIPAA is the controlling federal law in regards to protecting and sharing healthcare information under various circumstances. The goal of HIPAA's passage was to generate national standards with respect to protecting medical information and records. (3) Congress created nationwide protections to prevent improper disclosure of medical records in order "to provide and promote high quality health care, and to protect the public's health and wellbeing." (4) In an age of ever-increasing technology, Congress designed HIPAA to prevent the improper disclosure of medical records and to foster trust between doctors and patients.

HIPAA does not apply to all entities involved in the healthcare field. HIPAA's provisions are meant to regulate health plans, health care clearinghouses, and health care providers "who transmit [] any health information in electronic form in connection with a transaction covered." (5) HIPAA defines health plans, clearinghouses, and health care providers that transmit health information electronically as "covered entities" that must abide by HIPAA requirements and standards. (6) HIPAA also applies to "business associates," whom HIPAA defines as agencies or individuals that create or maintain healthcare records for the covered entities. (7)

HIPAA does not prevent the disclosure of all health care information. HIPAA's provisions only apply to what HIPAA deems "protected healthcare information" or PHI. …

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