In a recent AJC Column, blogger Bob Barr expresses concern about the recent Brogdon v. State ruling in Georgia, which declared that medical records maintained at a hospital are not “private papers” under the law.

Of course, a properly executed search warrant may always be used to reach any items, including medical records, that constitute “instrumentalities of a crime,” but this recent court decision opens the door to law enforcement gaining access to personal medical records that are not themselves evidence of crimes [...]¹

When I first read the column, I was pretty alarmed, especially in light of recent legislation putting certain mental illness diagnoses on Georgia driver’s licenses. Georgia’s not a particularly friendly state when it comes to medical privacy, and it seemed this court decision was simply one more assault against those with diagnoses that could reflect a person in a negative light.

But a look at the actual decision causes me to wonder if there’s as much cause for alarm as Mr. Barr seems to think. A look at the actual facts of the case suggest that the medical records in question were, at the very least, pertinent; and it reveals a gray area with respect to whether the records were evidence of criminal activity.

Appellant was involved in a vehicular collision [and] the responding police officer arrived at the scene in time to smell alcohol [...] notice appellant’s belligerent behavior, and to find evidence of alcohol consumption in [the] appellant’s truck. [...] The officer did not ask appellant to submit to a blood-alcohol test, and [...] was unable to continue his investigation at the hospital to which appellant was taken because appellant was receiving medical treatment. Five months later, the Gwinnett solicitor general’s office obtained and served upon the hospital a search warrant for Brogdon’s medical records for the date on which Brogdon had been treated at the hospital following the vehicular collision. The hospital provided the records [...]²

It appears that Gwinnett County only asked for records that were created on the date Brogdon was treated for a suspected alcohol-related car crash. That’s a pretty narrow limitation and one that seems relevant to this non-legally-trained blogger³. As such, I have a hard time believing that the records aren’t “evidence,” although an argument could be made for hearsay.

It’s also significant to note here that HIPAA privacy rules do not protect medical records that are subpoenaed by the courts⁴. HIPAA doesn’t speak to the courts’ authority to subpoena.

While it’s true that this court ruling struck down an argued privacy protection, I don’t think this one is opening up the floodgates when it comes to medical records. The fact that the court’s ruling was based on the location of the medical records (at the hospital) doesn’t affect questions about their relevance and thus whether they constitute information of interest to the court.

I absolutely think medical privacy is becoming an important issue. But concern about this legislation is a bit of a false alarm. There are other legal issues that carry a far greater threat.

1. Georgia Court: Personal medical records are fair game for government snooping
2. http://www.leagle.com/unsecure/page.htm?shortname=ingaco20100712138. I’ve edited this for length but all of my omissions had to do with irrelevant details and “wordy” phrasing.
3. That we’re talking about an issue related to public safety — drunken driving — also seems relevant to me. In this case there do seem to be issues related to the common good.
4. HIPAA FAQ