New Medical Privacy Rule Is Bad Medicine for Press

By: Mark Fitzgerald

Opinion

Updated at 1 p.m. Eastern Standard Time, July 17

Local journalists are adding their own post-mortem to the lawsuits and finger-pointing following the June 29 porch collapse at a Chicago apartment building in which 13 young adults were killed: A new federal medical privacy rule has undermined their ability to cover accidents by forbidding the disclosure of patient information that hospitals had released routinely.

The porch collapse was the first major accident story since patient-privacy regulations under the Health Insurance Portability and Accountability Act took effect on April 14. In this real-life test in Chicago, the rule proved every bit the hindrance to coverage that journalists had feared.

Chicago’s experience with this one accident underscores the problems newspaper editors everywhere will face sooner or later. HIPAA, which was intended to give patients greater control over the release of their medical records, has wasted no time in become a nightmare for the press, says Ian Marquand, the Montana TV investigative reporter who unsuccessfully lobbied the federal government on behalf of the Society of Professional Journalists (SPJ) to include some reporting exceptions for news organizations. “Pretty much everything we said about HIPAA in the beginning and during the rule-making has come to pass,” Marquand says.

Hospitals in particular are scared to death of violating HIPAA, with good reason: Leaking health records — even information as innocuous as patient name and condition — is punishable by a fine of $250,000 and 10 years in jail. “The penalties are so severe that nobody wants to be that first case,” Marquand says.

Certainly none of the Chicago hospitals were willing to risk releasing information. Though 57 partygoers were injured in the porch collapse, Chicago readers learned the names of almost none of them because reporters were unable to identify anyone treated at area hospitals, unless those victims sought out the papers.

Because of HIPAA, newspapers were not able to give Chicagoans, who followed the developments intensely, the kind of report they have come to expect. “We missed getting to see people who were eyewitnesses to events and get from them what were assuredly compelling stories,” says Hanke Gratteau, the Chicago Tribune‘s associate managing editor for metropolitan news.

Newspapers are not like TV news operations that cover these kind of unfolding tragedies by opening their lines to anyone claiming to be an eyewitness. HIPAA added nearly insuperable burdens to print’s due diligence on sources, as one episode related by Gratteau suggests. A young man approached the Tribune, saying he had been injured in the collapse and just released from a hospital. When the paper checked with the hospital, it refused to confirm anything — even when the man gave permission. “Finally, we sent reporters to his house to see his (hospital) discharge papers, so we felt comfortable telling his story,” Gratteau says.

In the past, city hospitals routinely gave the name, age and address of victims of accidents or violence, which allowed papers to track down family members and prepare complete and well-rounded reports. Not anymore, says Gratteau. At first, Chicago hospitals wouldn’t reveal even the number of people they were treating after an accident. Some will do at least that now, but smaller hospitals no longer return phone calls from reporters, Gratteau added.

Even sportswriters will eventually be hamstrung by the rule, says SPJ’s Marquand. He noted the University of Montana’s recent announcement that, because of HIPAA, it would no longer release information about injuries to its athletes. Warns Marquand: “You could have somebody carried off the field on a stretcher, (put) in an ambulance, and you’re not going to hear another thing about it.”

Clarification: An earlier version of this story referred imprecisely to the Health Insurance Portabililty and Accountability Act (HIPAA). The act became law in 1996; the patient privacy rules under HIPAA took effect April 14.

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