HIPAA 2004: A Review of Significant Litigated Cases

In next month's issue, we analyze South Carolina Medical Association v. Thompson, 327 F.3d 346, 2003 U.S. App. LEXIS 7940 (4th Cir. 2003), in which the appellants asked the Fourth Circuit judges some fundamental questions about HIPAA. The statute is long, it's complicated, and it's expansive. Is it, however, in a constitutional sense, intelligible? What is Congress' grant of authority with respect to such broad legislation? And finally, did HIPAA constitute a prohibited delegation rather than necessary cooperation between government branches?

The third case of interest was litigated at the district court level, where the court examined perhaps the first HIPAA violation and created a well-reasoned remedy under the statute. That case, Law v. Zuckerman, 2004 U.S. Dist. LEXIS 3755 (D MD, 2004), will be discussed in the third installment of this article.

Northwestern Memorial Hospital v. Ashcroft

After the U.S. Supreme Court's decision in Stenberg v. Carhart 530 U.S. 914 (2000), the Bush administration passed the Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. ' 1531. The case of Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 923; 2004 U.S. App. LEXIS 5724 (7th Cir. 3/26/04) followed. Northwestern involved a district judge's order that quashed a subpoena by which the government sought to impeach a physician expert witness by a novel approach: showing that there is no medical indication for partial-birth abortions, conduct forbidden by the Partial-Birth Abortion Ban Act of 2003, by seeking the expert witness' own patient medical records. (This case arose as an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division. No. 04 C 55, Charles P. Kocoras, Chief Judge within the case National Abortion Federation v. Ashcroft. 2004 U.S. Dist. LEXIS 1701 (N.D. Ill., 2/5/04).)

The expert witness in question, Dr. Cassing Hammond, is one of the plaintiffs in the underlying suit brought in the Southern District of New York, and he intended to testify in the action as an expert witness. As part of his professional practice, Dr. Hammond performs late-term abortions using dilatation and extraction (known as D&X) as well as dilatation and evacuation (D&E). The subpoenaed records, some 45 in number, pertained to patients on whom Dr. Hammond had performed these controversial abortions. The district judge presiding over the New York action issued an order authorizing, although not directing, the Illinois hospital to provide records concerning Dr. Hammond's patients to the government, after those records could be redacted to remove information identifying the patients.

The hospital that held the subpoenaed records, Chicago's Northwestern Memorial, sought to quash the New York judge's order in the U.S. District Court for the Northern District of Illinois, Eastern Division, claiming that turning over the records to that court would violate Dr. Hammond's patients' privacy rights under HIPAA. The Illinois district court turned to the Illinois patient privacy statute, 735 ILCS 5/8-802, which sets a more stringent standard for disclosure of patient information than the HIPAA regulation, and found that it trumped the federal regulation by virtue of HIPAA's supersession provision.

The supersession provision relied upon by the Illinois court, found at 41 U.S.C. ' 1320d-2, directs the Secretary of Health and Human Services to promulgate regulations to protect the privacy of medical records, but provides in subsection (c)(2) that such a regulation “shall not supercede a contrary provision of State law, if the provision of State law imposes requirements, standards, or implementation specifications that are more stringent than the requirements, standards, or implementation specifications imposed under the regulation.” (See also 45 C.F.R. ' 160.203(b). A standard is “more stringent” if it “provides greater privacy protection for the individual who is the subject of the individually identifiable health information” than the standard in the regulation. ' 160.202(6).) Because the Illinois privacy statute's safeguards for patient information privacy were more stringent than those in the HIPAA regulations, the Illinois district judge applied the Illinois standard to quash the New York district court's subpoena, precipitating this appeal.

Decision Upheld, But on Different Grounds

The focus of the appeal to U.S. Court of Appeals for the Seventh Circuit settled on an HHS regulation titled, “Standard: Disclosures for Judicial and Administrative Proceedings,” ' 164.512(e), which authorizes a “covered entity” (such as Northwestern Memorial Hospital) to disclose private health information in judicial or administrative proceedings in response to an order of a court. The statute also permits disclosure of such information in those proceedings in response to a subpoena, discovery request, or other lawful process, under ' 164.512(e)(1)(ii), if the party seeking the information either notifies the patient (or at least makes a good faith effort to do so) or makes a “reasonable effort” to secure a qualified protective order — that is, an order that prohibits the use or disclosure of the information outside the litigation and requires the return or destruction of the information at the end of the litigation. 45 C.F.R. ' 164.512(e)(1)(v). Because the district court relied on Illinois' patient privacy statute to quash the subpoena, one of the key questions became whether the HIPAA regulations imposed state evidentiary privileges on suits to enforce the federal law.

The Seventh Circuit agreed with the government that HIPAA regulations do not impose state evidentiary privileges on suits to enforce federal law, although the court found that Illinois is free to enforce its more stringent medical-records privilege in suits in state court to enforce state law and, by virtue of an express provision in Fed. R. Evid. 501, in suits in federal court in which state law supplies the rule of decision (primarily diversity suits). The Illinois privilege did not govern in federal-question suits, however, such as the suit in the Southern District of New York. The court observed that federal law “might be hamstrung” if more stringent state law privilege statutes applied to federal cases.

The court concluded that 45 C.F.R. ' 164.512(e) merely creates a procedure which contains the authority to use medical records in litigation. Admissibility of the medical records depends upon the trial court's interpretation of the privilege. Federal law controls the privilege to federal-question suits under Fed. R. Evid. 501, which does not recognize the physician-patient privilege or the hospital-patient privilege. Unless an act of Congress creates some other federal privilege, federal common law is the source of privilege in federal-questions suits. Commented the court, “We do not think HIPAA is rightly understood as an Act of Congress that creates a privilege.”

According to the Seventh Circuit's opinion, HIPAA is of “purely procedural character” and the act then forms the standard for disclosure of medical information in judicial or administrative proceedings. Notice to the patient, however, must contain sufficient information about the litigation or proceeding in which the protected health information is requested to permit the individual to raise an objection to the court under ' 164.512(e)(1)(iii)(B). The objection in court would often be based on a privilege — the source of which would be found elsewhere than in the regulations themselves.

The “more stringent” clause in HIPAA, the court found, applies only to health information that is individually identifiable, in contrast to information that is of a statistical or generic nature. Provided that medical records are redacted in accordance with the redaction requirements (themselves quite stringent) of ' 164.514(a), they would not contain “individually identifiable health information” and the “more stringent” clause would fall away.

The Basis for Quashing the Subpoena

In the alternative, the Illinois court attempted to craft a new federal common law for abortion records by likening the sensitivity of abortion records to a psychotherapist's records. The Seventh Circuit, however, declared itself “reluctant to embark on a case-by-case determination of the relative sensitivity of medical records of different ailments or procedures.” This, the court said, could lead to major complications that would entail arbitrary line drawing or the creation of an Illinois-type comprehensive privilege for medical records. Noting that there is at present no federal common law physician/patient privilege, the Seventh Circuit declined to create one here.

Instead, the appellate court looked to another basis to find that the subpoena should be quashed. Although the lower court did not explicitly reach Northwestern's argument that the burden of compliance with the subpoena would exceed the benefit of production of the material sought, the district judge had pointed out that the “government seeks these records on the possibility that it may find something … which would affect the testimony of [the expert witness] … adversely … for its potential value in impeaching his credibility as a witness. What the government ignores in its argument is how little, if any, probative value lies within these patient records.” On the basis of the district judge's tangentially discussing this issue (and because the trial of the underlying case was to begin shortly), the Seventh Circuit felt no need to remand for clarification of the district court's opinion, and went ahead with reviewing that court's “finding” on the burden-versus-benefit issue on appeal.

In its case before the Illinois district court, the hospital had cited as detriments to production both the lack of probative value of the records and the loss of privacy by the patients. The government had responded in vague generalities, arguing that redaction would eliminate any privacy concern. The government also asserted that because it was seeking only a limited number of records and they would be produced to it minus the information that would enable the identity of the patient to be determined, there would be no hardship to either the hospital or the patients from compliance. The Seventh Circuit found this argument unrealistic and incomplete, stating, “What is true is that the administrative hardship of compliance would be modest. But it is not the only or the main hardship.

The natural sensitivity that people feel about the disclosure of their medical records — the sensitivity that lies behind HIPAA — is amplified when the records are of a procedure that Congress has now declared to be a crime.”

Although the government claimed that Dr. Hammond had made assertions of fact about his and his patients' experiences that they contended plaintiffs would use to support their claim that the partial-birth abortion ban was unconstitutional, they could not point out any such assertions to the court. If the government had done so, the appellate court agreed that it should be permitted to test those assertions. When pressed at oral argument, the government's lawyer did suggest that if Dr. Hammond testified that patients with leukemia are better off with the D & X procedure than with the conventional D & E procedure, but the medical records indicated that not all Dr. Hammond's abortion patients with leukemia underwent D & X abortions, this would both impeach Dr. Hammond and suggest that D & X is not the only medically safe abortion procedure available to pregnant women afflicted with leukemia. But the court could find no indication that such information would likely be found in Dr. Hammond's records, given his strongly expressed preference for using the D & X method in the case of patients in fragile health. The information would be much more likely to be found in the records of physicians who perform D & E rather than D & X abortions on such women. The government didn't seek records of this type, however. The Seventh Circuit could therefore find no real probative value for the records sought.

For these reasons, the Seventh Circuit was mystified as to how the release of these medical records would disclose that there is “always” an alternative to D&X – the government's position. In short, there was nothing to be gained by discovery of these medical records even if they were released … nothing which would even remotely support that a legitimate medical option existed. The appellate court then balanced the competing interests to find that the “cost” of involuntary production of the medical records, even as redacted, was not offset by the probative value of the records.

Then, in strongly worded language rarely seen in appellate opinions, the court addressed the fervent emotions surrounding the abortion battle and the fears women would have even if redacted records entered the public domain through litigation. Further, on the issue of protecting these patients' privacy rights — patients who are not parties to the lawsuit — the court analogized: “Even if there were no possibility that a patient's identity might be learned from a redacted medical record, there would be an invasion of privacy. Imagine if nude pictures of a woman, uploaded to the Internet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her. She would still feel that her privacy had been invaded. The revelation of the intimate details contained in the record of a late-term abortion may inflict a similar wound.”

Other Bases for Upholding the Decision

The court pointed out that if Northwestern Memorial Hospital could not shield its abortion patients' records from disclosure in judicial proceedings, the hospital would lose the confidence of its patients, and those with sensitive medical conditions might be inclined to turn elsewhere for medical treatment.

The government was also unable to provide the court with any case in which a medical expert's patient records were used to impeach him. And, finally, the court noted that quashing the subpoena would comport with the Illinois medical record privilege, and, as the court had held in Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981), although comity does not require the court to apply the privilege, it does require the court to “recognize state privileges where this can be accomplished at no substantial cost to the federal substantive and procedural policy.”

Postscript

It can be argued that what the government was really attempting to do in Northwestern was advance its anti-abortion political agenda by witness intimidation. The hospital planned for Dr. Hammond to testify as an expert witness for the pro-abortion group. The government wanted to show that there was no medical indication for D&X. What better way to accomplish this than to seek the expert witness physician's patient medical records and to then engage in a medical analysis of those records?

To illustrate how this subpoena, had it been found enforceable, could have had a significant effect on expert witnesses, let's look at a hypothetical situation. Suppose in a laparoscopic cholecystectomy (removal of the gallbladder via laparoscopy) case, a court upheld such a subpoena and permitted discovery of an expert witness' patients' medical records. The defense would be able to discover all the doctor's laparoscopic cholecystectomy surgeries within 5 years, analyze the data, then cross-examine the doctor using his own cases. The resulting chill on expert witnesses would dissuade many of them from providing expert testimony in any future litigations.

Dr. Hammond did not rely on his patients' medical records in the formulation of his expert medical opinion, which was in keeping with standard practice. In general, in medical negligence litigation, expert witnesses don't cite their own specific medical experiences in the formulation of standard of care opinions. Their opinion arises from general medical education, clinical impressions from medical practice, their general knowledge drawn from medical education courses, associations with colleagues and impressions from professional organizations, but not from specific instances. An expert witness who positions the medical opinion on the assertion that “this is the way I do it” would be subjected to cross-examination scrutiny that would likely nullify the opinion. Many cases support the premise that an opinion based upon individual experience is incompetent.

Part One of a Three-Part Article

Since its enactment, with perhaps only three significant exceptions, the provisions of the Health Insurance Portability and Accountability Act, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (HIPAA) have not been litigated. In the majority of cases where HIPAA has been the subject of litigation — less than 50 — litigants have raised HIPAA provisions as an issue, but only tangentially as part of a “throw away” argument, or in a meaningful manner but where the answer was immediately clear from the case's inception.

Three federal cases, however, merit analysis, since they go to the heart of HIPAA, the government's broad attempt to safeguard medical records in the electronic age. In this month's issue, we concentrate on Northwestern Memorial Hospital v. Ashcroft, 2004 U.S. App. LEXIS 5724 (7th Cir. 2004), in which, in the context of an abortion rights case, the Seventh Circuit was called upon to determine whether HIPAA created some form of new federal privilege.

In next month's issue, we analyze South Carolina Medical Association v. Thompson , 327 F.3d 346, 2003 U.S. App. LEXIS 7940 (4th Cir. 2003), in which the appellants asked the Fourth Circuit judges some fundamental questions about HIPAA. The statute is long, it's complicated, and it's expansive. Is it, however, in a constitutional sense, intelligible? What is Congress' grant of authority with respect to such broad legislation? And finally, did HIPAA constitute a prohibited delegation rather than necessary cooperation between government branches?

The third case of interest was litigated at the district court level, where the court examined perhaps the first HIPAA violation and created a well-reasoned remedy under the statute. That case, Law v. Zuckerman, 2004 U.S. Dist. LEXIS 3755 (D MD, 2004), will be discussed in the third installment of this article.

Northwestern Memorial Hospital v. Ashcroft

After the U.S. Supreme Court's decision in Stenberg v. Carhart 530 U.S. 914 (2000), the Bush administration passed the Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. ' 1531. The case of Northwestern Memorial Hospital v. Ashcroft , 362 F.3d 923; 2004 U.S. App. LEXIS 5724 (7th Cir. 3/26/04) followed. Northwestern involved a district judge's order that quashed a subpoena by which the government sought to impeach a physician expert witness by a novel approach: showing that there is no medical indication for partial-birth abortions, conduct forbidden by the Partial-Birth Abortion Ban Act of 2003, by seeking the expert witness' own patient medical records. (This case arose as an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division. No. 04 C 55, Charles P. Kocoras, Chief Judge within the case National Abortion Federation v. Ashcroft. 2004 U.S. Dist. LEXIS 1701 (N.D. Ill., 2/5/04).)

The expert witness in question, Dr. Cassing Hammond, is one of the plaintiffs in the underlying suit brought in the Southern District of New York, and he intended to testify in the action as an expert witness. As part of his professional practice, Dr. Hammond performs late-term abortions using dilatation and extraction (known as D&X) as well as dilatation and evacuation (D&E). The subpoenaed records, some 45 in number, pertained to patients on whom Dr. Hammond had performed these controversial abortions. The district judge presiding over the New York action issued an order authorizing, although not directing, the Illinois hospital to provide records concerning Dr. Hammond's patients to the government, after those records could be redacted to remove information identifying the patients.

The hospital that held the subpoenaed records, Chicago's Northwestern Memorial, sought to quash the New York judge's order in the U.S. District Court for the Northern District of Illinois, Eastern Division, claiming that turning over the records to that court would violate Dr. Hammond's patients' privacy rights under HIPAA. The Illinois district court turned to the Illinois patient privacy statute, 735 ILCS 5/8-802, which sets a more stringent standard for disclosure of patient information than the HIPAA regulation, and found that it trumped the federal regulation by virtue of HIPAA's supersession provision.

The supersession provision relied upon by the Illinois court, found at 41 U.S.C. ' 1320d-2, directs the Secretary of Health and Human Services to promulgate regulations to protect the privacy of medical records, but provides in subsection (c)(2) that such a regulation “shall not supercede a contrary provision of State law, if the provision of State law imposes requirements, standards, or implementation specifications that are more stringent than the requirements, standards, or implementation specifications imposed under the regulation.” (See also 45 C.F.R. ' 160.203(b). A standard is “more stringent” if it “provides greater privacy protection for the individual who is the subject of the individually identifiable health information” than the standard in the regulation. ' 160.202(6).) Because the Illinois privacy statute's safeguards for patient information privacy were more stringent than those in the HIPAA regulations, the Illinois district judge applied the Illinois standard to quash the New York district court's subpoena, precipitating this appeal.

Decision Upheld, But on Different Grounds

The focus of the appeal to U.S. Court of Appeals for the Seventh Circuit settled on an HHS regulation titled, “Standard: Disclosures for Judicial and Administrative Proceedings,” ' 164.512(e), which authorizes a “covered entity” (such as Northwestern Memorial Hospital) to disclose private health information in judicial or administrative proceedings in response to an order of a court. The statute also permits disclosure of such information in those proceedings in response to a subpoena, discovery request, or other lawful process, under ' 164.512(e)(1)(ii), if the party seeking the information either notifies the patient (or at least makes a good faith effort to do so) or makes a “reasonable effort” to secure a qualified protective order — that is, an order that prohibits the use or disclosure of the information outside the litigation and requires the return or destruction of the information at the end of the litigation. 45 C.F.R. ' 164.512(e)(1)(v). Because the district court relied on Illinois' patient privacy statute to quash the subpoena, one of the key questions became whether the HIPAA regulations imposed state evidentiary privileges on suits to enforce the federal law.

The Seventh Circuit agreed with the government that HIPAA regulations do not impose state evidentiary privileges on suits to enforce federal law, although the court found that Illinois is free to enforce its more stringent medical-records privilege in suits in state court to enforce state law and, by virtue of an express provision in Fed. R. Evid. 501, in suits in federal court in which state law supplies the rule of decision (primarily diversity suits). The Illinois privilege did not govern in federal-question suits, however, such as the suit in the Southern District of New York. The court observed that federal law “might be hamstrung” if more stringent state law privilege statutes applied to federal cases.

The court concluded that 45 C.F.R. ' 164.512(e) merely creates a procedure which contains the authority to use medical records in litigation. Admissibility of the medical records depends upon the trial court's interpretation of the privilege. Federal law controls the privilege to federal-question suits under Fed. R. Evid. 501, which does not recognize the physician-patient privilege or the hospital-patient privilege. Unless an act of Congress creates some other federal privilege, federal common law is the source of privilege in federal-questions suits. Commented the court, “We do not think HIPAA is rightly understood as an Act of Congress that creates a privilege.”

According to the Seventh Circuit's opinion, HIPAA is of “purely procedural character” and the act then forms the standard for disclosure of medical information in judicial or administrative proceedings. Notice to the patient, however, must contain sufficient information about the litigation or proceeding in which the protected health information is requested to permit the individual to raise an objection to the court under ' 164.512(e)(1)(iii)(B). The objection in court would often be based on a privilege — the source of which would be found elsewhere than in the regulations themselves.

The “more stringent” clause in HIPAA, the court found, applies only to health information that is individually identifiable, in contrast to information that is of a statistical or generic nature. Provided that medical records are redacted in accordance with the redaction requirements (themselves quite stringent) of ' 164.514(a), they would not contain “individually identifiable health information” and the “more stringent” clause would fall away.

The Basis for Quashing the Subpoena

In the alternative, the Illinois court attempted to craft a new federal common law for abortion records by likening the sensitivity of abortion records to a psychotherapist's records. The Seventh Circuit, however, declared itself “reluctant to embark on a case-by-case determination of the relative sensitivity of medical records of different ailments or procedures.” This, the court said, could lead to major complications that would entail arbitrary line drawing or the creation of an Illinois-type comprehensive privilege for medical records. Noting that there is at present no federal common law physician/patient privilege, the Seventh Circuit declined to create one here.

Instead, the appellate court looked to another basis to find that the subpoena should be quashed. Although the lower court did not explicitly reach Northwestern's argument that the burden of compliance with the subpoena would exceed the benefit of production of the material sought, the district judge had pointed out that the “government seeks these records on the possibility that it may find something … which would affect the testimony of [the expert witness] … adversely … for its potential value in impeaching his credibility as a witness. What the government ignores in its argument is how little, if any, probative value lies within these patient records.” On the basis of the district judge's tangentially discussing this issue (and because the trial of the underlying case was to begin shortly), the Seventh Circuit felt no need to remand for clarification of the district court's opinion, and went ahead with reviewing that court's “finding” on the burden-versus-benefit issue on appeal.

In its case before the Illinois district court, the hospital had cited as detriments to production both the lack of probative value of the records and the loss of privacy by the patients. The government had responded in vague generalities, arguing that redaction would eliminate any privacy concern. The government also asserted that because it was seeking only a limited number of records and they would be produced to it minus the information that would enable the identity of the patient to be determined, there would be no hardship to either the hospital or the patients from compliance. The Seventh Circuit found this argument unrealistic and incomplete, stating, “What is true is that the administrative hardship of compliance would be modest. But it is not the only or the main hardship.

The natural sensitivity that people feel about the disclosure of their medical records — the sensitivity that lies behind HIPAA — is amplified when the records are of a procedure that Congress has now declared to be a crime.”

Although the government claimed that Dr. Hammond had made assertions of fact about his and his patients' experiences that they contended plaintiffs would use to support their claim that the partial-birth abortion ban was unconstitutional, they could not point out any such assertions to the court. If the government had done so, the appellate court agreed that it should be permitted to test those assertions. When pressed at oral argument, the government's lawyer did suggest that if Dr. Hammond testified that patients with leukemia are better off with the D & X procedure than with the conventional D & E procedure, but the medical records indicated that not all Dr. Hammond's abortion patients with leukemia underwent D & X abortions, this would both impeach Dr. Hammond and suggest that D & X is not the only medically safe abortion procedure available to pregnant women afflicted with leukemia. But the court could find no indication that such information would likely be found in Dr. Hammond's records, given his strongly expressed preference for using the D & X method in the case of patients in fragile health. The information would be much more likely to be found in the records of physicians who perform D & E rather than D & X abortions on such women. The government didn't seek records of this type, however. The Seventh Circuit could therefore find no real probative value for the records sought.

For these reasons, the Seventh Circuit was mystified as to how the release of these medical records would disclose that there is “always” an alternative to D&X – the government's position. In short, there was nothing to be gained by discovery of these medical records even if they were released … nothing which would even remotely support that a legitimate medical option existed. The appellate court then balanced the competing interests to find that the “cost” of involuntary production of the medical records, even as redacted, was not offset by the probative value of the records.

Then, in strongly worded language rarely seen in appellate opinions, the court addressed the fervent emotions surrounding the abortion battle and the fears women would have even if redacted records entered the public domain through litigation. Further, on the issue of protecting these patients' privacy rights — patients who are not parties to the lawsuit — the court analogized: “Even if there were no possibility that a patient's identity might be learned from a redacted medical record, there would be an invasion of privacy. Imagine if nude pictures of a woman, uploaded to the Internet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her. She would still feel that her privacy had been invaded. The revelation of the intimate details contained in the record of a late-term abortion may inflict a similar wound.”

Other Bases for Upholding the Decision

The court pointed out that if Northwestern Memorial Hospital could not shield its abortion patients' records from disclosure in judicial proceedings, the hospital would lose the confidence of its patients, and those with sensitive medical conditions might be inclined to turn elsewhere for medical treatment.

The government was also unable to provide the court with any case in which a medical expert's patient records were used to impeach him. And, finally, the court noted that quashing the subpoena would comport with the Illinois medical record privilege, and, as the court had held in Memorial Hospital for McHenry County v. Shadur , 664 F.2d 1058, 1061 (7th Cir. 1981), although comity does not require the court to apply the privilege, it does require the court to “recognize state privileges where this can be accomplished at no substantial cost to the federal substantive and procedural policy.”

Postscript

It can be argued that what the government was really attempting to do in Northwestern was advance its anti-abortion political agenda by witness intimidation. The hospital planned for Dr. Hammond to testify as an expert witness for the pro-abortion group. The government wanted to show that there was no medical indication for D&X. What better way to accomplish this than to seek the expert witness physician's patient medical records and to then engage in a medical analysis of those records?

To illustrate how this subpoena, had it been found enforceable, could have had a significant effect on expert witnesses, let's look at a hypothetical situation. Suppose in a laparoscopic cholecystectomy (removal of the gallbladder via laparoscopy) case, a court upheld such a subpoena and permitted discovery of an expert witness' patients' medical records. The defense would be able to discover all the doctor's laparoscopic cholecystectomy surgeries within 5 years, analyze the data, then cross-examine the doctor using his own cases. The resulting chill on expert witnesses would dissuade many of them from providing expert testimony in any future litigations.

Dr. Hammond did not rely on his patients' medical records in the formulation of his expert medical opinion, which was in keeping with standard practice. In general, in medical negligence litigation, expert witnesses don't cite their own specific medical experiences in the formulation of standard of care opinions. Their opinion arises from general medical education, clinical impressions from medical practice, their general knowledge drawn from medical education courses, associations with colleagues and impressions from professional organizations, but not from specific instances. An expert witness who positions the medical opinion on the assertion that “this is the way I do it” would be subjected to cross-examination scrutiny that would likely nullify the opinion. Many cases support the premise that an opinion based upon individual experience is incompetent.