Ohio's patient-physician privilege: whether planned parenthood is a protected party.

• Author: O'Neill, Melissa

1. INTRODUCTION II. HISTORY A. Where the Right to Medical Privacy Originated B. The Origin of the Patient-Physician Privilege C. What is Planned Parenthood? III. OHIO LAW: THE PATIENT-PHYSICIAN PRIVILEGE A. The Scope of the Word "Physician" B. The Scope of the Term "Patient" C. The Scope of the Term "Communication" D. Definitions of Physician, Patient, and Communication Applied to Planned Parenthood Staff Members E. Exceptions to the Patient-Physician Privilege IV. OUTSIDE THE REALM OF OHIO STATUTE: PRIVILEGED COMMUNICATIONS AT A FEDERAL LEVEL V. FEDERAL REGULATIONS; THE ROLE OF THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 A. Is Planned Parenthood a Health Care Provider? B. What is Health Information? C. Does the Law Enforcement Disclosure Provision Apply to Records Such as Pregnancy Tests? D. Conclusion as to HIPAA VI. SHOULD PLANNED PARENTHOOD BE PROTECTED BY STATUTE? A. Legislation Protecting Planned Parenthood and its Clients is Appropriate B. Justifications for Adopting Legislation that Specifically Extends a Privilege to Planned Parenthood and its Patients C. A Model of Legislation that Extends a Privilege to Planned Parenthood and its Patients VII. CONCLUSION I. INTRODUCTION

   May 30, 2002, a horrible tragedy struck the small, rural town of Storm Lake, Iowa. (1) It was on that dark day that the dead and dismembered body of a two-day-old baby was found in a dumpster at a Buena Vista County recycling plant. (2) As expected, the quiet community was stricken with grief and anger over the tragedy. (3) Immediately the Buena Vista County authorities began their search for the killer of the infant. (4) The investigation's main focus turned to finding the baby's mother, as she was the prime murder suspect. (5) However, after an extensive investigation, police still had no clue as to the identity of the infant's mother. (6)

   The problem faced by Buena Vista County authorities is not a unique one. (7) The problem of abandoned babies has surfaced in Ohio as well. (8) When a high school senior (9) in Columbus, Ohio, became pregnant, she was too scared to do anything about it, so she just concealed her pregnancy and secretly hoped for a miscarriage. (10) She even went off to college, where she gave birth to a baby girl on the floor of her dorm room. (11) She wrapped the baby girl in clothes, put her in a grocery bag and laid her inside of a trashcan outside the dorm. (12) The young woman could not handle the guilt of abandoning her child though, and thus placed an anonymous phone call to campus security, complaining of noise coming from outside the dorm room. (13) As the young mother watched from the window of her dorm room, the baby was found alive by campus security in the garbage can. (14) Eventually, investigators were able to determine the identity of the mother of the abandoned child and the young girl was subsequently convicted of Child Endangerment. (15)

   Police in Bedford, Ohio, a suburb of Cleveland, Ohio, faced a similar problem as the authorities in Columbus, Ohio, but unlike the Columbus police, they were unable to find the mother of an abandoned child. (16) The situation the Bedford police faced was much more similar to the one in Buena Vista County. (17) Police detectives in Bedford made the gruesome discovery of a dead body of a baby girl that was found buried in a wooded area. (18) The body was found wrapped in plastic bags and buried inside a "5-pound potato chip can." (19) "About 1-2 inches of concrete was poured over the top, then the potato chip can was buried in the ground." (20) Police were only able to ascertain that the baby was white and was born approximately eight months into the pregnancy. (21) Authorities had originally kept the discovery quiet, thinking that too much publicity would have resulted in the mother, or anyone with information, being too scared to come forward. (22) After waiting for someone to come forward, the police decided to go public with the discovery, hoping that someone would come forward with information. (23) As a result they received some information, but "no solid leads." (24)

   While the Bedford police department's investigation stalled, as they had no leads to go on, law enforcement authorities in Buena Vista County, Iowa, tried more than just asking for information in their investigation. (25) Specifically, the authorities in Buena Vista County compiled a list of the health clinics and hospitals in the area where the baby's mother may have sought care. (26) The Buena Vista County Attorney subpoenaed the records of these health facilities in an attempt to locate the baby's mother. (27) However, he did this without a specific suspect or any clues to go on. (28) Included among the health facilities subpoenaed was the Planned Parenthood of Greater Iowa's (PPGI) Storm Lake Clinic. (29) Specifically, Buena Vista County authorities sought to obtain: "[a]ny and all documents or files containing information of females who requested and received pregnancy testing at PPGI's Storm Lake Clinic ... on or between the dates of August 15, 2001 and May 30, 2002." (30) PPGI vehemently refused to turn-over these records, as it estimated that nearly 1,000 women were seen at the Storm Lake facility over the requested time period. (31)

   PPGI's argument in opposition to the subpoena was that "[t]he subpoena requires disclosure of confidential and protected health information...." (32) PPGI argued further that "[t]he privilege belongs to each and every female patient who has requested and/or received a pregnancy test at PPGI's Storm Lake Clinic on or between the dates August 15, 2001 and May 30, 2002 and, to the best of PPGI's knowledge, not any of these female patients have waived such a privilege." (33) Specifically, PPGI argued that, "[t]he requested information and materials are protected by the physician-patient privilege and therefore, are not subject to inspection." (34) Iowa's patient-physician privilege specifically states that: "[a] practicing attorney, counselor, physician, surgeon, physician assistant, advanced registered nurse practitioner, mental health professional ... shall not be allowed, in giving testimony, to disclose any confidential communication properly entrusted to the person in the person's professional capacity, and necessary and proper to enable the person to discharge the functions of the person's office according to the usual course of practice or discipline." (35)

   The Iowa District Court of Buena Vista County heard PPGI's arguments, however, the Court overruled PPGI's Motion to Quash the Subpoena. (36) In overruling the Motion, the Court held that "the names, addresses, and birth dates of all women who submitted themselves to a pregnancy test, and tested positive for pregnancy, during the period of time from August 15, 2001 to May 30, 2002," (37) had to be turned-over. The Court further held that the patient-physician privilege does not apply to Planned Parenthood because the staff members who work at Planned Parenthood are not necessarily medical professionals and administer pregnancy tests. (38) What ensued was a tremendous legal battle that made its way to the Iowa Supreme Court in regard to whether PPGI should have turned-over the requested pregnancy test results. (39) However, Buena Vista County was forced to drop the suit because the county did not have the financial resources to pursue what assuredly would have been an endless process of litigation. (40)

   As a result of cases like the recent attempt made by Iowa authorities to solve the murder of an infant and similar cases in Ohio, the question can be asked as to whether law enforcement officials in Ohio can legally subpoena the pregnancy test results of local hospitals, specifically Planned Parenthood clinics, in an investigation of a dead or even an abandoned baby. Ohio does specifically have a patient-physician privilege, similar to the one in Iowa. (41) The statute does specifically prohibit a physician from testifying in regard to a "communication made to the physician ... by a patient in that relation or the physician's ... advice to a patient." (42) Thus, the question becomes whether Ohio's patient-physician privilege would extend to clinics such as Planned Parenthood.

   This article will suggest that under Ohio's patient-physician privilege, the results of pregnancy tests that are administered at Planned Parenthood clinics will not be considered privileged or confidential information, unless the test is administered by a physician and is later used by a physician in treatment of the woman. In particular, this article will briefly examine the history of a right to medical privacy, the development of the patient-physician privilege and the origin of Planned Parenthood clinics. Primarily, this article will address whether Ohio's patient-physician privilege would consider the results of a pregnancy test administered to a woman at a clinic such as Planned Parenthood, privileged communication. In doing so, this article will examine precisely what relationships are protected under the statute. This article will then briefly examine the effect of federal laws on the issue, in particular, the Health Insurance Portability and Accountability Act of 1996 (HIPPA). Finally, this article will advocate for change in current Ohio law or new legislation that will keep the results of pregnancy tests administered at clinics such as Planned Parenthood confidential and provide a model of existing legislation where such information would currently be deemed confidential.

2. HISTORY

   1. Where the Right to Medical Privacy Originated

      The notion of very intimate details of a person's health, including diseases, conditions, diagnoses and prognoses being readily available to whoever would like to know the information, is not only absurd, but is also probably revolting to most people. Likewise, most people are likely aware that such information is considered private and cannot be disclosed to...