ACLU sues state, seeks return of seized medical records

CIVIL SUIT: State seized material during investigation of clinic.

Daily Sitka SentinelDecember 27, 2011 

SITKA -- Does the state have a right to access your medical records and keep them while pursuing charges against a medical practitioner?

That question was at the heart of more than two hours of oral arguments Friday in the Sitka courthouse.

The American Civil Liberties Union is representing a group of nine patients "and others similarly situated," whose medical records were seized by the state from A Woman's Place, a Ketchikan health clinic. The state is refusing to return the records to the patients or clinic.

The records were seized under a warrant issued in the investigation of the clinic owner for suspected Medicaid fraud.

Tom Stenson, legal director for ACLU of Alaska, argued that patients' rights to privacy were violated, that the records should be returned to the clinic or the patients, and that the medical records should not have been seized in the first place.

He further argued that the state should not be allowed to issue such broad search warrants in the future, since it was financial and prescription records, not medical records, that were needed in the first place.

Assistant Attorney General Dale House, representing the Medicaid Fraud Control Unit, and Assistant Attorney General Cynthia Drinkwater, representing the state Division of Corporations, Business and Professional Licensing, argued separately for summary judgment dismissing the suit.

The civil suit was filed by former patients of Eileen Small, a nurse practitioner who operated a women's health clinic in Ketchikan. Small's license and prescription authority were suspended July 29, 2009, but the state alleges that after that time Small billed the state Medicaid program for services to 37 patients and that seven pharmacies had billed Medicaid for prescriptions she had written.

In January 2010, the state Medicaid fraud unit, assisted by Ketchikan police, seized a total of 398 patient files from Small's clinic under a search warrant. In March 2010 the records were subpoenaed by the state professional licensing division for its own investigation.

After the state authorities turned down demands to return the records, the ACLU filed suit on behalf of the patients whose files were seized.

The case was filed in Ketchikan, but assigned to Superior Court Judge David George in Sitka. George heard the arguments on the summary judgment motions.

House said that only a handful of people saw the files in question, the investigators followed the protocol for maintaining the privacy of the files, and that there was no evidence that the unit violated laws related to the privacy of medical records.

"The case should be dismissed," he said.

Stenson argued that the patients' rights to privacy were violated when the medical records left A Woman's Place, and were transferred among two state divisions. He said public disclosure of personal information is not the test of whether someone's privacy has been violated.

The attorneys generally agreed that there were not facts in dispute, and that a summary judgment could be issued by the judge.

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