How Obama's stimulus violates your constitutional rights

Lawsuit challenges government 'guidance' to doctors


July 09, 2009

By Bob Unruh
WorldNetDaily

A nurse has filed a lawsuit against the medical records provisions of President Obama's stimulus bill alleging it not only gives government officials access to personal health records, it would open the door for bureaucrats to make health care decisions.

The lawsuit was filed in federal court for the Southern District of New York by Beatrice Heghmann, a nurse from Durham, N.H. It targets the health sections of the 2009 American Recovery and Reinvestment Act that demand all health care records be put into an electronic format.

The recently filed claim cites the authorization of the "Office of the National Coordinator for Health Information Technology."

The lawsuit explains the federal law specifies, "The National Coordinator shall perform the duties under subsection (c) in a manner consistent with the development of a nationwide health information technology infrastructure that allows for the electronic use and exchange of information and that among other functions provides appropriate information to help guide medical decisions at the time and place of care."

Using the personal information, the lawsuit claims, "the National Coordinator will monitor treatments to make sure the plaintiff's doctor is doing what the federal government deems appropriate and cost effective."

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The lawsuit said the federal plan's goal "is to reduce costs and 'guide' plaintiff's doctor's decisions."

The language is virtually identical to what former Sen. Tom Daschle, D-S.D., prescribed in his 2008 book "Critical, What We Can Do About the Health-Care Crisis" after voters in his state refused to return him to Washington.

"According to Daschle, doctors have to give up autonomy and 'learn to operate less like solo practitioners,'" the lawsuit said. "The National Coordinator will be able to enforce his decision as to what is appropriate treatment through sanctions against health care providers. Health care providers that are not 'meaningful users' of the new system will face penalties. 'Meaningful user' is not defined in the Stimulus Act. That will be left to the HHS secretary, who will be empowered to impose 'more stringent measures of meaningful use over time.'"

The result is that penalties that could be imposed against doctors that would "deter the plaintiff's health care providers from going beyond the electronically delivered protocols should (a medical) condition become atypical," the lawsuit said.

Further, the demand that all health records be kept electronically would put the plaintiff's personal information "a mouse-click away from being accessible to [strangers]."

That amounts to an unconstitutional release of her personal and private health information, the lawsuit says.

Named as defendants are Health and Human Services Secretary Kathleen Sebelius and other Obama administration officials.

Twila Brase, president of the Citizens' Council on Health Care, has been working on privacy issues related to health care records for years. She's seen some success in Minnesota, where health officials have been taking DNA from newborns and archiving it for eventual research use.

She said while the wording of the stimulus law is convoluted, it appears to set up a requirement for all medical records to be posted online so that government administrators in Washington could review a diagnosis as well as a prescription and apply pressure to the doctor if they felt the treatment was more expensive than they wanted.

Brase said the federal law calls for a single electronic medical record for every U.S. resident by 2014 and providing access to those records to "providers, health plans, the government, and other interested parties."

Worst of all, she said, it appears to eliminate a state's right to impose stricter privacy standards as provided by the current federal law, the Health Insurance Portability and Accountability Act.

Brase said in a nextgov report that the bottom line is that privacy would be in the hands of a Washington bureaucrat instead of a physician.

Analysts said they believe there will be similar lawsuits over the privacy of medical records.

The lawsuit seeks class-action status, and explained that the plaintiff, as a patient, "was required [on several occasions] and in the future will be required to reveal intimate aspects of her life to the health care provider during the course of consultation and treatment."

Since she never has been covered by either Medicare or Medicaid, her doctors were selected by her and paid either directly by her or in combination with private health insurance she maintained.

"Under the Hippocratic Oath, state law and federal law while the medical records are the property of the plaintiff’s health care providers, the information contained in the records remains property of the plaintiff and the health care providers are required by law to maintain that information in strict confidentiality."

But the new law, the lawsuit said, "attempts to render the privacy provided under federal law, state law, the Hippocratic Oath and HIPAA null and void."