ABLEnews Extra

                    Protecting Patient Privacy

              As a patient advocate network, CURE strongly
              supports the right of patients and their
              designated representatives to full access to
              their medical records. At the same time, we
              believe it is essential to protect the
              privacy of personal medical records from
              covert third-party snoops, in particular, the
              promoters of checkbook euthanasia within the
              public and private sectors. Accordingly, we
              thought the following press release merited
              your consideration.

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          Judge Bars the Office of the Attorney General
          From Secretly Subpoenaing the Confidential
      Medical and Financial Records of California Citizens

On January 10, 1995, Judge Charles Wickersham of the San Diego
Superior Court entered judgment for plaintiff in the case of Goerke v.
the Office of the Attorney General.  The lawsuit, filed by the
American Civil Liberties Union on behalf of Carol Goerke, challenged
the Attorney General's practice of secretly subpoenaing confidential
medical and financial records without providing any notice to the
affected patients and customers.

In August, Judge Wickersham found that the Attorney General's conduct
violated the constitutional rights of due process and privacy, and
entered an injunction permanently barring the practice.  Judge
Wickersham's order compels the Office of the Attorney General to
comply with the terms of section 1985.3 of the Code of Civil
Procedure, which requires that citizens be informed in advance before
their confidential medical and financial records are subpoenaed.

After Judge Wickersham's August order, the Office of the Attorney
General agreed to waive all further appeals, and pay damages to Ms.
Goerke in the amount of $15,000.  A stipulated judgment reflecting
that agreement was signed by Judge Wickersham January 10, 1995.

The case is described in more detail in the attached statement.

      Summary of Goerke Vs. Office of the Attorney General

In 1990, Carol Goerke filed an employment-related lawsuit against San
Diego State University.  During the course of the litigation, Ms.
Goerke discovered that the Attorney General's Office, which
represented SDSU in the case, had secretly subpoenaed and obtained her
complete medical files from Kaiser Permanente without providing any
notice to either her or her attorney.  As a consequence, Ms. Goerke
had no opportunity to object to the breadth of the subpoena and limit
the scope of documents produced in response to it.  Pursuant to the
secret subpoena, the Attorney General obtained Ms. Goerke's complete
medical files (including all her gynecological records), resulting in
the disclosure of numerous private facts relating to her medical
history and treatment which were irrelevant to the underlying lawsuit.

When Ms. Goerke's attorney contacted the Attorney General's office to
complain about the lack of notification, she was told that state
agencies are "exempt" from the provisions of the Code of Civil
Procedure requiring that patients be notified in advance of any
attempt to subpoena their medical records.

Ms. Goerke then filed a complaint against the Attorney General
alleging violations of her right to privacy.  In June 1993, the ACLU
filed an amended complaint on her behalf seeking damages as well as an
injunction barring the Attorney General's Office from engaging in the
practice in the future.

The ACLU specifically argued that Section 1985.3 of the Code of Civil
Procedure, as well as the state and federal constitutions, mandate
that the Attorney General provide notice before seizing the most
intimate medical records of a citizen.  The ACLU argued that section
1985.3 applies to the Attorney General and requires that his office
provide such notice before subpoenaing confidential records.

The ACLU argued further that California's constitutional right to
privacy sets up a "zone of privacy" around all personal records,
including medical and financial documents, and that any intrusion into
this zone "must be balanced against the individual's right to protect
confidential information from disclosure."  That right is meaningless
if an individual is not provided with notice of the subpoena in the
first place, and then given an opportunity to protect the targeted
records.

Judge Charles Wickersham of the San Diego Superior Court agree, and on
August 19, 1994, granted the ACLU's motion for a permanent injunction
barring the Attorney General's practice.  Judge Wickersham ruled that
the state of California violated Ms. Goerke's federal and state
constitutional rights to privacy when it seized her medical records
without providing her with notice. In his ruling, Judge Wickersham
declared:  "The right to privacy is a constitutional right" which has
been affirmed by numerous cases.  Therefore, "Notice to the [patient]
was a constitutional right that could not be abrogated."

After Judge Wickersham's ruling, Lungren and the Attorney General's
Office agreed to waive all further appeals, consent to the entry of a
permanent injunction , and settle Ms. Goerke's claim for monetary
damages for $15,000.  On January 10, 1995, Judge Wickersham signed a
final judgement setting forth those terms.

"It was clear from the beginning this was an egregious constitutional
violation.  Even the judge expressed surprise that the Attorney
General had not given up the practice and resolved this case at the
outset," said Jordan Budd, ACLU staff counsel and the attorney for Ms.
Goerke.  "If anything is protected by the right or privacy, it's our
most intimate medical records. The Attorney General's claim that they
can seize those records without any prior notice is outrageous."

[Press Release, American Civil Liberties Union, January 17, 1995]

CURE Comment: "Eternal vigilance is the price of liberty"

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