Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Let’s start with the status quo.

The current Privacy Rule permits, but does not require, covered entities to disclose protected health information to law enforcement officials without the patient’s written authorization. In the wake of the Supreme Court Dobbs decision, the legality of abortion is now a province of state law. States may adopt permissive or restrictive laws regarding abortion.

Every state is different.

What happens if a patient lives in a state where access to abortion (after a particular gestation period) is illegal and travels to a different state where that abortion is legal? If law enforcement wants to investigate, what are healthcare providers obligated to do? Allowed to do?

Currently, the healthcare institution in the permissive state could disclose the patient’s abortion to law enforcement investigating in the restrictive state. This institution would not be obligated to disclose, but they could disclose without the patient’s signed authorization.

Why might an institution in a permissive state do that? Well, not every person in a permissive state believes as the state does. It might seem unusual that an institution would perform the abortion, and then turn that person’s records over to law enforcement in another state when they didn’t have to. But this should not seem strange. Do you believe that 100% of the people at your institution believe the same things and act the same way? They don’t.

Anyway, the Department of Health & Human Services was directed to update HIPAA via Notice of Proposed Rule Making. This Notice means that an updated Rule is being considered, and those interested may submit comments.

Covered Entities would be prohibited from disclosing Protected Health Information (PHI) when delivery of reproductive healthcare falls within at least one of three sets of circumstances:

(1) The reproductive care is provided outside the state where the investigation or proceeding is authorized and where such healthcare is lawfully provided (e.g., if a resident of one state traveled to another state to receive reproductive healthcare, such as an abortion, that is lawful in the state where such healthcare was provided).

(2) The reproductive care is protected, required, or authorized by federal law, regardless of the state in which such healthcare is provided (e.g., if reproductive healthcare, such as miscarriage management, is required under the Emergency Medical Treatment and Labor Act to stabilize the health of the pregnant person).

(3) The reproductive care is provided in the state in which the investigation or proceeding is authorized and the care provided is permitted by the law of that state (e.g., if a resident of a state received reproductive healthcare, such as a pregnancy test or treatment for an ectopic pregnancy, in the state where the individual resides, and that reproductive healthcare is lawful in that state).

By the way, “reproductive health care” is not limited solely to abortion. It is broadly defined to include (but not be limited to), prenatal care, abortion, miscarriage management, infertility treatment, contraception use, and treatment of reproductive-related conditions such as ovarian cancer.

It’s not a done deal yet. HHS suggests once the updated Rule is finalized (and the Notice of Proposed Rule Making has run its course), all affected covered entities would at least need to adopt or alter some existing policies and procedures, enhance the security of any IT system that contains PHI, retrain certain employees on the new requirements, and revise certain business associate agreements that may be affected by the Rule.

What do you think?

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.