OR requires hospitals report suspected DUIs, and this is private action although mandated by statute, or there is no REP

Oregon requires hospitals to report persons who show up for treatment who the hospital reasonably believes were involved in driving under the influence. Here, the hospital also reported defendant’s BAC to the police. “[W]e reject defendant’s invitation to overrule Gonzalez and consequently conclude that, even assuming that the hospital staff’s disclosure of defendant’s BAC to Dunlap pursuant to ORS 676.260(1) was state action, it did not violate a privacy interest protected by Article I, section 9.” The hospital was not a state actor under the Fourth Amendment. State v. Miller, 284 Ore. App. 818, 2017 Ore. App. LEXIS 507 (April 19, 2017):

Here, the trial court found, and it is undisputed on appeal, that hospital staff took and tested defendant’s blood for medical purposes. That fact distinguishes the situation here from the one in Ferguson, where, as the majority repeatedly noted, the patients’ blood was taken and tested with the specific goal of obtaining evidence to incriminate the patients. Instead, the situation here is of the type that the Ferguson majority repeatedly explained that it was not addressing: This is a case “in which [medical personnel], in the course of ordinary medical procedures aimed at helping the patient [him]self, come across information that under rules of law or ethics is subject to reporting requirements.” Id. at 80-81; see also id. at 81 n 18 (such reporting requirements “are simply not in issue [in Ferguson]”). Thus, Ferguson’s holding—that the Fourth Amendment prohibits state-actor hospital staff, acting with the specific purpose of collecting evidence to incriminate patients, from taking patients’ urine, testing it for drugs, and disclosing the test results to the police, in the absence of informed consent—does not apply to the situation before us.

The Court in Ferguson did state that “[t]he reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent.” 532 U.S. at 78. However, although the Court may have recognized a general expectation of privacy in medical test results, it also noted that state statutes imposing “dut[ies] to provide law enforcement officials with evidence of criminal conduct acquired in the course of routine treatment” “might lead a patient to expect that members of the hospital staff might turn over evidence acquired in the course of treatment to which the patient had consented.” 532 U.S. at 78 n 13. That is, the existence of mandatory reporting statutes suggests that society does not accept as reasonable an expectation of privacy in information subject to mandatory reporting.

There may be a limit on how much the acknowledged expectation of privacy in the results of medical tests can be eroded by the enactment of mandatory reporting statutes. See generally Wendy K. Mariner, Reconsidering Constitutional Protection for Health Information Privacy, 18 U Pa J Const L 975, 976 (2016) (noting that state mandatory reporting laws require disclosure by physicians, hospitals, laboratories, and pharmacies of vast amounts of individually identifiable health information). However, as explained below, defendant’s categorical arguments in this case do not raise that question, and, accordingly, we need not, and do not, answer it here.

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