D.Md.: No REP under Fourth Amendment in medical records

There is no Fourth Amendment reasonable expectation of privacy in medical records held by a doctor. The third-party doctrine and consent also must apply. United States v. Mitchell, 2012 U.S. Dist. LEXIS 126651 (D. Md. September 5, 2012):

1. The inquiry into whether an individual has a Fourth Amendment reasonable expectation of privacy in her medical records is distinct and separate from whether an individual has a Fourteenth Amendment privacy right against compelled disclosure of medical information to the government.

Before embarking on an analysis of the reasonableness of Bellosi-Mitchell’s expectation of privacy in certain medical records, it is important to focus on the constitutional basis for the right asserted. The inquiry into whether an individual has a reasonable expectation of privacy in her medical records under the Fourth Amendment is distinct and separate from whether an individual has a Fourteenth Amendment privacy right against compelled disclosure of medical information. See Katz v. United States, 389 U.S. 347, 350-51 (1967) (Fourth Amendment privacy right “cannot be translated into a general constitutional right to privacy” under the Fourteenth Amendment). The Supreme Court emphasized this point in the seminal case of Whalen v. Roe, 429 U.S. 589 (1977). There, the Court addressed the question of whether a New York statute, which required prescriptions for drugs that had been classified “Schedule II” to be forwarded to the New York State Department of Health, invaded a constitutionally protected zone of privacy. Id. at 598. In holding that the New York statute was constitutional, the Court reasoned that, although the Fourth Amendment forbids government searches in areas where an individual has a reasonable expectation [*9] of privacy, the Fourth Amendment privacy interest was not at issue; rather, the only privacy right at issue was the Fourteenth Amendment’s individual privacy right against compelled disclosure to the state. Id. at 604. n.32 Unlike the Fourth Amendment analysis where one either has or does not have a reasonable expectation of privacy in the places searched during a criminal investigation, the Fourteenth Amendment analysis involves a balancing test in which courts weigh the individual’s privacy interest against the rationale underlying the compelled disclosure of information to the government. Id. In Whalen, the court found that individuals had a Fourteenth Amendment privacy interest in health information but weighed this interest against the state’s interest in monitoring and enforcing the laws against misuse of Schedule II drugs. Id. at 603. Because the statute mandated the capture of certain medical information but not necessarily the disclosure by the state of that information, the Court concluded that the statute did not “pose a sufficiently grievous threat to either interest to establish a constitutional violation.” Id. at 603-04.

Indeed, lower courts have generally declined to extend Whalen to hold that patients have a Fourth Amendment expectation of privacy in their medical records. See Douglas v. Dobbs, 419 F.3d 1097, 1102 (10th Cir. 2005) (finding that an Assistant District Attorney did not violate a pharmacy customer’s Fourth Amendment right to be free from unreasonable search of her prescription records despite the fact that Whalen creates a Fourteenth Amendment right to be free from governmental disclosure of medical information); State v. Skinner, 10 So.3d 1212, 1218 (La. 2009) (“We are not prepared to extend Whalen, which balanced the individual’s privacy interest against the state’s reasonable exercise of its regulatory power, to … [Fourth Amendment] searches and seizures of its citizens’ medical and pharmacy records for criminal investigative purposes”). But see United States v. Lievertz, 247 F.Supp. 2d 1052, 1063 (S.D. Ind. 2002) (applying Whalen to conclude that a patients’ Fourth Amendment privacy rights were not violated by warrant-authorized search of medical records because the government’s compelling interest in deterring criminal misconduct outweighed any of patients’ privacy rights.). Because this Court believes that the better-reasoned cases segregate an individual’s Fourteenth Amendment right to privacy—i.e. state actors who compel the disclosure of a patient’s medical information— from an individual’s Fourth Amendment reasonable expectation of privacy, this Court will employ a similar approach.