Judge attacks surprise searches of patient records without a proper warrant and the administrators who order them.
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A Victory for Medical Record Privacy

Earlier this week a federal district judge in Austin issued a fabulous ruling against the Texas Medical Board (TMB), in favor of a physician. AAPS filed an amicus brief to educate the Fifth Circuit about the issues involved in this doctor's fight to protect his patients' medical record privacy.

First, some background.  A few years ago the longtime Texas Medical Board Executive Director signed an administrative subpoena for a surprise search of Dr. Joseph Zadeh’s office.

Two TMB investigators, who brought along two agents from the DEA, then showed up unannounced at Dr. Zadeh’s office, presented the administrative subpoena, and demanded an immediate right to search patient medical records at the physician’s office.

Dr. Zadeh, by chance, was not in the office during the surprise visit, and his medical assistant told the officials that she would like to check with Dr. Zadeh’s attorney first before allowing them free rein to inspect. The TMB investigators said no, and insisted that Dr. Zadeh would lose his medical license if there were any delay in allowing the surprise search. So search they did, throughout Dr. Zadeh’s entire office.

Dr. Zadeh subsequently reacted by suing the TMB Executive Director and the two TMB investigators for violating his Fourth Amendment rights by searching his office without a real search warrant (one that is properly signed by a judge or magistrate).

Enter federal judge Robert Pitman who divides his time between courts in Austin and San Antonio. Judge Pitman issued a fantastic ruling against the TMB officials on Tuesday. Click here to read the full opinion.

Both the beginning and end of the judge's scholarly opinion appear to break in favor of the TMB. For example, Judge Pitman ruled that the TMB itself could not be held liable for monetary damages, due to sovereign immunity, and the TMB could not be enjoined in this case, because “Younger abstention” doctrine prevents federal courts from interfering with ongoing state administrative actions. Judge Pitman also ruled that a patient, identified only as “Jane Doe,” lacked standing to sue along with Dr. Zadeh.

But then the hammer came down, and it hit the TMB officials hard. Judge Pitman held that the medical profession is not a “closely regulated industry” that can be subjected to surprise, immediate searches based merely on an administrative subpoena, and he held that the TMB officials exceeded their statutory authority with their search of Dr. Zadeh’s office.

The whammy was this: the federal judge ruled that the TMB Executive Director and the two investigators are personally liable for damages caused by their allegedly wrongful search, if proven at trial. The judge denied the defendants’ demand for qualified immunity for their actions. He held that "with regard to Plaintiffs’ Fourth Amendment allegations, the Court concludes that Defendants’ qualified immunity defense should be denied."

This is not a pretty ending for medical board officials who have run roughshod over the rights of physicians and patients. The TMB officials are on the hook personally now for monetary damages caused by their alleged wrongdoing.

AAPS will continue to participate in this and other pivotal cases impacting physician and patient rights. Courts rely on AAPS' principled perspective on and vast knowledge of American medicine and the patient-physician relationship.  Please help us continue our work with a tax-deductible contribution to our legal fund, the American Health Legal Foundation (AHLF).    
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