Appellate Law

CA1: another "disclosure of medical records" in the context of a criminal case story

By S. COTUS

US v. Shinderman, 07-1569.  Continuing the Selya show, he affirms a conviction of a psychiatrist.  He quotes the bible, too.  He uses the word ?gallimaufry.?  But, as is fairly common with shrinks that can prescribe drugs, he went a little wild.  This one used another doctor?s name and DEA registration number, despite working at a methadone clinic.  He also falsified records.

But here we have a bit of a problem: much of the documentary evidence is shielded by various statutes.  So, the government went to court under 42 U.S.C. § 290dd-2(b)(2)(C)and ?a federal magistrate judge granted an ex parte motion seeking leave to disclose to federal law enforcement personnel the Medicaid records garnered from [the substance abuse treatment parlor] pursuant to HHS's original administrative subpoena.?  (There are a couple of typos in the paragraph beginning ?in each instance.?) The magistrate allowed the orders to stay secret until the civil and criminal proceedings began.

Keep reading.

During pretrial proceedings, the District Court thought that the magistrate should not have allowed the government to refrain from noticing the defendant, because he should have had the opportunity to go to court to stop the disclosures as per the statute.  But, it saved the government by saying that suppression was ?too drastic? a remedy, rejecting the argument that 42 C.F.R. § 2.13 requires suppression.  Selya agrees and says that 42 C.F.R. § 2.66(b) doesn?t say that a delay of notice is ?per se? unlawful, and there is no duty to notify the parties of a disclosure at a particular time.  He concludes that the magistrate?s delay was, indeed, reasonable.  Then, Selya gets a little silly and says that the regulation should be ?construed as it is written.?  Whatever that means.  Despite this silliness, he does point out that redaction can preserve patient confidentiality.

Selya then gives a bunch of examples of where non-instantaneous notification of judicial ?decrees? still provide ?meaningful? opportunity to challenge them. 

And, to drive the nail into the coffin, Selya clai ms that the defendant should have proceeded under the regulation to reverse the disclosure.  Somehow, Selya believe that if he did this, then the government wouldn?t have access to the materials and the defendant would have a remedy.  But, maybe this is a strange kind of practice tip or something.

He made an entrapment argument, based on the fact that the DEA told him that he would need to get a Maine medical license to get a DEA number.  But, really, this seems to be a ?but for? tort argument.

Finally, the defendant argues that the government shouldn?t have been allowed to cross-examine him on whether he misstated whether he was arrested even though the arrested had been expunged. He developed this argument at trial (complete with an affidavit from an lawyer in the arrest state), but the District Court let it in, though it didn?t let the government introduce the expunged arrest records.  (In case you don?t know, poor people that get expungements, in most cases, stay in the system.)  Selya says it is okay under prejudice and notes that under United States v. Tse, 135 F.3d 200 (1st Cir. 1998), writings that are used to refresh memory don?t need to be independently inadmissible.

Finally, the defendant got an obstruction enhancement because he testified at trial and the jury and judge didn?t find him credible.  But, Selya says that the findings were supported by the record.

Full post as published by Appellate Law and Practice on January 29, 2008 (boomark / email).