Region: Americas
Year: 2005
Court: 10th Circuit Court of Appeal
Health Topics: Health information
Human Rights: Right to privacy
Tags: Confidentiality, Disclosure, Health data, Health information, Medical records, Non-disclosure, Secrecy
The Appellant, Douglas, brought suit claiming that the Respondent, Dobbs, an Assistant District Attorney, violated her constitutional right to privacy by approving a police search of her pharmacy records. The search was initiated after a police sergeant learned from Douglas’ physician that he suspected Douglas was abusing prescription pain medication by forging prescriptions, running through her prescriptions too quickly, and using a different name to procure those prescriptions from another physician.
The police sergeant prepared a “Motion and Order to Produce Prescription Information” form for the purpose of acquiring Douglas’ prescription records from a local pharmacy. The records were obtained after the form was approved by Dobbs and submitted to a magistrate who granted the order approving the search.
The District Court granted summary judgment in favor of the Respondent, finding that Douglas’s right to privacy had not been violated, and that defendants were entitled to qualified immunity. This appeal followed.
The court held that Dobbs, in his capacity as a government official, was immune from Douglas’ constitutional claim, i.e., that Dobbs’ conduct violated her constitutional right to privacy.
The court held that the defense of qualified immunity applied to Dobbs’ conduct due to Douglas’ failure to meet the burden of showing otherwise. It applied a two-part inquiry, first determining whether the official's conduct violated a constitutional right and secondly, if so, “whether it would [have been] clear to a reasonable officer that the conduct was unlawful in the situation.”
- Did Douglas have a constitutional right to privacy in her pharmacy prescription records?
Yes. The court held that there was a constitutional right to privacy that protected an individual from disclosure of information concerning his health. It held that “protection of a right to privacy in a person's prescription drug records, which contain intimate facts of a personal nature, [was] sufficiently similar to other areas already protected within the ambit of privacy.” It added that “privacy in prescription records [fell] within a protected ‘zone of privacy’ and [was] thus protected as a personal right either fundamental to or implicit in the concept of ordered liberty." The court noted that prescription records not only may reveal facts about what illnesses a person has, “but may reveal information relating to procreation—whether a woman is taking fertility medication for example—as well as information relation to contraception.”
The court cited Whalen v. Roe, 429 U.S. 589 (1977) for the principal that the constitution protected an individual’s “interest in avoiding disclosure of personal matters,” as well as his “interest in independence in making certain kinds of important decisions.” It cited Roe v. Wade, 410 U.S. 113 (1973) for the principle that the right to privacy extended to “activities relating to marriage, procreation, contraception, family relationships, and child rearing and education."
- Was Douglas’ right to privacy violated by Dobbs’ conduct?
No. The court held that Douglas had only identified her right “in the abstract,” and had otherwise failed to show that Dobbs’ violated an established constitutional right by “the mere act of authorizing the submission of a Motion and proposed Order to the magistrate judge.”
Douglas claimed the Motion and Order “lacked sufficient indicia of probable cause, and that by approving its submission to a magistrate judge, Dobbs approved a warrantless search of her prescription records,” thus violating her constitutional right to be free from warrantless search and seizure under the Fourth Amendment. The court noted that Douglas did not cite to any statutory or case law to support her claim that the Fourth Amendment was implicated “when district attorneys advis[ed] law enforcement officers about proposed motions or orders submitted to judges to obtain authorization to conduct searches.” The court stated that whether a warrant was “required to conduct an investigatory search of prescription records” was an unsettled issue and one it need not decide in this case. It held that Douglas could not rest her claim merely upon identification of an “abstract right to privacy,” namely that the Fourth Amendment protected “people not places, and that searches of private areas must be made pursuant to warrants supported by probable cause.”
“Although we have not extended the ‘zone of privacy’ to include a person's prescription records, we have no difficulty concluding that protection of a right to privacy in a person's prescription drug records, which contain intimate facts of a personal nature, is sufficiently similar to other areas already protected within the ambit of privacy . . . Information contained in prescription records not only may reveal other facts about what illnesses a person has, but may reveal information relating to procreation—whether a woman is taking fertility medication for example—as well as information relating to contraception.” 419 F.3d, p. 1102.
“Whether a warrant is required to conduct an investigatory search of prescription records, in contrast to the regulatory disclosures at issue in Whalen, is an issue that has not been settled, and is an issue we need not decide in the present case. Because Douglas cannot rely merely upon identifying an abstract right to privacy protected by the Fourth Amendment and then allege that Dobbs has violated it, she has failed to carry her burden under the threshold inquiry for qualified immunity.” 419 F.3d, p. 1103.