Can Covid-19 Era Executive Orders Sharing Medical Information Violate Your Rights?

A Recent Minnesota Order Regarding the Sharing of Covid-19 Patient Information May Have Significant Legal Considerations.

The Covid-19, AKA “Corona Virus”, and Current Considerations by Government

The pandemic covid-19 crisis has led to unprecedented considerations and speculations on what the future of our medical data and privacy will look like both in Minnesota and throughout the United States.  Federal officials have even considered the possibility of issuing certified “immunity cards” to people who have had the corona virus despite the fact we have no idea whether inherent immunity invests after infection and for how long.   Obviously government has taken unprecedented actions in the face of this new and fast moving public safety concern.  The contrast between our deepest held liberties and the government restrictions on our very movements and livelihoods present significant legal questions with facts that appear virtually nowhere in published court opinions.  In short, we are in unchartered territory, and while we must continue to operate on science and facts, protect our neighbors, and avoid mindless conspiracy theories, liberty is a thing that must be closely guarded, and history teaches us that liberty is most vulnerable in the face of fear and crisis.  That means, for those of us in the legal profession, especially criminal defense attorneys, we need to remain vigilant, thoughtful, and deliberative when studying these developments as they have at least the potential to violate certain rights.  The criminal defense lawyer should have an updated and watchful eye on civil liberties in the context of the Covid-19 Pandemic and the operation of law enforcement and courts.

It was recently revealed that, according to an executive order of Governor Tim Walz, the Minnesota Department of Health has the street addresses and other information of every person known to be infected with Covid-19, and that information can be freely shared with law enforcement.  While there may be utility to such an order, Minnesota medical privacy laws carry significant privileges for patients of all sorts which far exceed even HIPPA standards.  Recently, Alex DeMarco achieved a victory in a DWI case where a blood sample was suppressed after a serious accident in which his client was alleged to be driving under the influence.  The following is some pertinent law on the subject of how your medical information can be shared.

Minnesota Statute § 595.02, subd. 1

 (d) A licensed physician or surgeon, dentist, or chiropractor shall not, without the consent of the patient, be allowed to disclose any information or any opinion based thereon which the professional acquired in attending the patient in a professional capacity, and which was necessary to enable the professional to act in that capacity; after the decease of the patient, in an action to recover insurance benefits, where the insurance has been in existence two years or more, the beneficiaries shall be deemed to be the personal representatives of the deceased person for the purpose of waiving this privilege, and no oral or written waiver of the privilege shall have any binding force or effect except when made upon the trial or examination where the evidence is offered or received.

(g) A registered nurse, psychologist, consulting psychologist, or licensed social worker engaged in a psychological or social assessment or treatment of an individual at the individual’s request shall not, without the consent of the professional’s client, be allowed to disclose any information or opinion based thereon which the professional has acquired in attending the client in a professional capacity, and which was necessary to enable the professional to act in that capacity

Case Law and Its Application to Current Circumstances

“The purpose of the privilege is to encourage patients’ full disclosure of information, which will enable medical providers to extend the best medical care possible. See State v. Staat, 291 Minn. 394, 397, 192 N.W.2d 192, 195 (1971) (stating that ‘theory underlying [the physician-patient] privilege is that a patient’s fear of an unwarranted, embarrassing, and detrimental disclosure in court of information given to his doctor would deter the patient from freely disclosing his symptoms to the detriment of his health.’)”
State v. Gillespie, 710 N.W.2d 289, 297. (Minn.Ct.App. 2006)

In the DWI context, this operationally means a blood test must be obtained pursuant to implied consent laws.  As we know from McNeely and other cases, a blood test for DWI purposes requires officers obtain a warrant before a test is obtained pursuant to the implied consent law.  However, law enforcement may not, after medical treatment, get a warrant for or subpoena patient medical records, even on the issue of blood toxicology:

““Minn.Stat. § 592.02, subd. 1(d) contains no exception for alcohol-concentration test results…Minnesota law establishes that the only testing impliedly consented to by a driver is one administered at the direction of a peace officer.”
State v. Poetschke, 750 N.W.2d 301, 306 (Minn. App., 2008).

By that reasoning then, if a search warrant signed by judge for a patient’s medical records in order to discover that patient’s alcohol concentration following a suspected drunk driving accident does NOT allow for a hospital to disclose that to the police department, and such disclosure not only makes the evidence inadmissible, but may be actionable in a court of law against a medical provider.  Applying such reasoning to the governor’s order, medical information espousedly obtained by the Department of Health from doctors and hospitals, not as a matter of general data, but actual personal information and individual diagnosis, is arguably even more valuable to the patient than their alcohol concentration.  The apparently unfettered distribution of this information to law enforcement raises further concerns given that law enforcement is that arm of government which can most immediately reach and restrict citizens, should raise concerns at this juncture. There is no precedent for patients diagnosed with other viruses having their diagnostic and geographic information being collected by the Department of Health and law enforcement.  The concern is particular poignant in light of the fact that agencies nationwide and around the world may be poised to make certain decisions based upon “immunity” going forward.