President Trump’s original physician, Harold Bornstein, is back in the news claiming that his office was “raided” and the president’s medical records removed. In addition to reporting to the New York Times about the President’s medications, he indicated that his letters regarding the President’s health were dictated by Mr. Trump. As a physician I am appalled.
The dictated letter and disclosure of medications
I have written many statements regarding my patients, to a variety of agencies and I have never allowed the patient to dictate their content. It is my signature at the bottom, not theirs. I can certainly understand how in this particular setting I would share that letter with the patient before its release; I might even modify the language and tone, but not the content. Again, my signature is my attestation that I am speaking the truth as I know it. For Dr. Bornstein to now announce that the content was given to him puts his integrity in question. And I want to be clear; I do not see this as a legal issue, I am concerned about his obligation to the profession, to the ethical standards we should uphold.
“I couldn't believe anybody was making a big deal about a drug that's to grow his hair which seemed to be so important. It's certainly not a breach of medical trust to tell somebody they take Propecia to grow their hair. What's the matter with that?” Bornstein said in the interview."
Unless the President explicitly allowed Dr. Bornstein to share this information with the NY Times, he violated the federal HIPAA regulations regarding patient privacy. End of the discussion. The physician does not determine what is or is not a “big deal.” That is rightfully and legally the patient’s decision with a few exemptions as we are about to see. Will that Propecia disclosure result in the $100 to $50,000 fines established for HIPAA violations?
I cannot imagine, my shock, awe, and fear, if I was confronted by the Director of Oval Office Operations and other attorneys in my office demanding records. I will not second-guess Dr. Bornstein, although I would like to think that at least I would have contacted my attorney before releasing records; because up till now my understanding is that I can release a copy of my records to a patient or their designated representative. I would have retained the originals as I believe is required by NY law. Whether Donald Trump issued a signed release or his representatives provided official correspondence alluding to a release remains conjecture. But that will make no difference because the release of Mr. Trump’s records appears to be one of twelve HIPAA exemptions for “national priority purposes.” Here is the excerpt:
“An authorization is not required to use or disclose protected health information for certain essential government functions. Such functions include: assuring proper execution of a military mission, conducting intelligence and national security activities that are authorized by law, providing protective services to the President, making medical suitability determinations for U.S. State Department employees, protecting the health and safety of inmates or employees in a correctional institution, and determining eligibility for or conducting enrollment in certain government benefit programs.” [Emphasis added]
I was not aware of that exception; I suspect neither was Dr. Bornstein.
It has been a tough few weeks for the medical profession and its relationship to the President. One physician has seen his career trashed and another shines a light on how some practitioners may violate ethical privacy rules to curry favor with their patients or the media.