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Police, hospital clash over question of privacy

01:00 AM EDT on Wednesday, August 5, 2009

By Tom Mooney and AMANDA MILKOVITS

Journal Staff Writers

PROVIDENCE — Local police are livid at Rhode Island Hospital because they say officials there hindered a homicide investigation over the weekend by refusing to provide details of a man’s injuries, citing privacy laws.

The man, Anthony Perry, 54, eventually died Monday from a sidewalk assault early Saturday morning.

Not only didn’t the hospital divulge information about Perry’s injuries, but detectives only learned that he died when they were contacted by the medical examiner’s office Monday afternoon, said Maj. Thomas F. Oates III.

“They stymied our investigation,” said Oates. “We tried to stress to [the hospital] that we’re trying to find out the extent of his injuries. We found out on our own it was an assault.”

In a statement released Tuesday, the hospital said it was merely following the state’s medical privacy law, which is stricter than the federal law known as HIPAA, the Health Insurance Portability and Accountability Act, which after years of discussion went into effect in 2003.

“It is important to understand that the Rhode Island Health Care Confidentiality Law is more restrictive than federal HIPAA privacy laws on what information we can or cannot release to law enforcement, and that is what we must follow,” the hospital said. “These laws are in place to protect the privacy of patients in Rhode Island.”

The hospital contends that under that Rhode Island law, medical institutions may only share with law enforcement information about cases involving gunshots and abuse of children and the elderly.

“Beyond these types of injuries, unless we have patient or family consent, we can only release a one-word condition. In the case of a death, we report it to the medical examiner.”

Police Capt. James Desmarais cited a different law which he said gave the hospital permission to release information about Perry’s injuries — the Rhode Island Patient Safety Act of 2008 that sets confidentiality protections on records and other information health-care providers keep. The act, however, includes some exceptions.

One exception, said Desmarais, allows the disclosure of patient records to law enforcement authorities investigating a crime or a possible crime if the person releasing the information believes that those records are “necessary for criminal law enforcement purposes.”

The police and firefighters arrived outside an apartment building at 319 Elmwood Ave. about 2 a.m. Saturday for a report of a man bleeding. They rushed him to Rhode Island Hospital.

The police say that over the course of the next several hours they inquired about Perry’s injuries but were told only that he was in critical condition. Police investigators say the hospital told them if they wanted more information, they would have to contact his family.

By 10:30 a.m. Saturday, investigators had reviewed a video recorded by a surveillance camera mounted on a nearby building. It showed Perry had been assaulted. Oates declined to give specifics about the assault citing the ongoing investigation.

Patricia Roche, associate professor of health law at Boston University’s School of Public Health, said that in the wake of HIPAA’s passage — designed ostensibly to protect the dissemination of electronic medical records — states have passed their own medical privacy laws.

HIPAA “established the floor, not the ceiling, to protecting the privacy of information,” said Roche. “It doesn’t preempt a state from passing a law that is more protective and would therefore be more relevant.”

Similarly, the opposite is true. In Massachusetts, for instance, the state privacy law allows hospital officials to share with the police information about a patient’s injuries if they believe they are from an assault of any kind, said Thomas Nolan, associate professor of criminal justice at Boston University. Nolan was a Boston police officer for 27 years.

“We have laws in Massachusetts that mandate that medical personnel … must notify when someone appears with any wound believed to be from an assault,” said Nolan. “As a hard and fast rule, for a hospital to strictly adhere to [confidentiality] when there is an assault and a life-threatening situation, generally speaking, I’ve never known of a hospital to shut down and say ‘We’re not going to tell you anything.’ ”

amilkovi@projo.com

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