There are lots of things I would like to know about the president’s medical status, from the ridiculous to the sublime: Has he had hair plugs? Does he do Botox? (Who does it, and will they do mine?) As to his opponent: why wasn’t Trump wearing his shoes? Were his feet swollen? Was it from heat -- or congestive heart failure? Or pain from peripheral neuropathy? [1] Does becoming President mean you waive your rights to personal privacy and are forced to let it all hang out?
Biden’s rather “uncomfortable” debate some weeks ago has provoked concerns. Biden has refused to provide more than three years’ worth of routine/summary letters composed by his personal physician, as well as some recent meek apologetics. (Trump hasn’t provided much more). While Biden refused to take a cognitive exam, such as the Moca Cognition Test, and Trump claims to have aced it, this is hardly determinative of anything. The President may not meet voter standards of “up to snuff,” but that test is far too easy for someone who demonstrates at least transient prowess in governmental affairs to flub. (Take it yourself and see).
“A new study suggests mixing up people’s names is completely normal and by no means a sign of bad memory or aging. In fact, it may be something deeply ingrained in our brains.”
Biden may tangle names (a situation called cognitive glitch), but this can be normal, if embarrassing. Trump even mixed up some monikers, calling his physician Johnson rather than Jackson. So, what is the point of all this prancing and praying? Why is Speaker Mike Johnson claiming disclosure is a matter of national security and that this is the “biggest political cover-up that we have ever seen?” (Then again, Johnson made crass allegations about the President’s mental state even before the debate). And now, not only are Congressional Republicans demanding records, but they want Biden’s doctor to testify.
Is this legal – or pure gamesmanship?
The HIPAA Law Sounds In
Walk into any doctor or dentist’s office these days and thrust before you are an array of papers, including the now ubiquitous HIPAA forms.
Here’s AI on HIPAA:
“The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule applies to oral communications between health care providers and patients and other individuals involved in their care.”
HIPAA also applies to medical records, – with the HIPAA privacy rule mandating the adoption of Federal privacy protections.
Sounds good enough to stop the fishing expedition – but for the exceptions
The Privacy Act allows court orders to direct medical information release. This proceeding would also allow Biden (or Trump) to oppose the demand. Subpoenas, on the other hand, might be more dangerous because of statutory exceptions:
“The Privacy Act of 1974…, prohibits agencies from disclosing information about an individual without the individual’s written consent, unless the disclosure is pursuant to one of the 12 statutory exceptions.”
The 9th is the kicker. It allows release:
“To either House of Congress, or to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee.”
While subpoenas may be the most potent weapon to secure testimony and records, even they may fail. A protective order may be sought to avoid production, and the producer may only provide information particularly delineated. The statute is silent on what happens if the producer doesn’t want to disclose the information, although Congressional contempt citations stand as a ready threat. The letter request recently sent by the House Oversight Chair seeking closed-door testimony of Biden’s doctor, however, likely won’t pass legal muster. Nor will it assuage public concerns since the interview will be behind closed doors, given, by and large, to medically illiterate politicians. Hence, one wonders the point of this grandstanding other than to denude the President of expected confidential relations with his doctor.
Beware What You Wish For
“The Privacy Act of 1974…, governs … dissemination of information about individuals … maintained in systems of records by federal agencies.” [emphasis added].
This suggests the Act only applies to Federal Records. The White House physician is the president's personal physician and outside the aegis of the governing federal agency, the White House Medical Unit. Presumably, so are his records, and hence, outside the scope of the exceptions.
But what happens if the records come from a federal hospital like Walter Reed? Does this mean the Democrats can commandeer former President Trump’s records from COVID and see if he suffered brain fog?
More Unanswered Questions
Regarding oral communications, perhaps DC law on doctor-patient confidentiality could be invoked, although that law protects disclosures in court. Clearly, there is a conflict between state provisions of confidentiality and the Federal Privacy Act. Another Federal Rule provides that in privilege cases, state law governs – unless a federal statute, like HIPAA and the Privacy Act, is involved. So, that rule is of no help here, and we are still mired in legal confusion.
Ethics Still Count
One way out for the President’s doctor is to rely on the prevailing standard of care, including doctor-patient privilege and requisites of confidentiality enunciated by medical associations’ codes of ethics. One might even argue that the physician would be liable for malpractice for disclosing confidential information that causes harm, as it might here. [2]
“Patients need to be able to trust that physicians will protect information shared in confidence. They should feel free to fully disclose sensitive personal information to enable their physician to most effectively provide needed services. Physicians, in turn, have an ethical obligation to preserve the confidentiality of information gathered in association with the care of the patient.”
When the Other Party parries the Pick
Politics aside, think back to when Republican Mitch McConnell, then also 81, exhibited “brain- compromise” – around a year ago. Then, the curious class was on the other side of the fence.
“McConnell …. appeared to freeze in place and was unable to communicate. It was the second time this summer that happened. The attending physician of Congress, Dr. Brian Monahan, issued a public letter declaring there was no evidence McConnell had a seizure or stroke. But how honestly could Dr. Monahan talk about McConnell given patient confidentiality?”
Now, this wasn’t a good look, nor does it engender confidence about the security of the nation when a Senate Leader is compromised, but here is what an ethicist had to say about pursuing McConnell’s medical information:
"[I]nformation about our political leaders' health is generally of minimal use to the public…. it's very hard to figure out what to do with that information even if you're a physician or an expert in presidential health….The American people knowing really isn't going to affect their choices or help them in any way.”
- Jacob Appel, Bioethicist and Medical Historian, Mt.Sinai Hospital
Confidentiality Isn’t a Cudgel – It’s to Enable Better Care:
Likely, if the Republicans pursue this, the matter will end up on a judge’s desk, engendering anxiety in the President and angst in his adversaries. We may even get an answer sometime after election day. But while those jockeying for revelation contend the public needs to know, confidentiality between doctor and patient is meant to encourage full disclosure. Breaching that expectation will negatively impact patient care. So, should the public’s insatiable appetite for controversy supersede an individual’s right to medical care? Isn’t it in the best interest of everyone for the public to forego assuaging their prurient interests?
Consider Dr. Appel’s response:
“We may not want to know the health of our presidents or our senators because anything we know, the Chinese government and the Russian Secret Service will know as soon as we know it, if not sooner. And that's information that, probably, we don't want them to have.”
What happens if suddenly the President can’t function?
Yes, we have had situations where the backroom has conscripted power, be it Presidential or local. But we also have a Vice President (remember Pence) who stands ready to take control if needed. And then there is the 25th Amendment.
Of course, to level the playing field, we can require both major candidates to submit to a standardized test by the federally run White House Medical Unit – the same tests for both by the same MD.
Then, the “patient” will be on notice - not to reveal anything.
[1] Maybe the shoes came off when the Secret Service “pushed Trump down”? If so, Trump’s comment would be “Where are my shoes?” not “Let me get my shoes,” which would be expected from someone who knew precisely where he put them.
[2] Occasionally, a physician may bypass confidentiality, such as when told of an imminent crime the patient intends to commit. In these isolated cases, the MD may be able to disclose confidential information to law enforcement.
