Medical Examiner

The Right to Remain HIPAA-Protected

The NY/NJ bombing suspect appeared in court via video conference, which seems to have violated HIPAA.

A NJ Union county Sheriff stands guard as he listens to the hearing of Ahmad Khan Rahimi in a court room in Elizabeth, New Jersey, U.S., October 13, 2016.
A New Jersey Union County sheriff stands guard as he listens to the hearing of Ahmad Rahimi in a courtroom in Elizabeth, New Jersey, on Thursday.

Eduardo Munoz/Reuters

Ahmad Rahimi, the man suspected of carrying out the bombings in New York and New Jersey last month, appeared in New Jersey Superior Court to plead not guilty to several charges against him. Since he’s still in the hospital recovering from injuries, his appearance was via video conference. Unfortunately, in appearing in court in this manner, Rahimi’s right to medical privacy was compromised, and federal law was violated.

Images and video of Rahimi’s appearance have since circulated widely in the media, as is typical in such cases. Because Rahimi, who is referred to as Rahami in some court documents, appeared from his hospital bed, astute observers easily gleaned several details of Rahimi’s health that otherwise would not have been apparent. The revelation of these details should not affect Rahimi’s legal case, but they do appear to violate federal law, via HIPAA, the Health Insurance Portability and Accountability Act, which protects patients’ personal health information.

HIPAA gets a bad rap sometimes. It can make it harder for people to obtain their own medical records (though in theory, it shouldn’t.) But HIPAA is essential because we as a society have decided that personal health information ought to be private. For example, if you previously suffered from cancer, or any ailment you’d like to keep to yourself, HIPAA is the legal reason why a potential employer can’t dig up your medical history. In any number of more complicated scenarios, HIPAA protects individual privacy.

Usually personal health information is restricted only to those who “need to know.” This usually includes the doctors directly involved in the patient’s care and other health care providers. In the case of an inmate appearing in court in person, however, the circle of knowledge might be expected to expand. For example, it might be important for certain employees of a courthouse to be aware if a patient appearing in person suffers from an infectious illness that is transmitted by air or airborne droplets. This would allow those potentially coming into contact with a suspect to don the appropriate protective clothing and masks in an effort to avoid infection. Generally, sharing personal health information hinges on one factor: safety.

But the public has little right to know about the health of a jailed or imprisoned person. Most exceptions to this relate to law enforcement and the ability to find and identify suspects of a crime (i.e. if someone has a broken leg, and it might help identify the person). When public safety is an issue, the government may legally share health information with the public. Sharing information during declared national emergencies can also be important for families who are desperate to know whether their loved ones are safe.

None of these exceptions were in play when Rahimi appeared in court on video, which allowed many sensitive pieces of health data to become much more apparent. The Atlantic reported that Rahimi appeared with a “bandage clearly visible around his neck” and that he “spoke in a barely audible voice.” To me, and anyone with a medical degree, this suggests that Rahimi was likely on a breathing machine for such a prolonged period that he required a tracheostomy tube—a breathing tube placed into the front of the neck, as an alternative to one through the mouth (known as orotracheal intubation). Additionally, several other people surrounding Rahimi were seen gowned and gloved in accordance with “contact precautions.” This suggests Rahimi suffered at least one post-operative infection that was or is resistant to many normal antibiotics and is therefore being held in “contact isolation.”

Is this information we should have? Those with bloodlust against a suspected terrorist might just get a little thrill from this, as it implies that he might have suffered a complicated post-surgical course. This is precisely why HIPAA exists. We have no right to know, let alone react to, details of Rahimi’s condition.

Of course, there is some inherent hypocrisy in my bringing attention to Rahimi’s apparent ailments, but the cat’s already out of the bag for any health professional who saw these images. I am sharing these details because I believe this is an important “test case” to consider what is a recent problem, but one likely to recur. It also seems likely to me that those involved in setting up the video conference simply didn’t realize that the result would violate HIPAA.

The hospital could have easily protected Rahimi’s privacy. He could have appeared in a smaller video frame, or even by audio only. His associates could have dispensed with the (largely useless) yellow gowns and worn only the blue gloves. They could have opted to appear in clothing that they would not wear outside the isolation area (this would require these individuals to change clothes in an adjoining anteroom, which many hospital rooms have for similar purposes.) Rahimi’s neck bandage could have been smaller and less conspicuous during his brief appearance.

The right to a speedy trial is a constitutional guarantee. Video-conference technology is a welcome addition as it may allow some accused persons to appear in court when they previously could not have, accelerating this process. However, as this practice expands, it behooves us as a society to remember that our ethic parameters must still be followed. We do not adhere to medical privacy laws only when convenient. We do so always.

Disclaimer: The opinions expressed in this article are solely those of the author and do not reflect the views and opinions of Brigham and Women’s Hospital.