Lawsuit: Brandon PD violated HIPAA

http://www.clarionledger.com/story/news/2015/12/28/brandon-pd-lawsuit/77979540/

A federal lawsuit filed this month alleges a Brandon Police Department investigator accessed a man’s prescription history without probable cause, a subpoena or a court order, in violation of the Health Insurance Portability and Accountability Act.

The investigator accessed the information through the state Board of Pharmacy’s Mississippi Prescription Monitoring Program, which allows law enforcement officials and licensing boards access to certain prescriptions without a court order, according to the lawsuit.

In January, Brandon Maddox, 45, went to the emergency room for shoulder problems and received a prescription for pain medication. A doctor there told Maddox to visit his own physician the next day if he needed additional medication or treatment, said attorney Donald Boykin, who is representing Maddox in the lawsuit.

The next day, he received a prescription for oxycodone from Dr. Kurt Johnson that would lead to his arrest about six months later.

In July, Brandon Police Investigator Chris Bunch saw Maddox’s back-to-back prescriptions on the Mississippi Prescription Monitoring Program. The lawsuit claims Bunch accessed the information without probable cause to do so or a court order.

Brandon Police Chief William Thompson and Brandon Mayor Butch Lee didn’t return requests for comment.

Bunch questioned Johnson, who told the investigator he was unaware Maddox had received a painkiller prescription the day before he treated him. Johnson also gave Bunch some of Maddox’s medical records, again without a court order or other document that would grant the police department access, according to the lawsuit.

Maddox was later arrested on a prescription fraud charge, court records show. After the arrest, Johnson and his nurse practitioner wrote that they had actually known he’d received a prescription the day before, Boykin said, and that the information they gave to the Brandon Police Department was incorrect. Johnson did not return a request for comment.

Thompson and Bunch received the statements but said they’d already submitted the case to District Attorney Michael Guest for presentation to a grand jury.

“They told me … it was out of their hands, and I seriously questioned that,” Boykin said. “I think all they had to do was call the district attorney’s office and say a mistake was made.”

Guest chose not to prosecute Maddox, and the charges were remanded for lack of evidence, court records show.

To access the Prescription Monitoring System, which requires physicians and pharmacists to report controlled substance prescriptions, law enforcement officials don’t need a subpoena or a court order. They just need to be authorized database users, according to court records. The lawsuit argues this policy violates HIPAA and individuals’ right to privacy.

“It gets back to the business of how far can big brother go to look into your personal information,” Boykin said. “And I’m sure there are many people who would say law enforcement agencies should have access to it to help prevent crime. Well, that’s unquestionable, but the means by which they get it is very questionable.

“If somebody were posed the question, ‘Do you want your local police officer to be able to, in effect, look in your medical records?’ — nobody would want that.”

Contact Mollie Bryant at (601) 961-7251 or mbryant2@gannett.com. Follow @MollieEBryant on Twitter.

Filed under: General Problems