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Been To Court? Why Not Sue For Breach Of Confidentiality?


  

7 members have voted

  1. 1. will a patient be successful suing for breach of confidentiality?

    • i always vote for the 1st option (blank vote)
      3
    • yes, the patient will win settlement
      1
    • no, the judiciary has immunity
      3


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hey any of you guys that have gotten strung up in court.

 

why not sue the prosecutor and court for not sealing your case?

sue the cops for talking to reporters? sue the newspapers for printing your name and patient status?

 

read the law

333.26426 h (4)

http://legislature.mi.gov/doc.aspx?mcl-333-26426

print it out to a few lawyers, see what they say.

 

we either have confidentiality in our legal system or we dont. i'm pretty sure we have it :)

Edited by t-pain
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I had a lawsuit against the police one time,they ended up settling. It's very difficult to sue them. According to my lawyer they are protected, or immune,from any prosecution while carrying out their duties,even if they are blatantly breaking the law. I believe he said it was a law passed during the Reagan era of the war on drugs. Now with that said, there are some people who have successfully sued. But it is not an easy task.

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hey any of you guys that have gotten strung up in court.

 

why not sue the prosecutor and court for not sealing your case?

  :)

Have you researched the ramifications of this...and learned of the immunity LEOs, PAs,  and judges have against a suit?  Once you do this, you'll see that this is a futile effort.  Sad but true.

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Have you researched the ramifications of this...and learned of the immunity LEOs, PAs,  and judges have against a suit?  Once you do this, you'll see that this is a futile effort.  Sad but true.

 

actually highlander, all other laws and parts of laws inconsistent with the MMMA do not apply.

 

police, PA, judges have no immunity under the MMMA for breaching confidentiality.

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actually highlander, all other laws and parts of laws inconsistent with the MMMA do not apply.

 

police, PA, judges have no immunity under the MMMA for breaching confidentiality.

We can debate what the MMMA actually says about disclosure another time. But for now, please understand that it isn't usually a PA or judge who discloses the info in the first place. It is usually the patient or CG.

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The police have to get the information from somewhere, right?  So either the patient or CG discloses their registration status to the police, or as we know has happened, the patient or CG discloses information to a dispensary, and then the information is obtained through the police in a raid.  If I visit a dispensary and they copy my card, including the CG's info on the back, did I disclose my own status and the CG's?

 

I will share advice given to me by a criminal defense attorney on this matter, but please don't consider this legal advice.

 

His position was that the confidentiality language in the act is poorly written and creates ambiguity of the sort that will eventually be sorted out in the courts if the language isn't amended by the legislature first.

The Act states, "A person, including an employee, contractor, or official of the department or another state agency or local unit of government, who discloses confidential information in violation of this act is guilty of a misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than $1,000.00, or both. Notwithstanding this provision, department employees may notify law enforcement about falsified or fraudulent information submitted to the department."  You have to consider what does it mean to disclose information "in violation of the act."  You can't read the sentence as if "in violation of this act" isn't there - so the phrase means something...and what?

 

You then look up a couple of paragraphs and see, "The department shall maintain a confidential list of the persons to whom the department has issued registry identification cards. Except as provided in subdivisions (3) and (4), individual names and other identifying information on the list are confidential and are exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246."  So the Act says that the information cannot be released under the Freedom of Information Act. There isn't any other method of disclosure discussed, and under rules of statutory interpretation, if an item is not included in a list, it is specifically excluded...so the fact that the act outlines a specific route of disclosure would limit a breech of the act to that specific method of disclosure.

 

Is this how the courts will interpret this?  Maybe. Do I like it - no.  Do I agree with it?  I dunno.  I do agree that it is poorly-worded, and that alone is enough not to rely on the interpretation that we want.

Edited by Highlander
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so you've conceeded the police and judges are not immune then ?

 

a patient disclosing things does not make it not-confidential either.

 

Ok, yes I agree with that.  My first post on this was not well-thought out, as I was looking more to what does it mean for information to be confidential according to the Act.  If I offer my card to LEO and he puts the information in some database that is also confidential, did he breech confidentiality?  Hard question to answer, because "confidential" doesn't mean that it is a secret that only one person knows.  It just means that the information is protected to some degree that, unfortunately, isn't articulated in the Act.  If I give my card to a LEO during a traffic stop and LEO calls his sergeant to discuss the matter, is that a disclosure in violation of the act?  If so, if the LEO makes a police report and hands it to a PA with the records protected from public disclosure, is the LEO's providing the info to the PA a disclosure in violation of the Act?  If I show LEO my card to justify carrying 2 oz in my trunk, did I violate my caregiver's confidentiality because his name is on the back?  We can think of a lot of scenarios where this matter is very much unclear.

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Though your scenario seems plausible, I have never seen a breach of confidentiality based on a dispensary raid. I have seen it multiple times based on raids or arrests of patients or caregivers, which is obviously a violation of the Act. It seems like you are just talking, with no personal knowledge.

 

Disclosing the information to the police to avoid search or arrest does not clear the officer of the requirement to keep the information confidential.

 

I don't know what you mean by personal knowledge, but I did speak with one of the individuals whose records were seized in the Dryden dispensary raid in Lapeer County about 4 years ago.  He and a few others were rounded up and taken to court and expected to testify against the dispensary.   He was offered immunity, but still declined to testify because the court could not offer federal immunity.  When we last spoke, he was concerned because the court records were not sealed.

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That raid was four years ago.

 

I'm not sure what your point is.

 

Do you remember about two years ago - maybe three, when the City of Flushing Chief of Police was quoted in the local news as saying that when their officers encounter a patient or CG, they provide that information to a federal law enforcement database?  Is that a disclosure?  This is the sort of question needing clarification.

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Maybe a lot of this discussion about confidentiality isn't needed.  We all can agree that there are some situations where information must be disclosed (back to the scenario of the patient handing LEO his card and LEO seeing the caregiver's names on the back).

 

And it is clear that there are some to many violations of confidentiality without question committed by government employees.

 

So sorry to stray off the topic of "how do we address the problem."  I guess I just wanted to point out that not every time information is shared that there is a breech of the act, so people should consider this if/when they would hope to prosecute a suspected violator.  And, like any case law, we should hope that if someone does bring a suit, that it be one of those cases clearly outside of the grey.  Shaky cases = shaky case law.

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I asked an attorney back in '09 if the news stations could film MM patients and put them on the news if they had not signed a wave of disclosure/confidentiality. He said that there's nothing you could really do about it. That's when I decided to not go on camera. Once you are on file footage they use it forever.

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I agree with Restorium. Back in 2009, I actually called the local paper and warned them against printing my name and more importantly my addy in their publication. Far as I know that's all it took.  

 

...which would be one of the only ways to beat the " implied consent " implied by Mal.  

 

Implied consent - Consent that is inferred from signs, actions, or facts, or by inaction or silence.

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Bingo.

 

But there are a few kinds of consent.  And when it comes to certain things, it is allowed.

 

Let me say, our confidentiality in this state has been destroyed(IMHO) by Republican Bill Schuette, MSP, a republican Judiciary and the Prosecutors Association.

 

 The only way to solve this is vote in a friendly AG, vote out crappy Engler Judges, quit voting for Republican Prosecutors and then we will start to see more proper and even handed decisions and opinions released and used by the MSP(leo etc.).

 

 But yes, there are a few kinds of exempted consent issues that arise around this topic.

 

 And I must say, CPU fought insanely hard to save the few confidentiality items we still have during the Walsh bills amendment phases.  One of the horrible items was allowing all contractors and LEO to exchange the information "in the course of their duties".  Ugh... Killed that. :-)

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Judges have absolute immunity.  Prosecutors have relative immunity.  It is very difficult to sue the police or a prosecutor, even if you are found not guilty of the charge.  In fact, it is very difficult to even get a police office charged with perjury even with clear, video evidence.  I looked into this a few years ago.  It is also very dependent on the court that hears the case, but by all means consider it an option.

 

Dr. Bob

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