Taken too far, privacy rights endanger lives

In the very complicated, recent story line at Rose Medical Center (Denver) and Audubon Ambulatory Surgery Center (Colorado Springs), at which a surgical technician potentially endangered 5,700 lives, only one item is crystal clear: the absurd lengths to which the law has taken privacy rights.

Privacy is a sacred right; in fact, it is at the very definition of a human being. Animals, in their bodily functions, do not require privacy; human beings do — and much more. Human beings deserve the privacy of their thoughts and their acts, so long as they are legal. The question becomes: How far should the legal right to privacy extend when one’s medical condition can harm someone else?

The surgical technician at Rose and Audubon, Ms. Kristen Diane Parker, allegedly stole painkillers to feed her drug addiction, and then used these needles to inject saline solution in patients. Meanwhile, Parker has hepatitis C. Every time she used a needle on herself and then on a patient, she potentially endangered that patient’s life. Some 5,700 patients were potentially treated with her needles before she was discovered and fired.

Our privacy laws are now drawn too broadly, absurdly so. Should a person’s criminal history as a child abuser preclude him from the right to teach children? We think so. The safety of the children trumps the abuser’s right to privacy. Similarly, looking at the incident at Rose and Audubon, the question is whether an employee’s medical history may preclude him or her from employment in certain medical professions. Should a medical provider have the right to know, and to share, a person’s status as a carrier of hepatitis C if that person wants to work with needles or with blood?

Surely no one has a right to insist on his or her privacy at the expense of other people’s lives, and no law wisely protects personal privacy in that circumstance. The technician at Rose and Audubon, now criminally charged, has hepatitis C, yet it seems that no one at the medical centers had the right to use that against her in considering whether she was eligible to work in blood-related fields. The privacy laws are drawn so broadly that a person with hepatitis C is banned only from working in direct, surgical interventions. But it’s OK to work with needles, it’s OK to be present in surgery rooms, it’s OK to inject patients. And it’s Ok to withhold the person’s medical status from a future employer and fellow employee.

It is irrelevant that only by violating her normal procedures did this technician come to endanger some 5,700 patients via hepatitis C. A rational and reasonable privacy law would incorporate a basic element in Jewish law: the “fence.” Its need is highlighted by this observation in the Denver Post (July 7):
“Employees known to have hepatitis C or HIV are not considered a ‘direct threat’ to infect others in a medical setting where sterile procedures are followed, said Randy Chapman, director of legal services for Colorado’s Legal Center for People with Disabilities and Older People. Therefore, under federal law, employers can’t treat them differently.”

And what, Mr. Chapman, is to be when sterile procedures are not followed? Did you take that into account? What’s your suggestion for protecting the innocent then?

Enter, the “fence.”

Classic example: Basic Jewish law prohibits the kindling of a fire on the Sabbath. Elaborated Jewish law prohibits the touching of a match on the Sabbath. If one can’t touch it, one can’t strike it. That’s the “fence” — an additional layer of precaution, beyond the basic procedure, to prevent a basic violation.

Translation: Keep people with a communicable, blood-borne disease away from needles altogether. If, under the “sterile procedures,”  one is not allowed to draw blood from patients because of oneown compromised blood, take it a step further. Keep the “disabled,” i.e., the person with hepatitis C or HIV, away from the needles, whether used to draw or to inject blood or anything else. That’s a fence. That’s a wise precaution.

In the balance between the sacred right to privacy and the absence of a right to harm and potentially kill another human being, it is appropriate to fence in, to restrict one’s professional latitude, and equally appropriate to inquire about and to share information relevant to that restriction. If a person has hepatitis C and wants to work in a medical profession, the person’s status has a right to be taken into account, and publicly so — shared with any other potential medical employers and fellow employees.

If a person has insulin dependent diabetes, he or she is disqualified from receiving a commercial pilot’s license. The FAA currently will not grant a special issuance for 1st or 2nd class medicals (commercial pilots) to such people. The justification for the discrimination is that the FAA worries about sudden incapacitation in the cockpit.

Discrimination, in other words, is medically warranted for certain conditions. That fence, that wisdom, should be extended to people with hepatitis C, excluding them from, when all is said and done, a small arena of employment — a small price to pay, for all concerned.

A person does not have the right to claim that his medical condition is his own business and no one else’s — including those who license pilots and who employ surgical technicians. It is very much their business. An absolute claim to privacy in the face of countermanding health and safety concerns is absurd. Taken too far, privacy rights endanger lives. Our society has taken privacy rights too far.

As long as the present medical disaster occurred in Colorado, let the Colorado legislature begin the process of reversing this absurd exaggeration of privacy laws in its next session. This would send a strong message to the federal government. That’s how change begins — from the bottom up.