Sign Here

There isn’t a doctor’s office in the nation that doesn’t hand patients a stack of papers to complete before they see the doc.  And we dutifully fill them out because, well, we just don’t care that much about the forms and expect them to be the typical bureaucratic nonsense that one must endure before getting to the point of the visit.  Everybody knows we do this, including the Sarasota County Sheriff’s Office.

And that gave them an idea.

Like many law enforcement agencies, prescription drug abuse was a problem in need of a solution, and rather than go through the onerous burden of awaiting people to engage in crime, it dawned on them that they could just sneak in through the back door of the physician’s office and slip in another seemingly  innocuous form, a blob of  mumbo-jumbo and was essentially guaranteed no one would ever read, and get it signed.

About midway down the form, it makes clear that it authorizes the physician to release otherwise confidential medical information to law enforcement if the physician believes that a crime has occurred. But who is going to read that far?  And even if they did, most patients would anticipate that the inclusion of the form along with the others was required before they would get to see the doc. 

For the most part, it never occurs to patients that they do not have to answer or sign a form just because someone told them to.  As much as we talk about freedom, we’re a remarkably compliant society, disinclined to refuse much of anything that appears even remotely official or required.

Armed with this notion, the Sarasota Sheriff decided that physicians should be part of his team. On the bright side, the doc’s weren’t inclined to sell out their patients quite that easily.

The medical information waivers — which did not carry any indication that they were written by a law enforcement agency — were handed out last year to about 30 local pain doctors, who were asked to have patients sign them. But the measure never gained traction with doctors, and, so far, none has submitted a form signed by a patient.

Moreover, the move has drawn sharp criticism from some in the Sarasota County medical community and from defense lawyers who call it a sly way to violate a patient’s constitutional privacy rights and protections under the federal Health Insurance Portability and Accountability Act, the so-called HIPPA [sic] law.

Normally, police would have to apply for a search warrant or obtain a subpoena for the records, said Assistant Public Defender Mark Adams.

Sly indeed, as Adams described this as an “end run around the search warrant requirements.”  Whether sneaking an authorization into a pile of papers for the purpose of obtaining a waiver from a patient who had no clue what he was signing or why is about as sneaky and manipulative as it gets, the question remains whether it would be valid. After all, is this a knowing, intelligent and voluntary waiver? 

According to the Sheriff’s Department assistant general counsel, Patrick Duggan, and Sgt. Debra Kaspar, who runs the sheriff’s Pharmaceutical Diversion Unit, they were “constantly” getting calls from physicians who wanted to rat out their patients, but feared legal consequences of violation of privilege.  They were just trying to help the poor, concerned docs.

“We want to make good cases. We don’t want anyone’s rights violated,” Duggan said. “We drafted the form to give the doctors a mechanism to contact us. It was really designed more as a safeguard to protect people’s rights than anything else.”

Kaspar and Duggan have no explanation for why doctors are not turning in any waivers.

Maybe they were exaggerating just a wee bit about the physicians’ desire to play junior deputy?  However, not all pain clinics are owned by physicians.

Paul Sloan, who is not a doctor and has owned two pain clinics in Sarasota County since 2007, wrote much of the county’s [absurdly stringent] pain clinic ordinance. Sloan is blunt about what he will do to a patient suspected of breaking the law.

“All my patients sign a contract — and they have since day one — the most comprehensive contract ever seen,” Sloan said. “It does state they are waiving their rights if we are approached by an investigator, that we’ll turn over information to the sheriff’s office.”

Under the Sarasota ordinance, anyone writing more than 20 prescriptions for pain medication a month has to register as a pain clinic. 

Clearly, the objective is to circumvent privacy and constitutional rights, as no one who is engaged in obtaining pain medication for illegal purposes would knowingly waive their rights.  At the same time, it’s not as if the form doesn’t say what it does, even if it’s less than clear about who prepared the form and the purpose for which a patient is being asked to sign.  But hey, every patient has the opportunity to read it before signing. Is it the cops’ fault someone doesn’t?  We’re presumed to know what we sign, and if we sign without reading, who do we have to blame but ourselves?

The lesson is pretty clear. Read the forms and exercise your right to refuse to sign any form or fill in any blank that doesn’t serve a medically necessary purpose.  And it’s likely a good idea to seek treatment from a medical practice owned by a physician rather than a guy more concerned with protecting his own license or playing junior G-man.

18 comments on “Sign Here

  1. C4

    It’s a shame that law enforcement tends to view the United States Constitution as an obstacle they need to find a way around rather than what they are sworn to defend.

  2. SHG

    Are you suggesting that physicians care more about liability than they do about keeping America safe from drugs?

  3. Patrick


    Mr. Duggan was an assistant state attorney in my jurisdiction. “Exaggeration” is one way to describe his statements. A few others come to mind when I recall my encounters with him.

  4. Turk

    It was really designed more as a safeguard to protect people’s rights than anything else.”

    You know, that really is very funny.

    Kudos to the docs for telling him to go stick it.

  5. Ordinary Joe

    I wonder if someone should drop a dime on the Sheriff’s Office with DOL for attempting to breach the HIPAA statute’s confidentiality protections, –especially since deciet was involved by failing to identify the requester? On the flip side, do you think the Sheriff’s Office understands that they might have subjected themselves to HIPAA’s confidentiality rules on themselves for anything that acquire under a HIPAA waiver? What’s their medical purpose in seeking a waiver, I wonder? Since they’re soliciting HIPAA protected data I’d like to see a DOL audit of the patient confidentiality processes!

  6. Miranda

    In law school, my torts professors said he’d never seen a consent form that actually prevented a med mal suit, except the one he signed for his Lasik surgery. And things involving babies, he said, often had thorough forms (“babies and eyes, babies and eyes” I remember him saying). So, I never paid close attention to those forms. This is a good reason to start doing so. If one police department has tried it, others may have too.

  7. BobN

    Wow, quite audacious on the part of the LEOs. What is also surprising is that anyone writing more than 20 pain prescriptions a month needs to register as a “pain clinic” (whatever the heck that is). Seems like a pretty large number of doctors would be affected, basically any surgeon, orthopedist, and probably OB/GYN would be affected.

  8. Alan

    Not an expert in the relevant field, but I seem to recall that HIPAA has no private cause of action attached to it. Substantiating links not posted per policy, but easily googleable.

  9. SHG

    People (and, oddly, particularly physicians) have a generally exaggerated concern about liability. It doesn’t have to be real, as in private cause of action under HIPAA, to serve as a motivator.  One of the constant perceptions is that doctors have to practice defensive medicine (and needlessly drive up costs) to avoid malpractice liability despite the fact that malpractice litigation has been on the decline for years. 

    That said, my hope is that the docs refusal to become part of this scheme has less to do with any perception of liability as it does with their concern for patients, their rights and the docs refusal to become party to such impropriety.  I may be completely wrong about this, but absent any evidence to the contrary, I prefer to believe that physcians aren’t cooperating because it’s the wrong thing to do.

  10. John Neff

    The doctor has intentionally deceived the patient for a non-medical purpose. This is in my opinion an ethical issue OTOH I think you are correct about the perception of liability. I doubt the doctors think the cost of liability protection is needless.

  11. Brandon

    That’s only because drug laws are completely incompatible with any interpretation of the Constitution, so they have to choose one or the other. And the Constitution choice doesn’t come with neato Army toys and Federal grants.

  12. Bergman Oswell

    Especially since they have to break a sworn oath in order to treat it as an obstacle. Violating that oath is grounds for impeachment of elected officials, how can mere employees commit the same violation and remain employed?

  13. SHG

    Uh, not exactly. Impeachment is for “high crimes and misdemeanors.” Violating the oath to defend and uphold the Constitution is really a pretty vague oath, as the Constitution has a few internal contradictions between its various duties and branches, so upholding one may well appear to be violating another.

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