Privacy laws and Seung Hui Cho, cont’d

Better late than never:

Virginia Tech has provided some of Seung Hui Cho’s medical records to a panel investigating the April 16 massacre, after negotiating with family members to waive their privacy rights….

The records were released after weeks of frustration among the eight panel members over not being able to analyze Cho’s mental health in the years leading to the massacre, the worst mass shooting by an individual in U.S. history….

…panel officials said Thursday that they will continue to press for additional records, which also are protected under state and federal privacy laws.

(Tim Craig, “Panel Given Some Medical Files on Cho”, Washington Post, Jun. 15). And from a Thursday news report, also in the Post:

Authorities’ abilities to identify potentially dangerous mentally ill people are crippled across the nation by the same kinds of conflicts in privacy laws that prevented state officials from being able to intervene before Seung Hui Cho went on his rampage at Virginia Tech, according to a federal report commissioned after the Blacksburg shootings that was presented to President Bush yesterday.

Because school administrators, doctors and police officials rarely share information about students and others who have mental illnesses, troubled people don’t get the counseling they need, and authorities are often unable to prevent them from buying handguns, the report says.

(Chris L. Jenkins, “Confusion Over Laws Impedes Aid For Mentally Ill”, Washington Post, Jun. 14). My writings on the topic from April are here, here and here.

Vienna, Va. attorney Thomas J. Fadoul, Jr., who represents twenty victim families, has threatened to sue unless a family representative is appointed to the panel investigating the massacre so as to help “steer” its proceedings; Virginia governor Tim Kaine has replied that the panel was chosen so as not to include parties involved, and noted that the panel does not include any representative of Virginia Tech itself.


  • Thank a lawyer for the frustration of this crucial investigation.

    Confidentiality persists after death for no benefit to the living, except those seeking to cover up a malfeasance.

    45 CFR §164.502 (f):

    “(f) Standard: Deceased individuals. A covered entity must comply with the requirements of this subpart with respect
    to the protected health information of a deceased individual.”

  • I don’t think there’s much ‘legal confusion’. It’s pretty damn clear that state entities simply cannot release medical records of any kind, even posthumously.

    That seems to be what the law says. If so, the law needs changing.

  • HIPAA information can be released pursuant to a subpoena. The only real wrinkle is that the patient (or the patient’s legal representative) must be notified of the subpoena and given an opportunity to object. The problem here is that the Va. Tech panel does not have subpoena power, because like any ad hoc government blue-ribbon panel, it’s really just a p.r. exercise, a way to look like the government is doing something about a problem. A legitimate investigative body, like a law-enforcement agency or legislative committee, would be able to compel the production of Cho’s records without undue difficulty.

  • It would be nice if, when the ambiguity of a law becomes apparent, it could be sent back to the originating body for clarification.

  • I never understood the extent of privacy concerns. We can not use Social Security cards for identification, so we use driver’s licences. But one has to register babies with Social Security. The Simpson-Mazzoli failed in large part because it did not provide for secure identity documents.

    We should let the investigations play out for the Virginia Tech episode. Mr. Cho was not violent before his lethal rampage. Our systems are tuned for violence, and missed just how sick Mr. Cho was.