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Search & Seizure – Applicability of Exclusionary Rule – Violation of Non-Constitutional Right: Patient Records (HIPAA, § 146.82)

State v. Ellen T. Straehler, 2008 WI App 14
For Straehler: Daniel P. Fay

Issue: Whether suppression is a remedy for violation of health care privacy laws (HIPAA; § 146.82).


¶10      Straehler’s argument does not carry for a number of reasons. First, Straehler ignores the fact that HIPAA is limited in its scope and applicability. Investigating authorities, i.e., police officers, are not among the “covered entities” expressly subject to HIPPA. …

¶11      Notably, there is judicial agreement that the legislature did not intend HIPAA to apply to noncovered entities. …

¶13      Second, even if Bernotas was somehow bound by HIPAA, which we have established an officer is not, HIPAA does not provide for suppression of the evidence as a remedy for a HIPAA violation. Suppression is warranted only when evidence has been obtained in violation of a defendant’s constitutional rights or if a statute specifically provides for suppression as a remedy. …


¶15      The plain language of Wis. Stat. § 146.82 states that it applies to patient health care records: “All patient health care records shall remain confidential. Patient health care records may be released only to the persons designated in this section or to other persons with the informed consent of the patient or of a person authorized by the patient.” Sec. 146.82(1). Patient health care records are defined as “all records related to the health of a patient prepared by or under the supervision of a health care provider.” See Wis. Stat. § 146.81(4).

¶16      In Thompson, we examined Wis. Stat. § 146.82 and held that it does not reach beyond protection of health care records. Thompson, 222 Wis. 2d at 188. Thompson moved for suppression of evidence seized by police while he was being treated by hospital staff. Id. at 181.

¶19      On appeal, Thompson argued that under Wis. Stat. § 146.82, the police should not have been allowed into the area where he was being treated. Thompson, 222 Wis. 2d at 184. We rejected this argument and held that, by its terms, § 146.82 “applies only to records.” Thompson, 222 Wis. 2d at 188.

¶20      Hagerman’s verbal statements based upon her observations are no more protected by Wis. Stat. § 146.82 than the medical procedures at issue in Thompson. Accordingly, under Thompson, there is no evidence of a violation of § 146.82 because there is no claim or evidence that Hagerman disclosed health records. [9]

 [9] Whether Hagerman disclosed information that ultimately ended up in Straehler’s patient health care records cannot be determined from the record. Regardless, Hagerman did not disclose the records themselves.


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