University of Oregon Uses a Woman's Medical Records Against Her

Illustration for article titled University of Oregon Uses a Womans Medical Records Against Her

As if there weren't enough loopholes that make it difficult for victims of sexual assault on college campuses to file claims against their attackers, here's another: in doing so, victims could risk exposing their private medical records, as happened with an unidentified University of Oregon student whose files are now in the hands of the school's attorney.

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Via NPR:

The student suing the school got therapy at the university's health clinic. In preparing to defend itself against her complaint, the university got access to those records and sent them to its attorney.

Kelsey Jones, 21, is a student at the University of Oregon who works with the student-run Organization Against Sexual Assault. She says the case has shaken students' confidence in the mental health care they receive on campus; she, for one, won't seek care at the campus clinic.

"It's very concerning for a lot of people," Jones says. "It's ten times harder now to seek that help and feel safe and feel OK to share 100 percent of what you're feeling."

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But because of a law called FERPA, or Family Educational Rights and Privacy Act, the school's move is technically legal, if unjust.

Under FERPA, at a health clinic run by a university or college, the school has a legal right to get access to student medical records — if they're relevant for a legal defense. That may come as a surprise to anyone who assumes that doctor-patient privilege is the same regardless of where the care is received.

Gonzaga Law School professor Lynn Daggett, another FERPA specialist, agrees that the university is within its rights. The situation allows universities to avoid an important legal process, she says, simply because the therapist is a university employee.

In other words: when the student sought counseling for emotional distress after her alleged attacks, she assumed (as most people seeking therapy would/do) that the discussions with the university's counselor were held in confidence—but they weren't, because of the nature of the claim. And now, the school is using her own medical records against her, which is just so shitty.

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DISCUSSION

ihatepickingnames

So, I haven't really found information that better outlines what sort of relevance medical records need to have to be accessible by the school for litigation purposes under FERPA but these records would have been accessed anyway, without the law and even if she went to off-campus counseling. One of the claims in her suit against the school is for infliction of emotional distress. This makes her mental state an issue in the trial so regardless of FERPA and regardless of where she sought counseling, the school would have the right to access her records and use them at trial.

However there is a clear difference in the process. From the NPR story:

"The way the school would access the records in the situation with a private therapist," Daggert says, "is that during discovery, before trial, they would ask her to voluntarily agree — or issue a subpoena for them. She would have every right to make a motion to the court to quash or modify the subpoena — have the court look at her medical records in camera, which means in secret in the judge's chambers — and have the court sort through what appropriately would be shared with the school and what would not be."