Trump's longtime doctor faces ethical and legal questions
Posted May 2, 2018 6:47 a.m. EDT
(CNN) — Claims by President Donald Trump's former physician that the President's representatives essentially forced him to surrender Trump's medical records to them raise a number of questions about whether the doctor or others violated the law or principles of ethics, legal and medical ethics experts say.
So too do the physician's claims that Trump dictated the doctor's glowing 2015 letter about the then-candidate's health, a letter that Trump's presidential campaign released to the public, the experts say.
Dr. Harold Bornstein, who served as Trump's physician for more than three decades, told NBC News and CNN that three men claiming to represent Trump -- including Trump's former longtime personal bodyguard and confidant, a Trump Organization chief legal officer and a third "large man" -- entered his New York office in February 2017 and demanded the records.
He told CNN that he was "robbed" and described it as a raid.
Whether the records' release violated laws or medical ethics depends on what exactly happened -- including whether the doctor surrendered the originals and didn't retain a copy, and whether Trump had authorized the release to the three who took them, experts say.
The three would have needed a signed authorization from Trump -- and if they didn't have one, disclosing the documents to them would have violated the Health Insurance Portability and Accountability Act, known as HIPAA, experts said.
"What Dr. Bornstein described may be a HIPAA violation by the doctor himself," said Erin C. Fuse Brown, a Georgia State University associate professor of law. "It is his obligation as health care provider to ensure patient records are locked, encrypted and secured, so someone couldn't just walk in off the street and demand them.
"It's unclear whether the individuals who came to obtain the President's medical records were agents of the President or his authorized legal representatives. The physician should not have given over a patient's records without a signed authorization."
The White House and a separate source familiar with the handover of Trump's medical records disputed Bornstein's description of the incident.
"As is standard operating procedure, the White House Medical Unit took possession of the President's medical records," White House press secretary Sarah Sanders told reporters this week.
A person familiar with the episode, speaking to CNN on condition of anonymity, believes Bornstein was presented with a letter from the White House physician's office requesting the release.
'A problem' if doctor kept no copy
That source told CNN that the handover had been completed peacefully, complicated only by Bornstein's fumbling with his photocopy machine to make copies of the records.
Early last year, the same person said, Trump saw or heard his former doctor talking about his medical history and asked that his medical records be retrieved from Bornstein's office.
In his NBC interview, the New York doctor claimed the records incident occurred February 3, 2017, two days after he told The New York Times that Trump takes Propecia, a prostate drug often prescribed for hair loss.
The encounter lasted 20 minutes or less, the person said. After Bornstein failed in several attempts to photocopy the file, one of the men asked for the original copies, which were handed to him, according to the source.
New York law requires physicians to maintain records for six years, said Mark Rothstein, a law and bioethics professor at the University of Louisville.
If Bornstein gave away the originals without having paper or electronic copies on hand, "that's a problem," Rothstein said.
Doctors are required to keep records for a length of time for the benefit of patients and regulatory agencies, which might want to examine a doctor's prescription habits or how he or she was treating patients, Rothstein said.
But generally, experts said, only a complaint by the patient -- in this case, Trump, who ostensibly wanted the documents -- would trigger legal action.
Letter dictation would be grounds for investigation, expert says
Separately, Bornstein told CNN that Trump dictated his public letter about the then-candidate's health in 2015.
"His physical strength and stamina are extraordinary," reads Bornstein's letter, which was released by Trump's campaign in December 2015. "If elected, Mr. Trump, I can state unequivocally, will be the healthiest individual ever elected to the presidency."
The missive didn't offer much medical evidence for those claims beyond citing a blood pressure of 110/65, described by the letter as "astonishingly excellent." It claimed that Trump had lost 15 pounds over the preceding year. And it described his cardiovascular health as "excellent."
Such a dictation, if it happened, would be "completely unprofessional" and grounds for the state medical board to investigate and possibly discipline the doctor, said Art Caplan, director of the division of medical ethics at the New York University School of Medicine.
"No. 1, why would you let your patient dictate an assessment of his health?" Caplan asked. "And two, you know it's going to be used in the political campaign, and so it's a very important report.
"(If true), you signed it; you wrote it; you lied. It's not professional conduct."
If that's his only violation, the board could essentially give the doctor a warning, Caplan said.
"But they should look, because it could be the tip of the iceberg. You don't know what else he's done," Caplan said. "When you are letting your patients declare they are the healthiest patient on Earth, and you sign it, you have gone far off the reservation, I think."
Dr. Sanjay Gupta, CNN's chief medical correspondent, said that if it's true, the dictation would also raise questions about what the letter might have omitted about Trump's health.
"If specific things are being (dictated), then what was not in the letter?" Gupta asked.
The White House didn't respond to a request for comment about Bornstein's claim about the letter.