Will Dr. Bornstein Press Charges?

New York Daily News Archive/New York Daily News

I mentioned below that there appear to be HIPAA violations on both sides in the Bornstein case and that Keith Schiller and Trump Organization Alan Garten might be in legal trouble for what amounts to robbery. But there’s another part of the equation that I wasn’t aware of and could deepen their legal jeopardy.

I’ve now spoken to a number of doctors and lawyers who practice in this area. At least in most jurisdictions, the doctor owns the original records. That is to say, you know how in the old days there were those big vaults of manila folders of medical records. That packet belongs to the doctor. You have a legal right to get copies. You may have some property interest in the information contained in those documents. You also have the right to control who accesses them. But you don’t, in most cases, have any right to demand the originals.

This probably gets considerably more complicated when you have the original records in a digital form. What’s the ‘original’ and what’s the ‘copy’ etc. But in the Bornstein case, Schiller, Garten and unidentified ‘large man’ who came in apparently confiscated the original paper copies. I haven’t been able to figure out the law in New York State. But in most jurisdictions, Trump and anyone acting on his behalf had no right to take those documents. Unless Bornstein gave the records to them without any implicit coercion, that’s theft.

The second point is that if the Trump crew went into Bornstein’s files and rifled through them to find Trump’s file, they had access to lots of other private and legally protected confidential medical files. That’s probably also an infraction.

More to come. And if you have professional knowledge in this area, please drop me a line.