The efforts of a federal occupational health agency to subpoena the medical records of General Motors employes here without their consent smacks of something out of George Orwell's book "1984," a federal judge contended in a two-day trial here last week.
Since October of last year, GM has been pitted in a legal battle with the National Institue for Occupational Safety and Health, over the agency's unbridled access to employe medical records during a health hazard investigation.
GM ultimately could be forced to turn over the medical records of 704 employes at the local Inland Division plant, including information on employes who don't want their files released.
"Employe medical records contain information that is personal and sensitive in nature," GM contends in a document filed in the case. "Such information is disclosed by employes and their physicians with the expectation that it will be held in confidence."
The corporation further insists that "the employe medical records at issue here are protected by a constitutional privacy right."
If company employes are compelled to release the records at Inland, GM faces the unpleasant prospect of divulging medical information on employes at other GM plants where similar NIOSH investigations are being conducted.
The confrontation over the medical files was sparked by an investigation undertaken by NIOSH to determine if a health hazard exists in GM's Inland Division plant.
The agency received complaints that employes in the plant's wet latex division were experiencing health problems, particularly skin disease.
Last Thursday the non-jury trial was heard by U.S. District Court Judge Carl B. Rubin, who exhibited reservations about the government's position in the case.
Howard Walderman, an attorney for the Department of Health, Education and Welfare, contended that federal statutes give the government authority to review medical records of employes with or without their consent.
Rubin asked Walderman if he drew any distinction between the records of employes who are willing to cooperate with the government and those who would not cooperate.
"No," Walderman said, "because the price of an industrial society is that you have to give up some rights. What happends to you might affect future generations."
Rubin, who had pressed Walderman on the question of employes' right to privacy, asked the government attorney, "Have you ever read '1984' by George Orwell? This is the logical extention of what you are syaing. I do see that as one end-product."
An individual's right to privacy was raised repeatedly by Rubin throughout the trial, and his most intense questioning was directed at the government's lawyers.
"What coercive right do you have, or does the court have, enforcing employes to release their records if they don't want to?" Rubin asked Walderman.
"If the employe won't consent directly, how do you go around to the employer and get the information?" he continued.
GM offered during the trail to make the medical records available with the names of employes deleted, but the government contended the names of employes were crucial to follow-up questioning and investigations necessary to conduct the health hazard probe.
The far-reaching ramifications of the trial were not lost on Rubin. His final words before adjourning court on Friday were, "I realized this has significance beyond this case."
Rubin is expected to make a ruling in the case by mid-August.
Attorneys for the automobile company have fought the case particularly because they fear GM will be vulnerable to lawsuits by disgruntled employes who feel they were harmed by the release of medical files, which also might contain sensitive personal information.
The outcome of the case also is crucial to NIOSH officials, who are convinced that, if they can't subpoena employe medical records, they will be totally ineffective as a watchdog over occupational safety.
The government has maintained in the case that there is no general right to privacy and that federal statutes give it absolute authority to subpoena employe medical records with or without employe approval.
NIOSH, which conducts about 100 investigation yearly, contends it would be faced with debilitating delays if it were required to seek the permission of every employe for the release of medical files.
The case is particularly unusual because they subpoena power of NIOSH has been chellenged in only three other federal lawsuits during the eight years that the health agency has been operating. In all three cases, the parties either reached an agreement or a ruling was made in favor of the government. None of the case was appealed.
But in pretrial conferences, attorneys for GM and the government have made it clear there is no room for compromise. "It's going to be all or nothing," said one government lawyer involved in the case.
Theconfrontation over privacy between GM and NIOSH was initiated by a complaint to the federal agency from a union health and safety representative in October 1976. Federal officials visited the plant three months later, but GM refused to produce employe medical records and later refused to respond to a subpoena for the files.
Nonetheless, NIOSH investigators were able to examine some Inland employes away from the plant and determined that the workers "were experiencing skin disorders."
John Finklea, former director of the agency, argued in an affidavit that examination of employes' medical records "is necessary to . . . determine whether a certain disease condition afflicting an individual is a development related to his place of employment to a previous illness, or outside sources."