Do any of you remember this post! - Wish we could do something.

The unconstitutional employment practices of MedQuist and CBay - ACalfornian

Posted: Mar 17th, 2010 - 2:30 pm

I'm NOT an attorney; therefore, cannot give any legal advice.  If you want to pursue the issues addressed below, please consult an attorney.

In the case of Department of State v. Washington Post Co., 456 US 595 (1982), the Department of State refused to disclose private information of individuals to an "American" corporation, "Washington Post", citing the policy of not disclosing "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy (emphasis added)." 

In the case of Paris Adult Theatre v. Slaton, 413 U.S. 49, 66 (1973), at footnote 13, the Court wrote that such a "protected privacy" extends to the doctor's office and the hospitals too.  The Court wrote:

" The protection afforded by Stanley v. Georgia, 394 U.S. 557 (1969), is restricted to a place, the home. In contrast, the constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is not just concerned with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor's office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved. Cf. Roe v. Wade, 410 U.S. 113, 152 -154 (1973); Griswold v. Connecticut, 381 U.S. 479, 485 -486 (1965)…(emphasis added)"

In the case of Ross v. McIntyre, 140 US 453, 464-465 (1891), more than a Century ago, the United States Supreme Court wrote:

"By the constitution a government is ordained and established 'for the United States of America,' and not for countries outside of their limits....The constitution can have no operation in another country (emphasis added)."

The doctors quite often dictate the private information of the patients including their dates of birth and social security numbers among others, which are also protected by the constitutional right to privacy against disclosure. 

Medical dictations are not the kind of "inanimate commodities" that usually fall under "Foreign Trade" that USA is involved in with foreign nations.  The contract to outsource medical records between the "private companies" such as MedQuist and CBay is NOT a contract between the United States and other countries like India, nor are the individual transcriptionists overseas working on the US patients' medical reports "Governmental agents of India or US Citizens."  When the Department of State would not "disclose" medical files of US citizens to an American company like Washington Post, what gives these "private companies" like MedQuist, C-Bay, Spheris, and others, to indulge in "self-help possession" of the constitutionally protected confidential medical information of the patients and other personal information contained in the dictations from their doctors' offices and the hopitals, and take them outside the four walls of the United States and outside the zone of the Constitutional right to privacy, to "private people living in foreign nations/overseas who are not American Citizens" under the guise of "filling in the templates" for transcription?  When there was scarcity of physicians and nurses in the 1970s, the United States allowed immigration of physicians and nurses from other countries "to work here in the United States", but the US did not "send the patients overseas" to get treated in foreign countries by the non-US Citizens just because there was a "scarcity" of the health care personnel.  MedQuist and CBay keep saying that there is a scarcity of US transcriptionists here in US to justify their oursourcing.  If they can prove that there is in fact a scarcity, then they can get work permits for the overseas transcriptionists to work here between the four walls of the United States with American wages. 

Even if the patient agrees to the terms of hospital admission written in some small print that he/she consents to transcription of his/her medical records outside of the United States by non-US Citizens, that still does not give MedQuist, CBay, and others the authority to take the medical dictations outside of the United States because the medical history of the patient also includes a "FAMILY HISTORY" and "SOCIAL HISTORY" which contain the "constitutionally protected medical and personal information" of third parties in the patients' families such as spouses, children, parents, grandparents, grandsons, uncles and aunts, for which, I suppose, the hospitals did not obtain consent for the release of from those third parties, nor can the patient consent to the release of the medical and personal information of his/her relatives.  

Based on the above, it's my belief that sending confidential medical information of patients outside the United States for transcription is UNCONSTITUTIONAL; therefore, absolutely ILLEGAL.

Also, the Court Reporters in USA REJECTED voice recognition technology.  What was not good for the Court Reporters in USA is not good for Medical Transcriptionists in the USA either.  What gives these companies to enforce a pay cut by rubbing that incompetent voice recognition technology on MTs' shoulders?  Voice recognition is just another tool like the word expander which is only to help the MTs improve their production.  Of course, MedQuist tried not counting the characters produced by word expanders on their DocQScribe platform.  When that did not work, it started working on this Voice Recognition technology and outsourcing!  Gosh!  What these companies wouldn't do to rip off their employees! 

With MedQuist's and CBay's unconstitutional outsourcing, they created an "unfair competition" here in USA as these companies are charging the clients just 10 cents a line now versus 21 cents a line that Transcriptions Limited/MedQuist used to charge in the 1990s.  On top of that, the voice recognition technology cuts the pay of the MTs by half, though the MTs still have to sort the gibberish that the voice recognition technology produces and spend the same amount of time on the dictation as they do on straight-typing.  That is resulting in wages below the federal minimum wages for the MTs as the MTs are only getting half the pay for voice recognition technology.  That in turn is creating "deplorable working conditions" under the guise of voice recognition technology with the resultant pay cuts which is forcing the MTs to work twice if not three times as hard for the same amount of money!

Then, there is the "overhiring."  Can these companies that overhire MTs, explain to the Government agencies that enforce the Fair Labor Standards Act, as to how the total number of lines they deliver to clients provide enough work for all the MTs that they overhire?  Suppose the company produces 10,000 lines a day for the client and the company has 20 full-time employees to work on that account, would that be enough work for all the 20 MTs reserved for that client to satisfy the Fair Labor Standards Act and the minimum wages rules with the voice recognition technology?

Wish there were some Constitutional law attorneys out there who could take up the above issues to a Federal Court and obtain a declaration to the effect that outsourcing of medical dictations is unconstitutional and that pay cut due to voice recognition technology violates equal privileges clause and creates deplorable working conditions for the US MTs, and obtain an injunction against these transcription companies to stop the outsourcing, the pay cuts under voice recognition technology, and the overhiring!

P.S.:  I will not respond to any replies under this thread; just don't have the time.  I'm posting the above just to help the MTs out.  Good luck!