Gene N. Barry v. Scott M. Freshour, et al.

Dr. Gene Barry was subjected to a warrantless, non-consensual, and non-exigent administrative search and seizure of his medical records via a Texas Medical Board [“TMB”] subpoena instanter addressed to him personally which (1) demanded immediate compliance, (2) was enforced by TMB inspectors, and (3) deprived him of his right to seek pre-compliance review. He sued relevant TMB personnel under 42 U.S.C. § 1983. The United States’ District Court for the Southern District of Texas, Houston Division (Rosenthal, C.J.) concluded Dr. Barry suffered an injury and denied Respondents’ motion to dismiss. On appeal, the Fifth Circuit reversed after concluding Dr. Barry lacked “Fourth Amendment standing” because he did not own the clinic at which he worked. 1 Therefore, the question presented is: Must doctors have an ownership interest in their medical practices in order to have cognizable privacy or property interests in medical records that (a) they are required by state law to maintain, (b) are subpoenaed from them personally, and (c) are being used against them in administrative proceedings? 1 Barry v. Freshour, 905 F.3d 912, 915 n. 3 (5th Cir. Oct. 4, 2018). See also id., at 914.