DOJ indictment against Texas doctor has 'serious free speech concerns,' health care defense attorney warns

Dr. Eithan Haim, the Texas physician who admits to having leaked hospital records alleging that doctors were performing transgender medical procedures on children and has pleaded not guilty to four felony counts related to the disclosure, has vowed to fight the charges and considers himself a whistleblower – albeit one who could spend a decade behind bars.

While Haim said he is trying to remain positive and contends that federal trials "are unpredictable," the Department of Justice (DOJ) is rarely bested and boasts a 99.6% conviction rate. Still, Haim views the legal battle ahead of him as a necessary one.

"Doctors and nurses are the last pillar holding up this whole house of cards," he told Fox News Digital. "Once that falls, these people are going to have to face a reckoning of the consequences of their actions that they had participated in and proliferated the greatest medical crime in human history."

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Dr. Eithan Haim has been charged by the Department of Justice after exposing gender transition procedures for minors at Texas Children's Hospital. (Screenshot/X | Stefani Reynolds/AFP via Getty Images)

Health care defense attorney Ron Chapman also believes Haim has a strong case on freedom of speech grounds, since the leaked documents were of public interest amid a major ongoing cultural clash.

"It's got serious free speech concerns when we see that the purpose was to produce information to the public, because he probably didn't trust the Department of Justice for this information," he said. "That's why he didn't send it to them. He trusted the press, and so I think that there's a pretty significant free speech defense here."

Chapman said it also appears as if the government is going out of its way to prosecute Haim. The Health Insurance Portability and Accountability Act (HIPAA) lacks criminal penalties for violations and falls under the purview of the Office of Civil Rights within the Department of Justice for investigation. Infractions typically result in fines being levied against hospitals or facilities.

"While the government may technically have the ability to prove the elements here because of the nature of the access, I think there are going to be a lot of very solid defense arguments in this case that the intent was not for an unlawful purpose, that there was no attempt to make money off of this or scam anybody, but it was for a legitimate public concern, and that really should be for First Amendment protected conduct," Chapman said.

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Transgender surgical procedures and treatments for children have been protected in some states, while others have outlawed them. (Getty Images)

But statutes signed this year by President Biden could prove a significant obstacle. 

Biden signed an executive order in April that protects Americans' personal information. The order was intended as part of the effort to stomp out the popular social media app TikTok amid a raft of national security concerns. But Chapman said, "When there's that regulation in existence, unauthorized access without specific permission then becomes a crime."

"You have just created a behemoth that can target any individual who decides to shed light on something, and openness should be the goal of our country, not silos and secrecy," he added. "I still remain very concerned that this is something that even resulted in federal criminal charges, much less multiple federal criminal charges with such drastic consequences."

The DOJ unsealed the indictment against Haim on Monday. The charges were related to HIPAA violations stemming from Haim's allegations that the Texas Children's Hospital was secretly conducting transgender procedures and treatments on minors.

The previously sealed indictment, filed May 29 by the U.S. Attorney’s Office for the Southern District of Texas, accused Haim of attempting to re-activate his login credentials under false pretenses after they had expired due to a lack of activity.  

The indictment by U.S. Attorney Alamdar S. Hamdani alleges that Haim "obtained unauthorized individually identifiable health HIPAA protected information on pediatric patients" and "caused malicious harm to TCH, pediatric patients at TCH and its physicians by contacting a media contact." 

If found guilty, Haim could be sentenced to a maximum of 10 years in federal prison. He also faces a fine of up to $250,000.

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Dr. Eithan Haim says the hospital was secretly continuing with gender-affirming care procedures despite claiming the program would be dissolved. (The Ingraham Angle/Screengrab)

The indictment accuses Haim of illegally accessing personal information from the hospital's electronic system. This included patient names, treatment codes and attending physicians. Through the documents, Haim said he discovered that the Houston-based children’s hospital was continuing to perform transgender medical procedures – such as those involving implantable puberty blockers – according to the original report. 

The children's hospital in 2022 said it would cease performing transgender procedures on children. That announcement came after Texas Attorney General Ken Paxton said some of the medical interventions could be considered child abuse under state law. The hospital did not respond to Fox News Digital's requests for comment.

Haim, who said he has refused to take a plea agreement, told Fox News Digital that he was first approached at his door by FBI agents in June 2023. During the course of the next six months, Haim said he decided to take the case public.

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"The problem is that if you legitimize this corruption in this process, then you shut the door for every other whistleblower in the country within the health care system," Haim said. "But with that choice, you empower these individuals, because you grant them the legitimacy which they do not deserve, right? 

"So, even though the stakes are the highest possible stakes – my freedom – when you consider it in those terms, of course it's what we have to do. Because the alternative is something to be so much more afraid of."

Fox News Digital's Kristine Parks contributed to this report.