Unsealed court documents in the transgender whistleblower case indicate the DOJ was in possession of information that disproved the HIPAA violations from the start, according to lawyers on the case and court documents reviewed by Fox News Digital.
Dr. Eithan Haim has been the subject of an ongoing criminal case brought by the U.S. Department of Justice (DOJ) after he leaked documents to the media that revealed Texas Children’s Hospital (TCH) in Houston was performing transgender medical procedures on minors through May 2023, despite the fact that hospital leadership announced it had stopped providing sex-change surgeries and puberty blockers the year before.
Fox News Digital reviewed documents unsealed by the court on December 6, the same day it denied Haim’s lawyers’ motion to dismiss the case altogether. Now, the case will go to trial in mid-February.
The Department of Justice (DOJ) originally claimed that Haim did not provide care to TCH patients after 2021, which was used as the basis for its claims that Haim had no reason to access patient records, but the unsealed documents disprove this claim, according to Haim’s lawyers.
Haim’s wife, Andrea, spoke with Fox News Digital about the case because her husband is unable to speak to the media due to a de facto gag order put in place by the court.
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“At bottom, what this shows is that the government either knew or, at an absolute minimum, should have known that the allegations they are making against Eithan are completely false,” she said. “That was true in the first indictment, and it continues to be true now that they’re on the third indictment.”
“In a way, this is vindicating because this is now making public what we’ve known all along, which is that this is the definition of a weaponized prosecution that I believe was intended to silence not just Eithan, but other whistleblowers who went against the narrative on transgender interventions on minors,” she added. “There’s no doubt in my mind that they were looking for a crime to indict Eithan on. The failure of their multiple indictments shows how weak their basis was from the beginning.”
The schedule of rotations shows that Haim was taking care of TCH patients as part of his residency well after the January 2021 deadline and into June 2023, which TCH admitted to as part of correspondence from its legal counsel to the Health and Human Services Office of Civil Rights about the alleged HIPAA violations.
“The original indictment was founded on lies that in other situations would be actionable slander,” his lawyers stated. “It portrayed Dr. Haim as an interloper with no connection to TCH after January 2021. The false pretenses charges were premised on his falsely claiming responsibility for non-existent TCH patients to gain access to TCH records.”
Dr. Haim asked TCH for access to the electronic medical records (EMR) on April 14, 2023, because of a surgery he was set to perform at TCH’s Pavilion for Women that day, according to his lawyers and court docs reviewed by Fox News Digital.
“Residents assigned to any of the Baylor St. Luke’s Medical Center (BSLMC) general surgery rotations [which Haim was] may also treat patients at TCH’s Pavilion for Women as the BCM [Baylor College of Medicine] BSLMC general surgery faculty also provide coverage at TCH’s Pavilion for Women,” TCH explained in their letter to HHS.
A TCH administrator confirmed that Dr. Haim “might see adult patients and that he visited her office on April 14, 2023 (the same morning we know from patient records that he had a surgery at TCH) to request access,” Haim’s lawyers claimed. “None of this material supports the allegation that when he requested access to TCH’s EMR system, including for adult patients, that it was a lie or that he obtained access by false pretenses.”
“The government should have known that the core allegations were false. Its own evidence, which it provided the defense in discovery, disproved them,” Haim’s lawyers said in a Nov. 26 court filing. “It showed that TCH itself considered Dr. Haim to have continued to cover TCH patients into April 2023 and that Dr. Haim provided care to TCH patients long past January 2021.”
“The government attorneys had again seemingly not bothered to review the evidence or learn the facts yet had proceeded with the most serious charges they could muster,” they added.
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Additionally, TCH said Dr. Haim had “approved and authorized access to TCH’s EMR [electronic medical records]” in its correspondence with HHS on Aug. 30, 2023, which was 10 months before the DOJ charged Haim with HIPAA violations.
“All of this is information that was in the government’s possession long before they indicted Eithan,” Andrea said. “For them to then indict Eithan and say that he didn’t have authorization in complete contradiction to what Texas Children’s told HHS is absolutely shocking and malicious.”
Despite that knowledge, the DOJ interviewed TCH Chief of Surgery Larry Hollier in April 2024 in which he was on record as saying he was “unable to recall an incident during his tenure at TCH where a resident was called to provide backup care services to an adult patient at TCH,” according to the third unsealed exhibit summarizing the FBI interview.
“I think there’s a lot of inaccuracies in that witness statement,” Andrea said. “Maybe the witness knew or didn’t know about how the residency program worked. But I think if that’s the basis on which the government’s indicting Eithan, it shows how weak their case really is. That’s why Eithan’s counsel included it as part of their motion on the grand jury materials, because it really raises questions about what the true basis of the government’s case is on a factual level.”
Haim’s lawyers claim that Hollier’s testimony was false and argued that once the government realized he had handled multiple backup care surgeries, it could no longer rely on this testimony.
“Dr. Haim himself treated numerous patients at TCH when on rotations at other hospitals, consistent with TCH’s representations to HHS OCR,” Haim’s lawyers said in court filings. “The representations were false when the government first indicted Dr. Haim, and the government should have known that.”
“The government cannot use the testimony indicating that Dr. Haim’s access requests were under false pretenses because the premise of that testimony, that he never had adult patients at TCH, was untrue,” they continued.
The DOJ maintains that Haim “obtained personal information including patient names, treatment codes, dates of service and attending physician from TCH’s electronic system without authorization and under the false pretenses that he needed the access for the provision of medical services to patients under his care,” as noted in the first and second superseding indictments.
Between the original May 29 indictment, which was unsealed on June 17, to the second indictment on October 10, the DOJ changed some of its language, removing any mention of “HIPAA protected” information and changed the victims of the alleged harm caused by Haim’s actions from “TCH’s physicians and patients” to “TCH and its physicians.”
“The government has all but admitted that it negligently sponsored false information to the grand jury,” Haim’s lawyers said. “It was forced to strip the false allegations from the superseding indictment, gutting the core of its case and leaving little explanation for the false pretenses charge. And the government likewise was forced to drop the other salacious allegations, including that he intended to harm child patients and do so for his ‘own personal agenda.’”
Fox News Digital previously reported that the prosecutor leading the charge against Haim has been recused from the case after information revealed a major conflict of interest regarding her family’s involvement in the hospital system.
In a Nov. 13, 2024 letter, Haim’s lawyers notified the DOJ about the undisclosed conflict of interest, explaining that “Ms. [Tina] Ansari’s close family members have substantial financial and political ties to third parties in this case, Texas Children’s Hospital (TCH) and Baylor College of Medicine (BCM), who may constitute victims and witnesses” in the criminal prosecution of Dr. Haim.
Fox News Digital reached out to the DOJ for comment.
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