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A woman in Alabama has been awarded $300,000 in damages after a doctor illegally accessed and disclosed her protected health information to a third party.

Plaintiff Amy Pertuit filed a lawsuit against Medical Center Enterprise (MCE) in Alabama, a former MCE physician, and an attorney over the violation of her privacy in January 2015.

According to lawyers for the plaintiff, Amy Pertuit’s husband was experiencing visitation issues and was involved in a custody battle with his former wife, Deanna Mortenson.

Mortenson contacted Dr. Lyn Diefendfer, a physician at MCE, and convinced her to obtain health information about Amy Pertuit for use against her husband in the custody battle. The information was disclosed to Mortenson’s attorney, Gary Bradshaw.

Dr. Diefendfer accessed Pertuit’s records through the Alabama Prescription Drug Monitoring Program website. Since Dr. Diefendfer had no treatment relationship with Pertuit, she was not authorized to access her medical information. The access and disclosure were violations of hospital policies and HIPAA Rules.

After discovering that her health information had been disclosed, Pertuit lodged a complaint with the Department of Health and Human Services’ Office for Civil Rights which put the hospital on notice. However, the hospital failed to implement appropriate sanctions against Diefendfer. Dr. Diefendfer is alleged to have accessed further health information in 2016 and again disclosed that information to Bradshaw.

The plaintiff’s lawyers also said that the hospital’s privacy officer had investigated Dr. Diefendfer and discovered 22 separate violations of hospital policies and HIPAA Rules.

The lawsuits filed against Dr. Diefender, Deanna Mortensen, and Gary Bradshaw were all settled out of court. The case against MCE went to a jury trial.

The jury unanimously found that MCE had failed to take appropriate action against Dr. Diefender after the discovery of the privacy violation, and awarded the plaintiff $295,000 in punitive damages and a further $5,000 as compensation for pain, suffering, and humiliation.

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The Supreme Court in Vermont has ruled that a patient can sue a hospital and one of its employees for a privacy violation, despite Vermont law and HIPAA not having a private cause of action for privacy violations.

The lawsuit alleges negligence over the disclosure of personal information that was obtained while the patient was being treated in the emergency room. The woman had visited the ER room to receive treatment for a laceration on her arm. The ER nurse who provided care to the patient notified law enforcement that the patient was intoxicated, had driven to the hospital, and intended to drive home after receiving treatment.

The nurse had detected an odor of alcohol on the patient’s breath. Using an alco-sensor, the nurse determined the patient had blood alcohol content of 0.215. In Vermont, that blood alcohol level is more than two and a half times the legal limit for driving. A police officer in the lobby of the hospital was notified and the patient was arrested, although charges were later dropped.

The women subsequently sued the hospital and the employee for violating her privacy by disclosing her health information to law enforcement.

The HIPAA Privacy Rule limits uses and disclosures of protected health information to treatment, payment, and healthcare operations, but there are exceptions. One of those exceptions is when a disclosure is made when there is a perceived serious threat to health or safety. The Privacy Rule permits such a disclosure if the disclosure is made to a person who could prevent or lessen a threat to either to the patient or the public.

Under the circumstances, the disclosure was reasonable and appropriate, which is what the Supreme Court ultimately concluded, affirming the Superior Court’s judgement. The disclosure was determined to have been made in order to mitigate an imminent threat to both the patient and the public. The Court rules “no reasonable factfinder could determine the disclosure was for any other purpose.” The plaintiff failed to prove that the disclosure had been made for any other purpose, such as in order for the patient to be arrested and charged.

The ruling is perfectly understandable; however, what is atypical is the case was given standing when state and HIPAA laws do not include a private cause of action. Patients do not have the right to sue their providers over violations of HIPAA laws and laws in Vermont also do not give patients that right. The case was ruled to have standing under a common-law private right of action for damages.

While the lawsuit was not successful, it could be cited in other lawsuits filed by patients who allege their privacy has been violated by their healthcare providers.

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