Clifford’s Notes, Chicago Lawyer, 05/01/2006
By Robert A. Clifford
Suzanne Bagent, a patient at Quincy Medical Group in September 2003, had blood samples drawn, which were sent to Illini Hospital. Misty Young, a phlebotomist and employee of the hospital, examined the results and later, at a tavern, told Bagent’s sister that the patient was pregnant.
Bagent filed a lawsuit against Illini Hospital and Young, alleging breach of health care practitioner/patient confidentiality, invasion of privacy, and negligent infliction of emotional distress, as well as intentional infliction of emotional distress as to Young.
The plaintiff’s action was grounded in statute (735 ILCS 5/8-802, 2004; 210 ILCS 85/6.17(b) (West, 2004) (patient’s medical information must be protected from disclosure), as well as common law right-to-privacy theories.
Admitting that she revealed the test results in a private conversation, Young filed a motion for summary judgment and accepted the hospitals’ offer of resignation in lieu of termination. Illini Hospital also moved for summary judgment, arguing that Young’s statements were not attributable to the hospital because her actions were not within the scope of her employment and because Young had been trained in confidentiality.
The trial court granted both of the defendants’ motions for summary judgment, but granted plaintiff’s motions for summary judgment against Young on the issue of whether she had improperly revealed confidential information. The issues of intentional infliction of emotional distress and damages also were to be determined at trial. On appeal, the rulings in favor of the defendants were reversed.
The appellate court found that Young had a continuing duty to maintain the confidentiality of patient records. "An employee entrusted with confidential information in the course of his or her employment has a duty not to disclose the information – without limitation as to time or space." Bagent v. Illini Community Hospital, and Misty Young, No. 4-05-0495 (4th Dist., decided March 3. 1006).
As for whether the hospital was liable under the doctrine of respondeat superior, the court said: "Hospital employees, as well as employees of lawyers, therapists, and other employers who maintain confidential information, have a constant duty to keep confidentiality." Therefore, the court held, it is up to a jury to decide whether Young was acting within the scope of employment, on the basis that her disclosure was actuated in part by a purpose to serve the employer. Id.
Although the plaintiff did not specifically plead the federal patient privacy statute, the Health Insurance Portability and Accountability Act of 1996 (HIPPA) (Pub. L. No. 104-191, 110 Stat. 1936), the act would expose the hospital to liability for fines by the Department of Health and Human Services for the actions of its employees.
Patients have a right to insist on privacy. It is their lives that become open books to medical professionals who count on openness and honesty in order to make proper diagnoses.
Take, for instance, the recently filed case of a Palm Beach, Fla., woman who sued Walgreens for defamation. Fifty-three-year-old Janey Karp has battled depression for years with the help of prescription drugs. She felt the need to be private about her problem because of the stigma she sensed in the general for those who needed medical to be "normal."
Much to her shock, when she picked up her prescription about a year ago, she noticed that in the patient information field someone had typed "CrAzY!" In looking at a previous prescription, she read that someone had typed, "She’s really a psycho!! Do not say her name too loud, never mention her meds by names & try to talk to her when..." The information continued on another page that was not attached.
When Karp read this, she knew her worst fears had been realized. She contacted a lawyer who said she made dozens of calls to Walgreens but received a "generic" response. Given that pharmacists and pharmacy technicians across the country have access to these records, Karp said she does not know how many people could have read these notes.
She said she was humiliated, embarrassed, and devastated, so she sued the Deerfield-based company in March, alleging defamation, negligent supervision, and intentional inflection of emotional distress. At the time of the filing, a Walgreens representative stated, "We want to ensure that our pharmacy employees are acting in a proper and professional manner, so we are looking into this matter."
The duty to maintain patient confidences traces back as far as ancient Greece, when the Hippocratic oath established a duty of confidentiality for the medical profession. ("Whatever, in connection with my professional practice, or not in connection with it, I see or hear in the live of men, which ought not be spoken of abroad, I will not divulge as reckoning that all such should be kept secret.")
Modern medical practice continued this ethical obligation of confidentiality through the American Medical Association’s Code of Medical Ethics, which provides that a "physician shall respect the rights of patients – and shall safeguard patient confidences within the constraints of the law." (Preamble Part IV, June 2001).
The notion of confidentiality is grounded in encouraging full uninhibited disclosure by the patient to receive proper treatment and to fulfill the purpose of the doctor/patient relationship. Over time, that has extended to medical professionals surrounding the doctor who must accomplish the patient’s medical goals. Violating these confidences has led to lawsuits brought on common law invasion of privacy grounds, breach of the fiduciary relationship between doctor and patient, intentional and negligent infliction of emotional distress, medical malpractice, defamation, libel, slander, and even breach of express or implied contract theories.
Certainly, a patient’s personal medical information should be controlled by the patient. In holding for the patient, as in Bagent, the court sends a clear message that patient confidentiality must be taken seriously by both employer and employees, particularly in t his age of electronically stored and managed data.
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