Issue: November 2012
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Liability for Electronic and Other Medical Record Information Disclosure

Introduction

Liability for Disclosure of Medical Information
On July 17, 2012 Dept. of Health and Human Services Secretary Kathleen Sebelius announced that a national survey of office-based physicians reports that most of those who have adopted electronic health record (EHR) systems are satisfied with their system and say it has improved patient care. Federal agencies have recognized that “it is impossible to overstate the importance of confidentiality” of health information.
 
Ensuring the security of protected health information (PHI) in an entity’s health IT system requires instituting measures to guard against unauthorized use and disclosure of PHI.
 
Lawsuits involving the unauthorized disclosure of confidential medical records are on the increase. It is critical for attorneys to understand the potential theories of liability and defenses, and for physicians, insurers, and employers to be aware of their exposure to liability.

The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed for a claim that a physician breached a fiduciary duty of confidentiality owed to a patient? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for breach of a fiduciary duty of confidentiality be avoided for a disclosure of medical information? And, what is a potential strategy for the physician to employ?

Insurers:

Can an insurance company be subject to liability for a disclosure of confidential medical information? And, what is a potential strategy for the insurer to employ?

Employers:

Can an employer be subject to liability for a disclosure of confidential medical information made by an employee or contractor? And, what is a potential strategy for the employer to use?


Practice the Technique: Checklists

Attorneys:

Counsel must develop a list of facts and circumstances that demonstrates proof that a healthcare provider breached a common law duty of confidentiality owed to a patient, which may be based on a breach of a fiduciary duty, a breach of a contractual duty, or an invasion of privacy.

Physicians:

Physicians must consider this litigation checklist when presenting a defense to a claim that the physician breached a common law duty of confidentiality owed to a patient.

Insurers:

The insurer should review the following aspects of its procedures for collecting, maintaining, and releasing confidential health information of insured persons and consider how they impact the insurer's potential liability.

Employers:

In the case of a hospital that could be considered the employer of a physician, nurse, or other worker who discloses a patient’s confidential medical information, the hospital should be concerned with possible respondeat superior liability for inappropriate or unauthorized disclosures or breaches of the security of electronic medical records.

Expert Analysis

What Are the Privacy Issues Involving Electronic Medical Records and How Has Technology Changed the Landscape of Health IT?

Alice Leiter, J.D

Do the Benefits Electronic Medical Records Systems Offer Outweigh the Challenges?

Amanda Parsons, M.D.

What Policy Steps Should Be Taken to Protect the Privacy of Electronic Patient Health Records?

Nicolas P. Terry, J.D.

What Steps Do Government Experts Suggest To Ensure Health Information Privacy and Security When Implementing an EHR Incentive Program?

Government Health IT Experts

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons to Reach Settlement

The following are reasons why the attorney, physician, insurer, or employer would want to reach settlement, and not take the action to trial. 


Reasons to Go to Trial

The following are reasons why the attorney, physician, insurer, or employer would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving liability for electronic and other medical record disclosure.



Medical Examples

Electronic Medical Record Technology and Litigation Guidance

This section provides detailed information on electronic medical records and considerations of EMR privacy. An overview of EMR technology, the terminology used, the benefits and disadvantages of using EMR, security safeguards that must be implemented, a listing of potential medical records to consider, and litigation evidence and discovery guidance are provided.



Law and Medicine Resources

References

Provided below is a listing of law and medical references for further information on electronic and other medical records liability.


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Liability for Electronic and Other Medical Record Information Disclosure

Table of Contents
Introduction

Expert Analysis
   Alice Leiter, J.D
   Amanda Parsons, M.D.
   Nicolas P. Terry, J.D.
   Government Health IT Experts

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians and Health Providers
   Insurers
   Employers and Risk Managers

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist

Alternative Dispute Resolution

Reasons to Reach Settlement

Reasons to Go to Trial

Jury Awards and Settlements

Electronic Medical Record Technology and Litigation Guidance

References