NY case

[Peter Marshall <techdiff@ix.netcom.com>]

     Privacy Protection Urged for HMO Medical Records

     New York Law Journal
     April 22, 1999

     BY GARY SPENCER

          ALBANY -- Finding that modern medical bureaucracies
     threaten
     the privacy of patients, an upstate judge has urged the
     Legislature to expand the liability of health care providers and
     insurance companies for the actions of employees who disclose
     confidential information.

          Albany Supreme Court Justice Joseph C. Teresi said in a
     ruling last week that he was "constrained" to dismiss a negligence
     suit brought against a health maintenance organization by a woman
     who claimed a clerk at the HMO revealed confidential information
     about her sexual orientation to friends and co-workers.

          The judge concluded the HMO could not be held liable for the
     breach under the doctrine of respondeat superior because the clerk
     was not acting within the scope of her employment. But he also
     argued strenuously that the liability of employers should be
     broadened to protect the confidentiality of sensitive medical
     records.

          "It was a simpler time when the only legal protection
     warranted for health information was that involving the
     doctor-patient relationship," he wrote. "Now, the medical and
     insurance professions are big business. Human nature being what it
     is, this court feels certain that this is not the last time
     confidential information will be released by an employee, and the
     patient-victim [will be left] without a remedy."

          The case, Jane Doe v. Community Health Plan-Kaiser Corp.
     (Index No. 7342-97), arose two years ago when the plaintiff was
     receiving psychological counseling from a social worker employed
     by her insurer, Community Health Plan (CHP). The plaintiff had
     confided information about her sexual orientation to the social
     worker, and that information was in her treatment file.

     Confidence Breached

          In March 1997, the plaintiff claimed she discovered that a
     CHP medical records filing clerk, Christen Adey, had read her file
     and was telling friends and co-workers that the plaintiff was a
     lesbian. Ms. Adey did not oppose the plaintiff's motion for
     summary judgment, and Justice Teresi ruled she is liable, but the
     plaintiff was seeking a collectible judgment, and pursued her suit
     against CHP.

          An employer can be held vicariously liable for the conduct of
     an employee only when the employee is acting in furtherance of
     some duty owed to the employer, and Justice Teresi found Ms. Adey
     clearly was not. She "was acting solely to benefit herself," he
     said, dismissing the claim against CHP. "CHP did not, and could
     not have conceivably, benefitted from Adey's revealing plaintiff's
     sexual identity."

          However, he said the case raises concerns that are likely to
     recur in the modern health care system, where doctors cannot
     completely control information about their patients. The plaintiff
     had "rightly disclosed all necessary, and extremely personal,
     information to the social worker" in order to facilitate her
     psychological treatment, assuming it would be confidential, he
     said. "[L]egislative action is warranted to afford citizens the
     protection that is both expected and relied upon."

          "[W]ith the availability of extremely intimate and
     historically protected information now at the hands of many as the
     file works its way through the maze of the health care
     infrastructure, it appears that, in reality, this information is
     in fact unchaperoned by adequate confidentiality," he wrote.

          "It is imperative ... that this sort of information be kept
     confidential," he said. "It appears reasonable that an employer,
     who knows his employees will have access to this type of
     information, be held to more exacting standards than the present
     law allows."

     Threat to Quality

          Justice Teresi said a situation that undermines the
     confidentiality of the doctor-patient relationship poses a threat
     not only to the privacy of patients, but to the quality of medical
     care.

          "[F]ull disclosure facilitates proper medical and
     psychological care," he wrote. "When patients fear that this
     information will be disclosed, they will be hesitant to divulge
     their necessary and intimate confidences. This stifling of the
     medical and psychological professions presents too high a cost to
     society."

          The plaintiff was represented by Lee Greenstein, and CHP by
     Paul M. Collins, of Hinman Straub Pigors & Manning, both of
     Albany.


     Copyright © 1998, The New York Law Publishing Company.