Michael Kline and Elizabeth Litten were quoted in the Medical Practice Compliance Alert article "Beware of HIPAA, Patient Privacy During Practice Employment Disputes." Full text can be found in the March 30, 2015, issue, but a synopsis is below.
A recent case highlights just how privacy rights do not give practices free rein to use them for their own purposes without legal fallout, after a practice terminated two employees, citing poor job performance, rude and unprofessional behavior to patients, and then refused to reveal the patients.
A judge sided with the former employees and ordered the practice to provide contact information for the patients so that the employees could interview them as part of the discovery in their employment lawsuit.
"The physician had enough information [to justify the termination] without putting patients in the middle," said Elizabeth Litten. "The practice put itself in a position to now have to turn over patient information and alienate patients."
The case also demonstrates the confusion surrounding privacy rights, as the practice will violate HIPAA by having to disclose the patient information without authorization.
Unfortunately, the judge and attorneys in the employment matter may not have known much about HIPAA, Litten suspects, so its applicability was not adequately addressed.
"It looks like the judge factored a remedy designed to pressure them to settle," says Michael Kline.
Even if the employees were entitled to patient information in their employment suit, HIPAA likely was not followed. "There was no protective order [limiting the disclosure] nor [adherence to HIPAA's] minimum necessary requirements," said Kline.
In order to protect your practice, Kline suggests making sure the practice and its legal counsel understand HIPAA obligations. "Either party would have helped their cases here by invoking HIPAA," he said.
Practices should also take caution when using patient information to justify employment decisions. "The practice should have downplayed the role of patients," said Litten.
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