Slovakia: Slovak Data Protection Authority Fines Faculty Hospital Nitra For Providing Medical Records To Expert Witness

Last Updated: 4 June 2019
Article by Peter Kováč and Lukáš Mrázik

May 2019 – The Slovak Data Protection Authority ("Slovak DPA") has fined Faculty Hospital Nitra EUR 2,000 for unlawfully processing sensitive personal data in breach of § 13 section 1 of Act. No 122/2013 Coll., On Personal Data Protection ("Data Protection Act 2013").

The Slovak DPA found the hospital in breach of Data Protection Act 2013

(i) through its unlawful provision in November 2017 of sensitive personal data concerning a deceased patient (a minor), which was included in medical records provided to an expert witness who prepared a written expert opinion the for the hospital; and

(ii) by unlawfully providing in March 2018 the personal data of the same patient to the Slovak weekly newspaper MY NITRIANSKE NOVINY, which published an article dedicated to the case on 26 March 2018.

The Slovak DPA's first instance decision imposed fine of EUR 4,000, which was decreased to EUR 2,000 after a successful appeal by the hospital. Fines in such pre-GDPR cases could have ranged from EUR 1,000 to EUR 200,000.

While the case and decision is based on pre-GDPR legislation, we are of the opinion that this decision is based on an interpretation of the law that may have adverse effects on the ability of healthcare providers to defend against medical malpractice claims, even with GDPR rules in place.

Providing health-related information to the media

With respect to providing the health-related personal data of a deceased minor to the media, the hospital argued that this information had already been published by the parents of the deceased and were publicly available. The Slovak DPA concurred with this opinion on appeal.

However, the Slovak DPA argued that under Data Protection Act 2013, in order to process health- related data already published by the data subject him/herself under § 14 e), the Data Controller must also have a legal basis pursuant to § 9 section 1. The Slovak DPA did not find such a legal basis and therefore concluded that the hospital violated the law by providing health-related data to the media, even though the minor's parents had already made this information available to the media and it had already been published.

Furthermore, under Slovak law a medical professional is obliged to maintain the facts he / she has learned in relation to the performance of his / her profession confidential in accordance with § 80 section 3 of Act No. 578/2004 Coll. On Healthcare Providers ("Act on Providers"). Only the person concerned (and the authority that issued the permit to provide healthcare) may discharge a medical professional from this confidentiality obligation. However, the Act on Providers does not require any specific form for the discharge of confidentiality by the person concerned. The publishing of health-related data by a person having the right to do so may eventually be seen as equal to the tacit discharge of confidentiality. The Slovak DPA did not take this into account in its decision.

We disagree with the decision of the Slovak DPA in so far as Data Protection Act 2013 (§ 10 section 3 g)) eventually provides a basis for the discharge of confidentiality, as the parents accused the hospital of malpractice in the media. On the other hand, while an expert witness is bound by the obligation of confidentiality, a journalist does not have such an obligation.

For this reason we strongly discourage healthcare providers from providing any health-related personal data to the media, even in the context of medical malpractice allegations presented in the media and even if such information has already been published by data subject her/himself.

If necessary, a viable solution would be to provide a reference to the location of already-published data without any further statements or interpretation.

Expert witness access to medical records

The Slovak DPA pointed out in its decision that the hospital retained and mandated the expert witness already on 3 November 2017, while the lawsuit was filed against the hospital on 2 February 2018. The expert delivered his written opinion on 22 February 2018. The court notified the hospital of the lawsuit on 20 November 2018.

The Slovak DPA maintained that the provision of §25 section 1 b)1 of Act No. 576/2004 Coll., on Healthcare ("Healthcare Act") shall be applied when obtaining the opinion of an expert medical witness.

The Slovak DPA construed its argumentation in such a way that a healthcare provider is only entitled to provide medical records to an expert witness appointed by a court, a law enforcement agency, a public administration body or by a party in court proceedings. This opinion is based on the argument that § 14 a) – e) of Data Protection Act 2013 contain an exemption from the general ban on processing sensitive personal data, inter alia data related to one's health, and that the provisions of § 13 to 14 are specific to § 10.

We can only point out the Data Protection Act 2013 in § 10 section 3 g) provides for the processing of personal data to protect the rights and legitimate interests of the Data Controller or a third party without the consent of the data subject, except if the fundamental rights and freedoms of the data subject prevail in such processing of personal data (the proportionality test).

If we adopted the position of the Slovak DPA in each similar case, it would lead to impractical and even absurd situations. Healthcare providers facing a patient's allegation of medical malpractice would not be able to decide whether to challenge certain (perhaps unfounded) claims or be able to prepare their arguments based on facts contained in the patient's medical records, unless the case is subject to administrative, civil or criminal proceedings.

The healthcare provider would not be able to consult the situation with its insurer or its shareholders and would lack crucial expert opinion that could eventually allow for either an out-of-court or court settlement, if the claim would be supported by the expert witness. Evidence obtained by an expert witness who was appointed by the Data Controller and not by a court would, in view of the Slovak DPA's decision, result in unlawfully obtained evidence and hence be unacceptable in court.

In addition, such argumentation would have an adverse effect on a Data Controllers' ability to prepare and plan their legal defense. An attorney is also a third party in a position similar to an expert witness. If we accept the DPA's decision, this would mean that sensitive personal data should not be disclosed to an attorney in relation to planning and preparing a legal action, despite the fact that an attorney is bound by a professional confidentiality obligation (as is an expert witness).

The European Data Protection Board explained in relation to a similar point2 that the legal basis for the exemption may be relied on in relation to a procedure that "must have a basis in law", but not necessarily one limited to judicial, administrative or even to out-of-court procedures. This legal basis should not be relied on if there is only a mere possibility of a legal proceeding, but it does allow for certain actions before the start of a proceeding. For instance, it can cover actions to launch procedures (e.g., commencing litigation or pre-trial discovery).

Post GDRP situation and expert witness access to medical records

We are of the opinion that GDPR provides a legal basis for the exemption to allow the processing of medical records by an expert witness appointed by a healthcare provider if there is an alleged patient claim against the healthcare provider under Section 6 (1) f) in connection with Section 9 (2) f), which allow for the processing of personal data concerning health if it is necessary for the establishment, exercise or defence of legal claims or whenever courts are acting in their judicial capacity. Act No. 18/2018 Coll. On Personal Data Protection provides a similar exemption in § 16 section 2 f).

The literal interpretation of the law by the Slovak DPA leads to difficulties for Data Controllers that had not necessarily been intended by the Data Protection Act 2013 or the GDPR. The legal basis for the exemption to disclose personal data should rather be interpreted to cover processing within formal proceedings as mentioned above, but also processing in preparation for such proceedings to allow the Data Controller to evaluate its legal position and strategy.

Footnotes

1 We are of the opinion that this is an error in the DPA's decision, and that expert witness access to medical records is dealt with in letter j). Letter b) deals with the full access to medical records of a deceased patient by a surviving husband or wife, parents or a closed person under the provision of the Civil Code.

2 Guidelines 2/2018 on derogations of Article 49 under Regulation 2016/679, including relying on the necessity for the establishment, exercise or defense of legal claims for international data transfer, accessible from this link.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions