Invasion of Privacy and Medical Malpractice

September 30, 2019

You tell your doctor things that you might not want anyone else to know. Doctor-patient confidentiality, and your right to privacy, is protected by law. If the worst happens and your healthcare provider publicizes your medical information without your consent, you may be able to file a medical malpractice suit against them.

Your health information is protected by the Health Information Portability and Accountability Act, or HIPAA. HIPAA sets regulations for protecting health information and controlling who has access to it.

A HIPAA violation alone is not grounds for a lawsuit. However, you may be able to file a medical malpractice suit against the doctor or healthcare provider who invaded your privacy if their actions caused you harm.

What does an invasion of privacy look like?

In Indiana, you can collect damages for an invasion of privacy, including instances where medical facts about you were made public without your consent or in a defamatory way. Examples of invasions of privacy regarding medical information may include:

• Sharing the results of a test in front of family members or other patients without your permission
• Taking pictures of an undressed patient under anesthesia
• Mentioning a patient’s medical history in a document that is open to the public
• Leaving digital health records open for non-medical personnel to access
• Gossiping about a patient’s health condition on social media

Invasion of privacy is a broad area of tort law; medical negligence is just one area. A malpractice attorney can help if you aren’t sure if your individual situation justifies a malpractice claim.

How is my medical information protected?

It isn’t possible to maintain complete secrecy in an environment where sharing patient information is crucial for getting them the care they need. For example, a patient may overhear a doctor discussing another patient on their way to the bathroom, or may see someone’s name on a sign-in sheet or nurse’s chart as the nurse passes them in the hallway.

It just isn’t possible to prevent every accidental disclosure of health information. HIPAA allows that accidental disclosures may happen, but requires all covered entities — health plans, healthcare providers, and healthcare clearinghouses — to have “reasonable safeguards and minimum necessary policies and procedures” to prevent disclosing information whenever possible.

If your healthcare provider violated these policies, or if they didn’t have these policies in place, then there could be consequences. You can file a HIPAA violation complaint against your healthcare provider, in writing or online. HIPAA violations are punishable by fines, or even with prison time if the defendant knowingly obtained the HIPAA-protected information.

A HIPAA violation by itself is not grounds for a malpractice lawsuit. For it to count as malpractice, the defendant must be negligent, and you must have experienced harm.

Does an invasion of privacy count as negligence?

Medical malpractice claims must prove these two things:

1. The healthcare provider was negligent.
2. Their negligence caused injury to the patient.

All medical professionals must meet the accepted standard of care for patients. This includes following HIPAA and other privacy and security guidelines they are trained in. Disclosing your private information without your consent, whether intentionally or by mistake, directly violates their training and as such doesn’t meet the standard of care.

An invasion of privacy can be considered medical negligence because it does not meet the accepted standard of care. But to be considered medical malpractice, the negligent act must cause direct harm to the plaintiff.

Let’s say that your doctor begins telling you your test results before closing the door. A nurse passing by overhears your name and your results, but you don’t notice that they were there and the nurse doesn’t do anything with the information. While your doctor should have made sure the door was closed before sharing sensitive information, it would be hard to prove that you suffered harm because of their negligence. However, if the nurse mentions your test results on Facebook and the harmful gossip begins affecting your emotional health, then you may have a case for malpractice.

While the harm suffered may not be physical, privacy invasions can lead to emotional and mental anguish, which are considered injuries. This harm can lead to damages like lost wages and medical bills, which can be recovered with a settlement.

Do I need a medical malpractice attorney?

Medical malpractice suits can be complicated. Depending on how your private information was shared, a claim can be filed against individual doctors and medical professionals, as well as entire medical facilities.

Plus, if any business associates of your healthcare provider were involved in the leak—for example, an employee of the company responsible for shredding health records kept your file instead of shredding it—then it could become even more complicated. HIPAA doesn’t just cover health entities: it also extends to business associates of those health entities. Business associates include law firms, accountants, IT contractors and software providers, third party administrators, and others. If any business associates of your healthcare provider were involved, your malpractice claim may become affected.

An experienced medical malpractice attorney will be able to determine who the negligent parties are, and can guide you through the process if you decide to take your case to court.

You can only settle a medical malpractice case once. It cannot be reopened later, even if the leaked information causes more emotional distress later on. And while few malpractice cases end up going to trial, almost 50 percent of cases with clear evidence of negligence were still decided in the doctor’s favor. That’s where an attorney can help to craft your case, so you can get the settlement that you deserve.

If you have experienced trauma because of your doctor’s indiscretion and negligence, you are entitled to compensation. Please call Hensley Legal Group or chat with us online for a free conversation about your medical malpractice claim.