How to Defend Yourself in a Medical Privacy Violation Lawsuit
If you release a patient’s private medical information to a third party, then you might be sued. The patient can sue under a variety of laws, for example breach of confidentiality or invasion of privacy. State attorney generals and the federal government may also sue you if you did not adequately safeguard patient medical information according to HIPAA guidelines. In order to defend yourself, you should meet with a qualified attorney and begin planning your defense.
Planning Your Defense to the Lawsuit
Read the complaint.The patient will file a complaint in court to start the lawsuit. The complaint will identify you as the “defendant” and the patient as the “plaintiff.” The complaint will also describe how you violated the plaintiff’s medical privacy, and it will ask the court for a remedy, such as money damages.
- You also might be sued by the state or federal governments for violating the Health Insurance Portability and Accountability Act (HIPAA) regulations. In this situation, the government might sue you and try to impose fines. The government’s complaint should also describe how you violated the law.
Note the deadline for responding to the lawsuit.Along with the complaint, you will receive a “summons.” This document will tell you how much time you have to respond to the lawsuit. You should make note of the deadline. Depending on the court, you might only have 21 or 30 days to formally respond.
- If you fail to respond in time, then the plaintiff could get a “default judgment” against you. These judgments are difficult to set aside. Essentially, the plaintiff will win the lawsuit without you having a chance to respond.
- Depending on your state, the plaintiff could then garnish your wages or put a lien on your property.
Meet with a lawyer.You should schedule a consultation as soon as you finish reading the complaint. Only a qualified attorney can adequately advise you of how best to defend yourself. To get a referral, ask other medical providers if they have been sued for privacy violations. If they have, then ask if they would recommend their lawyer.
- Once you have a referral, you can call the lawyer and schedule a half hour consultation. Most lawyers will agree to meet with you for free or for a reduced fee.
- Take a copy of the complaint with you so that the lawyer can read it. Also be prepared to honestly discuss your actions.
- Also think about hiring the attorney, particularly if you are sued by the government. Although every lawsuit is serious, a prosecution for HIPAA violations is particularly dangerous. You could be fined huge sums of money. Civil penalties can range from 0 to ,000 for each violation, up to a maximum of .5 million.
Discuss your defenses.A key focus of your consultation should be possible defenses you can raise to the lawsuit. The defenses available to you will depend on the lawsuit as well as the facts of your case. Among the defenses you can raise are the following:
- The patient consented to the release of information. Consent is the best defense. If the patient consents to the release of private medical information, then he or she cannot sue you. Also, the government cannot sue you for violating HIPAA regulations if you had valid consent from the patient to release the information.
- You did not publicize the information. Although you don’t have to widely broadcast the information to be sued for invasion of privacy, you generally have to release the information to more than one person.
- The medical information was not really private. If the information was widely known, then you have not disclosed a private fact. You will have a strong defense if the plaintiff released the information him or herself.
- A person of ordinary sensibilities would not find the released information offensive. In order to sue for invasion of privacy, the private medical information has to be offensive. If an ordinary person would not be offended, then you have a defense.
- The patient waited too long to sue. Each state also sets limits on how long a plaintiff can wait to file a lawsuit. These deadlines are called “statutes of limitations,” which differ by state. If the patient waited too long to sue, you can have the case dismissed.
- You were proactive in detecting and correcting violations. You can gain immunity from HIPAA fines if you work to detect, investigate, and correct any violations within 30 days of learning about them.
Gather evidence for your defense.You will need to show a judge or jury evidence that supports your defenses. Accordingly, you should begin gathering evidence soon after meeting with your lawyer. If you have a question about what would be helpful evidence, ask the attorney. You might look for the following:
- A consent form. The patient should have signed the form. Also the form should have accurately explained why you are requesting permission to use or disclose the patient’s health information. Also explain who is being given permission to use the information. Make sure to state that the patient can also revoke the consent.
- Proof that the plaintiff already revealed his or her medical information. Collect any emails, newspaper or magazine stories, or other evidence that the plaintiff’s medical information is widely known.
- Proof that you investigated and corrected violations of HIPAA. For example, you should gather evidence that you investigated any alleged violation promptly. Gather the notes taken by the person performing the investigation. Also, document how you corrected the violation. For example, you might have punished an employee, reassigned him, or required that he take special HIPAA training so that a violation doesn’t occur again.
Answering the Lawsuit
Draft an answer.You can respond to the lawsuit by drafting an “answer” and filing it with the court. In your answer, you respond to each allegation made by the plaintiff. You can admit, deny, or claim insufficient knowledge to admit or deny each allegation.
- Your lawyer should draft the answer for you. Request to see a rough draft so that you can double-check that you are not accidentally admitting to an allegation.
File your answer.Your lawyer will file the answer once it is completed. You will probably have to pay a filing fee, which will be billed to you. You should also ask your lawyer to give you a copy of the final version of the answer.
File a motion to dismiss instead.Instead of an answer, you can file a motion to dismiss if the plaintiff does not have a legal claim to make. For example, you could file a motion to dismiss if the plaintiff waited too long to file his or her lawsuit. You can ask the judge to dismiss the lawsuit “with prejudice,” which means the plaintiff cannot refile.
- You can also file a motion to dismiss if a private person tries to sue you for HIPAA violations. HIPAA does not grant patients a right to bring a lawsuit. Instead, only states or the federal government can sue you to enforce HIPAA regulations. If an individual tries to sue you, then you should ask for the case to be dismissed.
Send a copy to the plaintiff’s lawyer.After filing your answer or motion to dismiss, your lawyer will need to send the plaintiff a copy. You always have to provide notice of any document you file in your lawsuit. Each court has different rules concerning proper service of notice.
- Generally, your lawyer will probably hire a private process server to make service. Process servers generally charge -75 per service.
- You might also be able to pay the county sheriff to make service. Sheriffs charge roughly the same amount as a process server.
- In some situations, you can also have someone 18 or older make service provided they are not part of the lawsuit.
Begin the fact-finding phase of the lawsuit.This phase is called “discovery.” In discovery, each side can request information or documents from the other. For example, you can request a copy of any document related to the dispute. You can also ask questions, either in writing or face-to-face in a deposition.
- Your lawyer will use discovery to find out helpful information. For example, your lawyer can request any electronic document even slightly related to the dispute. If the patient sent emails discussing the supposedly “private” medical information, then you can get copies of those emails. You would then use them to defend yourself. These emails would prove that the information was publicly known and you did not invade the plaintiff’s privacy.
Defending Yourself in Court
File for a summary judgment motion.After discovery ends, your lawyer might file a motion for summary judgment. In this motion, your lawyer argues that there are no factual disputes and that you are entitled to judgment as a matter of law.
- The plaintiff could also file a summary judgment motion. The judge will hear both motions.
- If you win, then there is no trial, although the plaintiff could appeal the grant of summary judgment. The same is true if the plaintiff wins. Often, the judge will turn down both motions, and you will proceed to trial.
Pick a jury at your trial.If you go to trial, then you might have to pick a jury. You can have a jury if either you or the plaintiff choose to have one. During jury selection, the judge calls up a panel of prospective jurors to sit in the jury box. The judge then asks them basic questions, such as their jobs and if they know either you or the plaintiff.
- If you think a juror cannot be fair, then you should ask the judge to dismiss the juror “for cause.” For example, a juror might know you or the plaintiff. In that situation, the juror might be unable to be fair.
- You also should get a number of “peremptory challenges.” With these, you can dismiss potential jurors without having to explain your reason to the judge. You don’t even need the judge’s approval. However, you can’t use peremptory challenges in a way that is discriminatory on the basis of race, ethnicity, or sex.
Cross-examine the plaintiff’s witnesses.At trial, the plaintiff will present evidence first. The plaintiff will probably call as witnesses the people who you released the medical information to. The plaintiff will probably also testify. Your lawyer will have a chance to cross-examine all witnesses. The purpose of cross-examination is to get helpful information from the witness or to undermine the witness’s credibility.
- For example, a witness might have helpful information. If a witness testifies that you divulged private medical information to her, then you could get the same witness to testify that the plaintiff also told her the private information earlier. This witness’s testimony would help you establish your defense: the plaintiff revealed the information first.
- Some witnesses might not have any helpful information. In these situations, your lawyer will want to undermine the witness’s credibility. Your lawyer can do this by showing bias.For example, the witness might be a relative or friend of the plaintiff’s or have a grudge against you. If the witness is someone you fired from your medical office, then your lawyer could bring up that fact to show that the witness is biased against you.
Call your own witnesses to testify.You get to present evidence second. Who you call as witnesses will depend on the facts of the case. For example, if you are being sued for a HIPAA violation, you might call the person who investigated the breach of client confidentiality. He or she can testify about how you promptly investigated and then corrected the problem.
- Remember that witnesses can only testify as to what they personally know. A witness cannot testify as to second-hand information or gossip.
Testify on your own behalf.Your lawyer will probably call you to testify. You should do a practice run with your lawyer before trial. Your lawyer can pretend to be the plaintiff’s attorney and ask you questions. Then you can review your answers. On the day of trial, remember the following tips for being a good witness:
- Dress your best. Jurors will judge you from the first moment they see you based on your appearance. If you have a suit, then wear one.
- Listen closely to the lawyer’s question and answer only that question. If you don’t understand what you are being asked, then ask the lawyer to clarify the question.
- Never guess. If you don’t know the answer, then say so.
- Always be truthful. You will commit perjury if you lie. Also, the plaintiff’s lawyer might trip you up in contradictions if you try to bend the truth.
- Avoid using humor. A lawsuit is a serious situation. You should always approach it in a sufficiently serious manner.
Wait for the verdict.After all evidence has been submitted, the judge will read the jury its instructions. These instructions will tell the jury what law it must apply to the facts and what it must find in order to decide the case in the plaintiff’s favor. The jury will then retire to deliberate.
- In federal court, a jury must be unanimous. This means that even if one juror decides in your favor, you will win the lawsuit.
- In many state courts, however, juries no longer need to be unanimous. Instead, only 3/4 or 5/6 of the jury must decide for the plaintiff. If the jury has 12 people on it, then only nine or 10 will need to agree with the plaintiff for you to lose.
File for an appeal if you lose.You should talk with your lawyer about whether you want to appeal. An appeal can be quite time-consuming (and expensive). However, you might want to bring an appeal if the judge made an obvious error, such as letting someone testify to gossip. Get your lawyer’s opinion.
- If you want to bring an appeal, then you can’t wait too long to file. Most states will give you only 30 days (or even less) after final judgment is entered to file your Notice of Appeal.
- You can be criminally prosecuted for HIPAA violations, although this is rare. A doctor in California received four months in prison for reading the medical records of his boss and colleagues, as well as the records of celebrities over a three-week period.This sentence was given for prolonged, deliberate violations and not for a one-time slip-up. Nevertheless, you should be aware that prosecutions are possible, and you should contact a criminal defense attorney if you are confronted with criminal allegations.
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