Invasion of Privacy

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Cleveland Clinic Sued for Privacy Invasion for Complying with Grand Jury Subpoena
June 9, 2010 By Michael P. Gennett and Stephen G. Prom In a "classic" case of state versus federal law preemption, the Cleveland Clinic of Ohio recently learned a tough lesson. The Clinic turned over a patient's records in response to a criminal grand jury subpoena seeking, among other things, information about treatment for drug and alcohol dependency, and mental health counseling. The grand jury subpoena was issued by the Cuyahoga County Court of Common Pleas in connection with its indictment of James Turk, a private investigator, who was charged with carrying a concealed weapon despite his alleged drug and alcohol dependency. Some of the charges against Turk were dropped, and he was ultimately acquitted. Turk then filed suit against the Clinic, alleging that it had invaded his privacy and negligently disclosed his private medical information by complying with the subpoena without his authorization. The Clinic moved to dismiss the case, arguing, among other things, that HIPAA includes a specific exception authorizing the disclosure of a patient's medical records without patient authorization in response to a grand jury subpoena. In its ruling, the U.S. District Court for the Northern District of Ohio refused to dismiss the case, holding that Ohio's patient privacy laws were not preempted by HIPAA. The more restrictive state law does not permit disclosure of patient medical records pursuant to a grand jury subpoena, absent patient authorization. Further, while federal HIPAA does not provide a civil cause of action against the violator by a person whose privacy is violated, Ohio law does. This case is a wake-up call to compliance officers, attorneys, and the like that mere compliance with HIPAA is not enough when responding to a subpoena or other type of records request. Applicable state laws must always be checked to determine if they are more restrictive and what obligations they impose. Failure to do so can land a facility in the same situation as the Cleveland Clinic, in spite of good faith intentions

to respond to law enforcement. Florida has many specific privacy laws which relate to physician and hospital records, mental health records, substance abuse, HIV, and sexually transmissible diseases. Each exception has its own characteristics. Florida law provides exceptions for responding to certain types of subpoenas or court orders. However, failure to comply with the specifics of an exception is a trap for the unwary. In most instances, the patient must be given prior notice and an opportunity to object to the production of those records, unless deemed waived by the patient (for example, the patient is a plaintiff or defendant, and has made his or her medical condition subject to the claim, defense, or counterclaim). Had the Cleveland Clinic scenario played out in Florida, the Clinic would have been well advised to object to the subpoena and require an appropriate court order before producing the records. While the confidentiality provisions related to hospital records allow the records to be produced upon issuance of a subpoena from a court of competent jurisdiction, it requires notice to the patient or his legal representative, which likely did not occur in Cleveland Clinic's case. Even more restrictive are the confidentiality protections afforded for substance abuse records. There is no exception for a subpoena. On the other hand, one must honor a court order entered upon a showing of good cause in which the court determines that the need for disclosure outweighs the potential injury to the patient or provider. A grand jury subpoena would not qualify for the substance abuse records exception because it is not issued by a court nor is it issued upon a finding of "good cause" as provided in the statute. The correct procedure would have been to object to compliance until a court order qualifying for this exception was issued. Health care counsel should be consulted to make sure that the subpoenaed party is not exposed to risk of liability for breach of privacy, attorney's fees, court costs, or some combination thereof.

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