How aware of patient confidentiality are you?
ISSUE: Is protecting patient confidentiality part of a nurse's job? Yes! A breach in confidentiality can result in punitive damages.
CASE FACTS: A 20-year-old unmarried woman who lived with her parents decided to terminate her pregnancy at Long Island Surgi-Center. Because her parents strongly disapproved of premarital sex and were implacably opposed to abortion, she was determined to keep her decision from them. Consequently, when she first contacted the clinic to arrange for the procedure, she provided her own cell phone number and gave specific instructions never to call her at home. Nevertheless, a day after her abortion was performed, one of the clinic's nurses telephoned the woman's home and spoke with a person she knew to be the patient's mother. In the course of the conversation, the nurse revealed information sufficient to allow the mother to conclude that her daughter had an abortion. The patient brought suit against the Center for damages resulting from the nurse's breach of the patient's right to confidentiality. According to the evidence presented at trial, the patient underwent an abortion at the Center. Upon first contacting the Center (the day before) she specifically instructed a member of the Center's staff that her home phone number was not to be used and that all calls to her were to be made to her cell phone number, which she provided. On the patient's preoperative history and patient questionnaire form, which was filled out on October 12, 1999, the patient's home phone number had been handwritten, then crossed out. The form also listed the patient's cell phone number, as well as her work number. The nurse who filled out the form did not know why the patient's home phone number had been crossed out, although she conceded that one possibility was that the patient did not want to be contacted at her home. It was undisputed that the patient, in filling out all forms and questionnaires required of the Center, did not waive her right to patient confidentiality. However, labels were produced by the Center, which showed the patient's home phone number. The patient underwent the abortion without complication and was discharged the same day. Consistent with state law, a determination of the patient's blood group and Rh type had to be made prior to the procedure. The results would determine whether the patient would require a an injection of Rh immune globulin within 72 hours of the procedure. Part of the patient's blood test results were still pending at the time she was discharged. The patient was told to follow up with her physician to obtain her missing blood test results. As directed, she did so the following morning and was told that no injection was required. When the Center received a taxed copy of the blood test results, a nurse at the Center, unaware that the patient had received the results, followed her supervisor's instructions to check on whether the patient had been notified of the results. The nurse, using the patient's home telephone number (which was the only number she had for the patient) telephoned the patient at her home number (contrary to the patient's instructions). The nurse, who admitted that she was well aware that she was speaking to the patient's mother, (without specifically mentioning the abortion) asked her, among other things, whether the patient had experienced any vaginal bleeding and told her that the patient needed to find out her blood group and Rh type. Based upon this conversation with the nurse, the patient's mother concluded that she had an abortion. Thejuu awarded the patient $365,000 including $300,000 in punitive damages. The Center appealed.
COURT'S OPINION: The Supreme Court of New York affirmed the right to award damages ill such a case, including punitive damages The court held, inter alia, that it could not rule that, as a matter of law, the callous, reckless, or grossly negligent disregard of an individual's right to privacy and confidentiality of sensitive medical information--a right protected by the declared public policy of the State of New York--could not be sufficiently reprehensible and morally culpable to support an award of exemplary damages. However, the court found that the trial court erred in precluding the Center from introducing evidence regarding the absence of past breaches of confidentiality by the Center. The court concluded that the question of whether the incident in was an isolated event or part of a pattern of similar behavior was an important factor to be weighed before determining whether punitive damages should have been awarded. Accordingly, the court remanded the case to the trial court for a trial on that issue.
LEGAL COMMENTARY: Nurses should be keenly aware of the significance of patient confidentiality and their role in it as well as the serious consequences of a breach of that confidentiality.
Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World,