Fact Dispute Regarding Disclosure of HIV Test Results Causes Nebraska Supreme Court to Reverse Lower Court
On March 14, 2014, the Nebraska Supreme Court reversed a lower court decision granting Prairie Fields Family Medicine PC summary judgment on claims for intentional and negligent infliction of emotional distress related to the alleged improper release of HIV test results of C.E., a patient of the practice.
Plaintiff C.E. sued Prairie Fields and Kristy Stout-Kreikemeyer, an employee of the practice, alleging claims of invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress based on the improper disclosure of the results of an HIV test.
Brief summary of the facts as set out by the Court:
- In 2010, C.E. went to a diagnostic laboratory in Omaha, Nebraska, to have a physical examination for a life insurance application and the lab drew a blood sample.
- The lab sent the blood sample to another lab for testing, and the lab sent the results to C.E.'s physician at Prairie Fields.
- Sometime in September 2010, C.E. went to see her physician. "When C.E. arrived on a Thursday at about 3 or 4 p.m., Kristy Stout-Kreikemeyer, whom C.E. knew from high school, showed C.E. to a room. C.E. said that when she asked about her test results, Stout-Kreikemeyer looked in C.E.’s file, flushed, and responded that she could not say anything."
- "C.E. testified that the next day, Friday, at about 7 p.m., Jonathan Karr, the father of one of C.E.’s daughters, called her or sent text messages to ask how she was because he had heard from his friend Jamie Goertz that she had 'Aids, full blown-out Aids.' C..E. said Karr sent her the text message that he had received from Goertz."
- C.E. was not sure who disclosed the information, but was certain the information was disclosed by someone from the practice because of the way the information was handled by the labs.
- C.E. believed that the information may have been disclosed by Kristy Stout-Kreikemeyer "because she had seen a social contact between her and Goertz on an Internet social media service." [Notice the use of social media evidence here.]
- "C.E. then learned through a discovery request that Sara Sorensen worked at Prairie Fields as a medical transcriptionist. Sorensen was Goertz’ former wife, and C.E. believed that Sorensen had disclosed the test results to him. Prairie Fields stipulated that Sorensen had transcribed C.E.’s medical records."
- "C.E. testified that she did not tell anyone about the test result because she believed that the test result was a false positive. She believed this because her doctor had told her that other antibodies could cause a false positive result and because she had a family history of autoimmune conditions."
The lower court granted summary judgment in favor of Prairie Fields because, according to the lower court, the medical practice "introduced substantial competent evidence to establish a prima faci[e] showing that there is a lack of causation by [Prairie Fields] or its agents related to any claim for damages made by [C.E.] in this case." The lower court then looked to C.E. and said that C.E. did not provide evidence that Prairie Fields of its agents were "somehow negligent and that said negligence caused some type of damage/injury to [C.E.]" (The parties agreed to dismiss Kristy Stout-Kreikemeyer from the case and the invasion of privacy claim was time barred.)
In reversing the lower court decision, the Nebraska Supreme Court stated that, "giving C.E. the benefit of all reasonable inferences [as the Court is required to do in deciding on a Summary Judgment motion], the circumstantial evidence that she presented was sufficient to support an inference in her favor" and therefore, "Prairie Fields was not entitled to judgment as a matter of law." The Court further ruled that, the lower court "erred by concluding C.E. presented no competent evidence that a Prairie Fields employee had disclosed her diagnosis. Moreover, the court incorrectly stated that her evidence must show it was more likely than not that a Prairie Fields employee had disclosed her diagnosis. A court does not weigh the evidence at the summary judgment."
The decision is C.E. v. Prairie Fields Family Medicine PC, 287 Neb. 667 (Mar. 14, 2014).
A Few Take-a-Ways
- The disclosure occurred sometime in or about September 2010. C.E. filed suit in February 2012. The lower court issued its decision in or about May 2013. This Court issued the decision discussed above in March 2014. The case will now go back to the lower court and the litigation, unless it is settled, will proceed. These cases, like any litigation, take years.
- It is imperative that providers train their staff on protecting medical information because the provider will be drawn into the litigation. Providers treating patients in small towns, multiple family members, the provider's employees, and so forth may consider taking special precautions to ensure that information is secure and to segregate duties as needed.
- In the scheme of protected health information, information related to HIV/AIDS and other sexually transmitted diseases, mental health, substance abuse, and abortions occupies a special class of information -- often called highly sensitive information -- because of the stigma and other repercussions improper disclosure may case. As such, this highly sensitive information generally receives special protections under either (or both) federal and state law and individuals who suffer data breaches involving this kind of information may have more legal remedies (and higher jury verdicts).
- This case was decided under Nebraska state law. HIPAA does not provide for a private right of action. So, cases involving the unauthorized disclosure of healthcare records, substance abuse records, and so forth, are brought under state law. But, several courts have ruled that HIPAA may be used to set a 'standard of care.' Providers may consider reviewing their practices to see whether they could meet this standard of care.
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