By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
I receive many questions and e-mails about possible violations of the Health Insurance Portability and Accountability Act's (HIPAA) Privacy Regulations and Security Regulations, and breaches of confidentiality of medical records and medical information.
More detailed information on HIPAA Privacy Regulations and Security Regulations, can be found at: http://www.hhs.gov/ocr/privacy/hipaa/understanding/index.html
There is no private cause of action allowed to an individual to sue for a violation of the federal HIPAA or any of its regulations. This means you do not have a right to sue based on a violation of HIPAA by itself. However, you may have a right to sue based on state law.
To read the first part of this blog, click here. To continue learning more on HIPAA Privacy Rights and Medical Confidentiality, see below.
4. State Laws and Law Suits (Civil Recovery).
If there was a violation or breach of patient confidentiality or medical records confidentiality, this may also be a violation of the state's laws on patient or medical records confidentiality. In most states this would give you a legal cause of action for invasion of privacy or for negligence.
The biggest problem usually encountered in this type of case and the reason most attorneys will not even consider taking one is the lack of documented provable damages (again, I emphasize the words "documented" and "provable").
5. Documented, Provable Damages is Key.
Unless you have actual bills and receipts, you don't have this. In most cases, unless you can prove that you have suffered actual damages by proof such as:
a. Doctors' bills you have paid
b. Mental health counseling fees you have paid
c. The purchase of credit protection insurance
d. The purchase of identification theft insurance
e. The costs you have paid because your identity was stolen
f. Lost pay from time off (with the pay stubs, W-2 forms, etc., to prove the amount)
g. Lost pay from a lost job (with the pay stubs, W-2 forms, etc., to prove the pay lost)
h. Attorney's fees paid as a direct result of the breach of privacy (key word being "direct result")
i. Other actual out-of-pocket expenses, you may have a difficult time proving a case in a court of law
If you have these keep good, detailed documentation. Obtain good, legible receipts for everything.
Unless you have these, you will have great difficulty in finding a plaintiff's attorney to take such a case. It is doubtful that you would have a provable case, as well. There are exceptions to every case, however.
If you do feel that you have a valid case with documented damages, we urge you to contact and retain a plaintiff's attorney to file suit on your behalf as soon as possible. You have only a short period of time to bring up such a case, after which your rights to do so will be extinguished forever.
We would urge you to consider carrying out actions #1, #2 and #3 in Part 1. If these organizations do not find in your favor, then it is even less likely that a judge or jury would find in your favor.
Hourly Attorney vs. Contingency Fee Attorney.
Our statements above hold true mainly because most attorneys who would take such a case are plaintiff's attorneys who take cases for a contingency fee (a percentage of the amount they win). In such a case, if an attorney spends 100 hours preparing for trial (actually a low number), wins your case, and you only have $500 worth of provable damages (if the contingency fee agreement is for 40%, a fairly standard amount) then that attorney only gets $200, or $2.00 per hour. I don't know any attorney who will work for that amount. (This is a very simplistic illustration to make the point; it does not even take into account the legal costs involved, which the client is usually responsible for paying.)
An attorney who charges by the hour may be more likely to take the case (but he/she may also be hard to find for this type of case), and may require a retainer fee of $5,000 to $15,000 paid up front just to get started.
If you have a civil case for liability, you only have a short, limited time to file it. You must do so within the applicable time period or you will lose the right to do so forever.
Remember, there is only a short time in which to take any action that may be necessary and if you fail to do so, your rights may be lost forever.
Again, this is not legal advice, just general information.
Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.
The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).
For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
Tag Words: Health Insurance Portability and Accountability Act, HIPAA, HIPAA audits, HIPAA audit protocol, HIPAA compliance, medical records, medical practice audit, records request, defense attorneys, lawyers, legal representation, audit attorneys, health care audits, breach of patient
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