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Remedies for Violation of HIPAA Privacy Rights and Medical Confidentiality

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.  I will attempt to explain and clarify this issue a little in this short blog.

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.  See below.


1.  File a HIPAA Privacy Complaint with the Office of Civil Rights (OCR).

As a first step, you may desire to file a HIPAA Privacy Complaint with the federal government.  These are usually required to be filed within 180 days of the event (there are limited exceptions).  They are usually all taken and fully investigated.  If it is an egregious or a repeat violation, it may even result in an investigation by the Federal Bureau of Investigation (FBI) and criminal charges being filed against those responsible.  However, in most cases if there is a valid complaint, the federal government will assess administrative fines against those responsible.  In almost all cases, a report will be made back to you of what is found and what actions have been taken.

If you decide to file a HIPAA Privacy Complaint, this is done with the Office of Civil Rights (OCR) of the U.S. Department of Health and Human Services (DHHS).  You may do this online.  The Complaint form is found at: http://www.hhs.gov/ocr/privacy/hipaa/complaints/index.html

If you follow this process and receive a finding that verifies the violation, you may find it easier to retain an attorney to take your case.  Please note, there is only a very short period of time in which you are allowed to file such a complaint after you have discovered it.  So be sure to do this right away.


2.  File a Complaint Against the Physician Involved with the Florida Department of Health (DOH).

The Florida Department of Health (DOH) licenses all physicians, nurses and health professionals in the state of Florida.  It is also responsible for investigating complaints against them.  The various professional boards (Board of Medicine, Board of Nursing, etc.) are under the DOH.

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. This is true in most states, not just Florida.

If there was a violation or breach of patient confidentiality by a licensed health care professional, you may also file a complaint with the appropriate state licensing board or agency about this, as well.  In Florida, for example, if a licensed health professional did this, you may decide to report this to the Florida DOH.  If they are licensed in a different state, you may have to follow that state’s procedure for filing a complaint.

For Florida, you may call the Florida DOH at (888) 419-3456 or (850) 245-4339, or you may use the online complaint form found at: http://www.doh.state.fl.us/mqa/enforcement/enforce_csu.html

The Florida DOH will investigate the complaint and will usually have an expert witness review it.  If there is a finding against the physician (or other licensed health professional) you can ask for a copy of the DOH expert's report.  This may result in your obtaining a free expert witness review of the case.  The expert witness might even agree later to testify as an expert witness if there is a civil lawsuit filed (however, this is something your attorney would have to work out with the expert witness).


3.  File Grievance or Report to Third Party Payer (Medicare, Tricare, VA, Insurance Co.).

If you are a Medicare patient, TRICARE/CHAMPUS patient, Veterans Administration (VA) patient, Public Health Service patient, or military patient, you may also report this to the Office of the Inspector General (OIG) of that specific agency.

If you are a member of a managed care plan or have health insurance, you may desire to file a member grievance or complaint with the insurance company.  Every physician who accepts Medicare is subject to the Medicare Program's peer review system.  You may file a complaint directly with Medicare and ask for it to be reviewed by the Medicare peer review program.

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 in 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 such a case, after which your rights to do so will be extinguished forever.

We would urge you to consider carrying out the actions in #1, #2 and #3 above first.  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 works that cheaply.  (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), but 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.

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