In a victory for California healthcare providers, the California Court of Appeal recently held that a health care provider is not liable under California’s Confidentiality of Medical Information Act (CMIA) (Cal. Civ. Code, § 56 et seq.) when the health care provider releases an individual’s personal identifying information, but the information does not include the person’s medical history, mental or physical condition, or treatment.  The case was a win for the health care provider and, more importantly, provided critical clarity about the definition of “medical information” under the CMIA.

In Eisenhower Medical Center v. Superior Court of Riverside County, plaintiffs sued on behalf of a putative class whose information was disclosed by EMC when a computer with information about over 500,000 people was stolen from EMC. The information included each person’s name, medical record number, age, date of birth, and last four digits of the person’s Social Security number. The information was password protected but was not encrypted.

The CMIA makes it unlawful for a health care provider to disclose or release medical information regarding a patient of the provider without first obtaining authorization.  An individual can recover $1,000 in damages for the improper release of information, and need not show actual damage to recover the $1,000.  

The CMIA defines “medical information” as:

any individually identifiable information, in electronic or physical form, in possession of or derived from a provider of health care, health care service plan, pharmaceutical company, or contractor regarding a patient’s medical history, mental or physical condition, or treatment. ‘Individually identifiable’ means that the medical information includes or contains any element of personal identifying information sufficient to allow identification of the individual, such as the patient’s name, address, electronic mail address, telephone number, or social security number, or other information that, alone or in combination with other publicly available information, reveals the individual’s identity.

In addition, the CMIA permits acute care hospitals to disclose certain patient information upon demand and without authorization from the patient.  Section 56.16 of the CMIA allows hospitals to reveal medical information regarding the general description of the reason for the treatment, the general nature of the injury, and the general condition of the patient, as well as nonmedical information.  The court reasoned that, although section 56.16 applies only when there is a demand for information, it does show that information solely identifying a person as a patient (and nothing more) is not given the same protection as more specific information about the person’s medical history.

EMC argued that the theft of the computer did not result in a disclosure of “medical information,” as defined in the CMIA, of any of the people at issue.  The computer did not contain information about their medical history, condition, or treatment; instead, that information is saved only on EMC’s servers, which are located in its data center. While EMC conceded that the index on the computer contained “individually identifiable information,” EMC maintained that the index did not include information “regarding a patient’s medical history, mental or physical condition, or treatment,” which is required to find a violation of the CMIA. 

The court agreed, reasoning that a release of information is prohibited by the CMIA only when it includes information relating to medical history, mental or physical condition, or treatment of the individual.  The court explained that medical information does not include all patient-related information held by a healthcare provider, but must be “individually identifiable information” and also include “a patient’s medical history, mental or physical condition, or treatment.”  This definition of medical information does not encompass demographic or other information that does not reveal a patient’s medical history, diagnosis, or care.  Therefore, “medical information” as defined under the CMIA is individually identifiable information combined with substantive information regarding a patient’s medical condition or history.  When the computer was stolen from EMC, there was a release of “individually identifiable information,” but not of medical information.

In the wake of Eisenhower Regional Medical Center, medical providers should examine what information they store about patients, how that information is protected, and if information that constitutes “medical information” is segregated from mere individually identifiable information.  The provider here was saved because it kept medical information about its patients only on secure servers.  That information was not transferred to the index on a computer, which eventually was stolen.  Medical providers should consider taking similar steps to protect medical information and, in fact, would be safer if they encrypt all data about patients that is transferred to computers, especially about large groups of patients.  Although the provider prevailed here, no medical provider wants to face a similar challenge.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.