Physician practices and other health care providers respond to numerous requests for confidential patient information from patients and others. Mistakes made by employees fulfilling such requests for medical records or making similar disclosures can expose the practice to civil litigation. A recent decision by the Connecticut Supreme Court (Byrne v. Avery Center for Obstetrics and Gynecology) confirmed a patient’s common law right to sue in these situations putting health care providers in Connecticut at greater risk of being sued if they are not careful in the handling of patient confidential information

The Connecticut Supreme Court’s decision, released on January 16, 2018, held in short that the physician-patient relationship creates a common law duty of confidentiality, and that patients have a common law right to sue for breaches of that duty. So, while it is true that the privacy rules under the Health Insurance Portability and Accountability Act (HIPAA) do not provide patients a private right of action, health care providers in Connecticut and a significant number of other states can be sued for unauthorized disclosures of confidential patient information.

In 2014, we reported on an earlier appeal in this same case, referencing the challenges healthcare providers have with responding to attorney requests for information and subpoenas. The underlying facts are that the patient (plaintiff) advised the provider (defendant) not to disclose her protected health information to her significant other. However, when the provider received a subpoena in connection with a paternity suit that was sent on behalf of the significant other seeking the patient’s medical file, the provider “did not alert the plaintiff of the subpoena, file a motion to quash it or appear in court. Rather, the defendant mailed a copy of the plaintiff’s medical file to the court.” In the 2014 decision, the Court refused to rule on whether Connecticut’s common law recognizes a negligence cause of action arising from these facts. In its more recent decision, however, the Court ruled that such a cause of action is recognized under Connecticut law, observing from a decision in another state:

it is impossible to conceive of any countervailing benefits which would arise by according a physician the right to gossip about a patient’s health.

The Court also ruled that as it has become common practice for Connecticut health care providers to comply with HIPAA and its implementing regulations, the statute and those regulations may be used to “inform the standard of care applicable to such claims arising from allegations of negligence in the disclosure of patients’ medical records pursuant to a subpoena.”

As noted, this case should be a strong reminder to providers to be more careful when responding to requests for protected health information under HIPAA, at a minimum. Often documents seeking protected health information look official and threatening, but they may be nothing more than an attorney’s request for PHI, which without more generally will not justify disclosure under HIPAA. The fact that a private right of action does not exist under HIPAA is not the end of the inquiry. Providers have to consider the layers of other laws that potentially could provide a patient a remedy for a questionable disclosure of the patient’s medical records.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with…

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, 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, Mr. Lazzarotti 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 – Mr. Lazzarotti 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 – Mr. Lazzarotti’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.

Mr. Lazzarotti 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.

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