Privacy Law Simultaneously Supports and Undermines Employment Termination Decisions in Different Cases
By: Crystal S. Deese, Esq. and Robert D. Anderson, Esq.
In 2013 a Virginia nurse allegedly improperly looked at her ex-husband’s medical records. She was terminated for the purported privacy violation and filed a grievance challenging that decision. She won and the hospital appealed to the trial court and then again to the appellate court, losing both times. The appeals court resolved the matter in 2016, three years after the conduct at issue, finding that the nurse’s viewing did not violate privacy laws. The appellate court remanded the case back to the trial court for an assessment of attorney fees against the hospital. Both sides endured years of litigation with the Nurse claiming her viewing was permissive and the health care provider pointing out that her access was not consistent with internal policies it was legally required to promulgate, implement, and enforce. See University of Virginia Med. Ctr. V. Jordan, No. 0790-15-2, 2016 WL 392005 (Va. Ct. App. Feb. 2, 2016).
In contrast, in Miller v. Shore Mem. Hosp., No. A-1726-14T4, 2016 WL 6937762 (N.J. Super. Ct. App. Div. Nov. 28, 2016), a privacy violation was used to defeat a retaliatory discharge claim. There, a social worker claimed that her termination came in response to her complaints about her supervisor. The hospital successfully refuted that by pointing out that the social worker had violated a patient’s privacy shortly before her termination by disclosing that patient’s confidential health information to the patient’s relative, without consent.
The Department of Health and Human Services’ website contains several examples of the employment problems posed by employees’ medical record accesses. Distributing an OR schedule by email was deemed inappropriate when an employee’s scheduled surgery was described on the schedule. The employee who emailed the scheduled was “disciplined and retrained.” See here. News articles contain more salacious reports including the employee who investigated her nephew’s new partner, discovered sensitive information about birth and adoption, and revealed it at a public gathering. The employee was terminated and relinquished her nursing license. Charles Ornstein, Small-Scale Violations of Medical Privacy Often Cause the Most Harm, ProPublica, Dec. 10, 2015.
Investigations of medical record accesses by employee-relatives of patients are time consuming and costly for the health care provider. Such investigations are not infrequently followed by employee probationary periods, written warnings, reports to licensing authorities, terminations, and resignations. Litigation following the internal processes is becoming more and more common and in a variety of settings, including employment law. The parties to such litigation are using the privacy law as both a sword and shield, and it is proving malleable to the effort.