The Trial

Prior to trial, the Ob/GYN practice offered to settle the case for $100,000. The plaintiff turned it down, seeking the full $1 million insurance policy limit of the practice. The case went to trial before a six-person jury. At trial, Ms. B testified that she had suffered anxiety, trauma, and emotional distress as a result of the disclosure of her records. She told the jury that the effects of the stress were worsened by harassment from her former boyfriend as a result of the release of the records. In compelling testimony, she described the effect the disclosure had on her and her family. Also testifying at the trial were Ms. B’s social worker and psychologist who discussed how she had suffered from posttraumatic stress disorder arising out of the impact of the disclosure.

The defense unsuccessfully argued that the case should be dismissed, and that the practice was merely legitimately responding to a subpoena, but in its earlier decision, the supreme court had noted that “from our review of the record […] it appears that the defendant did not even comply with the face of the subpoena, which required the custodian of records for the defendant to appear in person before the attorney who issued the subpoena. Instead the defendant mailed a copy of the plaintiff’s medical records directly to the court.” After six days of testimony, the jury returned a verdict in favor of Ms. B, and awarded her $853,000.

Protecting Yourself

While HIPAA doesn’t create a private cause of action (ie, right to sue), it doesn’t preclude a lawsuit under state common law. In this case, the practice erred by believing that since it was responding to a legal subpoena, it didn’t have to be concerned about privacy ramifications. But the practice didn’t even comply with the actual instructions of the subpoena, which instructed it to send a representative to court.

In a statement made after the trial, Ms. B’s attorney said of the practice “I don’t believe they knew what to do under HIPAA. They were inadequately trained, and they did not even consult a manual prepared for them by a consultant on what to do when presented with a subpoena.”

It is essential to understand that even though a subpoena is a legal document, a patient’s right to privacy should take precedence. In this case, the practice could have notified Ms. B so that she could have objected, it could have contacted its own lawyer to ask for advice or make a motion to quash the subpoena, or it could have followed the instructions to the letter of the law and sent a representative to court. Any of those options would have offered the practice more legal protection than simply putting the entire medical record in the mail.