A Connecticut physician group recently agreed to pay $125,000 to settle a claim of “reckless disregard” for a patient’s privacy rights. The group contacted the local television station to give a statement about a dispute between its patient and one of its doctors. A reporter contacted the doctor, who “impermissibly disclosed the patient’s protected health information.” The Office of Civil Rights investigated and concluded that the doctor had shown “reckless disregard” after the doctor was instructed by the group’s privacy officer to respond with “no comment.” The group failed to discipline the doctor or take corrective action.
Take-home: while a patient has an unfettered right to disclose their private health information in public and to the media, a covered entity does not. There is no “media exception” to the Privacy Rule.
To read the report and corrective action plan, please click here.
Welcome back from an extended absence everyone. The Georgia Supreme Court has issued three interesting decisions. The first is related to the “Daubert” standard for causation testimony (Scapa Dryer v. Knight). The second relates to expert affidavits in support of malpractice cases (Zarate-Martinez v. Echemendia). Lastly, the Doctor’s Hospital of Augusta v. Alicea case deals with the complicated issues of good faith immunity under the Advanced Directive statute and patient autonomy.
In the Scapa Dryer case, the Court held that the testimony of plaintiff’s causation expert in an asbestos case did not “fit” the facts of the case. This holding is a big advancement in the “Daubert” jurisprudence in Georgia. The concept of “fit” – whether the opinion matches up with the facts of the case reliably – is pretty robust in the Federal jurisprudence but underdeveloped in Georgia. The concept is that while an expert witness opinion may be facially valid – the produce of reliable methods and not “junk science” – the trial court still has to assess whether the expert is applying the theory or method reliably to the actual facts. In Scapa Dryer, the expert’s theory was not junk – he opined that minimal exposure to asbestos can cause mesothelioma. However, he could only opine that the defendant possibly caused “more than zero” exposure and, therefore, in his opinion, was completely responsible. The Court rejected this theory under the “fit” portion of the “Daubert” standard.
In Zarate-Martinez, the Court rejected an all-out constitutional assault on the expert qualifications portion of O.C.G.A. §24-7-702(c). Although the claimant had not raised the constitutional issues below, the Supreme Court reached down to assess those issues, rejecting every attack – due process, equal protection, and special law, among others. The Court vacated the trial court exclusion of the expert, however. The trial court held that the expert’s affidavit did not comply with the law because there was no evidence the expert specifically performed the procedure at issue – open tubal ligation – during the 3 out of 5 year period. The Court vacated and remanded to the trial court for more evidence on the issue of whether the expert had “sufficient knowledge” of the procedure.
Doctor’s Hospital v. Alicea is a more complicated case. In a nutshell, the Court held that a provider who acted contrary to an Advanced Directive without even consulting the healthcare power of attorney was not entitled to “good faith immunity.” Under the Advanced Directive statute, a healthcare provider is supposed to follow the letter of the directive and/or the wishes of the healthcare power of attorney. If they do follow those directives, they are entitled to immunity. If the provider feels the Advance Directive or power of attorney’s decision should not be followed, they are supposed to explain why and then transfer care if they cannot resolve the difference. In this case, the provider intubated against the terms of the Advanced Directive and did not consult with the healthcare power of attorney/agent. The provider claimed immunity, but the Court of Appeals and Supreme Court rejected the immunity. In short, the Court held that the provider is not entitled to immunity if they do not even attempt to communicate with the healthcare agent under the plain language of the statute and the purpose of the statute, which is to provide patient autonomy.
Health Law and Regulation Update
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