Disclosing Private Health Information, Quirky Question # 33

Quirky Question # 33:

I am the VP of HR for a hospital.  Each of our employees receives a formal policy, prohibiting them from divulging any “patient care data” to anyone.  Our policy is compliant with federal law.

A nurse in our ER recently became aware that a mother and her two children were being evaluated for meningitis, and that they had been instructed not to allow the children to return to school until it was determined whether the children were infected or contagious.  The mother, however, refused to have her children tested and they left the hospital against medical advice.

The very next day, our nurse dropped her own son off at school and saw the two children who had been in the emergency room the day before.  She decided to leave with her son.  When a teacher asked her why she left, she explained that the two other children were at the hospital the day before with their mother and were not supposed to return to school until they were tested for meningitis.  The school then contacted the mother and asked her to remove her children from the school.

The mother of these two children has now contacted the hospital, outraged that this information about their medical situation has been shared with others.  Given our clear policy that requires “patient care data” to be kept confidential, should we fire our nurse for divulging this information?

Dorsey’s Analysis:

Like many of questions I have posted, this question highlights the conflict between two important, but competing, public policies. One policy is the critical need for maintaining the privacy of patient information. The other policy is the crucial importance of maintaining public health. In this question, those policies collide.

This fact pattern was drawn, not from a client question, but from the recent case of Serrano v. Christ Hospital, No. A-448-06T3 (New Jersey Sup. Ct. App. Div.; Dec. 21, 2007). In Serrano, the hospital concluded that the patient’s privacy rights were paramount and discharged the employee who had shared the patient’s confidential information with the school, notwithstanding her 16-year employment history. In the case (unlike the question we devised), the employee who revealed this information was a secretary in the hospital’s intensive care unit. Because she was bilingual (English and Spanish), she had been asked to translate for an elderly Spanish-speaking woman who was being tested for meningitis. While assisting with the translation, she learned that the elderly patient had a daughter and that the daughter’s son attended the same nursery as her own daughter. The patient’s daughter and grandchildren were advised that they should be tested for exposure to meningitis but they declined to participate in the testing.

The next day, when the secretary took her own daughter to the nursery school, she saw the patient’s grandchild at the nursery, coughing. As set forth in our hypothetical problem, she left with her son and when later questioned by the school regarding why she had done so, she explained the situation, including revealing the patient’s condition. The nursery school then contacted the potentially contagious family and insisted that they take their son to a physician for an examination.

Following the family’s complaint to the hospital regarding the disclosure of their medical information, the hospital fired Serrano, the secretary who had disclosed the information. The secretary then sued, contending that her discharge constituted a violation of the public policy designed to protect public health. Despite these policies, the District Court dismissed the discharged employee’s claim on summary judgment. The appellate court, however, reversed.

Oddly, in my view, the appellate court sent the case back to the lower court to resolve the conflict between the two competing public policies, noting that these questions are “best left for the factfinder to decide.” This part of the court’s analysis perplexes me somewhat. The key facts are essentially undisputed. The secretary admitted that she had disclosed the patient information to the school and the school acknowledged that it had removed the student pending an examination by a physician and medical clearance. The hospital acknowledged that it fired the secretary because of her disclosure of the patient’s data. I’m not sure what additional “facts” the “factfinder” needs to resolve. Essentially, the courts of New Jersey need to resolve the legal question regarding which of the two important state public policies is paramount. Further, the courts need to resolve the issue of whether, even assuming that the public health policy is more important than the patient’s privacy rights, the nature of the disclosure here was appropriate.

When discussing this question with some insightful friends this past weekend, a few consensus themes emerged. First, a hospital cannot allow each individual employee to become the interpreter of hospital policy. If every employee is empowered to assess hospital policies (here, the federally mandated patient privacy policy) and act on his/her own interpretation, the hospital no longer has a policy. Second, the method of disclosure here was inappropriate. The secretary did not contact the hospital administration or the hospital’s General Counsel. The secretary did not call the New Jersey Department of Health to report the situation. Rather, she simply acted independently and reported the information to the school. Although it is easy to understand how these events could have unfolded given the facts that her own child attended the nursery and that the school called her and requested her to explain why she did not drop off her child, that does not excuse her actions. As the observations above suggest, there were alternative responses she could have provided the school, pending a more thoughtful examination of these issues. Third, one could legitimately question whether Serrano truly was trying to advance an important public policy. She did not march into the hospital administration when the family left the hospital against medical advice. She did not make the case for reporting the situation to governmental authorities, despite the fact that she knew the patient’s grandchild was in nursery school. She did not contact the New Jersey Health Department to report the situation herself. Indeed, she only acted in the “public interest” when her family was potentially directly affected. This type of conduct is not necessarily consistent with advancing an important public policy.

Nevertheless, if I were reading tea leaves, I’d predict the jury will side with the discharged secretary. Any parent will be able to empathize with her predicament and her concern for her own child’s safety. The jury will be balancing the risks of exposing a group of children to a potentially fatal disease with the privacy interests of a single person who imprudently rejected standard medical treatment. The jury also may wonder why the hospital did not step up to protect the public health when the family refused appropriate medical treatment. Finally, the jurors may be uneasy about the seemingly harsh sanction (termination) imposed on a 16-year employee who was inadvertently thrust into a very difficult situation.

Barring settlement, there is more to come on this case, so stay tuned. I’ll try to follow up when the case progresses further through the legal system.

Dorsey & Whitney

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