Mid-Atlantic Health Law TOPICS

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OMG Guess Who Has an STD?

New York's highest court recently held that a physician practice is not necessarily liable when a non-physician employee discloses patient health information through gossip.

In Doe v. Guthrie Clinic, Ltd., a patient alleged that a nurse employee of the clinic - coincidentally the sister-in-law of the patient's girlfriend - texted the patient's girlfriend to warn her that the patient had presented to the clinic with a sexually transmitted disease.

In refusing to impute the employee's disclosure to the clinic employer- so-called "vicarious", principal and agent or "respondeat superior" liability - the court reasoned that the disclosure was neither (1) within the scope of the nurse?s employment (the nurse had purely personal and familial motivations to send the text message), nor (2) otherwise foreseeable by the clinic.

This decision shows that some courts may refrain from automatically attributing to health care employers their employees' misuse of patient information for gossip or for personal agendas. But health care employers should not rest easy.

Maryland courts and others may disagree with New York, and instead hold that gossip and vendettas can be a foreseeable consequence of entrusting health care information to employees, especially in today?s social media environment.

Further, even the New York court in this case did not completely absolve the clinic. The court noted that even though it had ruled out automatic (or "strict") liability, the patient could still try to prove that the clinic was negligent and failed to exercise due care in hiring, supervising, or training the employee, or in implementing policies and procedures adequately protecting patient information from potential employee misuse.

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Date

07.02.14

Type

Publications

Authors

Rosen, Barry F.

Teams

Health Care