Sex, Lies, and HIPAA

On New Years Eve, I love watching shows that list the best movies, novels, tunes, and news articles of the year. I decided to create my own list by naming the best lawsuit of 2011 – at least in my opinion. This isn’t the biggest money judgment of the year, but it has the most interesting set of facts that I found. Bear in mind that this case hasn’t gone to a jury at this point. We only have the Plaintiff’s side of the story. But according to her . . .

Arizona’s nurse Liska was a single mother of two young sons. For years, she had suffered from many orthopedic ailments. As if she weren’t busy enough, in 2007, she began an affair with one of her treating physicians. The man was married and the father of “several” children. Not altogether happy with Ms. Liska’s appearance, the doctor-boyfriend paid for her to have a breast enhancement procedure. The tab came to over $8000.00. Perhaps to keep the bill down, he prescribed “legitimate” medications for his lover while she was recovering from the breast surgery. Among other medications, he called in a prescription for Soma on April 9, 2008. Shortly thereafter, Liska ended the affair.

On August 25, 2008, Liska obtained a refill of the Soma prescription. During the process, the pharmacy contacted her former boyfriend to verify the prescription. The jilted doctor denied having prescribed the drug. The pharmacy reported the problem to the local police department. Detective David Dodge took the case.

To begin his investigation, Dodge contacted the physician. The doctor denied writing the prescription and claimed that he did not know Liska. Later the doctor sent an anonymous letter to the medical board, and various hospitals where Liska worked. He claimed that a doctor at one of the hospitals was writing prescriptions in exchange for sex from Liska and her “nurse friends”. He also made false reports to the Arizona Board of Nursing.

Meanwhile, Dodge went to Liska’s home. He had obtained her ten-year prescription history from Walgreen’s. He confronted her with the report and accused her of prescription fraud. He told her that unless she confessed, he would arrest her right then. He told her that she could not leave his presence or terminate the interview. He made numerous other threats, but Liska denied wrongdoing.

After a while, Dodge told Liska she would have to go to the police department. He allowed her to change from her pajamas, but insisted on watching her change clothes in case she might try to escape. (During the time of these events, Liska was hobbling around on a broken leg that was in a cast.)

The detective continued his harassment at the police department. He refused to allow Liska to call an attorney and did not read her any Miranda warnings. After continuing his threats for several hours, he eventually allowed her to leave without arresting her. Dodge then met with Liska’s Director of Nursing. Shortly after that meeting, Liska lost her job. The discharge letter falsely stated that the employer had conducted its own investigation and confirmed Liska’s arrest. Dodge then went to the Nursing Board.

Weeks later, the Police Department disciplined Dodge. It later issued a letter stating that Liska had committed no crime “whatsoever.” The Nursing Board dropped its case against Liska in 2009.

Not surprisingly, Liska decided to fight back. She sued the United States, Dodge and his wife, the Police Department, the City, the Police Chief and his wife, Walgreens, the former boyfriend and his wife along with various other people. The motions to dismiss soon followed in 2010.

Walgreens argued that it had legal authority to give Liska’s prescription records to the police. The court agreed. It noted that HIPAA allows providers to disclose information for law enforcement purposes in compliance with a subpoena, summons or “authorized investigative demand.” They may also disclose to a law enforcement official protected health information that may be evidence of criminal conduct that occurred on the premises. Believing that Liska had obtained drugs from the store by falsifying a prescription, Walgreens legally reported her prescription history to the police.

The court dropped Walgreens from the lawsuit. However, the case will go on. Even at this stage, the case has entertainment value and offers lessons. The obvious lesson is that, in a case like Liska’s, pharmacies may comply with police requests for information. It’s also a bad idea for a health care provider to have intimate relations with a patient. In North Carolina, that behavior often results in a licensing board taking away the provider’s license to practice. We’ll have to wait and see how the case is resolved before we make any other judgments. I’ll try to keep you posted.