Years ago, I represented a young man who had lost his job.
“Idle hands” being “the devil’s workshop”, he got into drug trafficking while
our case was pending. In the process, he
accidentally blew up a car stuffed with cocaine. Reporting the fiasco to me, he jubilantly
told me not to worry as he had worked out a great “flea bargain” with the “feds.”
Negotiated settlements can be the best way out of a legal
problem. They are especially beneficial
when a Board such as the Psychology or Medical Board threatens a health care
provider with the loss of a professional license. Often these Boards will allow the provider to
keep his license if the licensee pays a small fine and gets additional
training. But sometimes settlements, like my client’s
car, can blow up on you. Take the case
of a Virginia psychiatrist accused of violating a patient’s privacy.
In September of 2007, Dr. Jones* began treating a female
highway patrol officer who had been beaten, kidnapped and raped by three
men. Although he diagnosed her with post
traumatic stress disorder, he wrote that she was “not a danger to the public.”
Later that year, the patient filed a complaint with the
doctor’s employer about his behavior.
Shortly after receiving her complaint, Dr. Jones’ employer fired him.
On January 30, 2008, other physicians had the trooper
involuntarily committed to a mental health facility. The facility discharged her on February 1,
2008. Dr. Jones heard rumors about the
trooper’s hospitalization. On February 4,
2008, he contacted “a friend” and “co-worker” of the trooper and told her about
the involuntary commitment. He made a
second call on February 7, 2008 to another of the trooper’s “co-workers”. He again reported that the trooper had been
involuntarily committed to a mental health facility.
Based on Dr. Jones’ reports, the Highway Patrol suspended
the trooper. However, once the Patrol’s
doctor found her to be “fit for duty”, the Patrol sent her back to work.
When the Virginia Medical Board learned of Dr. Jones’
disclosures, it prosecuted him for violating state confidentiality laws. An “informal” conference took place. Such conferences often allow the Board and
licensee to negotiate licensure issues.
The Board found that, “Despite direct and repeated questioning,” Dr.
Jones could not “justify” violating the trooper’s privacy. His only reason for calling her friends was
that he was worried because she had a gun.
The Board fined Dr. Jones $5,000 and ordered him to take 8 hours of
training in ethics. Dr. Jones did not
appeal the ruling. He must have been very
relieved to keep his license. His relief
would be short-lived.
In 2011, the US Justice Department filed criminal charges
against the doctor for violating HIPAA. Prosecutors
argued that his discussions with the troopers’ co-workers were in retaliation
for her complaints against him. Surprisingly,
after the prosecution presented its case, a federal judge dismissed the
charges.
HIPAA allows health care providers to release information
that is:
1.
Necessary to
prevent a “serious and imminent threat” to others IF
2.
The threat is made to a person reasonably able to
lessen the threat – this may include law enforcement, family members, the
target of the threat, or others.
So what can we learn from Dr. Jones’ case?
1.
When deciding whether to accept punishment offered by a
licensing board, it’s important to consider the possibility of a subsequent
federal charge related to the case. It
is likely that the HIPAA police relied in part on the Virginia Medical Board
order when deciding whether to prosecute Dr. Jones.
2.
Credibility issues arise when a defendant’s words
contradict earlier written statements.
Dr. Jones claimed that the patient was a threat after he wrote in her
medical record that she was NOT a threat.
3.
It’s important to report threats to the proper
person. Dr. Jones should have expressed
his concerns to the trooper’s immediate supervisor, not to her “friends.”
4.
Only witnesses with first-hand knowledge of a threat
should report it. The doctors who
committed the trooper were in the best position to evaluate her mental health
and were the appropriate persons to report any threat that she posed.
5.
You should be sure that you have accurate information
before filing any report. Because Dr. Jones did not have complete or
accurate information about the trooper’s commitment, the report he gave was based
on rumors and was in error.
While I’m sure that Dr. Jones was thrilled to avoid jail
time, he was probably less joyous about paying thousands of dollars in attorney
fees, enduring the negative nationwide publicity, and spending three years of
his life defending the charges related to this incident. The only good to come out of the case may be
the many lessons it offers concerning HIPAA compliance.
*Dr. Jones is not this defendant’s real name.
