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.

Can "They" Do That?

The lady was angry, upset, and visibly shaken. She had just left a meeting with the investigators of her licensing board. They accused her of being a drug addict. She could admit to being a drug addict and enroll in their impaired professional program or they would revoke her license to practice. She had denied having a drug addiction problem. The investigators showed her affidavits from four physicians in support of their contention that she had a drug problem. She grabbed the affidavits and stormed out of the Board’s office. She shoved the affidavits at me.
“I can’t understand why these doctors would say that I have a drug problem. They are friends of mine. We work together.”
I noticed that none of the affidavits had been signed. I called each of the four physicians. They denied even discussing affidavits with the investigators from the licensing board. I was able to get affidavits from the doctors in support of my client. None thought that she had a drug problem. The licensing board dropped the charges against her.
The experience reminded me of one of my favorite shows – The Closer. In it, Deputy Chief Brenda Lee Johnson wrangles confessions from criminal suspects. She lies to them and we all applaud her craftiness as the evil doers are hauled off to jail. But can the police use Deputy Chief Johnson’s tactics in real life? What about investigators for licensing boards? Do the laws restricting the activities of police apply to licensing board investigators?
The Constitution prohibits law enforcement from using coerced confessions. Police cannot beat a suspect. They cannot starve him, deprive him of sleep, or deny bathroom breaks. Water boarding is generally frowned upon. If officers interrogate a suspect in custody, they must first advise him of his Miranda rights. However the courts have allowed police to lie to suspects about the evidence they may have. They can claim to have found the suspect’s fingerprints at the crime scene. They can claim to have witnesses who will incriminate the suspect. They can claim that the suspect failed a lie detector test or that they found the victim’s blood on the suspect’s clothes. This is especially true when the suspect is not in custody during the interrogation.
Although the police have leeway when trying to obtain confessions, prosecutors and judges are bound by ethical obligations and cannot lie to suspects to get confessions. In a murder case from Carrboro, North Carolina, the police showed the defendant a letter that they claimed the District Attorney had written. In the letter, the DA supposedly said that he would seek the death penalty if the suspect did not confess to the murder. When the attorney for the defendant challenged his client’s subsequent confession, the DA denied having written the letter. The court ruled that the police had illegally obtained the confession by implicating the DA’s office.
So in the case with the four fake affidavits, it appears that the investigators for the licensing board did not violate the law. They did not beat, starve, or otherwise physically abuse my client. They only lied to her. As they are not members of law enforcement, they could not hold her in the interview room against her will. She obviously knew that she was free to leave at any time. They did not have to give Miranda warnings to her before asking questions because she was not in custody.
This is not the only case I’ve handled that involved questionable tactics used by licensing board investigators. In another case, my client was charged with exceeding her scope of practice. The investigator relied on a statement she had allegedly obtained from a physician to support the charges. When I contacted the physician, he denied having been interviewed. When faced with testimony from this physician, the Board dropped the charges against the licensee.
These cases make it clear that people who must have a license in order to work, such as physicians, dentists, pharmacists, nurses and others, should refuse to answer questions from licensing board investigators unless they have first retained legal counsel. The attorney can protect the licensee from many of the above abuses.
Most health care providers have malpractice insurance. Usually, those policies offer licensure defense coverage. These policies will reimburse the provider for many of the expenses involved in cases brought by licensing boards. If a licensing board contacts a provider concerning a complaint, the provider should contact his insurance carrier before responding to the licensing board. The insurance carrier will either assign one of its attorneys to defend the claim or will allow the licensee to obtain a lawyer of his or her own choosing. Once the licensee has retained counsel, the licensee should refer all calls from the board’s investigators to his or her lawyer. It is not appropriate for the investigator to continue to try to question the licensee once the licensee has notified the board that an attorney is handling the case. In another case I handled, when my client told the investigator that she had a lawyer, the investigator continued questioning the provider. She asked, “Why do you think you needed a lawyer?” “Did you do something wrong?” My client wisely hung up the telephone.
So, “they” can “do that”, but only if you let them. Be wise. At the first contact from an investigator, get a lawyer. Don’t try to handle the problem on your own. It will not go well.