Hipaa Violations: Medical Malpractice Or Not?

The Health Insurance Portability and Accountability Act (HIPAA) was passed by the US Congress in 1996 to protect patients' sensitive health information. HIPAA violations do not typically give rise to medical malpractice claims because they focus on the improper handling of patient information, rather than harm suffered by a patient. However, there is a growing trend of recognizing that a healthcare provider's HIPAA obligations may fall under the standard of care, and in some rare cases, patients have sued for medical malpractice after HIPAA violations.

Patients can't sue for HIPAA violations, but can for state law violations

While patients cannot sue for HIPAA violations, they can sue for state law violations. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that sets data privacy and security standards for individuals' identifiable health information. This includes a patient's medical information, Social Security number, date of birth, and other identifiers.

If a healthcare provider or business associate violates a patient's privacy, the patient has several options for justice. Although patients cannot directly sue for HIPAA violations, they can take legal action against healthcare providers and obtain damages for violations of state laws. In some states, patients can file a lawsuit against a HIPAA-covered entity on the grounds of negligence or breach of an implied contract. For example, if a covered entity has failed to protect medical records, patients can sue for the theft of unsecured personal data or a data breach. These claims are typically negligence claims or breach of contract claims.

Before taking legal action, patients should file a complaint with the Department of Health and Human Services' Office for Civil Rights (OCR). The OCR enforces the protections of HIPAA and can suggest corrective actions or impose fines on the responsible party. If the violation includes a criminal offense, patients can bring the case to the Department of Justice (DOJ). Additionally, patients can file a complaint with their state's attorney general, who has the authority to pursue cases against HIPAA-covered entities.

It is important to note that suing for state law violations can be expensive and may not guarantee success. Patients should be clear about their aims and explore alternative courses of action. Consulting with a lawyer who specializes in medical negligence or privacy laws can help patients understand their options and the best way to protect their rights.

Patients can file a complaint with the Department of Health and Human Services

To file a complaint, patients must submit a written complaint by mail, fax, email, or via the OCR Complaint Portal. The complaint must name the covered entity or business associate involved and describe the acts or omissions that are believed to have violated the Privacy, Security, or Breach Notification Rules. Complaints must be filed within 180 days of the discovery of the violation, although extensions may be granted in limited cases.

It is important to note that patients cannot sue directly for HIPAA violations as HIPAA does not have a private cause of action. However, patients can take legal action against healthcare providers for violations of state laws, such as negligence or breach of contract.

Medical malpractice involves harm, while privacy breaches don't

Medical malpractice and privacy breaches are two distinct issues that can occur in the healthcare industry, but they differ in several key ways. While both can have serious consequences, it's important to understand their unique characteristics.

Medical malpractice involves harm to a patient due to a healthcare provider's negligence or deviation from the accepted standard of care. This can include misdiagnosis, surgical errors, medication mistakes, or any other action that falls below the expected level of competence, resulting in patient injury or death. Malpractice often leads to legal action, with patients seeking compensation for the harm they have suffered.

On the other hand, privacy breaches, including those that violate HIPAA laws, typically involve the unauthorized disclosure or misuse of a patient's personal or medical information. This can happen through accidental data breaches, theft of records, or intentional sharing of information without patient consent. While patients can take legal action for privacy breaches, it is generally not considered medical malpractice unless the breach directly causes harm to the patient.

The impact of these issues differs as well. Medical malpractice can have immediate and severe consequences on a patient's health and well-being, and may even result in death. Privacy breaches, while invasive and distressing, may not always result in direct physical harm to the patient. However, they can lead to identity theft, financial loss, or other negative repercussions.

In terms of legal recourse, patients have more options when it comes to medical malpractice. They can file lawsuits, seek compensation, and hold healthcare providers accountable through regulatory bodies. In the case of privacy breaches, patients may have limited options for legal action, especially if there is no evidence of direct harm. However, they can still file complaints with the Department of Health and Human Services, state attorneys general, or the healthcare provider's professional board.

Additionally, the financial implications of medical malpractice and privacy breaches differ. Medical malpractice cases often involve significant financial settlements or judgments to compensate patients for their injuries, pain, and suffering. Privacy breaches may result in fines or penalties for the responsible parties, but the primary focus is often on preventing further breaches and protecting patient information.

In summary, while both medical malpractice and privacy breaches are serious issues in healthcare, they differ in their nature, impact, and legal consequences. Medical malpractice involves harm to patients due to negligence or substandard care, while privacy breaches involve the unauthorized disclosure or misuse of patient information, which may or may not result in direct harm. Understanding these distinctions is crucial for patients, healthcare providers, and legal professionals alike.

HIPAA violations can lead to civil and criminal penalties

Breaking the HIPAA law can lead to civil and criminal penalties. The U.S. Department of Health and Human Services' (HHS) Office for Civil Rights (OCR) is responsible for enforcing the HIPAA Privacy and Security Rules. The OCR enforces these rules by investigating complaints, conducting compliance reviews, and performing education and outreach.

In the case of noncompliance, the OCR will attempt to resolve the case with the covered entity by obtaining voluntary compliance, corrective action, or a resolution agreement. If the covered entity does not satisfactorily resolve the matter, the OCR may impose civil monetary penalties (CMPs). The secretary of HHS has discretion in determining the penalty amount based on the nature and extent of the violation and the resulting harm. The penalty structure for a violation of HIPAA laws is tiered, ranging from $141 to $2,134,831 per violation.

Criminal violations of HIPAA are handled by the Department of Justice (DOJ). Criminal penalties for HIPAA violations include fines and imprisonment, with different levels of severity depending on the specific circumstances of the violation. Individuals who "knowingly" obtain or disclose individually identifiable health information in violation of HIPAA may face a fine of up to $50,000 and up to one year in prison. If the violation involves false pretenses, the fine can increase to $100,000, and the prison term can be up to five years. For violations involving the intent to sell, transfer, or use identifiable health information for commercial advantage, personal gain, or malicious harm, the fine can be as high as $250,000, and the prison term can be up to ten years.

Patients can sue for a harmful violation of their medical history

In some states, it is possible to file a lawsuit against a HIPAA covered entity on the grounds of negligence or for a breach of an implied contract. For example, if a covered entity has failed to protect medical records, causing harm or damage, a patient may be able to file a lawsuit. To succeed in such cases, it will be necessary to prove that damage or harm was caused as a result of negligence or the theft of unsecured personal information.

Before taking legal action, patients should first submit a complaint to the Department of Health and Human Services' Office for Civil Rights (OCR). An attorney can help with this process. Patients have 180 days to submit the claim from the day the violation occurs. If the HIPAA violation includes a criminal offense, the case can be brought to the Department of Justice (DOJ).

It is important to note that taking legal action against a covered entity can be expensive and may not guarantee success. Patients should be clear about their aims and consider alternative courses of action to achieve their desired outcome.

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