HIPAA Violation

What is the name of your state? GA

I went in to the hospital for an outpatient test. As I was being taken back to change, one gentleman asked me (privately) when I had my last menstrual period. I told him it was two months ago, but also explained why that was (I take birth control pills continously, so I don't get a period). Then, as I was changing, the Radiology Tech comes in and calls out my name. He then says, "I see you haven't had a period in two months, why?" I told him, very quietly why, but also mentioned there was another patient sitting just behind him. He then said, "That is why I am trying to whisper." He was NOT whispering at all. He was speaking in a normal tone of voice. I then told him it doesn't matter since the other person was only five feet away from me! He continued to ask me questions about my period and why I wasn't getting one. I again explained to him this was personal information and not something to be shared with a total stranger. Again, he continued to ask questions (Are you on medicine to stop your periods? Why aren't you having one, etc. etc. etc.). He even said, "We use a lot of radiation for this test, so we have to know why you haven't had a period in two months!" I EXPLAINED WHY. I have NO problem answering the questions. It is imperative to my health and welfare. I do have a problem though when it is asked continually in front of another patient.

I immediately went to the Administrator after the test to file a complaint with the hospital. Within 10 minutes, I had a call from the Compliance Officer who tells me this will be investigated fully and appropriate disciplinary action would be taken. When I asked in general what type of action is taken, I was told this was confidential. Sure, share my personal medical information with a total stranger..that is fine, but don't tell me anything!

All this tech had to do was take me in to the exam room and ask me confidentially or have the radiologist, who was going to be doing this test to ask me the questions. He did not have to ask this in front of someone who had no business knowing anything about me!!!

Do I have a case in this instance? In my opinion, this is a direct violation of HIPAA, but since I am not an attorney, that is pure speculation.

Thank you for your time.

My understanding is that someone overhearing the conversation is not a violation of HIPAA. It may be poor procedure by the person involved, but not a HIPAA violation.

HIPAA deals with the disclosure of records amd medical information to other parties. If it was a violation of HIPAA to discuss your situation with medical personnel, then ERs woul dhave to put in special privacy rooms; exam. rooms woul dhave ot become private only; and a host of other issues that would prevent any sight or sound transmission of information.

Also, state laws can modify HIPAA regs. to some degree as well. But, it wouldn't seem that a state issue is involved here.

You can always speak to an attorney that specializes in HIPAA, but I think that you will find this is a non-issue.

My recommendation would be that in the future you ask to speak to the employee in another room.

Besides, you are mentioning your situation here on an open forum. You are no more damaged by the release of the information here than you were with the release of that information in the hospital room.

EDIT: Here is a link to HIPAA information straight from the source: http://www.hhs.gov/ocr/hipaa/

Good luck.

- Carl

CdwJava said:

My understanding is that someone overhearing the conversation is not a violation of HIPAA. It may be poor procedure by the person involved, but not a HIPAA violation.

HIPAA deals with the disclosure of records amd medical information to other parties. If it was a violation of HIPAA to discuss your situation with medical personnel, then ERs woul dhave to put in special privacy rooms; exam. rooms woul dhave ot become private only; and a host of other issues that would prevent any sight or sound transmission of information.

Also, state laws can modify HIPAA regs. to some degree as well. But, it wouldn't seem that a state issue is involved here.

You can always speak to an attorney that specializes in HIPAA, but I think that you will find this is a non-issue.

My recommendation would be that in the future you ask to speak to the employee in another room.

Besides, you are mentioning your situation here on an open forum. You are no more damaged by the release of the information here than you were with the release of that information in the hospital room.

EDIT: Here is a link to HIPAA information straight from the source: http://www.hhs.gov/ocr/hipaa/

Good luck.

- Carl

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Carl,

Thank you for your very kind response.

There is a difference in what I mentioned on the forum vs. what was done at the hospital. I am not using my name on this forum, and the tech not only said my last name, but also used my first name. As well, this person, even after I asked him to please stop talking about my personal information in front of a stranger (another patient), he continued on anyway. He had total disrespect for me and my privacy.

I guess I assumed (stupidly, I guess) that when I told the tech this was personal and not for others who weren't involved in my care, he would have stopped immediately and taken me in to the room where my xray was to be done and asked me there, or asked the Radiologist to ask me (he was doing the test on me, not the tech). Yep, I know what it means to assume .


I really do appreciate your help in this matter.

I've read several of your posts since joining this forum yesterday, and have found many of your answers to be very intelligent and very respectful to the original poster.

CdwJava said:

...

HIPAA deals with the disclosure of records amd medical information to other parties. If it was a violation of HIPAA to discuss your situation with medical personnel, then ERs woul dhave to put in special privacy rooms; exam. rooms woul dhave ot become private only; and a host of other issues that would prevent any sight or sound transmission of information.

...

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Carl, I hate to disagree with you, but I think the allegations of OP show that there was a disclosure to the other patient.

Of course, the person who supposedly did the disclosure will say that he was talking in a low tone of voice and the patient will say he was talking in a normal tone of voice and the other person could hear.

How that would turn out is anyone's guess.

OP, you did the right thing in filing the complaint. I don't know if it will do any good or not but sometimes these health care workers act like they do not have a brain.

I am NOT a HIPPA lawyer....stand by for other opinions.

seniorjudge said:

Carl, I hate to disagree with you, but I think the allegations of OP show that there was a disclosure to the other patient.

Of course, the person who supposedly did the disclosure will say that he was talking in a low tone of voice and the patient will say he was talking in a normal tone of voice and the other person could hear.

How that would turn out is anyone's guess.

OP, you did the right thing in filing the complaint. I don't know if it will do any good or not but sometimes these health care workers act like they do not have a brain.

I am NOT a HIPPA lawyer....stand by for other opinions.

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Thank you, SJ. I really do appreciate your opinion on this matter. I personally think it is a violation as you explain it, but who knows what OCR or the hospital will rule (I faxed a complaint to the Office for Civil Rights later that same day). With the other patient sitting within 5 feet of us when the questions and comments were asked and made, there was no way she couldn't have heard unless she was deaf, and I know that wasn't the case.....she was talking and responding when she was called back for her test.

First and foremost, I want to know this person who violated what I feel are my rights under the law, is disciplined severely!

Of course I am not a HIPAA attorney either. But! This issue came to a head in my jurisdiction a year and a half ago and I had to do a lot of research into the issue. Primarily the concerns were over information overheard by police officers in conversations between medical personnel. And, at least in CA, the incidental conversation was seen NOT as HIPAA violations.

There is an exception for incidental conversations in HIPAA. It is not reasonable that soundproof chambers be made for conversations between a patient and medical staff. Reasonable efforts should be made, but there appears to be no bright line rule for situations such as this. I would guess it would be very fact specifc.

And while the original poster's situation MIGHT concern information protected under HIPAA, it may also be seen as "incidental" and thus not actionable. Plus, since the release of the informaion apparently caused no harm or embarassment (I presume) then there may be no damages inherent in the incident either.

I also discovered that state laws do modify a good measure of the regulations. But, my research and information from legal sources was primarily directed toward information passed to and obtained by law enforcement. I certainly cannot claim to have any great knowledge of what (if any) violation might have occurred by way of an eavesdropping roommate.

Personally, unless the act was an overt release of information, I wouldn't think there is an actionable violation. At least I was told that HIPAA is not the 'boogeyman' that many people thought it was a couple years ago ... just as ADA isn't the huge over-riding act that people thought it was, either.

Though I am sure legal opinions vary. They always do ... it's how lawyers make money.

- Carl

CdwJava said:

Of course I am not a HIPAA attorney either. But! This issue came to a head in my jurisdiction a year and a half ago and I had to do a lot of research into the issue. Primarily the concerns were over information overheard by police officers in conversations between medical personnel. And, at least in CA, the incidental conversation was seen NOT as HIPAA violations.

There is an exception for incidental conversations in HIPAA. It is not reasonable that soundproof chambers be made for conversations between a patient and medical staff. Reasonable efforts should be made, but there appears to be no bright line rule for situations such as this. I would guess it would be very fact specifc.

And while the original poster's situation MIGHT concern information protected under HIPAA, it may also be seen as "incidental" and thus not actionable. Plus, since the release of the informaion apparently caused no harm or embarassment (I presume) then there may be no damages inherent in the incident either.

I also discovered that state laws do modify a good measure of the regulations. But, my research and information from legal sources was primarily directed toward information passed to and obtained by law enforcement. I certainly cannot claim to have any great knowledge of what (if any) violation might have occurred by way of an eavesdropping roommate.

Personally, unless the act was an overt release of information, I wouldn't think there is an actionable violation. At least I was told that HIPAA is not the 'boogeyman' that many people thought it was a couple years ago ... just as ADA isn't the huge over-riding act that people thought it was, either.

Though I am sure legal opinions vary. They always do ... it's how lawyers make money.

- Carl

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Carl,

Two things come to mind for me.

Yes, I was embarrassed by what this tech did. I asked him REPEATEDLY to not talk about this in front of the other patient and he continued on. Secondly, in my opinion, it was an overt release of information, since I continually asked him to stop talking in front of the other patient yet he continued.

All the tech had to do was take me in to the room where the exam was to be performed and asked the questions privately...He did not even try to listen to me when I asked him to please stop speaking about my personal health information in front of another patient. THAT IS WRONG!

I'm not necessarily asking for money in this. I want this person to pay for what he's done. If he has been with the hospital for as long as they told me, then he should know better than to have disclosed my information to someone that was not to have it (the other patient). To me, that is very basic.

I do appreciate your thoughts and opinions.

I certainly don't disagree that something was wrong here ... I just don't know if it falls under HIPAA. There are other acts, laws, and rules that this might fall under.

Many people have an impression that HIPAA is a catch-all for medical impropriety - same as they have an impression that ADA is a catch-all for disability access laws ... it isn't always so.

I agree with SJ that you have done the right thing thus far. Though I would insist upon knowing what form any corrective action had taken to prevent future problems ... training, reprimand, new hospital policy, etc. That should not be protected information, though the specific discipline to the employee might be prevented from transmission to you by policy and/or state law.

Perhaps you can phrase the question to them as: "How will you prevent this from ever happening again?"



- Carl

CdwJava said:

I certainly don't disagree that something was wrong here ... I just don't know if it falls under HIPAA. There are other acts, laws, and rules that this might fall under.

Many people have an impression that HIPAA is a catch-all for medical impropriety - same as they have an impression that ADA is a catch-all for disability access laws ... it isn't always so.

I agree with SJ that you have done the right thing thus far. Though I would insist upon knowing what form any corrective action had taken to prevent future problems ... training, reprimand, new hospital policy, etc. That should not be protected information, though the specific discipline to the employee might be prevented from transmission to you by policy and/or state law.

Perhaps you can phrase the question to them as: "How will you prevent this from ever happening again?"



- Carl

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Thank you, Carl. When I asked how this would be prevented again, I was told it was confidential. They won't tell me even in general what steps are taken.

Very sad that my private medical information isn't guarded, but the disciplinary action taken against the person that was very wrong in what he did, is protected.

What is wrong with that?!?!?