HIPPA/DUI/Defamation? Down the rabbit hole. . .

[Advice00]

Pennsylvania

First and foremost I want to apologize to anyone who replies to this or this sites moderators. I have posted this in two different sections because I am not sure where it belongs

Long story long. I am an EMT and nursing student in Pa. A few years past I was arrested for suspicion of DUI. I know, trust me I know. . .there are a plethora of mitigating circumstance not least of which was the fact that I wasn't inside the car when the police arrived nor was I the one driving that night.This being said I know I am an idiot. No need to belabor the point here.

I was at an ex coworkers girlfriend's house for a party after a shift in the ER and was told I could crash at his girlfriend's place. I imbibed to excess. They got into a fight. He said we needed to leave. I wasn't going to drive. My previous career path was in a vocation where smoking weed was common. I wasn't aware he had smoked but I should have assumed. We were driving home, a tire popped and he pulled over to the side of the road. No accident, no damage, no one hurt. I called AAA and called in a tow truck. They said they would drive me home so he got picked up by a buddy of his. As I was waiting a good Samaritan asked if i was ok and if I called the cops. No need just a popped tire. It was a narrow and relatively dangerous country road so I guess he assumed it would be good to have a police officer present (lights, visability, Ect..) He was only doing what he thought was right. Cops arrive as I am on the phone was aforementioned ex coworker waiting for the tow truck. He wasn't going to tell them he was driving because he was stoned. I'm ****ed.

Now to the good part. I (through the awesome powers of the almighty dollar and Pa laws) was not convicted of DUI after a blood test (talk to your attorney for details). Taken at the hospital (ER) at which I was employed. By my charge nurse. Whose husband also happens to be a cop.

Anyway fast-forward. I am no longer employed at that hospital. I can pass a state, local and federal background checks. I can legally answer no to conviction status.
I am employed currently with a PCP who sometimes makes house calls at said hospital. I was taking vitals from one of his patients and a former coworker approached me and asked what I was doing there. I was terse with her. I document my findings and search out my PCP for further directions. He was in the break room with my former charge nurse (who conducted my DUI toxicology specimen blood draw) and two other hospital employees (one of which was also there when I had my blood drawn). I can hear the conversation as I enter. My employer was informed of this blood draw. I interject with the fact that this was a major violation of HIPPA, as everyone present was well aware of (we're drilled about this kinda stuff but people do it all the time.) A mexican stand-off of 'Oh **** stares' ensues.

It gets better. The other nurse in the room happened to be a professor and director of my nursing program. Like I said I can pass all background checks (they are thorough for health-care related applications) so she had no idea of my former complications.

So to the questions

I know two nurses violated HIPPA. I will pursue that in time. HIPPA doesn't relate to civil litigation, only fines to the person(s) and institution.

I as of right now am still employed but will in all probability be terminated. Pa is a 'right to work' state so I can be fired for the sun being too hot that day. Any recourse about defamation against the nurses ? Technically a portion of what they said was true but they were not at liberty to divulge such information. Their aim was obviously to get me fired. I'm pretty sure this falls entirely under HIPPA but I wanted to check.

Secondly, I know someone in the nursing dept. office at my school and was told my professor demanded an immediate meeting with the Dean and other such notables. They can't tell me I am not allowed to continue in the program because I meet the PA DOH requirements, but I can be told "they are out of seats/ clincal slots" for the next semester. Any advice?

My lawyer is in Thailand for a week and can't get a hold of him and I'm spastic so I was hoping someone here could give a shout out.

Thanks in advance.

 

[CdwJava]

Understand that an arrest and criminal charges are public record. Anyone who does even a cursory background can discover your arrest and any related court action - often times with a simple web search of court records on the court website. The fact that a nurse might have drawn blood that night does not mean it was a HIPAA issue as you were ostensibly in state custody. Though you can pursue that through whatever state agency enforces the HIPAA regulations in your state.

Now, as for defamation ... ain't there. Unless the other person told a knowing and intentional falsehood, it's not defamatory. You WERE arrested for DUI and you did have blood drawn at the request of law enforcement (I presume). As a result, I don't see defamation of any kind and it is likely that HIPAA might not apply, either, as the blood draw may be part of the public record as part of the police report and investigation.

 

[cbg]

Just a minor correction. Right to work means you cannot be forced to join a union to get work. You mean you can be fired because PA is an employment at will state.

Defamation does not mean they said something they weren't supposed to; it means they said something that wasn't true. It may have been a violation of HIPAA, but if it was true, it is not defamation.

 

[Advice00]

Thanks

ARD Expungements are a matter of public record?

I spent two months dealing with the arresting agency, the DA's office, County Clerk's office, ARD office, state police, and the FBI. I have sworn affidavits from every entity but the latter most (PA FBI office says they take cues from the state database) that my records have been destroyed.

I retrieved a clean PATCH state background check, FBI fingerprint check, and a child abuse clearance.

I was assured by these agencies and my lawyer ( . . .) that they are only kept for government law enforcement agencies and the DOT in case of further (never gonna happen) arrests.

Yes I believe I mixed up the legal term for employment particulars IANAL

Again thanks!

 

[cbg]

None of which changes the fact that if it's true, it's not defamation.

 

[ecmst12]

Nor will it make a blood draw done for legal purposes be considered PHI under HIPAA.

 

[ecmst12]

It wasn't patient care, it was a test for legal purposes, so no it does not fall under HIPAA.

 

[CdwJava]

ARD Expungements are a matter of public record?

At one time they were, sure. An expungement might deal with what someone can find on the official record or how it might be portrayed on a state or local written record, but it does not remove news stories, internet stories, or people's memories.

I retrieved a clean PATCH state background check, FBI fingerprint check, and a child abuse clearance.

That's great. But, people's memories, newspaper articles, and even background firms that have the info are not part of the government.

 

[Advice00]

Thanks

Unlike some of the people I've seen on this site , I truly appreciate your willingness to help. No sense getting butt hurt over the truth.

Take Care.

 

[commentator]

You haven't been terminated yet. Maybe you won't be. If you are, file for unemployment insurance immediately. Forget trying to convince THEM that your HIPAA right to privacy was violated. It won't be relevant, just did they have a valid, job related misconduct reason to fire you? And really, if they fire you based on what happened here, it sounds like no. That doesn't mean they can't fire you, at will, and all that, but it does mean it doesn't seem like what happened before you were ever hired would provide them a good reason to terminate you unless you had falsified your application for work, and since you've had all the expungement, you didn't.

 

[dave33]

Advice00, I would imagine your current employer would be happy of your legal status, unless of course there is a few things you are leaving out. I don't mean convictions you are leaving out, I just mean that maybe the situation in the hospital was a little uglier than you explained. Even if that's not the case there is something you are worried about.

I am not sure about any violations, but as pointed out, it's public information. The others that were talking about you have no obligation to track your criminal case to find out if the case is expunged or not. I don't think you have any successful legal recourse.

There is of course the licensing board in your state. If you scrutinize the rules of whatever license they hold yiou may find something. You may be able to lodge a complaint with them. If this person has no union protection than a complaint taken seriously by the licensing board can quickly become a nightmare. BUT, BE CAREFUL this works both ways. You also hold or are looking to hold a state medical license.

People really should mind their own business. goodluck.

 

[quincy]

Pennsylvania

... A few years past I was arrested for suspicion of DUI. ...

... I (through the awesome powers of the almighty dollar and Pa laws) was not convicted of DUI after a blood test (talk to your attorney for details). ... I can legally answer no to conviction status. ...

... I am employed currently with a PCP who sometimes makes house calls at said hospital. ... I can hear the conversation as I enter. My employer was informed of this blood draw. ...

... The other nurse in the room happened to be a professor and director of my nursing program. Like I said I can pass all background checks (they are thorough for health-care related applications) so she had no idea of my former complications.

... Any recourse about defamation against the nurses ? ... I meet the PA DOH requirements, but I can be told "they are out of seats/ clincal slots" for the next semester. Any advice? ...

You have said that you can "legally answer no to conviction status."

I believe in Pennsylvania, as it is in most states, that you cannot legally answer "no" to the question asked on health-related applications about drinking or drug arrests. You must say that you were arrested and you must explain the arrest, this even if the arrest did not result in any charge or conviction, and this even if the arrest has been expunged from public records.

In other words, both your current employer, and the professor and director of your nursing program, should already have been informed of the arrest - by you.

 

[OHRoadwarrior]

HIPAA does not apply to your situation for safety reasons.

http://www.hhs.gov/ocr/office/lettertonationhcp.pdf

 

[quincy]

... You may be able to lodge a complaint with them. If this person has no union protection than a complaint taken seriously by the licensing board can quickly become a nightmare. BUT, BE CAREFUL this works both ways. You also hold or are looking to hold a state medical license.

People really should mind their own business. goodluck.

I agree with dave33, Advice00, that you should be as careful in speaking of the charge nurse as you wished she had been careful speaking about you.

It does not appear from what you have posted that you have any defamation claim to pursue. You definitely do not want to give anyone reason to pursue one against you.

Good luck.