Singularity Health Law Blog

UTAH PRESCRIBES NEW PRESCRIBER LIABILITY DUTY

The Utah Supreme Court last month held that a prescriber of drugs has a duty to third parties injured by the conduct of the patient following the consumption of the medication.  In the case of B.R., a Minor Child and C.R., a Minor Child, through their Conservator, William M. Jeffs v. Trina West, Hugo Rodier and John Does I-X, (Utah, 2012), the Court overturned a lower court dismissal of a case for lack of duty.  The Plaintiffs are the two surviving children of David Ragsdale, who killed their mother after taking the medication prescribed by Ms. West, a nurse practitioner.  The drugs prescribed were Concerta, Valium, Doxepin, Paxil, pregnenelone and testosterone.

HIPAA SECURITY BREACH SETTLEMENT

The Office of Civil Rights of the Department of Health and Human Services (“OCR”) announced a settlement with Blue Cross and Blue Shield of Tennessee  this month a compliant alleging a security leak, in violation of HIPAA. The case is interesting factually and resulted in the payment by Blue Cross of a $1,500,000.00 penalty and the imposition of a Corrective Action Plan.

 

SMILE: HOSPITAL PHOTO BANNED UPHELD BY NLRB

Given the ubiquity of cell phone cameras, it is not an infrequent experience for relatives visiting patients in hospitals to take pictures of the patients, nurses and others present in the facility.  Doctors and nurses have even been known to pose with patients for group photos.  In 2007, Flagstaff Medical Center in Flagstaff,  Arizona became concerned about the use of cameras in the hospital and banned the “use of cameras for recording videos of patients and/or hospital equipment, properties or facilities.

 

IS DISCLOSURE OF PERSONAL HEALTH INFORMATION CREATED BY A FAKE DOCTOR A HIPAA VIOLATION?

Matthew Paul Brown, 30, plead guilty yesterday to a number of counts of health care fraud and criminal HIPAA violations yesterday in Federal District Court in Atlanta, Georgia.   Mr. Brown, from November, 2009 and August, 2010 persuaded a number of physicians to bill Medicare, Medicaid and private health insurance companies using their own Medicare numbers for allergy related care allegedly provided by Brown. The total amount billed was approximately 1.2 Million dollars. Brown would provide his services in physician offices or at health fairs and the physicians would pay him  50 to 85% of the charges the legitimate physicians would bill for.

 

OBAMA BLUE BUTTON INITIATIVE PUSHES PHR DOWNLOAD PROGRAMS

 Recognizing the critical health care need for accurate historic  patient health records, the Obama administration has developed what it calls a “Blue Button” download initiative at the Department of Veteran Affairs, CMS and HHS. These are all programs that permit patients to go on-line and download their own medical records that they can share with their providers, caregivers and trusted others.  Some of these programs are now operational.  In the lead is the VA ( www.myhealth.va.gov ) where approximately 60,000 veterans have already accessed their records.  Medicare recipients can also access their records now at www.mymedicare.gov . Only about 5,600 have done so. There are about 47 million medicare recipients and 1 million veterans.

STANFORD HIPAA BLUES.

Are business associate contracts enough protection against a vendor’s negligence with respect to the public disclosure of patient medical information?  Stanford Hospital in Palo Alto is about to find out. One of its vendors, Multi Speciality Collection Services, LLC apparently posted the names and diagnosis codes of approximately 20,000 patients seen in the hospital’s emergency room in a six month period in 2009. One of the patient’s found his or her name on line in August of 2011.  It had been posted along with the others since September 9, 2010 on an on-line site called Student of Fortune.

PERSONAL ELECTRONIC MEDICAL RECORDS ESSENTIAL

Dying is a messy business.  Having watched my father endure the process involving three hospitals and a SNF in the final month, I have been impressed with the primitive nature of medical record keeping today even in the most efficient and effective of medical institutions.  My father had a long history of problems with bleeding ulcers resulting in extreme surgery to remove most of his stomach.  Lately he had been under the care of an HMO with a Medicare plan. There was no central depository of his medical records.  One of the facilities, the Henry Ford Hospital in Detroit, sought valiantly to locate all of his recent records, but limited staff in other facilities resulted in significant delays in obtaining vital information.

 

FLORIDA DOCS GRAPPLE OVER GUN GAG LAW.

Is there a sexual gratification component in gun ownership? Just a question.  It was only back in the 1960s when the United States Supreme Court held that a Connecticut statute banning any discussion of birth control was deemed unconstitutional. Last May the State of Florida passed a bill making it illegal for physicians to ask questions of patients about gun ownership, more particularly gun availability in the household. Pediatricians, long concerned about the availability of danger in homes, have taken to ask questions about gun access for children in the home along with other dangers such as “swimming pools” in the back yard.  The espoused intent is to suggest to parents that precautions be taken to limit child access to guns in the household, by having them properly stored.

 

Virginia Grand Jury Indicts Physician for HIPAA Violations.

It was bound to happen eventually.  A Virginia Grand Jury has indicted a physician for violation of HIPAA. The grand jury organized in the Eastern District of Virginia indicted Dr. Richard Alan Kaye, the former Medical Director of the Psychiatric Care Center at Sentara Obici Hospital in Suffolk, Virginia for making unauthorized disclosures of an patients medical records to an agent of the patient's employer. The three count indictment asserts that the disclosure was made under the false pretense that the patient was a "serious and imminent threat to the safety of the public."  The indictment asserts that Dr. Kaye knew at the time that the patient was not a serious and imminent threat to the safety of the public. The patient had been provided with in-patient mental health treatment at the hospital between August 20 and September 4, 2007.  The defendant stated in his discharge notes that the patient " is discharged this date in stable condition [and] . . .is not considered a danger to [patient] or others at the time of discharge. United States v. Richard Alan Kaye, criminal No. 2:11 cr 99 (June 21, 2011).  Somebody is taking the law seriously.

HIPAA ENFORCEMENT: SLEEPING GIANT?

The Health Information Technology for Economic and Clinical Health ("HITECH") Act added new teeth to HIPAA enforcement, but the HHS Office of Civil Rights ("OCR") which is responsible for the enforcement of HIPAA violations has received a great deal of criticism for the lack of enforcement of HIPAA violations. Since 2003, OCR has processed approximately 55,000 HIPAA related complaints. Of those, about 13,000 have been investigated and lead to some level of enforcement, approximately 7,000 were determined to have no violation and approximately 34,000 were determined to be not eligible for enforcement for various reasons and only about 500 cases were referred to the Justice Department for criminal enforcement. On February 22, the OCR announced a $4.3 Million settlement of a claim against Cignet Health of St. Georges County, Maryland. Cignet set what appears to have been a new standard for disrespect for OCR enforcement of the HIPAA privacy and access obligations of health care providers. OCR received many complaints that Cigna refused to provide patients access to their medical records despite repeated requests under HIPAA. Cigna not only ignored the patient complaints, but also ignored the OCR when it issued a subpoena to it. It appears to have been so unresponsive and unconcerned about the OCR's enforcement so as to poke a "stick in the eye" of the agency. Under HIPAA "covered entities" are required to cooperate with OCR enforcement regulations. $3 Million of the penalty assessment resulted from Cignet's failure to cooperate with the OCR investigation and $1.3 Million for the basic HIPAA violations for refusal to provide patient access to their medical records. The interesting question is whether this action represents new vigor in enforcement of HIPAA violations or an unpleasant and unavoidable interlude caused by provocation to prickly to ignore? Is the bear on the prowl or is it back nesting in the cave?