July 7, 2019

The Vermont Supreme Court ruled in its decision filed on May 17, 2019,”we recognize a common-law private right of action for damages based on a medical provider’s unjustified disclosure to third persons of information obtained during treatment.”

The plaintiff had alleged in her lawsuit that she incurred damages as the result of an emergency room nurse informing a police officer that she was intoxicated, had driven to the hospital, and was intending to drive home. The trial court granted defendant Central Vermont Medical Center (CVMC) summary judgment based on its determination that nothing in the record supported an inference that the nurse’s disclosure of the information was for any reason other than her good-faith concern for plaintiff’s and the public’s safety.

The Vermont Supreme Court stated that although it recognized a common-law private right of action for damages based on a medical provider’s unjustified disclosure to third persons of information obtained during treatment, “we conclude that CVMC was entitled to judgment as a matter of law because, viewing the material facts most favorably to plaintiff and applying the relevant law we adopt today, we conclude that no reasonable factfinder could determine that the disclosure was for any purpose other than to mitigate the threat of imminent and serious harm to plaintiff and the public. Accordingly, we affirm the trial court’s judgment.”

The Vermont Supreme Court stated the plaintiff was seeking a common-law remedy because neither Vermont law nor HIPAA provides a private right of action to obtain damages incurred as the result of a medical provider’s disclosure of information obtained during treatment. The Vermont Supreme Court stated that although HIPAA serves in part to protect the privacy of patients’ health information given emerging advances in information technology, it does not preempt causes of action arising under state common or statutory law imposing liability for health care providers’ breaches of patient confidentiality; HIPAA may act as a guidepost or otherwise inform the relevant standard of care for state law claims alleging unlawful disclosure of information obtained during medical treatment.

The Vermont Supreme Court stated that various Vermont statutes compel medical providers to disclose certain information to protect the public. By requiring disclosure under certain circumstances and in some cases providing immunity for the disclosure, statutes such as these implicitly acknowledge that medical providers have a general duty of confidentiality and that a violation of that duty may subject them to liability. However, as recognized in HIPAA, § 1881, and many other Vermont laws, under certain circumstances information obtained during medical treatment either may or must be disclosed to protect the interests or safety of the patient or others. The Vermont Supreme Court stated, “Given the Legislature’s reliance on HIPAA, and medical care providers’ familiarity with the law, we conclude that the federal statute and its implementing regulations should inform the standard of care and establish the framework for exceptions to medical care providers’ duty of confidentiality.”

The Vermont Supreme Court stated: “Because we have adopted the standards in HIPAA as framing the contours and limits of a cause of action for breach of the duty not to disclose protected health information, to answer the pivotal question in this case we must determine how “good faith” is defined for purposes of § 164.512(j)(1), (4)—and, in particular, whether to apply a subjective or objective test … we conclude that the applicable test in this case is a subjective one. That is, whether the nurse’s motivation for disclosing the protected health care information was based solely on her belief that the disclosure was necessary to protect or lessen a serious and imminent threat to health or safety, or whether the nurse sought to satisfy some other purpose, even a well-intentioned one, apart from this narrow legal exception to her general duty of nondislcosure … we are reluctant to impose the specter of liability for misjudgment on a health care provider weighing whether to make a discretionary disclosure to prevent imminent and serious harm to public health and safety. Applying the subjective standard, we conclude that plaintiff has not met her burden of production to rebut the applicable presumption of good faith.”

The Vermont Supreme Court held: “Although we ultimately uphold the trial court’s grant of summary judgment in favor of CVMC in this case, we adopt a widely recognized common-law private right of action, using the HIPAA framework as a guide, rather than speculate as to whether or what right of action we would adopt in considering whether defendant is entitled to summary judgment.”

Source Lawson v. Halpern-Reiss, 2019 VT 38.

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