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Intentional offenses require an intent to perform the act that results in injury to the patient. This requirement is the major difference between intentional offenses and torts.The most important intentional offenses are defamation, disclosure of confidential information, invasion of privacy, and fraud.
Defamation is a written (libel) or oral (slander) communication by A about B to C that injures the reputation of B. To establish defamation, B must offer proof that there was: • a publication • sufficient to identify B • that was understood to be defamatory, and • that injured the reputation of B
An optometrist serving as head of an army eye clinic was the subject of several letters written by a local ophthalmologist who was a consultant to the clinic. The letters were written to army officials, state medical authorities, and practicing physicians and alleged that the optometrist had committed malpractice at the eye clinic and had entered into the practice of medicine because of the diagnosis and treatment he performed. The optometrist sued for libel, maintaining that the allegations were false and that they had injured his reputation. Eventually the ophthalmologist's services were discontinued at the eye clinic, and the case was settled in favor of the optometrist.
Certain communications are subject to the claim of privilege, which may be absolute (e.g., speech before the legislature, testimony in court) or qualified (e.g., to staff). Truth is a complete defense to a claim of defamation.HIPAA does not affect defamation laws.
Disclosure of confidential information may constitute a cause of action even if the communication is true and accurate. Such disclosures also violate ethical obligations. Common situations in which disclosures may arise include: • reports to government agencies • insurance reports • communications to spouses • findings of communicable disease
An employee of a medical group divulged the results of a test to a patient’s twin sister in a “public tavern”, and the patient sued for breach of confidentiality. The medical group defended the claim by showing that the employee had received confidentiality training, had signed a confidentiality agreement, and that the disclosure was made outside of work. The case was dismissed but appealed, and the appellate court noted that a medical employee’s responsibility to respect confidentiality was not limited to working hours but rather extended “to all times and to all places. In effect, for purposes of patient confidentiality…[a medical employee] was on duty 24 hours a day, 7 days a week.”
If a state law requires that information be reported (e.g., visual acuity), doing so does not constitute a HIPAA violation.Information requested by third parties that is not related to payment, treatment, or health care operations should not be provided without the patient’s consent on a HIPAA authorization (release).HIPAA permits information to be provided to parents and guardians.
Violating HIPAA requirements may give rise to a claim that there was also a breach of the duty to respect the confidentiality of patient information.Such a violation could generate a court action (for disclosure of the confidential information) as well as a HIPAA fine.The court action may not be covered by liability insurance.
A physician received a letter from an attorney representing a former patient, requesting copies of the patient’s records. The physician called his malpractice insurer and was told to send it the letter and records. The insurer sent copies of the records to the attorney 3 months later. A lawsuit was then filed against the physician, alleging negligence and breach of confidentiality. The court held that the attorney’s request for copies of the records did not waive the patient’s expectation of confidentiality, that no provision of the doctor’s malpractice policy required or could legally compel the doctor to turn the records over to the insurer, and that the doctor’s belief he would be sued was “speculation” that did not justify his breach of confidentiality.
Invasion of privacy is a cause of action because individuals have the right to be free in their personal affairs from interference that "transcends the limits of decent conduct and that offends a person of ordinary sensibilities". Examples of invasion of privacy include: • appropriation of a patient's name or likeness • intrusion on a patient's privacy • public disclosure of private facts • publicity placing a patient in a false light
A woman treated with chemotherapy for breast cancer returned to the oncologist for a follow-up examination. The physician entered the examining room with a man, told the patient the man's name, but offered no other information about him and did not indicate that she had the right exclude him from the room. The patient was asked to disrobe and was examined with the man present. The patient was embarrassed, and after the examination she asked the receptionist who was with the physician. She was very upset on finding that he was a drug salesman, and filed an action for intrusion on her privacy. After appeal, the action was upheld.
Publication of identifiable health information about a patient (even in a medical journal) without the patient’s consent would constitute a HIPAA violation as well as createa cause of action for violation of privacy.A HIPAA authorization should be obtained if identifiable patient information or a likeness (e.g., photograph) is to be published.
Fraud is an active misrepresentation by words—oral or written—or by demonstration or exhibition. Passive misrepresentations (e.g., silence) by professionals are actionable because of the fiduciary duty owed to patients.Allegations of fraud allow punitive damages to be awarded by a jury; such damages are not covered by liability insurance.
An ophthalmologist performed cataract surgery on a patient who was an attorney. Despite the patient's repeated visits to the doctor's office after the surgery and his complaints that he could not see out of the eye, the ophthalmologist kept reassuring him that "everything was fine" and that his vision would improve. After the passage of a considerable period of time the patient consulted another ophthalmologist, who told him that half of his iris had been removed. The patient thereupon sued the surgeon for negligence and deceit and both causes of action were upheld by the court.
