There’s recent news on the breach of privacy caused by leaked medical records in the form of a class action lawsuit filed by those whose records were breached by Advocate Health Care. While the suit will be interesting, like other violations of privacy it is unlikely to provide a single cent to those living with the knowledge that their medical records have been breached. (search Advocate Health Care Sued)
Frustrating as it is, the arrogant quote by the company’s Kelly Jo Golson, Sr. VP of public affairs and marketing that “…we do not believe the data was targeted and we have no information that leads us to believe that the information has been used,” hones in on why the class action suit will likely fail because Golson is arguing there was no bad intent and that there were no damages caused by the breach. Without a showing of actual damage, recovering for things like stress and anxiety are not possible.
It’s a huge gap in our current law that there is no cause of action that provides for monetary compensation to patients based on evidence that their health privacy was breached. It is not a rare circumstance for patient files to be breached.
The government provides transparency. (You can view breaches affecting 500 or more individuals by searching for, Breaches Affecting 500 or more HHS.) The government site lists 659 instances of breaches affecting 500 or more people since 2009.
But transparency doesn’t mean there is anything you can do about it. Federal law does not create a private cause of action. Instead, individuals must rely on their states’ laws to determine whether there is a privacy right or a negligence theory that will support their claim. In most cases, not.
Electronic health records are here, the technology supports it, Obamacare promotes it, and it’s already in place for many individuals.
Currently, if your medical records are leaked, you’re essentially up a creek. You can file a complaint with the Office for Civil Rights and the government may or may not do something about it, but essentially, that’s it. Your state’s laws may provide you with another avenue for complaining against the entity.
