With so many data breaches in the news many medical practitioners are asking if they can be sued over HIPAA violations or from a data breach.
HIPAA rules state there is no private right of action, therefore, a patient cannot sue for a HIPAA violation. With that said, it is possible if there were privacy violations under state law, legal action may be taken. All states have their own set of privacy laws that encompasses more than just the healthcare sector. State privacy laws vary from state to state and define what is considered private information. HIPAA and state laws require covered entities to secure protected health information (PHI) with administrative, physical, and technical safeguards. Business associates and subcontractors are required to do the same.
If a patient wants to file a lawsuit, the patient must be able to prove negligence and damage caused harm by the violation or data breach. The Omnibus Rule removed the harm threshold when it came to covered entities reporting data breaches, but a patient has the right to claim harm. On another note, if a patient joins a class action lawsuit, it may make a stronger case. However, many class action lawsuits are filed based on the exposure to future harm. Without evidence of harm this may reduce the case. This can be a costly endeavor and patients should consider this and review what they hope to gain before taking legal action. Keep in mind, this is not a quick lawsuit. In the end, there is no guarantee of any monetary gain for the patient.
Many times, the practice can discuss the issues with the patient and avoid legal action altogether. It is recommended that if a practice has a disgruntled patient, the HIPAA privacy officer should talk to the patient if given the opportunity. Sometimes, an upset patient merely wants to be heard. Depending on the circumstances, the practice may be required to report the incident to the Department of Health and Human Services Office for Civil Rights (OCR).
If a patient feels as though their protected health information has been violated, they do have the right to file a complaint with the OCR. The complaint from the patient must be filed within 180 days of the incident. In some cases, an extension may be permitted. The complaint is reviewed to determine if it is justifiable. If it is, then the OCR will contact the practice and try to resolve the issue in the most suitable manner. This may include technical assistance, a resolution agreement, and/or ongoing compliance documentation. The average investigation timeline for a data breach takes 1½ – 2 years. Of course, for more complex breaches, it may take even longer. The outcome of the investigation will depend on the severity and nature of the violation, if this was a repeated offense, and the number of patients affected. Depending on the documentation of the incident and how it was handled, a practice may be able to avoid a desk audit. Remember, if it’s not documented, it does not exist. The patient may also file a complaint with the State Attorney General. Some complaints are referred to the Department of Justice (DOJ) if the investigation results in criminal violations. I hope this helps you to understand how important it is to keep patient data secure, and the documentation that demonstrates your efforts. If you have any questions on data security, how to handle a patient complaint, or how to handle a security incident, we are here to help.
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