Guest Article

(From the Employer's Guide to HIPAA Privacy Requirements, Thompson Publishing Group)

Disclosure to One Person Makes EMT Liable for 'Invasion of Privacy' Under State Law

A state-law "invasion of privacy" verdict against an emergency medical technician (EMT) who disclosed a patient's medical information to one of the patient's coworkers was upheld by a Wisconsin appeals court, which rejected the EMT's claim that disclosure to one person did not meet the state law's criterion for "publicity." The case is Pachowitz v. LeDoux, 2003 WL 21221823 (Wis. App., May 28, 2003).

"Disclosure of private information to one person or to a small group does not, as a matter of law in all cases, fail to satisfy the publicity element of an invasion of privacy claim," the Court of Appeals of Wisconsin ruled. Sufficient evidence existed to support the jury's finding that the patient had a "special relationship" with her fellow employees, so that disclosure to even one of them would embarrass her, the court explained.

Facts of the Case

Katherina LeDoux, an EMT for the Tess Corners Volunteer Fire Department, treated Julie Pachowitz for an apparent drug overdose after responding to a 911 call placed by Pachowitz's husband. At his request, Pachowitz was transported to a hospital other than West Allis Memorial Hospital, where she was employed.

LeDoux had never met Pachowitz but had met Sally Slocomb, a coworker of Pachowitz's at West Allis, about two weeks before the incident. At this time, Slocomb was discussing Pachowitz's medical condition with a group of people, and LeDoux inferred that the two were close friends.

After the incident, LeDoux telephoned Slocomb and told her she had helped transport Pachowitz to the hospital from a possible overdose. LeDoux testified that she did so out of concern for Pachowitz, believing Slocomb could help her. After learning about the incident, Slocomb discussed it with other West Allis staff.

Pachowitz sued LeDoux and the fire department, alleging that LeDoux had invaded her privacy by publicizing her medical condition. Pachowitz also maintained she had not overdosed but had simply suffered a reaction to medication she was taking for a bodily illness.

Elements of Wisconsin Law

Wisconsin's invasion-of-privacy law (Wis. Stat. §895.50) establishes a right to sue for damages if one's private life is publicized in a manner "highly offensive to a reasonable person, and with "unreasonable or reckless" disregard of whether there is a legitimate public interest in the matter.

Before trial, LeDoux and Tess Corners sought to dismiss the suit, arguing that LeDoux's statements to Slocomb did not constitute "publicity" and that LeDoux had not acted unreasonably or recklessly. However, the trial court decided these were questions of fact for the jury, which returned a verdict in Pachowitz's favor, awarding $3,000 in compensatory damages. The trial court also awarded the estate of Pachowitz, who had died during the trial, $30,460 in attorneys' fees.

Tess Corners at first made, but later rescinded, the argument that LeDoux's disclosures were outside the scope of her employment.

Publicity

On appeal, LeDoux cited prior Wisconsin cases in which "publicity" was held to require disclosure to many people. She contrasted these with her case, in which she "did not communicate Pachowitz's private information to the public at large or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge."

The appeals court disagreed. "We reject the appellants' assertion that a disclosure of private information to one person can never constitute 'publicity,'" the court ruled. "Instead, we agree with the trial court that the character and nature of the one person to whom the offending information was communicated, here Slocomb, was a matter that had to be probed at a full trial."

"Many courts ... have held that 'publicity' requires disclosure to more than one or just a few individuals," the court acknowledged. "However, other courts have looked to the particular facts of the case together with the nature of the disclosure and the relationships of the individuals involved."

Under Illinois law, for example, "if a plaintiff has a special relationship with the individuals to whom the matter was disclosed, the publicity requirement may be satisfied by disclosure to a small number of people," the court explained." The rationale behind this rule is that the disclosure may be just as devastating to the person even though the disclosure was made to a limited number of people."

In this case, "LeDoux disclosed Pachowitz's private information to Slocomb, who LeDoux knew was one of Pachowitz's fellow employees," the court found. "Pachowitz's husband's request to the EMTs that Pachowitz be transported to a different hospital ... supports an inference that Pachowitz wanted to avoid disclosure of her need for emergency medical care to her fellow employees." Moreover, Slocomb's prior discussion of Pachowitz's private affairs in LeDoux's presence should have put LeDoux "on notice as to Slocomb's 'loose lips,'" the court added.

"The evidence allows for the inference that Pachowitz had a special relationship with her co-employees, including Slocomb, and that disclosure of personal and private information about the EMT call would embarrass Pachowitz," the court concluded. "The evidence further supports an inference that LeDoux should have appreciated the risk that Slocomb would further disclose Pachowitz's private information."

Reckless or Unreasonable Conduct

The court also found "credible evidence to support the jury's finding in this case that LeDoux acted unreasonably or recklessly in disclosing Pachowitz's private information to Slocomb." Not only should LeDoux have anticipated that Slocomb would redisclose the information, but she admitted having been trained on patient confidentiality before the incident but simply failing to "stop and think about whether the information was confidential," the court explained.

Implications

The incident in this case occurred before HIPAA's privacy rules took effect, and the court does not address their application to the Wisconsin state-law claims. As the U.S. Department of Health and Human Services noted in the preamble to the December 2000 final rules, all 50 states recognize a common-law or statutory right to privacy. Although the HIPAA rules are unclear regarding which state tort claims or statutory claims of invasion of privacy are preempted, many such claims may continue to be available. For example, the state statutory claim raised here does not appear to conflict with the HIPAA rules.

Applying HIPAA's privacy rules to this case (assuming the defendants are covered entities) suggests a few cautionary notes:

Reprinted with permission from the July 2003 newsletter of the Employer's Guide to HIPAA Privacy Requirements, © Thompson Publishing Group, Inc., 2002. All rights reserved.

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