Lawson v. Halpern-Reiss - 2019 VT 38, 210 Vt. 224, 212 A.3d 1213

Rule:

The applicable test for "good faith" under the Health Insurance Portability and Accountability Act of 1996 regulation permitting disclosures to avert a serious threat to health or safety, 45 C.F.R. § 164.512(j), is a subjective one. That is, whether the provider'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 provider sought to satisfy some other purpose, even a well-intentioned one, apart from this narrow legal exception to her general duty of nondisclosure.

Facts:

During the early morning hours of May 10, 2014, plaintiff Elizabeth Lawson drove herself to CVMC after lacerating her arm. She arrived at the emergency room at 2:12 a.m. The charge nurse (Clinical Nurse Coordinator) detected a heavy odor of alcohol on Lawson’s breath, and it became apparent to the nurse that plaintiff had been drinking. Members of the treatment team administered an alco-sensor test to assess plaintiff's level of intoxication. The test revealed a breath-alcohol concentration of .215, over two and one-half times the legal limit, at 2:40 a.m. Based on information provided by Lawson, the charge nurse understood that she did not have a ride home. After her laceration was treated, she did not meet the criteria for admission to the hospital and was cleared for discharge. She was discharged at 3:05 a.m. A police officer was on duty in the emergency room pursuant to a contract between CVMC and the Berlin Police Department. Shortly before Lawson was discharged, the charge nurse approached the officer and informed him that she was blatantly intoxicated, that she had driven herself to the hospital, and that she was about to drive herself home. After receiving this information from the charge nurse and communicating with Lawson, the officer arrested her on suspicion of driving while intoxicated. The resulting criminal charge was later dismissed by the prosecutor.

In July 2016, Lawson filed a complaint against the charge nurse and CVMC, alleging that she incurred damages as the result of (1) the nurse's negligent disclosure of information obtained during her medical treatment, in violation of the standard of care applicable to medical providers; and (2) CVMC's inadequate training and failure to develop policies regarding the disclosure of information obtained during medical treatment. In December 2017, following discovery, defendants moved for summary judgment. Regarding Lawson’s negligence claim against the charge nurse, defendants argued that this Court has never recognized a duty enforceable in a tort action not to disclose information obtained during medical treatment and that, even if such a duty existed, the nurse's disclosure of information in this case fully complied with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), because it was done to avert an imminent threat to Lawson’s and the public's safety. Defendants further argued that Lawson could not prevail on her claim against CVMC because that claim was dependent upon the underlying claim against the charge nurse. In May 2018, the trial court granted summary judgment to CVMC.

Issue:

Did the nurse have a good faith belief that telling the officer the intoxicated Lawson had driven herself to the hospital was necessary to prevent the imminent and serious threat of her driving in an intoxicated state away from the hospital?

Answer:

Yes.

Conclusion:

First, the HIPAA regulation that framed the court’s analysis specifically hinged on the actor's good faith in connection with the actor's actual beliefs, rather than on whether the actor acted in a manner that is objectively in good faith. This wording suggested a subjective understanding of “good faith” focused on the actor's intentions and beliefs. Second, the regulation's basis for a presumption of good faith supported the view that the standard of good faith in this circumstance is subjective. In particular, § 164.512(j)(4) provides that “[a] covered entity that uses or discloses protected health information pursuant to paragraph (j)(1) of this section is presumed to have acted in good faith with regard to a belief described in paragraph (j)(1) … if the belief is based upon the covered entity's actual knowledge or in reliance on a credible representation by a person with apparent knowledge or authority.” The focus of this presumption was on the subjective knowledge underlying the belief. Finally, by its terms, this exception would normally apply in emergency situations involving serious safety concerns when medical providers must make quick decisions about what information is necessary to prevent the imminent risk of harm. As noted above, the court was 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, the court concluded that Lawson has not met her burden of production to rebut the applicable presumption of good faith. Through case law and Vermont Rule of Evidence 301, the court has adopted a bursting-bubble theory of presumptions in civil cases, unless otherwise provided by law. Under that theory, “ ‘a presumption shifts only the burden of production, losing its mandatory effect as soon as evidence sufficient to support a finding of the nonexistence of the presumed fact is introduced.’ ” The court saw no policy reason to depart from that theory here. Thus, CVMC bore the ultimate burden of persuasion as to the applicability of the good-faith exception to the general rule prohibiting health care providers from disclosing protected health information. But the presumption of good faith in HIPAA, § 164.512(j)(4), which the court adopted for purposes of analyzing the common-law tort the court recognized in this decision, shifts the burden to Lawson to make some showing that the nurse's disclosure that Lawson had driven to the hospital and was blatantly intoxicated was not made in good faith. Although the burden of production was not a heavy one, Lawson did not meet hers in this case. Nothing in the record suggested that the nurse supplied the information to the officer for any reason other than her good-faith belief that the information was necessary to prevent Lawson from driving drunk from the hospital and endangering herself and the public. She made no proffer suggesting that the nurse hoped inclusion of the arguably superfluous information about how Lawson got to the hospital would lead to her censure, arrest, or prosecution or that she had any ulterior motive beyond the permitted one. Nor did she challenge defendants' statement of undisputed fact, the nurse's affidavit, or the nurse's deposition testimony indicating that the nurse provided the information to the officer solely in the hope that he would give plaintiff a ride home. Thus, the record unequivocally showed that defendant's intent in disclosing all of the information provided to the officer was consistent with the exception set forth in § 164.512(j)(1)(i).