Mr R was a military veteran who received his health care from a Veterans Affairs (VA) facility. By January 2010, he had fallen on difficult times and had to apply for food stamps. The county agency told Mr R that before he could qualify for food stamps, the agency would have to verify his veteran disability status.
The agency contacted Ms G, a nurse practitioner working in the VA facility where Mr R went for his medical care. Ms G pulled the records, which indicated that Mr R was HIV positive and he was aware of his diagnosis. After looking at the records, Ms G erroneously concluded that Mr R should have been diagnosed with AIDS, something he had never been told or diagnosed with previously. She noted the new diagnosis on the patient records and then faxed the records to the county agency administering the food stamps.
The agency relayed the AIDS diagnosis to Mr R, and told him that he only had a few months to live. Mr R was understandably shocked and immediately began calling the VA for clarification. For several days, no one returned his phone calls. During that time, Mr R, believing his life was going to end in a few months, became extremely depressed and distressed. Eventually someone from the VA returned his call and told him that the AIDS diagnosis was incorrect. A month after the incorrect diagnosis was made, Mr R received a corrected letter of diagnosis removing the AIDS diagnosis from his medical record.
That same month, in 2010, Mr R filed a claim with the VA, regarding its disclosure of his entire medical record without his consent, including the incorrect diagnosis. During the next several months, whenever the patient called to follow up on the claim, he was informed that the VA was backlogged with claims, but that it had received his claim and was working on it. This went on for years. The patient continued to check on his claim, and the VA continued to tell him that it was overwhelmed and had not yet been able to review it.
In 2015, five years after the incident, Mr R was notified that his claim had been lost or misplaced and he was asked to resubmit it, which he did immediately. A year later, the VA finally made a determination and denied his claim, saying that it was time-barred. However, the VA’s privacy officer concluded that Mr R had not given written consent for release of his medical records in January 2010 and that a breach of privacy had indeed occurred.
Frustrated and angry, in late 2017, Mr R filed a federal lawsuit against the United States (as the party responsible for the VA health system) alleging violations of the federal Privacy Act of 1974 and the Federal Tort Claims Act (FTCA). The VA made a motion to dismiss the Privacy Act violations on the basis that the statute of limitations had already expired and Mr R was too late to file the claim. The VA also asked that the FTCA claim be dismissed.
According to the Department of Justice, the Privacy Act of 1974 establishes “a code of fair information practices that governs the collection, maintenance, use, and dissemination of information about individuals that is maintained in systems of records by federal agencies.” Specifically, the Privacy Act prohibits the disclosure of a record of an individual without the written consent of that individual. However, the Privacy Act also requires that a plaintiff sue within 2 years of the date on which the cause of action arises—which generally equates to when the plaintiff had reason to know about it.