In its written decision, the court noted that Mr R was aware of the privacy violation in January 2010, but did not file a lawsuit until 2017, and thus his suit falls outside the Privacy Act’s 2-year statute of limitations. Therefore, the court dismissed the Privacy Act claims. However, the court noted that Mr R might be able to amend his complaint and argue that he was entitled to more time by establishing that: 1) he had been pursuing his rights diligently; and 2) that some extraordinary circumstances stood in his way.

The FTCA waives the United States’ sovereign immunity for tort actions and allows federal courts to have jurisdiction over suits arising from the negligence of government employees, such as Ms G. But there are many exceptions to this act, and the court will lack jurisdiction over the matter if the claim falls within one of these exceptions. In this case, the court noted that the tort claim was based on the negligent misrepresentation and documentation by Ms G that Mr R had AIDS. Misrepresentation, however, is one of the exceptions to the act, meaning that Mr R’s claim under the FTCA failed. The court did note, however, that Mr R could reframe his claim as one for medical malpractice based on the false AIDS diagnosis, which would avoid the misrepresentation exception. 

Thus, Mr R’s Privacy Act claims were dismissed, and the plaintiff was given leave to file an amended complaint if he wished to assert medical malpractice.

Protecting yourself

Although Ms G was not personally sued in this case, she made numerous mistakes that could easily have resulted in a direct lawsuit in other circumstances. She made an arbitrary change to the patient’s diagnosis without even seeing the patient, entered it into the file, and never discussed it with the patient. And then she shared all of his medical records with the agency governing the food stamps. This information was far beyond the scope of what the agency was asking for (confirmation of his disabled veteran status) and was provided without the patient’s written consent.

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A patient’s privacy must be protected at all times. Never share a patient’s medical records without the express written consent of the patient.

Ms Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, NY.