Next, the Court of Appeals looked at Ms D’s defamation complaint. She claimed that an employee of the hospital had written in her work record and verbally told a third party that the reason she had been fired was due to a HIPAA violation. While Ms D admitted that she had, at most, engaged in “incidental disclosure” of patient information, which is not actionable under HIPAA, the Court of Appeals disagreed, and sided with the trial court, which had held that Ms D’s disclosure was unnecessary, because, as a matter of law, “a physician should not require being told that a patient has an infectious disease as a reminder to wear personal protective equipment such as gloves.”
In reaching this conclusion, the court reasoned that, under HIPAA regulations, “a medical provider must use the minimum amount of protected health information to accomplish the necessary purpose.” According to the court, because Ms D’s statement was not the minimum amount necessary to accomplish the warning to “wear gloves,” she violated HIPAA. Thus, the Court of Appeals also dismissed the count of defamation because truth is an absolute defense to defamation, and it was true that Ms D was terminated for a HIPAA violation.
At-will employment generally means that an employee may be fired for good cause, bad cause, or no cause at all. There are, however, a number of exceptions. Employees are protected from being fired in retaliation for refusing to commit an illegal act. Employers cannot fire employees if it would violate that state’s public policy doctrine or a state or federal statute. Thirty-six states have an implied contract exception, preventing an employer from firing an employee “when an implied contract is formed between an employer and employee, even though no express, written instrument regarding the employment relationship exists.” (Proving the terms of an implied contract is difficult, however, and the burden of proof is on the employee.) Also, there are statutory exceptions to at-will employment. For example, an employee cannot be fired for taking leave for a reason outlined in the Family and Medical Leave Act of 1993 (FMLA). Nor can an employee be fired for federally prohibited discriminatory reasons such as race, color, religion, sex, national origin, handicap status, or age (older than age 40).
Know your own employment status—are you an at-will employee? A contract employee? Part of a union? A civil servant? These all have different rules in relation to job termination.
Regarding HIPAA, Ms D was doing what she thought was the right thing to do—ensuring that her colleagues were proceeding in a safe manner. However, she clearly went too far by announcing the patient’s hepatitis C status verbally and broadcasting this information to anyone within earshot. Protect yourself by being aware of your surroundings and of who else might be within hearing distance when you are speaking to, or about, your patient. Use the least amount of personal information possible when conveying information. Ms D could simply have reminded the physician to use gloves (if a reminder was even necessary) without stating the exact nature of the patient’s condition.
Ms Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, NY.