A nurse sacked for a HIPAA violation has lost her legal action against the termination of her employment and a subsequent appeal.
On May 7, 2013, Dianna Hereford – a Registered Nurse at the Norton Audubon Hospital in Louisville, KY – was assisting a transesophageal echocardiogram on a patient with Hepatitis C. Prior to the procedure, Hereford performed a “Time Out” to ensure the patient understood what was about to happen, to mark the site for the procedure, and to ensure the diagnostic tools required for the procedure were working as they should.
Following the Time Out, Hereford warned her colleagues – an echocardiogram technician and a physician – they should wear gloves because of the patient’s condition. The patient overheard the warning and filed a compliant with the hospital – alleging confidential health information had been improperly disclosed because Hereford’s warning had been loud enough to be heard by other patients and staff in the immediate vicinity.
Hereford was immediately placed on administrative leave while the Norton Audubon Hospital investigated the allegation. After the investigation, Hereford (who was employed on at “at-will” contract) was terminated on the grounds that she had violated HIPAA by disclosing Protected Health Information impermissibly. Hereford sought legal advice and filed an action in Jefferson Circuit Court alleging wrongful termination.
First Court Case Dismissed with Prejudice
In her claim for wrongful termination, the nurse sacked for a HIPAA violation argued that she had complied with HIPAA and at most the disclosure had been incidental – which is not considered a HIPAA violation under §164.502 of the Privacy Rule. Hereford also claimed that she had been defamed by the hospital due to news of her termination being shared with members of the Metropolitan Louisville Healthcare Consortium.
To support her claims, Hereford submitted an unemployment insurance referee’s finding that she did not violate HIPAA and an affidavit from a hospital employee stating that she was two beds away from Hereford at the time of the incident and did not hear Hereford mention Hepatitis C. However, the Circuit Court agreed to the hospital’s motions to dismiss – after which Hereford appealed to the Kentucky Court of Appeals.
Court of Appeals Finds in Hospital’s Favor
At the Court of Appeals, Judges Johnson, Nickell, and Stumbo heard that the reason for the wrongful termination claim being dismissed was that Hereford’s termination did not fall within one of the exceptions to “at-will” employment law – the law which allows employers to terminate an employee’s contract without warning and for any reason as long as the reason is not illegal (i.e., terminating an employee who refuses to violate a law).
The Judges agreed that, even if the Norton Audubon Hospital was objectively wrong that Hereford had violated HIPAA’s patient confidentiality provisions, Hereford could not rely on HIPAA for the wrongful termination claim since HIPAA’s confidentiality provisions exist to protect patients and not healthcare employees. Therefore, the nurse sacked for a violation of HIPAA could have been sacked even if she had not violated HIPAA.
With regards to the claim for defamation, the Judges agreed with the Circuit Court’s opinion that Hereford had disclosed more than the minimum necessary Protected Health Information – also contrary to §164.502 of the Privacy Rule. The reason for the opinion was that “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.”
As such, the Circuit Court held – and the Court of Appeals agreed – that Hereford’s action violated HIPAA. The Circuit Court had dismissed the defamation claim because “truth is an absolute defense to defamation” and it was true that the nurse sacked for a HIPAA violation had actually violated HIPAA. As there were no new issues of genuine fact presented to the appeal hearing, the Court of Appeals upheld the Circuit Court’s dismissal of her claims.
The Importance of HIPAA Training Highlighted
After the case, Cynthia Bremer from law firm Ogletree Deakins commented: “Employers should be vigilant in HIPAA training on how to properly handle HIPAA-related information in various contexts and situations. Here, the nurse may have been trying to be helpful by informing her colleagues to wear gloves, but she went too far when she verbally and publicly broadcast the patient’s condition within earshot of others. Even if no one actually heard Hereford, the patient believed a violation had occurred and the conduct itself yielded unnecessary risks.”
