LEGAL ADVISOR Violator of Privacy or Advocate?

BY ANN W. LATNER, JD

Ms J was a 36-year-old nurse working in an after-hours medical clinic. She had worked at the clinic for approximately 18 months. When she was hired by the clinic, Ms J was asked to sign an employee confidentiality agreement that stated, “I will not intentionally share or release confidential information about the patient to anyone not directly involved in the patient’s care.” All employees of the clinic were required to review and sign the agreement each year. The policy went on to state that coworkers not directly involved in a patient’s care should not be told confidential information about the patient.

The clinic also had a wireless communication devices policy prohibiting the use of personal cell phones in patient treatment areas to take photographs. Other policies that Ms J was informed about and agreed to were a social media policy prohibiting employees from sharing information about patients on social media and a confidential matters policy, which provided that “reasons for admission and information about diagnosis and treatment are absolutely confidential and must be respected as such.” quite clear that showing the photo to 8 other people, none of whom was involved in the patient’s care, was not protected activity.

A nurse questioned the diagnosis of a skin lesion and shared her concerns with colleagues. She was fired for privacy violations.

As part of her onboarding process, Ms J was also trained on how to report a concern regarding patient safety or care issues.

During one of Ms J’s night shifts, a patient presented at the clinic with a spot on the back of her thigh. The physician with whom Ms J was working believed it was a chemical burn. Ms J disagreed with this diagnosis and thought it was skin cancer and most likely melanoma, but the physician disagreed. Ms J believed the doctor had misdiagnosed the spot and she took a picture of it with her personal cell phone. After taking the photo, Ms J began showing it to her coworkers, asking what they thought.

She showed the picture to 9 coworkers, 8 of whom were not involved in the patient’s care. After showing the ninth person (a physician) the photo, the second physician re-diagnosed the lesion as melanoma, confirming Ms J’s suspicions.

Cases presented are based on actual occurrences. Names of participants and details have been changed. Cases are informational only; no specific legal advice is intended. Persons pictured are not the actual individuals mentioned in the article.

When the patient learned that Ms J had been showing the photo to other workers at the clinic, she reported Ms J to the clinic’s management. Management suspended Ms J without pay while they investigated.When the investigation was concluded, Ms J was fired for violations of various clinic policies.

Ms J sought the counsel of an attorney and together they decided to file a lawsuit against the clinic.The lawsuit alleged that Ms J had been fired in retaliation for questioning the patient’s diagnosis, in violation of a state statute that prohibits employers from retaliating against employees who make reports regarding their reasons for “believing that the quality of care of a health care patient is in jeopardy.” Ms J alleged that her actions fell under the protection of the state statute and, thus, she was wrongfully terminated from her employment.

The court concluded that Ms J’s actions violated both the clinic’s policies and the statute requiring reports be made in such a way as to protect the confidentiality of the patient. Thus, the clinic was free to terminate her employment and the court deemed it nonretaliatory to do so.

Protecting Yourself

Ms J, in trying to do something good for the patient, ended up doing something very bad for her career. It need not have been that way. Ms J could have protected both her career and the patient by reporting her concerns properly — according to the clinic’s clear policies.

This case had many concerning aspects such as the use of a cell phone in an examination room and whether or not the patient consented to the photograph in the first place (this wasn’t discussed by the court).The court seemed particularly concerned that Ms J had shown the photo to so many coworkers. Ms J noted she was only seeking information in an attempt to help the patient, but it was at the expense of the patient’s privacy and confidentiality.

The clinic made a motion to dismiss the case, which the trial court granted. Ms J appealed, and the case went to the Court of Appeals.

The Court’s Holding

On appeal, the court looked at the state statute to determine whether Ms J had established a claim of retaliation against the clinic. To establish a claim for retaliatory firing, Ms J had to show that 1) she was engaging in protected activity, 2) the clinic knew about the protected activity, 3) the clinic took an adverse employment action against her because of it, and 4) a causal connection was established between the adverse employment action and the protected activity.

In this case, Ms J believed that taking the picture and showing it to her coworkers was protected because she was reporting a situation where a patient’s health or safety was in jeopardy. However, the court held that her actions were only partly protected and pointed out that her conduct didn’t just violate the clinic’s policies, but also violated the state statute requiring that all “protected” reports and investigations must maintain the confidentiality of patients.The statute also requires that a report be made to the health care facility itself, not to coworkers unrelated to the patient’s care, so that someone in an “administrative or supervisory capacity” can investigate.

The court acknowledged that Ms J’s showing the photograph to the other physician was protected as he was an individual in a “supervisory or administrative capacity,” however, the court was

Privacy is paramount these days. Treat your patient’s private information as if it were your own. To best protect your employment, know what your facility’s policies are and stick to them. ■

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