Privacy Torts & Protecting Health Info

Question 1

Positive and Negatives of using Health Info

Answer 1

Positives: population health management, Public health inferences, Interoperability, Administrative ease
Negs: discrimination, breach risk, braking patient trust, fragmentation

Question 2

(1) IIED:

Answer 2

caused severe emotional distress, one who by extreme outrageous conduct intentionally/recklessly causes severe emotional distress to another. Need to have intent, know or should have known . Needs to be extreme or outrageous, have severe emotional distress. → didn’t work under Humphers.

Question 3

(2) Breach of Contract:

Answer 3

Need to have written or oral contract saying the info will be kept confidential. Or a statute establishing such duty or signed a form that established a contract.

Question 4

(3) Med Mal:

Answer 4

Need to have an expert come testify as to what a reasonable physician would have done or would have disclosed.

Question 5

(4) Privacy Claims

Answer 5

(1) Intrusion Upon Seclusion
R: D is liable if they intentionally intrude, physical otherwise upon the solitude of another or his private affairs or concerns, if the intrusion would be highly offensive to a reasonable person

(2) Appropriation of Plaintiff’s Name/Image/Likeness
(3) Public Disclosure of Private Facts
R: Need to reveal info publicly that was revealed about P’s private life, that had no legitimate interest to the public (not newsworthy). But what is “to publish” → over radio or large audience
(4) False Light

Question 6

(5) Breach of Confidence

Answer 6

R: Fiduciary duty imposes an obligation that is stricter than the reasonable person test to “scrupulously honor the trust and confidence reposed in them because of that special relationship…” Hospital’s protocols regarding the protection of patient info were not followed.

Question 7

(6) State Common Law

Answer 7

(1) constitution: If the state constitution has a provision that protects privacy you can sue under those grounds. If the issue has never been litigated and the state constitution doesn’t have this provision, then you need to find intent or create tests or look at ballot materials.

(2) State Common law action:
P must first demonstrate:
1) Protected privacy interest
2) Reasonably Expectation of Privacy (AKA: Statutes, like HIPAA)
3) Serious Invasion (Nature/Scope/Impact): Whether the ordered disclosure is sufficiently serious in its nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right
Nature: is it stigmatized? What kind of information?
Scope: Broad or narrow request for disclosure?
Impact: What kind of privacy concerns are impacted? Breaking of patient trust? Discouraging meaningful treatment? Actual or potential impact? Re-identification issues.