Abortion pt.'s direction "not to callhome" ignored.

CASE ON POINT: Randi A. J. v. Long Island Surgi-Center, 2007 NYAPP2 2007-06953--(09/25/07)--NY

ISSUE: Can hospitals be liable for punitive damages for violations of patient confidentiality?. That was the issue with which the New York courts were confronted in this case. In some cases a

breach of confidentiality, while technically in violation of a patient's right to confidentiality, might not call for punitive damages but, at best, for compensatory damages. However, in cases in which patients have been emphatic in noting that they, for whatever reason, do not want anyone to call their home or communicate with anyone but them, the failure to follow patients' directives may call for the imposition of punitive damages.

CASE FACTS: This case involved 20 year old woman who lived with her parents, and who, consistent with her wishes, will remain anonymous, and henceforth she will be identified as (patient). Because the patient's parents were devout Catholics who disapproved of pre-marital sex and were implacably opposed to abortion, the patient decided to keep her circumstances and her decision to have an abortion from them. The patient decided to terminate her pregnancy at Long Island Surgi-Center (Center). Because the patient was so intent on keeping her condition and decision to have an abortion from her parents, she provided her cell phone number and gave specific instructions "never to call [her] at home," when she first contacted the Center to arrange for the procedure. Nevertheless, a day after the patient's abortion procedure, one of the Center's nurses telephoned the patient's home and spoke with a person she knew to be the patient's mother. In the course of the conversation, the nurse revealed information sufficient to allow the patient's mother to conclude that her daughter had an abortion. The patient brought suit against the Center for damages for wrongful disclosure of confidential I information. The Center conceded that it violated the patient's right to confidentiality. However, after the Centers' concession, the trial judge allowed the case to go to the jury on the issue of damages only. The trial judge's instructions to the jury included instructions as to punitive damages. After a jury trial, the jury awarded the patient $365,000.00, which represented compensatory damages of $65,000.00 and punitive damages of $300,000.00. The Center's motion to set aside the part of the jury's verdict for punitive damages, and enter judgment for it as a matter of law or, in the alternative for a new trial, was denied. The Center appealed.

COURT'S OPINION: The Supreme Court of New York reversed that part of the patient's $365,000 jury verdict which represented punitive damages ($300.000.00), and remanded the case back to the trial court for a new trial solely on the issue of compensatory damages.

LEGAL COMMENTARY: The New York Department of Health's Office of Health Systems Management determined, inter alia, that the nurse who called the patient's mother had revealed privileged information without the patient's permission. The Center subsequently failed to respond to the patient's verbal and written complaints. Nevertheless, the nurse in question retained her position with the Center, and her supervisor--who had participated in the Department of Health's investigation--was apparently unaware that the Department had found that the nurse's conduct amounted to a breach of patient confidentiality. The court cited numerous cases holding that the egregiousness of a tortfeasor's conduct, and the corresponding need for deterrence, cannot be made to depend solely on the tortfeasor's intent or bad faith, but must also take into account the importance of the underlying right or public policy jeopardized by the tortfeasor's conduct. If it were otherwise, courts would be powerless to deter the sort of wantonly reckless or grossly negligent conduct that tramples on the rights of others or puts their safety at risk. The court declined to hold that, as a matter of law, the callous, reckless, or grossly negligent disregard of an individual's right to the privacy and confidentiality of sensitive medical information--a right protected by the declared public policy of the State of New York--cannot be sufficiently reprehensible to support an award for exemplary damages. The court concluded that whether such damages should be awarded is a proper subject for jury instructions. It is the prerogative of a jury to decide such cases. Editor's Note: Hospitals' should have protocols in place to ensure that they have fail-safe systems which will eliminate the possibility that errors, such as the one made in this case, cannot occur. Patients' files should be labeled and/or color coded to ensure that errors' (or downright irresponsible and/or dumb behavior) cannot occur. Hospitals" that fail to have such protocols and policies in place, and/or fail to instruct their employees as to serious consequences' of violating confidentiality are at risk.