Lahey Clinic Hospital, Inc., had an unencrypted laptop attached to a CT scanner. Somebody swiped the laptop from an unlocked treatment room. The laptop contained data on about 599 people. Lahey reported the breach, and OCR responded with an audit resulting in a big negotiated payment.
In its holiday season email blast/boast about the salt poured into this wound, OCR indicated this should serve as a lesson for users of medical devices.
The resolution agreement alleges that Lahey :
- failed to conduct a proper risk analysis
- failed to implement physical safeguards
- failed to have policies and procedures governing receipt removal and movement of hardware and media
- failed to assign user names and track users
If you have read this far, you may find OCR’s guidance on mobile device security to be of interest.
On my holiday wish list: that we will hear about laptop or data thieves being pursued and prosecuted with the same vigor as their “covered entity” victims.
A cautionary tale is found in a non-precedential memorandum decision issued by the Arizona Court of Appeals, Division One. An orthodontist treated patients who were covered under an employee dental plan. The orthodontist collected the plan’s share of the treatment bill, but wrote off or just did not pursue the patients’ share. The Arizona State Board of Dental Examiners determined that this was fraudulent under the applicable statutes. On judicial review, the Superior Court, and then the Court of Appeals, agreed. The court found that the plan was entitled to share with the patient in the benefit of any discounts.
Robison v. AZ Brd Dental (11-24-2015)
The insurer disclaimed in March, commenced an action for declaratory judgment in June, but renewed the policy in December. The insurer said it accepted the premium to protect the insured pending the outcome of the DJ action. The New York Appellate Division, First Department, said that by accepting premium after obtaining knowledge of the materially false misrepresentations, the insurer waived any right it might have to rescind the policy.
Tower Ins. Co. of NY v Anderson (Nov. 24, 2015)
In repsonse to a nursing home’s motion for summary judgment, plainitff submitted an opinion from an osteopath, claiming that the facility failed to make timely blood sugar checks. The Appellate Division, First Department, said the osteopath,
did not profess that he possessed knowledge necessary to render an opinion on the issues presented involving the treatment of a geriatric patient with diabetes and other conditions .
Atkins v Beth Abraham Health Services (Nov. 17, 2015)
The New York Appellate Division, Second Department, ruled that an affidavit from a cardiologist was sufficient to oppose a motion for summary judgment by a surgeon and an anesthesiologist in a med mal case. The court said:
An expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable . . . Once a medical expert establishes, as was done here, his or her knowledge of the relevant standards of care, he or she need not be a specialist in the particular area at issue to offer an opinion. . . Any lack of skill or expertise goes to the weight of his or her opinion as evidence, not its admissibility . . .
Leavy v Miriam (Nov. 12, 2015) (citations omitted).
Arizona readers will note that A.R.S. § 12-2604 would require a different result in the 48th state.
Loose lips didn’t sink the ship, but it had to sail through two trials and three appeals. The defendant physician was the family doctor for divorced spouses, and the wife had two orders of protection against the plaintiff husband.
When the family doctor was notified by an emergency room physician that the husband had shown up acting bizarrely, the family doctor breached confidentiality by giving the wife a head’s up. The wife then insisted that any further visitation by the plaintiff husband with their child be medically supervised until a psychological evaluation was completed.
The man then sued the family doctor for breach of confidentiality. The trial court dismissed the complaint but it was reinstated on appeal. A jury found in favor of the doctor, but that was reversed on appeal with a direction that the doctor was liable for breaching confidentiality. A second trial was convened to consider damages, and the new jury again found in favor of the doctor.
The third appeal was the charm, and the Appellate Division, Third Department, found there was sufficient evidence to conclude that the plaintiff’s mental upset predated the breach of confidentiality.
Juric v Bergstraesser (Nov. 5, 2015)
The Appellate Division, First Department, affirmed summary judgment in favor of a podiatrist in a malpractice action. The panel held that an affirmation by an orthopedic surgeon was acceptable, “since a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field.”
Lopez v Gramuglia (11/5/2015)
Arizona readers should refer to A.R.S. § 12-2604.