$1.44M HIPAA award upheld after Walgreen pharmacist shared patient data

[PikminOC]

http://www.indystar.com/story/news/...reen-pharmacist-shared-patient-data/19035783/

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[confettiflyer]

What an idiot...former husband included.

 

[WVUPharm2007]

$1.44m??!?!

Hell, give me $100 and you can disseminate my entire health record to the world.

 

[confettiflyer]

$1.44m??!?!

Hell, give me $100 and you can disseminate my entire health record to the world.

Haha...I secretly hope one day some idiot does this to me. I really don't care about my own medical privacy...much easier "ambulance chasing" vs. actually getting injured.

Plus California caps punitive damages for medical errors to $250k...so I'll take the HIPAA violation $$$ thankyouverymuch.

 

[PharmNerdMatt]

Not a huge Walgreen's fan, but I have to agree with their premise here. It does seem odd to hold the company liable for something they could not have prevented. If the pharmacist admitted that they knowingly broke both a policy and HIPPA regulations, then no amount of training would have prevented this action. I wonder what the complainant proposes Walgreen's (the company) did wrong. I am actually embarrassed regarding the pharmacist, and long for the day when we earned the title of most trusted profession.

Also, was it painful for anyone else to repeatedly read the word "walgreen?" That seemed like a major editing oversight as it was consistent throughout.

 

[confettiflyer]

Not a huge Walgreen's fan, but I have to agree with their premise here. It does seem odd to hold the company liable for something they could not have prevented. If the pharmacist admitted that they knowingly broke both a policy and HIPPA regulations, then no amount of training would have prevented this action. I wonder what the complainant proposes Walgreen's (the company) did wrong. I am actually embarrassed regarding the pharmacist, and long for the day when we earned the title of most trusted profession.

Also, was it painful for anyone else to repeatedly read the word "walgreen?" That seemed like a major editing oversight as it was consistent throughout.

Respondeat superior (vicarious liability) is a mainstay of civil tort. A 1st year law student could show up the Wags attorneys on that argument. The only way Wags could get out of this one is if the employee physically left work and did something so far out of the realm of their day to day duties (like they went out and shot someone), that vicarious liability wouldn't apply.

I agree this was pretty much 100% the employees fault, but under that doctrine, Walgreens must pay for the actions of all persons in their employ.

 

[297point1]

Interesting that the pharmacist knowingly violated the law and only gets a written warning plus a re-training class; her employer gets socked with the full $1.44 million in damages.

I understand the vicarious liability argument means the pharmacist isn't liable for much (if any) of the damages. That being said, doesn't this rise to a fireable offense? Where is the disincentive for the next pharmacist to do the same?

Edit: fixed typo

 

[297point1]

Fetti- you were reading my mind. STOP IT.

 

[PharmNerdMatt]

Respondeat superior (vicarious liability) is a mainstay of civil tort. A 1st year law student could show up the Wags attorneys on that argument. The only way Wags could get out of this one is if the employee physically left work and did something so far out of the realm of their day to day duties (like they went out and shot someone), that vicarious liability wouldn't apply.

I agree this was pretty much 100% the employees fault, but under that doctrine, Walgreens must pay for the actions of all persons in their employ.

I know that there is a legal concept for what is going on here, but maybe I don't always agree with that precedent. Often we see that the employer had some part in the case such as poor training or a bad work environment. This doesn't seem to be the case here.

I actually hope that this pharmacist loses their job over this. Costing your company 1.44 million dollars seems to me to be a good reason to fire someone. I don't imagine this will go well for them getting a different job, however.

 

[BenJammin]

Interesting that the pharmacist knowingly violated the law and only gets a written warning plus a re-training class; her employer gets socked with the full $1.44 million in damages.

I understand the vicarious liability argument means the pharmacist isn't liable for much (if any) of the damages. That being said, doesn't this rise to a fireable offense? Where is the disincentive for the next pharmacist to do the same?

Edit: fixed typo

Because the employee is an agent of Walgreens, that's why the latter is sued. If some people had their way and corporations were stripped of their "personhood" then the pharmacist would be responsible for the damages.

 

[297point1]

Because the employee is an agent of Walgreens, that's why the latter is sued. If some people had their way and corporations were stripped of their "personhood" then the pharmacist would be responsible for the damages.

Yeah, I got that...it's the same thing that makes me feel a little safer every time I get threatened with a work-related lawsuit. Then again, I kind of make an effort to avoid knowingly violating the law.

With apologies to William Wallace: "They might take my job, but they'll never take my house!!"

 

[Momus]

$1.44m??!?!

Hell, give me $100 and you can disseminate my entire health record to the world.

Coz you got nothing to hide. People who complained normally have crappy diseases: HIV, herpes, taking Viagra. But that's besides the point. They are making this case as an example for other health care providers. Nice jack pot for that woman $1.5M is no chump change to get, can easily retires outside of US.

 

[Ackj]

I get that this guy knowingly violated the law and policies. But what if somebody "tricks" you into it? If the phone rings and someones says "I'm Mr. Smith, what rx do I have to pick up, and is anything else able to be filled?" I won't ask them to prove their identity. It wouldn't be intentional (on my part) but the information would still be released.

 

[Old Timer]

Because the employee is an agent of Walgreens, that's why the latter is sued. If some people had their way and corporations were stripped of their "personhood" then the pharmacist would be responsible for the damages.

No they wouldn't. The employer is responsible for the employee, period.....

 

[BenJammin]

No they wouldn't. The employer is responsible for the employee, period.....

If the employer isn't considered an entity that can be taken to court then it's the employees responsibility. Period. Did you even read what I posted?

 

[Old Timer]

If the employer isn't considered an entity that can be taken to court then it's the employees responsibility. Period. Did you even read what I posted?

Stick with pharmacy. You either know nothing about law or have no friends that are lawyers. People are not the only entity that can be sued. Corporations have been sued since the beginning of corporations and were only granted status as people in the Citizens United Case about political speech. Stick to med chem. You are way out of your league in this discussion.

 

[confettiflyer]

Stick with pharmacy. You either know nothing about law or have no friends that are lawyers. People are not the only entity that can be sued. Corporations have been sued since the beginning of corporations and were only granted status as people in the Citizens United Case about political speech. Stick to med chem. You are way out of your league in this discussion.

I was about to say the exact same thing. Corporate personhood has nothing to do with corporate liability/civil tort and has everything to do with 1st amendment rights.

 

[confettiflyer]

I get that this guy knowingly violated the law and policies. But what if somebody "tricks" you into it? If the phone rings and someones says "I'm Mr. Smith, what rx do I have to pick up, and is anything else able to be filled?" I won't ask them to prove their identity. It wouldn't be intentional (on my part) but the information would still be released.

Pretty sure the law says "intentional" release. You just can't knowingly release the information. There's only so much you can do to verify identity.

 

[confettiflyer]

If some people had their way and corporations were stripped of their "personhood" then the pharmacist would be responsible for the damages.

Nope that's not how vicarious liability works, at all. Not even close.

 

[confettiflyer]

Also, was it painful for anyone else to repeatedly read the word "walgreen?" That seemed like a major editing oversight as it was consistent throughout.

Walgreen Co. is the technical legal name of the company, so the article is correct.

 

[BenJammin]

Stick with pharmacy. You either know nothing about law or have no friends that are lawyers. People are not the only entity that can be sued. Corporations have been sued since the beginning of corporations and were only granted status as people in the Citizens United Case about political speech. Stick to med chem. You are way out of your league in this discussion.

Cute. If you had read what I posted you would understand that your comment is just an expansion of what I just said. Since you're for 0/2, I'll let you try again.

 

[Old Timer]

Cute. If you had read what I posted you would understand that your comment is just an expansion of what I just said. Since you're for 0/2, I'll let you try again.

No, I'm not. you made the point, event though you said it was other people, "corporations were stripped of their "person-hood" then the pharmacist would be responsible for the damages." So you are still stating they would lose their person-hood and liability would revert to the employee. However, person-hood for corporations as I explained is only related to political speech, is very recent and has nothing to do with liability in a tort case. You are still wrong and that makes me 2/2. Why bother using an example you knew was false.

 

[BenJammin]

No, I'm not. you made the point, event though you said it was other people, "corporations were stripped of their "person-hood" then the pharmacist would be responsible for the damages." So you are still stating they would lose their person-hood and liability would revert to the employee. However, person-hood for corporations as I explained is only related to political speech, is very recent and has nothing to do with liability in a tort case. You are still wrong and that makes me 2/2. Why bother using an example you knew was false.

0/3. Keep channeling your inner Jim Plagakis.

 

[HouTX]

Not a huge Walgreen's fan, but I have to agree with their premise here. It does seem odd to hold the company liable for something they could not have prevented. If the pharmacist admitted that they knowingly broke both a policy and HIPPA regulations, then no amount of training would have prevented this action. I wonder what the complainant proposes Walgreen's (the company) did wrong. I am actually embarrassed regarding the pharmacist, and long for the day when we earned the title of most trusted profession.

Also, was it painful for anyone else to repeatedly read the word "walgreen?" That seemed like a major editing oversight as it was consistent throughout.

nitpick "walgreen" but said HIPPA... ESPN C'Mon Man

 

[Old Timer]

Cute. If you had read what I posted you would understand that your comment is just an expansion of what I just said. Since you're for 0/2, I'll let you try again.

I read what you posted. I suggest you read what you wrote. You don't even understand waht you wrote. So fundamental is your misunderstanding you cannot comprehend it even though both Confettiflyer and I explained it to you. I'll try one more time. You said:

Because the employee is an agent of Walgreens, that's why the latter is sued.

This is 100 percent correct. Now the second sentence is where you go off the rails.

If some people had their way and corporations were stripped of their "personhood" then the pharmacist would be responsible for the damages.

You claim, clearly I think, that corporations can only be sued because they have personhood and if they were stripped of their personhood they could no longer be sued and the pharmacist would be responsible for the damages. If that is not a fair representation of what you claim, please enlighten me.

But your claim is wrong for several reasons. First personhood for corporations applies only to political speech. Corporations cannot invoke the 5th amendment for example. Even if laws were passed to strip corporations of personhood, that would not preclude them from being sued or being responsible for the behavior of their employees. In fact the purpose of the stripping of personhood would be to reduce their protections and not enhance them.

 

[PharmNerdMatt]

nitpick "walgreen" but said HIPPA... ESPN C'Mon Man

Mine was a single typo. Also, I didn't mean to nitpick just trying to comment on that it read weird. Didn't realize it was the formal company name. I still would have written Walgreen's or Walgreen Co. everytime though.

 

[BidingMyTime]

Mine was a single typo. Also, I didn't mean to nitpick just trying to comment on that it read weird. Didn't realize it was the formal company name. I still would have written Walgreen's or Walgreen Co. everytime though.

I thought they were "Walgreens" without the apostrophe, I agree with you if the legal name is Walgreen Co. it would have read better for the reporter to put it that way.

As for the decision.....like others, unless there is more to the case then is being reported, I don't see how Walgreens is guilty when they have provided training & when the employee admits she knew it was wrong but did it anyway. Corporations are culpable when they don't provide training for their employees, or when they employees makes a human mistake or error in judgement and such. I thought corporations were not liable for something an employee does away from their workplace, that was not part of their job, and which they had receive training not to do. But I guess that is why I'm not a lawyer, the decision doesn't make sense to me. I guess the judge is looking at it as, Walgreens put the employee in a position to be able to share the sensitive information.....but I don't get how given the circumstances, this makes Walgreens guilty of anything. It would be like saying Walgreens is guilty of murderer, if an employee used their computer system to get the address of someone and then went to that persons house and killed them. The murder and the Hipaa violation had nothing to do with the employee's job or walgreens, other than the employee had gotten the information from their employer's computer system.

Also, aren't awards supposed to reflect the amount of damage done? Even though the disclosed information was embarrassing, I'm hard pressed to see how it equates to $1.4 million dollars of damages.

 

[group_theory]

Interesting that the pharmacist knowingly violated the law and only gets a written warning plus a re-training class; her employer gets socked with the full $1.44 million in damages.

I understand the vicarious liability argument means the pharmacist isn't liable for much (if any) of the damages. That being said, doesn't this rise to a fireable offense? Where is the disincentive for the next pharmacist to do the same?

Edit: fixed typo

I can understand Walgreen appealing this case, because in some states, respondeat superior doesn't apply for intentional tortious actions of its employees (and arguing that the employee violated company policy, was an intentional act despite adequate training, that her actions were not part of her job descriptions and hence should not be held liable for its employee's action). Obviously the appeal court did not buy that argument.

If the appeal is upheld and walgreen has to pay $1.44 million in damages as the employer under the doctrine of respondeat superior, walgreen has the option of suing the pharmacist herself for $1.44 million to recover the cost of her action that cost Walgreens. Now whether it is worthwhile to spend legal resources to get $1.44 million from the pharmacist is another matter (but if they want to make an example out of her, they can certainly rack her up with legal cost to defend this civil suit, and likely she will be bankrupt from any judgement). Even if the pharmacist had her own professional liability insurance, her insurance can file a motion to absolve itself from its obligation to defend (and pay) under the argument that this was an intentional tort and excluded specifically in the contract (most insurance contracts have this clause)

Basically while respondeat superior will make your employer responsible to the injured party, your employer can make your life very difficult financially if it wants to (and if your action just cost your employer millions of dollars and bad PR, there's no good will on the employer part to not make your life difficult)

 

[npage148]

If the corporation wasn't held liable they would literally have no reason to train anyone about anything. They would just put a blanket clause saying an employee must in compliance with everything and wipe their hands of it and let the workers get nailed with fines. /ianal

Corps are quick to throw an employee under the bus in times like this about time they got it back

 

[PharmNerdMatt]

If the corporation wasn't held liable they would literally have no reason to train anyone about anything. They would just put a blanket clause saying an employee must in compliance with everything and wipe their hands of it and let the workers get nailed with fines. /ianal

Corps are quick to throw an employee under the bus in times like this about time they got it back

I think a good question is why does the corporation provide training at all if they are still liable when the employee violates all of the training provided. I don't think there is really a case of an employee being thrown under the bus. He admitted to knowingly violating HIPAA (got it right this time!).

 

[npage148]

I think a good question is why does the corporation provide training at all if they are still liable when the employee violates all of the training provided. I don't think there is really a case of an employee being thrown under the bus. He admitted to knowingly violating HIPAA (got it right this time!).

Becaue there are going to be two types of rule beakers. Those ignorant to the law and those that dgaf. Training will educate the ignorant ones so they don't cost the company money in fines and the other ones will just have to be fired when their non-compliance is discovered.

Not saying this guy was thrown under the bus, he sounds like a real winner.

 

[confettiflyer]

Wags trains so the charges don't rise to the level of corporate negligence. It's one thing to be vicariously liable, it's a whole different thing to abdicate your role as a provider of care and guardian of extremely sensitive medical records.

That would make a $1.44M fine look like vending machine change.

See: Scampone vs. Highland Park Care Center. PA Supreme Court.

 

[confettiflyer]

Unrelated text if anyone wants more detail in respondeat/respondent superior:

http://encyclo.findlaw.com/3400book.pdf