Chapter 11: Invasion of Privacy and Issues Pertaining to Confidentiality

ISSUES OF CONFIDENTIALITY AND INVASION OF PRIVACY

In 1996, the federal Health Insurance Portability and Accountability Act (HIPAA) came into existence and dealt with protecting patients from having their medical information inappropriately disseminated, providing greater security of an individual’s health care information. Prior to this Act, many of the states had relatively stringent health care privacy laws. As an example, California had and still has four such laws:

• Confidentiality of Medical Information Act (CMIA)

• Patient Access to Medical Records Act (PAMRA)

• Medical California Family Codes & Regulations—Protection of the sharing of family members’ medical information, especially information pertaining to children

• Lanterman-Petris-Short Act (LPSA)—Protection of the information related to the care and treatment of mentally ill patients

All these laws together provide substantial protection for patients, preventing their health care information from being easily made available to individuals or entities not having the right to such information.

The tort of invasion of privacy takes on a bit of a different approach, more general than simply being limited to patient health issues. This tort generally involves someone intruding into the private life of another where there is no legitimate reason. There are several types of invasion of privacy:

1. Intrusion upon seclusion. This involves someone gaining access to your private space such as placing a camera in your bedroom.

2. Appropriation of name or likeness. This is similar to a trademark for a company but for your own name and likeness. In other words, you have a right to control if a pharmacy wants to use your photo in their advertising materials.

3. Publicity given to a private life. This type of invasion of privacy involves your personal information being published where there is no legitimate public concern. It is this type of invasion we will discuss in the following case.

4. Placing someone in a false light publicly. An example would be including an innocent person’s photo along with the photos of known criminals on a published website.

In general, a private citizen is afforded much more privacy than a public figure or celebrity. It is assumed that public figures (like politician or celebrities) have placed themselves in the public eye, and thus matters that private citizens would normally keep private are considered newsworthy and publishable for public figures.

The following two cases represent the view on the part of many courts prior to the twenty-first century that the pharmacist was not a true health care professional. As a result, many of the state’s confidentiality laws would not necessarily view the pharmacist as one who would strictly be responsible for keeping a patient’s medical prescription records confidential. The first of the two cases (Washburn) struggles somewhat with patient prescription drug record security, but yields to protect the plaintiff patient on the basis of a technicality in the issuance of a subpoena for such ...