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Is a breach of confidentiality medical malpractice?

The Health Insurance Portability and Accountability Act (HIPAA) was developed in response to the growing concern about patient privacy rights in this era where someone could easily obtain and misuse private medical information -- but it was never intended to give patients a private course of action against their doctors for any violations.

That's something most patients don't realize. HIPAA regulations seem so serious to patients that most assume that a doctor who violates their rights owes them some form of compensation -- but the reality is different.

Patients can file a complaint with the Office of Civil Rights, and it's always possible criminal charges can result if the offense is repeated or serious enough -- but it's mostly likely to result in little more than a slap on the wrist. Patients could also file a complaint with their state Board of Medicine or through their insurance company.

However, the reality remains that even a serious HIPAA violation doesn't amount to medical malpractice -- and aggrieved patients have only 180 short days to make their complaint in the first place. They also don't have any right to financial compensation.

Except a recent ruling in New Jersey may be a game-changer where patients are concerned, giving them the right to sue for compensation based on the breach of privacy when a medical professional violates HIPAA rules.

That also extends the time limit for filing a claim to that of an ordinary personal injury suit. While not exactly a medical malpractice suit, HIPAA rules have become the standard for what patients can expect regarding their privacy -- making it easier to prove that a patient's privacy has been violated.

The case in New Jersey centered on a physician who improperly disclosed the HIV status of one of his patients. However, a similar lawsuit could be brought about if a physician, medical assistant, nurse or another member of the office staff gossiped about a patient's drug use, mental health problems, sexually-transmitted diseases or even something that he or she simply wanted to keep secret as long as possible (like a cancer diagnosis). If that disclosure cost the patient public ridicule, a lost promotion, a divorce or any other substantial harm, there's a good chance for a case.

An attorney can provide more information on suing a doctor for his or her failure to guard your privacy.

Source: www.law360.com, "NJ Ruling Could Spur Patient Suits Over HIPAA Violations," Y. Peter Kang, July 27, 2017

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Gary D. Ginsberg is a Certified Civil Trial Lawyer who has been recognized as an expert in litigating cases in the courts of New Jersey.

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