No “Misappropriation” in Medical Record Disclosure
On September 17, 2009, the Oklahoma State Supreme Court overruled a decision by the Court of Appeals involving a licensure proceeding filed against a former nurse's aide by the Department of Health.
In the proceeding, the Department of Health charged that the nurse's aide copied parts of a patient's medical record to bolster her employment discrimination claim and thereby misappropriated the patient's property by giving the information to the EEOC. The Department claimed the aide did not have permission to give photocopies to the EEOC.
The Supreme Court in an 8 to 1 decision found that the aide did not violate the law. The decision is premised in the idea that a resident does not have a property right in their medical records, and that photocopying them and using them for evidence is not a violation of the state's property laws.
The aide at issue had been disciplined by the facility for acts of misconduct which she asserted were pretexts for acts of discrimination. She filed a complaint with the EEOC. At some time while her complaint was pending she copied a medication report left in public view by Caucasian nurses who were not disciplined for their failure to safeguard the record. She submitted the copy to the EEOC as evidence that blacks and whites were treated differently.
During the pendency of the discrimination case, the nursing home learned of the medication report, and terminated the aide, then reported her to the Department of Health in Oklahoma. The Department of Health sought to discipline her for misappropriation of the patient's property, not for violating HIPAA. They were going to place unfavorable information in the state's Nursing Aide Registry. This would have been the equivalent of revoking her license to practice as an aide.
The Department filed a legal pleading called a motion for summary judgment. It argued that the photocopied records were the resident's property, that the content was confidential under the Health Insurance Portability and Accountability Act of 1996 (HIPAA); that the aide took the medical information with neither any entitlement to the information nor the resident's consent and distributed it to a third party (The EEOC). At the hearing on the motions, the Department clarified that its position was that the aide had transferred the resident's medical information to a third party. The aide responded by saying, among other things, that the state statutes and regulations governing the Registry cannot be extended to cover disclosures of patient information because such disclosures are governed by HIPPA. The court found that the aide had misappropriated property belonging to the resident, and the aide appealed. The Court of Appeals affirmed the verdict, and the aide appealed again, this time to the state Supreme Court.
In its opinion the Oklahoma Supreme Court looked at the controlling federal regulations which defined misappropriation as "the deliberate misplacement, exploitation, or wrongful, temporary or permanent use of a resident's belongings or money without the resident's consent." 42 C.F.R. § 488.301 (2003). The problem for the Department of Health was that the policies and procedures of the facility clearly stated that the medical records were the property not of the resident, but of the facility. The Court said:
Here, [the aide] may have disclosed resident medical information by divulging it to the EEOC, but she did not transfer a resident's property. The evidence is that [the aide] took a resident's medical information and disclosed it to the EEOC, but there was no severance of the right to the information or of the information itself from the resident or from Epworth Villa. The Department's definition of misappropriation of property does not include the release or divulging of information. Thus the ALJ erred when it found that [the aide] had misappropriated a resident's property by transferring information to the EEOC.
In a blistering dissent Justice Joseph Watt argued that the photocopying was a violation of the patient's rights. The Supreme Court did not decide the case based on a violation of HIPAA, however. Instead, it was limited to reviewing the case based on what the Department of Health had charged, specifically, misappropriation of property. By making the wrong disciplinary charge, the Department of Health lost the case.
This does not mean that employees can take any medical record they find and copy it for their own use. It is a very narrow case under Oklahoma law. Had this case been in a federal court and had it been brought by or on behalf of the patient, the result may have been significantly different.