People often ask lawyers, “Can I get sued over this?” The shrewd lawyer will answer, “Yes, you can sued over this, and over just about anything. But whether the other side is likely to prevail is another matter.”
Michael Leon Seaton was convicted in 1986 of two counts each of forcible rape and forcible oral copulation, as well as kidnapping. Apparently because he was approaching early release, the county sheriff’s department had him transferred to a state hospital for evaluation for possible civil commitment. The decision of the Ninth Circuit Court of Appeals states that, “Two psychologists reviewed Seaton’s medical records from prison and recommended that he be civilly committed. They forwarded their evaluations and the supporting documents to the county district attorney, who then filed a petition to commit Seaton.” Seaton’s medical records were reviewed to determine whether the state should seek his commitment under California’s Sexually Violent Predator Act. The Act enables the state to commit some sex offenders civilly for indeterminate terms subject to yearly evaluations.
Among others, Seaton sued the two psychologists, alleging they violated his constitutional right to privacy by looking at his records and communicating their opinions and supporting data to the district attorney’s office. He also alleged HIPAA violations.
The court held that the HIPAA claim failed because individuals do not have a private cause of action under HIPAA. “Seaton’s claim that the disclosures violate HIPAA fails because under Webb v. Smart Document Solutions, LLC [499 F.3d 1078, 1081 (9th Cir. 2007)], ‘HIPAA itself provides no private right of action.’”
The court also held that, “We join our sister circuits in holding that prisoners do not have a constitutionally protected expectation of privacy in prison treatment records when the state has a legitimate penological in access to them.”
But there was more to the case, because there were two time periods in issue – first, the time Seaton was serving his sentence, and “the second during any subsequent period necessary for his evaluation.”
The court provides a considerable amount of analysis surrounding the privacy attached to medical information, leaving the reader with the inescapable conclusion that this area of the law is not precisely clear. In fact, according to the decision, the Supreme Court has never weighed in on the issue. “Some of our sister circuits recognize a constitutional right to privacy in medical records, though the Supreme Court has never so held.”
In the end, as one might imagine, the state’s right to protect its citizens (the purported justification behind the civil sex offender statutes) outweighed any privacy interest of Seaton’s. The court concluded, “The need for access to the information to protect the public is substantial, because the persons subject to it have shown by their history
that concern about the risk of sexual predation is not a chimera. There is an express statutory mandate to protect the public from persons whose mental illness causes them to be sexually violent predators.”
Concerning HIPAA, although patients do not have a “private” cause of action, they can file a complaint with HHS. And HHS’ Office of Civil Rights (OCR) - the governmental body that prosecutes complaints - has considerable powers. Violators can be sentenced for up to 10 years in prison and fined up to $250,000 in criminal penalties for failure to comply. In addition, civil penalties can be imposed that include $100 per violation and up to $25,000 per person, per year for each violation. The OCR is a busy outfit – in recent years the office averaged about 8,000 complaints per year.
Seaton v. Mayberg, No. 05-56894 (9th Cir., June 30, 2010)
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