Recovery of Punitive Damages Allowed for Unauthorized Disclosure of Privileged Medical Information

The Appellate Division, Second Department of the New York State Supreme Court has ruled that an unmarried woman who underwent an abortion can recover punitive damages from the medical clinic where the procedure was performed for the clinic’s wrongful disclosure to her mother of private information from which the girl’s mother was able to deduce that the girl had undergone a abortion. The case is J. v. Long Island Surgi-Center, decided on September 25, 2007.

The appellate court was reviewing a jury verdict awarding the plaintiff $65,000.00 in compensatory damages for emotional distress and $300,000.00 in punitive damages. The plaintiff in the case, according to the court’s decision, is an unmarried woman who lived with her parents who strongly disapproved of premarital sex and were implacably opposed to abortion.

Because the woman, then 20-years old,was determined to keep her decision to have an abortion from her parents, she specifically instructed the clinic never to call her at home. Nevertheless, a day after the abortion, one of the clinic’s nurses telephoned the woman’s home and spoke with a person she knew to be her mother, at which time she asked questions about whether the young woman had been having vaginal bleeding and had received blood test results to determine whether she needed an injection of Rh immune globulin. A patient who tests negative for the presence of the Rh antibody must have a RhoGam injection within 72 hours of an abortion or she may have a problem with a future pregnancy.

From these questions, the mother surmised that her daughter had had an abortion. The court’s decision discusses at length the law in New York with respect to the recovery of punitive damages in cases founded upon torts such as negligence, medical malpractice and defamation. (One supposes that this issue may come up for judicial review in the case presently in the news concerning the Long Island woman who had a double mastectomy based upon a pathology lab’s incorrect reporting that she had cancer when in factshe did not.)

In J. v. Long Island Surgi-Center, the court noted that conduct warranting an award of punitive damages need not be intentional or in bad faith but may consist of willful or wanton negligence or recklessness that must be sufficiently blameworthy, and the award of punitive damages must advance a strong public policy of New York State by deterring its future violation.

The court found that New York has declared such strong public policy in Public Health Law section 2803-c. The Appellate Division found numerous factors supporting the jury’s award of punitive damages.

These factor include (1) the defendant’s lack of a written plan to implement plaintiff’s right to privacy and confidentiality, (2) the defendant’s at best confusing and poorly understood unwritten “no-call” policy, (3) the admission staff’s practice of placing pre-printed labels on virtually every page of a patient’s medical file without making any effort to determine whether the contact information thereon was consistent with or contrary to the patient’s instructions, (4) an apparent violation of the New York State Hospital Code in performing the abortion and discharging the plaintiff without having first obtained her full blood test results, (5) the defendant’s failure to note that it had in fact received the full test results before the nurse called and spoke with the plaintiff’s mother, and (6) the nurse’s apparent feeling that she was unconstrained by any policy of the defendant from disclosing confidential patient information to a person she knew was not the patient without the patient’s authorization to do so.

The dissenting opinion stressed that the nurse’s telephone call was a well-intentioned attempt to make sure that the patient was not exposing herself to potential medical problems in the future. Due to the fact that there were two dissenting judges, this case can be appealed to the Court of Appeals as a matter of right, meaning that permission from the Court to appeal is not required. It will be interesting to see what happens in this wrongful disclosure case.

If you or someone that you know has been harmed as a result of medical malpractice or a hospital or clinic’s negligence, consider your legal alternatives and contact Levine & Slavit, Esqs. For 50 years spanning 3 generations, the personal injury lawyers at Levine & Slavit have handled medical malpractice cases in New York City, the Bronx, Brooklyn, Queens, Long Island and surrounding areas, obtaining results for satisfied clients.

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