Rising nursing home violence spurs lawsuit increase

Daily Record and the Kansas City Daily News-Press, May 11, 2005 by Nora Lockwood Tooher

Residents complain they should know this information, but on the other hand you can't toss out information from other residents' health records, he said.

In general, Carlson said, a person's privacy is not violated when the disclosure of a criminal conviction involves public information. On the other hand, the public record exception may not apply to a crime committed long ago by a rehabilitated felon, he said.

Carlson also pointed out that the Health Insurance Portability and Accountability Act allows few exceptions to its rules for safeguarding patients' medical records.

Facilities cannot give out private information, and there's no exception there, assuming you consider this information health- related information, Carlson explained.

My general sense is that when a facility gets the information as part of a patient's medical record - particularly when it's a referral from the criminal justice system - it's hard to say that's not part of the medical information that needs protection, he said.

Health care providers are held to a higher standard [in upholding confidentiality]. If I - in my role as a citizen - find out something, I can talk about it, he said. But a health care provider is in a different situation. Criminal information is public, but facilities have a superseding obligation to not disclose resident- specific information.

On the other hand, Carlson noted, health care providers can take steps to protect patients from potentially violent patients without violating confidentiality laws.

He pointed to a case involving a patient in a substance abuse outpatient program in Alaska (Bryson v. Banner Health System, 89 P.3d 800 (Alaska 2004)).

The patient had an extensive history of alcohol-related violent and sexual crimes. He was a member of a self-help therapy group. The center - which was aware of the patient's history - encouraged patients to assist each other outside of group meetings. It didn't inform the group that the patient might be dangerous if he began drinking again.

The patient relapsed during treatment. He called the plaintiff - who was another group therapy member - and lured her to his apartment, where he attempted to rape her and shot her in the hand.

The plaintiff sued the center for failing to warn her about and protect her from the patient.

The Alaska Supreme Court ruled that although the center could not be held accountable for failing to take protective actions that would have violated applicable confidentiality laws ... nothing in these laws expressly or implicitly absolves health care providers of the responsibility for protecting their patients by reasonably available means that comply with the laws' requirements. If the center could have taken legally permissible measures to protect [the plaintiff], the confidentiality statutes would not rule out an actionable duty.

The program could have established reasonable safeguards and guidelines for its patients when outside contacts between patients occur, as encouraged by the facility, without violating patient confidentiality laws, the court ruled.