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THE INTERNET, MYSPACE, MEDICAL PRIVACY AND FAMILY FEUDS.

By Greg Piche'

        Two recent and unrelated cases this month involved the unlawful access to private medical records and the posting of them on the internet on MySpace in order to inflict pain in the prosecution of family feuds. Both feuds involved Asian families. In Hawaii, Rhonda Wong-Fernandez, a 22 year old mother of three small children, plead guilty to a felony charge of unauthorized use of a computer to access confidential records. Ms. Wong Fernandez was a friend of the victim?s sister in law who was feuding with the victim.  She obtained access to the medical records of the victim who was suffering from HIV at the Straub clinic and published them three times on MySpace. At one time she stated that ?I hope she dies.? The victim did die in April.  Although the prosecutor requested a one month jail sentence, the judge disagreed and sentenced her to one year in jail, five years probation and 200 hours of community service. The judge ordered her taken into custody immediately and refused a request to defer the start of her sentence until she could provide for her 5 month old child.

     

       In Minnesota, the state?s Court of Appeals, in Candace Yath v. Fairview Clinics et al, A08-1556 (2009), rendered a decision in the appeal of the dismissal of suit brought by a woman who claimed that friends and relatives of her ex-husband illegally accessed her medical records and published them together with her picture and the fact of her having a sexually transmitted disease in a special MySpace web page entitled ?Rotten Candy.? The website was up for between 24 and 48 hours. The trial court determined that there was insufficient evidence of invasion of privacy because it appeared that there was insufficient publication to constitute exposure of the information to the public. The appeals court disagreed holding that there were two ways to establish wrongful public exposure: 1) a single exposure to the public at large and 2) multiple exposures to individuals sufficient to constitute public exposure.

        The court stated broadly: ?We hold that the publicity element of an invasion?of-privacy claim is satisfied when private information is posted on a publicly accessible internet website.? The court went on to find that there was insufficient evidence that the defendants who accessed the information were involved in the publication on MySpace. The plaintiff apparently dismissed her claim against the two most involved in the publication prior to the appeal. 

        The court also rejected the Fairview clinic argument that it could not be a defendant under Minnesota Statutes §144.335 that provides a private cause of action for wrongful disclosure of medical records. Fairview argued that HIPAA preempted the state statute. The court held that there was no preemption because the two statutes were not inconsistent.  Fairview also argued that it was not a ?person? as stipulated in the state stature, but the court left that issue for determination by the trial court on remand. One of the judges wrote a concurring opinion suggesting that the court did not need to stake out the broad proposition that a single publication on the internet was sufficient to implicate the invasion-of-privacy statute because there were sufficient (80 or more) publication to friends on Ms. Yath?s MySpace page to satisfy the public exposure requirement.

        Unfortunately and sadly, there will likely be more of these kinds of tragedies with the proliferation of social networking. The use of medical records to cause harm should draw a firm response by the courts. The use of the internet and private medical records as instrumentalities of harm is powerful and dangerous device and requires a significant level of personal responsibility to be imposed on those misusing it.

Full post as published by Healthcare Law Blog on June 26, 2009 (boomark / email).