In the last several days there has been much press coverage of an egregious privacy violation that occurred at the Mayo Clinic in Arizona.
On December 11, 2007 Sean Dubowik was admitted to the hospital and put under general anesthesia in preparation for having his gallbladder removed. While the Foley catheter was being placed into his bladder, the chief general surgery resident Dr. Adam Hansen took a picture with his cellphone of Mr. Dubowik’s penis that had the words Hot Rod tattooed on it.
The operation then proceeded without incident and the patient was discharged to home. Sometime after the photograph was taken, Hansen began showing the picture around the hospital.
An anonymous source contacted the local paper, who then contacted the hospital. Hansen was made to call the patient and admit what he had done before the patient read about himself in the newspaper. The surgeon has been placed on administrative leave.
Mr. Dubowik is understandably enraged and is stated in the Associated Press reports to be in the process of contacting a lawyer. While this is certainly within his rights to do so, what will not be within his rights to do is file a lawsuit.
What is generally not understood about the landmark federal HIPAA legislation enacted ten years ago is that it does not give patients the right to sue for privacy violations. Violations of HIPAA are reportable to the federal government through the Department of Health and Human Services, but they can not be the basis for a tort action by a patient against a healthcare entity.
Some states (Arizona is not one of them) have state privacy laws that allow tort action based on privacy violations. It is conceivable that a grossly unprofessional action such as this one perpetrated by Hansen might be a legitimate basis for an ethics complaint to the state medical board.
It is certainly very possible that Hansen could be dismissed for a violation of the medical staff bylaws at this hospital. But, what is actually unfortunately unlikely will be that Mr Dubowik will ever recover any monetary damages through a tort action.