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From Health Law Daily, February 23, 2018

Nurse’s retaliation claims proceed, despite alleged HIPAA violation

By Wendy Biddle, J.D.

A dispute about the information provided to a decision-maker who terminated an employee poses a question of fact to be left to a jury. A Tennessee district court allowed a nurse’s complaint against her former employer to proceed, in which she alleged that she was fired due to age discrimination and her use of leave under the Family and Medical Leave Act (FMLA) (P.L. 103-3) after the nurse allegedly committed a Health Insurance Portability and Accountability Act (HIPAA) (P.L. 104-191) violation (Coone v. Chattanooga-Hamilton County Hospital Authority, February 21, 2018, Phillips,T.).

FMLA use and statements. Beginning in 2007 and continuing until her termination, the nurse used intermittent FMLA leave to care for her autistic son. In 2015, the nurse continued to take FMLA leave and two weeks prior to her termination, when the nurse returned to work after leave in November, the Clinical Director stated loudly, "Anybody with family leave, you’re going." The nurse also documented the Clinical Director as referring to her as "old woman" and "old fart" and saying "I know you’re getting older and you have problems with your memory. You may need to write this down," as well as saying that the emergency room is for "young nurses, not old nurses, and that taking family leave was not going to be tolerated."

Alleged HIPAA violation. In December 2015, a patient’s sister approached the nurse and asked her for information about the patient’s care and treatment. According to the nurse, who was not the patient’s treating nurse, she asked the primary nurse for permission to talk with the patient and subsequently asked the patient and the patient’s son, who was in the room, for permission to access the patient’s medical record, both of which were granted. The nurse answered a few questions and then left the patient’s room without making a notation in the medical record about asking or receiving permission to access the medical record.

Two days later, the patient complained to a case manager that her private information had been shared without her permission. The case manager contacted the Director of the campus Emergency Department (ED Director), who reported to the Clinical Director, and the two met with the nurse to discuss the alleged HIPAA violation. The nurse claimed she was not allowed to provide information about the interaction, and when she tried to speak she was repeatedly cut off by the Clinical Director. The nurse denied admitting it was wrong to access the record, and she claims she told them she had permission. The hospital’s HR representative then met with the Employee Relations Director, who made the decision to terminate the nurse based on the facts presented to her: the nurse was not the patient’s assigned nurse; no consent was noted in writing; the records show the nurse accessed the medical record; and the patient’s complaint. The Clinical Director prepared the termination notice but claimed she played no part in the decision to terminate. The nurse was terminated that same day.

The nurse filed suit, claiming she was terminated because of her age and her use of FMLA leave. Erlanger filed a motion for summary judgment.

Raising an inference of discrimination. The court found no direct evidence linking the Clinical Director’s statements to the nurse’s termination, but found that the Clinical Director’s prior comments were enough to close proximity to her termination to raise the inference that the nurse was terminated because of her FMLA leave and/or age.

Although it was undisputed that patient complained about access to her medical records, and that the nurse was not the patient’s treating nurse and had accessed her medical records, there was a dispute about how the Clinical Director and ED Director handled the incident and what information they were in possession of. Therefore, the court concluded that although Erlanger’s reason for termination had some factual support, some of those facts are in dispute, supporting the nurse’s pretext argument that the alleged HIPAA violation did not actually motivate the termination to continue. The information provided to the Employee Relations Director could not be determined to be accurate or complete, so the court could not determine as a matter of law that Erlanger’s decision was a reasonably informed or considered one. The court denied Erlanger’s motion for summary judgment finding that dispute of fact, along with the temporal proximity of the nurse’s termination and the biased statements by the Clinical Director, was sufficient for a jury to reject Erlanger’s legitimate nondiscriminatory reason and infer that the hospital discriminated against the nurse due to her use of family leave or her age.

The case is No. 1:16-cv-481.

Attorneys: Donna J. Mikel (Burnette, Dobson & Pinchak) for Sonja Coone. Jennifer Lane Crowder (Baker, Donelson, Bearman, Caldwell & Berkowitz, PC) for Chattanooga-Hamilton County Hospital Authority.

Companies: Chattanooga-Hamilton County Hospital Authority

MainStory: TopStory ConfidentialityNews EmploymentNews HIPAANews TennesseeNews

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