Did Michael Jackson’s former nurse or doctor seek personal publicity and blatantly ignore privacy rights in violation of HIPAA? On a related note, does the attorney client privilege survive the client’s death?
By Rick Shapiro, Attorney/Co-Editor of Va. Beach, Norfolk, NE NC Injuryboard Blogs
HIPAA Governs Patient Privacy As To Medical Providers-
HIPAA is the main federal law protecting patient privacy and confidentiality, which stands for the Health Insurance Portability and Accountability Act, and it protects confidential patient information. Yes, it has been an administrative headache for medical providers, but has an important overall purpose of protecting this information from the encroaching "Big Brother" syndrome of your patient information getting into the hands of employer’s or prying eyes of those with no rights to this information. The Act might just protect you from your doctor or nurse volunteering to speak out on a national news program like CNN and announcing to the world that you abused drugs, or may stop your provider from saying something to harm your reputation in print! Whether nutritionist Cherilyn Lee did or did not breach confidentiality would be up to the board governing her profession, presumably in California and believe me, lots of folks have emailed the California Board of Registered Nursing (BRN) asking this question.
As to the privacy rights of patients surviving death under HIPAA the World Privacy Forum is a nonprofit, non-partisan, 501(c)(3), public interest research group and its website includes the following on this point:
Do Privacy Rights Survive Death?
Yes. Under HIPAA, a patient’s privacy rights survive death and last forever. We are not sure how much sense that makes, but that is what the rule provides. A deceased patient’s legally authorized executor or administrator, or a person who is otherwise legally authorized to act on the behalf of the deceased patient or patient’s estate, can exercise the privacy rights of a patient.
Attorney Client Privilege Survives Death-
The attorney-client privilege would not simply evaporate when your client expired/died, and respecting a public figure like Michael Jackson any disclosures clearly could have a possible adverse interest on the client’s estate.
As a matter of fact the US Supreme Court ruled in 1998 that the attorney client privilege survives death in Swidler & Berlin v. United States, 118 S. Ct. 2081 (1998).
There, the United States Supreme Court held that there is no posthumous exception to the attorney-client privilege for communications with substantial impact on criminal proceedings.
The Supreme Court stated that preservation of the privilege after death would be consistent with a clients’ best interests. Survival of the privilege would encourage the kind of open and frank communication between clients and their lawyer which the privilege was intended to achieve. The court did touch on reputation, civil liability, and potential harm to friends and family, as other reasons supporting the attorney client privilege "surviving" death of the client.
Related National Injuryboard News By Jane Akre:
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About the Editors: Shapiro, Cooper, Lewis & Appleton personal injury law firm (VA-NC law offices ) edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard, as well as the Northeast North Carolina Injuryboard as a pro bono service to consumers. Lawyers licensed in: VA, NC, SC, WV, DC, KY, who handle car, truck, railroad, and medical negligence cases and more.
RNS
5 Comments
JILL PAUL RN
Rick - Thanks for clarifying HIPAA and how it applies to a deceased individual. When my boss said that it no longer applies since the deceased is considered a "non-person", I questioned that statement in my mind. I thought that Cherilyn Lee RN was disclosing much more information than what I would be comfortable disclosing under the circumstances (or any circumstances, for that matter). In our hospital, we are drilled regulary on the do's and dont's re HIPAA. Thanks for your enlightening article.
Tina
It has been disturbing to watch a medical provider take it upon herself to share the intimate details of someone's medical care with the world, even if that person was a celebrity. The same goes for some of the attorneys who are claiming to have relationships with the family. Everyone deserves a zone of privacy.
JILL PAUL RN
Tina - I totally agree with you. This is outrageous and violates the HIPAA Act. If Cherilyn Lee doesn't loose her RN license over this, I will be totally surprised. Also, I think that CNN should have investigated this issue further and not exposed these findings in view of violating this act.
Ed Crom
Even more disturbing is Dr. Klein who appreared on Larry King tonight, talking about the intimate details of Michael Jackson's skin treatments, hair loss, and facial reconstruction. I couldn't help but wonder if the privilege survived death, so I appreciate your commentary. Dr. Klein did no better than digging Michael's body from an open grave. It is awful to think that a doctor that Michael trusted with his privacy would now disclose these intimate details after his death. All of this talk seems to aim at bolstering speculation about the children. I don't care how much Klein has contributed to the medical community, this breach should result in sanctions.
Rick Shapiro
Ed: Yes, I also saw parts of Dr. Klein's interview tonight. Some comments could be considered "public" already, but there were some that I would call private and I just don't get how a medical doctor can think of a breach of patient confidentiality like this either-wouldn't he take some time to call his own attorney for guidance? Supposedly he has a good general reputation, but you have to wonder what kind of "retainer" Michael Jackson paid him for all the apparent work over the years. He now has lost that patient and what I believe investigators are really studying now is this allegation that prescriptions may have been filled in alias names. Any doctor who has done that has got some big time criminal exposure, and at this point it is all rumor and I am not suggesting there is evidence pointing to any one doctor. YET.
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