Brian Van Zandt, a long time reader of EMR and HIPAA and an account executive at a managed IT services company in New York, NST, sent me the following fascinating question.
I’ve had a conversation with a few people recently about something that been on the news a lot recently. A tornado in the mid west destroyed a hospital and patient records, I heard about x-rays specifically, were found miles from the hospital. In extreme cases like that, are hospitals still liable for penalties from HIPAA for losing patient information?
First, I have to start with my regular disclaimer that I’m not a lawyer, I don’t play one on TV and much prefer being a blogger. Consult a lawyer for legal advice.
With that disclaimer, it’s a fascinating situation to consider. I remember from my business law classes in college that there’s a legal term called “Act of God” which seems like it might have consideration in this situation. I can’t say for sure that the Act of God defense would work when it comes to disclosure of PHI, but it would be interesting to see it play out.
I think the other consideration and question is what efforts did the hospital make to prevent the disclosure of the PHI. How did they act when the tornado warning was announced? What measures had they taken to prevent such an issue from happening since they likely new they were in an area that was prone for tornadoes? What efforts did they put forth once the hospital was destroyed to protect the information that was scattered?
I’m sure there’s a lot more questions that would likely be asked. I’m just trying to start the conversation and hopefully some HIPAA lawyers that read this blog will chime in with more details.
Although, I must admit that my first reaction to reading this question was, would people really have a legal issue with this? My point being that someone would have to bring a legal case against this hospital for us to really find out the legal requirements. It’s just a sad commentary on society if individuals would really bring a HIPAA violation against a hospital that was destroyed by a tornado. I’m all for the legal system when there are issues of negligence. I just don’t see how a tornado’s disclosure of PHI miles away is negligence.
Of course, if the hospital had an EMR, they wouldn’t have to worry about an X-ray being found miles away. Well, unless the hard drive, server, computer, laptop, etc was blown miles away. Hopefully the data center planning took natural disasters like this into account. Although, even if it didn’t, with appropriate device encryption even this wouldn’t be an issue. It would be like having an encrypted laptop stolen. One more reason to have an EMR instead of paper records.
This is an interesting edge case that I’d love to learn about since every healthcare entity could potentially be hit by a natural disaster. Of course, I’ve seen a lot of discussion about providing healthcare during a natural disaster. I hadn’t thought as much about HIPAA during a natural disaster. Maybe that’s how it should be.
On a more personal note, my thoughts and prayers go out to those who’ve been hit by this disaster and others. I didn’t know anyone in Joplin, but we have family in Springfield, MA which had a tornado cause destruction as well as some fires raging in Arizona that are affecting many people we know. I wish them all the best as they deal with challenging situations.