Online Reviews May Spawn HIPAA Violations

Here is a fascinating piece from ProPublica about a disturbing trend in the online review world – health providers violating privacy protections enacted under the HIPAA statute.  These providers – who feel unfairly attacked on sites like YELP – may be violating federal law in their attempts to clear their names.  What they are likely doing is making a manageable situation WAY worse.

I always like to note that the “P” in HIPAA doesn’t stand for “Privacy.”  HIPAA is the Health Insurance Portability and Accountability Act.  The statute itself doesn’t set out any privacy rules.  But the Health and the Human Services Agency, pursuant to enabling provisions in the HIPAA statute, has issued regulations providing for patient privacy.
Of course HIPAA was enacted in 1996, so it’s likely that no one (except then VP Al Gore) was thinking much about the Internet.  And back then, sites like YELP and Ripoff Report didn’t exist. But they do now, and disgruntled patients use them to vent about unsatisfactory experiences with doctors, dentists, chiropractors and just about anyone you can think of.

And I’m not saying doctors are thin skinned, but these reviews do tend to get them peeved.  And as so often happens when people are angry, they make bad decisions.  And in some cases, as detailed in ProPublica, the bad decision involves discussing specific treatment issues of the patients in online responses.  And that is almost certainly a HIPAA violation.

When doctors get sued for malpractice, they can refer to the patient’s records in the litigation as a means to defend themselves.  But the “court of public opinion” is not really a court.  So the privilege that applies in litigation has no application in the online world.  Health care professionals, and anyone who has confidentiality duties (listen up lawyers!) should take note.
It probably seems to doctors that they have to fight online with one hand tied behind their back – the disgruntled patient, who has no duty of confidentiality, can complain, but the doctor can’t disclose any detail to rebut the charge.  And that is kind of the way it is.  But as one sided as that may seem, it’s the law.  And no bad review can excuse ignoring it.  This is one of those times where the doctors just have to take their medicine. So to speak.