Breaching Confidentiality | Nurses

Nurses interact with many others in the course of their practice, including not only patients but also their family members, friends, other visitors, and, of course also, their professional supervisors and colleagues. Nurses have many obligations in the course of their frequent interactions and many rules and protocols to follow. One of their key obligations has to do with keeping their patient's information confidential. Confidentiality breaches are one of the more common disciplinary charges against nurses. Let the Lento Law Firm's premier Professional License Defense Team represent and defend you if your state licensing board has charged you with confidentiality breaches. We are available nationwide to help defend and defeat your disciplinary charges. Call 888.535.3686 or complete this contact form now for the skilled, experienced, and effective attorney representation you need for your best disciplinary outcome.

Nursing Board Disciplinary Authority

The disciplinary officials notifying you of your alleged confidentiality breaches have the authority of your state legislature to pursue those charges. Your state has likely enacted a Nursing Practice Act or other nursing laws like the nursing laws of other states. Those laws establish the state board of nursing with the authority not only to license nurses but also to discipline those licenses. Oregon's nursing laws are an example. Section 678.111 of Oregon's Nurse Practice Act authorizes the Oregon State Board of Nursing to suspend, revoke, or otherwise discipline the license of a nurse on any of its listed grounds. Those grounds include violation of any nursing rule or standard, which would clearly include nursing standards to maintain patient confidentiality. Don't doubt your state nursing board's authority to hold you accountable for confidentiality breaches. Instated, retain us to defend the charges with your best defense evidence and case.

Prohibitions on Breaching Confidentiality

Although some states refer generally to nursing standards, which routinely include the duty to respect patient confidentiality, many state nursing boards include express prohibitions against breaching confidentiality, in their administrative standards and disciplinary rules. Indiana is an example. The Indiana Nurse Practice Act authorizes the Indiana Board of Nursing to promulgate administrative rules for nursing standards and discipline. The Indiana Board of Nursing's administrative rules include several mandates that nurses of all kinds respect patient privacy and maintain patient confidentiality. Those rules include 848 Indiana Administrative Code Section 2-2-3, defining sanctionable unprofessional conduct to include “disregarding a patient/client's dignity, right to privacy, or right to confidentiality.” In Indiana, as in other states, a nurse will face potential discipline for breaching patient confidentiality. Let us help you defend your disciplinary charges.

The Definition of Breaching Confidentiality

You surely have a sense of what it means to breach patient confidentiality. However, each element of the offense's definition can play a role in any one disciplinary case. In general, to breach confidentiality is to share confidential patient information with another without patient consent or legal authorization. Notice the following elements of that definition. First, the accused nurse must have shared patient information with another person. Next, the information the accused nurse shared must have been confidential patient information. Next, the patient must not have consented to that sharing. Finally, the accused nurse must not have had other legal authorization, outside of the patient's consent, for sharing the confidential patient information. Each of these elements is important. Without proof that each of these elements was present, the disciplinary officials charging you with breaching confidentiality should not be able to make a case.

Defenses to Charges of Breaching Confidentiality

The above definition of a confidentiality breach suggests several of the defenses that our highly skilled and experienced attorneys may be able to raise and prove on your behalf to defend and defeat your disciplinary charges. We will investigate thoroughly to determine the evidence surrounding the state nursing board's allegations of confidentiality breaches. Depending on the circumstances and evidence, we may then be able to show one or more of the following defenses to your disciplinary charges:

that you were not the nurse who shared confidential patient information, having instead been misidentified;
that although you had access to the patient information, you did not share it and instead maintained it as confidential;
that although you shared patient information with another person, the information you shared was not confidential;
that although you shared confidential information with another person, the information you shared did not identify the patient and was thus not patient information;
that the patient consented to your sharing the confidential information with the person with whom you shared it; or
that you had the legal authorization to share the confidential patient information with the person with whom you shared it.

The Frequency of Confidentiality Breaches

Medical care and nursing practice generally require constant sharing of confidential patient information with a wide circle of healthcare professionals and, at times, family members or other persons connected with patient care. Recognizing the necessity of sharing patient information, one can imagine that confidentiality breaches are relatively frequent despite sound training and earnest intent to respect patient privacy. A National Library of Medicine study found, after tens of thousands of hours of close observation, that the incidence of confidentiality breaches in the hospital setting was one breach for every 62.5 hours of professional service. In other words, nurses and other healthcare workers might expect to commit a confidentiality breach every week and a half of work. That's a high frequency of confidentiality breaches.

Patterns of Confidentiality Breaches

Confidentiality breaches tend to occur in certain places and patterns. The same National Library of Medicine study just cited found that the most frequent confidentiality breaches, more than half, had to do with disclosure of confidential patient information to other healthcare professionals not involved in the patient's care. One can see why that would be the case. Nurses might assume that other healthcare professionals were involved in their patient's care or might innocently talk shop with other uninvolved healthcare professionals, making discreet confidentiality breaches. Not surprisingly, the study further found that confidentiality breaches were most common in public areas like corridors, elevators, cafeterias, stairways, and locker rooms rather than in private clinical settings. The study further found that nearly half of all observed confidentiality breaches were severe, presumably meaning that the information shared exposed the patient to significant embarrassment or caused or threatened to cause other significant disruption and offense.

Examples of Breaching Confidentiality

Your matter will have its own peculiar circumstances and presentation, even if it falls into one or more of the above common patterns for confidentiality breaches. The particular facts and circumstances of your confidentiality breach may go a long way toward determining the outcome of your disciplinary charges. Our attorneys will investigate and discover the key information and evidence likely to influence and achieve your best disciplinary outcome. Examples of confidentiality breaches may include:

the accused nurse shared confidential patient information with an involved family member without first obtaining patient consent, believing that the family member should know to appropriately assist and support the patient;
the accused nurse shared confidential patient information with a professional colleague, mistakenly assuming that the professional colleague was involved in the patient's care;
the accused nurse shared confidential patient information with a professional colleague whom the nurse knew was not involved in the patient's care, believing that the colleague might have some helpful recommendation to share;
the accused nurse shared confidential patient information with the nurse's own spouse or other confidante as a way of processing work events, and the spouse or other confidante shared the information with others;
the accused nurse shared confidential patient information with a supplier or vendor serving the hospital or other nursing facility in the course of shop talk;
the accused nurse shared confidential patient information with an employer representative, such as a facilities manager, human resources representative, billing manager, or payroll clerk, when that employer representative had no need to know;
the accused nurse left confidential patient information on a patient bedside table, at a nursing station counter, at a reception desk, or in another location where family members, other visitors, or other persons not involved in the patient's care might observe it;
the accused nurse left confidential patient information observable on a patient trolley or wheelchair during the patient's transport through hallways, waiting rooms, and other public spaces;
the accused nurse enabled a person not involved in the patient's care to access online confidential patient information by sharing passwords, computers, or other electronic devices or
the accused nurse chatted, prayed, or gossiped with acquaintances of the patient, sharing confidential patient information, believing that the disclosures were reasonable updates on the patient's health to a concerned individual who would keep the information confidential.

Patient Consent to Sharing Confidential Information

As indicated above, patient consent to your sharing of confidential patient information would be a common and credible defense. Patients consent to disclosures of confidential information in a variety of settings and ways. Patients sign admission papers that include consent provisions for nurses and other healthcare professionals to share confidential patient information to get their work done. The general consent form may be broad enough to cover the disclosure that disciplinary officials allege to be a confidentiality breach. Patients also sign consent forms at various stages of their healthcare for specific release of information. Patients also give oral consent to nurses and other healthcare professionals at the bedside and in other patient settings, especially to obtain the assistance and support of family members and friends. Legal representatives of minor patients, comatose or sedated patients, and other patients unable to give their own consent may also consent to the sharing of confidential information, raising another potential defense. We can help you investigate, discover, and present these consent defenses.

Authorization to Share Confidential Information

Beyond the defense of consent lies a related defense of the legal authorization for disclosure. Patient consent is only one of several potential legal authorizations for disclosure. A National Library of Medicine review of HIPAA rules and other confidentiality practices indicates these other potential legal authorizations for disclosure:

disclosures of suspected child abuse to protective services;
disclosures of suspected domestic violence to law enforcement;
disclosures made under court order in criminal, civil, or juvenile proceedings;
disclosures made pursuant to subpoena in depositions or for records;
disclosures made to state or federal officials in healthcare fraud investigations;
disclosures made to laboratory or billing personnel;
disclosures made to parents, guardians, or other persons responsible for the patient's care to obtain substituted consent when the patient is unable to give the patient's own consent;
disclosures made in court proceedings regarding the patient's competence to give consent or decide on the patient's care;
disclosures made in peer review, audits, risk assessments, and other institutional review, although the disclosures may require redaction of patient names;
disclosures to obtain pharmacy, therapy, assistive equipment, or similar services and supplies necessary for the patient's care; or
disclosures necessary to obtain third-party assistance, such as for outpatient services at a rehabilitation facility.

Depending on the circumstances and evidence, our attorneys may be able to raise any one or more of these legal grounds for your disclosure of confidential patient information as a defense in your case.

The Severity of Confidentiality Breaches

A confidentiality breach is a confidentiality breach if it meets each element of the above definition. In theory, state nursing board disciplinary officials could charge a nurse for any confidentiality breach, no matter how serious or non-serious. However, in practice, disciplinary officials are far more likely to charge misconduct for the more serious and severe confidentiality breaches. Indeed, some confidentiality breaches are more severe than others. Factors influencing the severity of a confidentiality breach, the likelihood of a disciplinary charge, and the seriousness of the disciplinary sanction include:

to whom the accused nurse made the disclosure, whether, for instance, a person with interests adverse to the patient or a person responsible for the patient's care;
to how many others the accused nurse made the disclosure, whether just one, several, or many;
how widely the person to whom the accused nurse made the unauthorized disclosure distributed the confidential patient information;
the use to which others put the confidential patient information that the accused nurse disclosed, such as to cut off patient relationships or deprive the patient of other benefits;
the patient embarrassment the unauthorized disclosure caused;
the degree of invasion of privacy that the unauthorized disclosure caused;
the specific health condition or treatment the accused nurse disclosed, such as whether a sexually transmitted disease or, conversely, an ordinary cold; and
the circumstances of the disclosure, such as in the regular course of nursing practice or instead at a social event or community location outside the nursing facility.

Mitigating Factors to Confidentiality Breaches

The above indicators of the relative severity of the accused nurse's disclosure may clearly influence the fact of a disciplinary charge and the seriousness of the sanction, if any. Other factors, though, may mitigate the seriousness of a sanction for a confidentiality breach that the accused nurse must admit occurred. Our attorneys can help you identify those mitigating factors and make your best case for a reduction in or elimination of any disciplinary sanction. Depending on the circumstances and evidence, mitigating factors may include:

your confidentiality breach was a one-time, first-time event rather than a multiple or repeat offense, suggesting your generally good character, skill, and competence for compliant nursing practice;
supervising nurses, physicians, and employer representatives authorized, directed, and encouraged your disclosure, which you made while reasonably believing in its appropriateness;
your disclosure occurred under circumstances where you made a reasonable mistake in the facts as to consent, authorization, the information you disclosed, the person to whom you disclosed it, or other material factors;
you made no deliberate, knowing, intentional, or reckless disclosure of confidential patient information, instead only arguably a careless or even innocent disclosure;
your disclosure of confidential patient information caused the patient no embarrassment, reputational harm, loss of support or relationship, or dignitary offense;
your unauthorized disclosure of confidential patient information benefited and aided the patient in some respect, which was the purpose of your disclosure;
your disclosure did not subject you, others, or your facility or employer to civil liability or regulatory risk;
you promptly self-reported your unauthorized disclosure rather than denying and attempting to conceal your act, confirming your good character, education, training, and intent or
your unauthorized disclosure occurred during the course of your unexpected temporary impairment by an innocent medication reaction or other mental, emotional, or psychological condition or event, which you have since corrected and that does not present any future non-compliance risk.

Reporters of Confidentiality Breaches

How your state licensing board confidentiality breach disciplinary charges proceed and resolve may also depend on who reported and complained of your alleged confidentiality breach. Patients are natural and understandable complainants when a nurse breaches patient confidentiality. Patients are the ones most likely to suffer harm from a confidentiality breach. If a patient or multiple patients complain, disciplinary officials may be more likely to pursue charges and impose greater sanctions.

Supervisors and professional colleagues may also or alternatively report patient confidentiality breaches, especially when believing that they are under a duty to report. Disciplinary officials may treat a supervisor or colleague report as routine and not especially worthy of charges and severe sanctions, if no patient complains and no patient suffered harm, embarrassment, or injury. Your employer and facility managers may also report confidentiality breaches to ensure their HIPAA compliance and reduce regulatory risks. Depending on the circumstances, disciplinary officials may look askance at those reports for the same reason of the absence of patient complaint and harm. We can help you evaluate these factors and pursue the best strategic defense in light of them.

Sanctions for Confidentiality Breaches

The potential sanctions for confidentiality breaches would be like the sanctions available to state nursing board disciplinary officials for other nursing misconduct. Those sanctions are generally progressive, everything from as little as a caution, correction, warning, or reprimand to remedial training and education, license probation, and license conditions, all the way up to license suspension and revocation. Let us make your best defense case in the mitigation, reduction, and elimination of punitive sanctions so that you suffer no reputational or employment impacts. We may be able to resolve your matter with only remedial measures or expressions of regret and rehabilitation, with assurances of future compliance.

Procedures for Confidentiality Breach Charges

Defending your disciplinary charges depends on our attorneys invoking the available protective procedures under your state's Nurse Practice Act or other nursing laws, rules, and regulations. Those procedures should satisfy constitutional due process rights to fair notice and fair hearing before an impartial decision maker. Indiana's Nurse Practice Act and nursing regulations are once again an example. The Indiana Board of Nursing has adopted an administrative rule codified at 848 Indiana Administrative Code Section 1-1-5, incorporating the state's Administrative Procedure Act. That Act and other states act as it provides not only for the requisite notice and hearing but also for appeals and even civil court review under certain circumstances.

Attorney Role Defending Confidentiality Breaches

Those protections give our attorneys the opportunity to evaluate the charges, advocate and negotiate for charge dismissal at early resolution conferences, invoke and attend the formal hearing to present your defense evidence, cross-examine adverse witnesses, and appeal adverse results if you have already lost your formal hearing. We can also seek available court review and reversal in certain cases. Do not underestimate all that you have at stake in your disciplinary matter, and do not underestimate the difference our representation can make in your outcome.

Premier Attorneys for Nursing License Defense

If you face state nursing board confidentiality breach disciplinary charges, the Lento Law Firm's premier Professional License Defense Team is your best choice for skilled and effective defense representation. We are available nationwide. Our attorneys have helped hundreds of nurses and other professionals in all kinds of license proceedings, including those involving confidentiality breaches. Call 888.535.3686 or complete this contact form now for our premier defense representation.

Nursing Defense Against Discipline for Breaching Confidentiality