Not sure if this is a HIPAA violation...anyone an expert?

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    I work with a very young LPN who is the resident "know it all". I'm not bashing LPN's...just clarifying her job title.

    I work in various departments in women's and children's. We had a baby that was born about two weeks ago to a mother with an active herpes infection. Our hospital, like many, has a process to designate another person to receive information on the patient.

    Shortly after birth, the baby became symptomatic. An LP was ordered along with blood cultures, etc.

    The baby's grandfather, who the baby's mother designated to receive information on the baby, was told the infant was going to have lumbar puncture when he arrived to visit the baby. The LPN that was taking care of the infant told the grandfather that it was because the mother had an active herpes infection when the baby was born, so we were testing the baby to see if it had a systemic herpes infection.

    Needless to say, the mother's father had no idea his daughter had an active herpes infection.

    I told the LPN that she committed a HIPAA violation by disclosing the mother's medical history. The LPN felt that because it was the reason for the procedure, it was not a HIPAA violation. I told the LPN that she could have said, "The infant is having an LP to check for viral infections among other tests." If her Dad pressed further, we could have said, "We cannot disclose more information without violating the mother's privacy." The LPN felt strongly enough overlapping existed to allow the disclosure and she kept saying, "But the mother signed the form?" I said, "it was for the BABY, not for HER".

    Well, turns out the infant had a positive blood culture and was negative for herpes.

    Who was right?
  2. 15 Comments so far...

  3. 1
    Number ONE- it should have been the physician explaining why the procedure was being performed. I've done that myself(explaining a procedure), but to avoid misunderstanding and liability, that would be best.

    Having said that, you are correct, no direct mention should have been made of the mother. This is frank legal wanking, since the only way the infant could be exposed was by mom. In practical terms, it makes no difference, but lawyers make their livlihood on such minutae.

    Should she ask about your source, I'm a research RN with a University, and drafting HIPAA authorizations, and QA for departmental compliance, is part of my job. I am not, "The Privacy Officer".
    anon456 likes this.
  4. 3
    There is a lot of intrepreting of HIPAA that goes on and I would like to thank you for saying HIPAA not HIPPA.

    Technically, once the permission to allow the Grandfather information.....the Granfather has the right to know what and why that baby is getting tested with an invasive test. The grandfather has the right to know the what and why of the babies treatment....in this case.

    However, I agree that the question can be answered more tactfully as in your post.....if the Grandfather insisted to know what the test was for and why........you would have to tell him. The other nurse didn't necessarily have to blert it out and should probably learn to moderate her brain to mouth hot line becasue she is in a habit of being forthcomming with information that will eventually land her in hot water. Her loose lips will get her into trouble.

    I know there will be different opinions and that is a part of the problem with HIPAA is the enforcement is not consitant. Some are over cautious/zealous and cause undue angst while other are not cautious enough.

    There is no medium.
    ktwlpn, toomuchbaloney, and systoly like this.
  5. 0
    This is more opinion than legal fact...

    I believe that, technically speaking, a HIPAA violation took place when the grandfather was told that the mother has herpes. However, if the grandfather wants to know why the LP is being done, it will come out that the infant is being checked for herpes--if he pushes the issue....he has the right to know. In that case, he can most likely deduce that the mother has herpes.

    The other issue here....the LPN should have just told the grandfather the procedure was being done because the infant was showing signs of infection. If the grandfather pushes it, then he has to be told what infection is suspected...but, given the sensitivity of the issue, I would only go that far if the grandfather specifically wanted to know.
  6. 0
    Quote from psu_213

    The other issue here....the LPN should have just told the grandfather the procedure was being done because the infant was showing signs of infection. If the grandfather pushes it, then he has to be told what infection is suspected...but, given the sensitivity of the issue, I would only go that far if the grandfather specifically wanted to know.
    ^^ This. By the nature of the test, and conditions which brought it about, it cannot be said that the GF learning of his daughter's Herp was a violation, rather, in the legal sense (and only in that sense) it should not have been broached the way that it was.

    Basically, Mom's lawyer would scream "HIPAAAAAA!!!".
    The hospital lawyer would say, "Feces. Authorization. But, because we don't want a protracted argument, or bad PR, we'll fire/reprimand the LPN and here's $20K for your pain..."
  7. 0
    Quote from Rob72
    ^^ This. By the nature of the test, and conditions which brought it about, it cannot be said that the GF learning of his daughter's Herp was a violation, rather, in the legal sense (and only in that sense) it should not have been broached the way that it was.
    I think this is what I was trying to say
  8. 1
    My theory that I tried to explain, in vain, to the LPN, that while there is some overlap of information, that we cannot disclose anything regarding the mother's medical history unless we can prove it had an impact on the infants.I was thinking that if the LP came back positive for HSV, then that can be released and obviously, it can be assumed that the baby cannot be positive if the mother is not.However, I felt strongly that the nurse made a HIPAA violation when she disclosed the mother's history, especially since it was proven after-the-fact that the mother's infection was not passed on to the infant.
    GrnTea likes this.
  9. 0
    No, not a HIPAA violation.
  10. 0
    While not a HiPAA violation... I agree that the person sharing information could have been a lot more tactful regarding that. Not sure everyone understands what they are signing when they sign such papers. Did you ask her to think how she would feel if that was revealed to her father?
  11. 0
    I agree with tactless.


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