Jaime from San Francisco asks this week’s question:
Q: “I work for a Fortune 500 company and I went out on disability. I had been sexually assaulted (off the job) and suffer from post-traumatic stress disorder. I have become extremely anxious and depressed. I filed for time off work and requested short-term disability. I gave a limited authorization for my doctor to say what my condition was and how much time off I needed. Without my permission, my psychiatrist told my employer about the assault, and now my co-workers have found out. He also told my employer I have been drinking more. I never told him he could disclose the assault or my drinking. He was just supposed to release the limited information the disability company needed. I am mortified and embarrassed. My employer is demanding that I go to rehab. I am really angry at my psychiatrist and my employer. Can they do this?”
A: You have been through a horrible experience and I understand why you would be upset. In California, the Confidential Medical Information Act Civil Code Section 56 states that any provider of health care, a health care service plan, etc., must hold a patient’s medical information private and shall not disclose such information without first obtaining an authorization or meeting statutory exceptions. Section 56.11 details requirements for valid authorizations, including that they must be handwritten or typed in language clearly separate from any other language, and properly signed and dated by the patient or the patient’s designee.
Your doctor, by revealing too much information, appears to have violated your rights under the CMIA and your constitutional right to privacy. Generally, disability benefit programs require a physician to state the nature of the disability, and how long you have been and will be disabled. Revealing why you are suffering from PTSD or an anxiety disorder, in this case sexual assault, and recommending rehab, exceeded the scope of your authorization.
Section 56.10(c)(2) states that the information may be disclosed to an insurer or employer, employee benefit plan, etc., to the extent necessary to allow responsibility for payment to be determined and payment to be made.
In the case of Pettus v. Cole (1996), the plaintiff, an employee of DuPont for 22 years, sought leave for a disabling stress-related condition. He had seen a psychiatrist who had recommended a temporary disability leave from his job. Under DuPont’s short-term disability policy, Pettus was required to undergo an examination by a DuPont-selected doctor for verification of his need for disability leave.
The doctor who examined Pettus reported to DuPont that Pettus thought that his employer was racist and that the doctor believed his stress-related condition, among other things, might be related to alcohol abuse. DuPont told Pettus that if he wanted to keep his job, he would have to go to rehab. Pettus declined and was fired.
Pettus sued, contending that he did not authorize the doctors to disclose the full contents of their evaluations to DuPont and that the unauthorized release of such information to his supervisors, and the subsequent use of that information as the basis for terminating his employment, violated the CMIA and his state constitutional right to privacy.
The appellate court agreed that Pettus could go to trial on his claims, stating, “If a health care professional were free to give an employer all the details of an employee’s personal life and physical and mental health as revealed during a disability evaluation, there would be a great disincentive to full and honest disclosure by the employee. Indeed, in many cases of psychological disability, there would be a strong disincentive to the employee to seek professional help at all. Neither employees nor employers would be well-served by such a rule.”
So, Jaime, your situation is analogous to the Pettus case and, therefore, there is a legal basis to claim violation of your rights under the CMIA and your constitutional right to privacy. Get yourself a good contingent-fee trial lawyer to pursue your legal remedies.
Next week, I will discuss the employer’s obligations to protect your confidential medical information from disclosure to others.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to firstname.lastname@example.org.