Is there such a thing as implied consent regarding a HIPAA violation?

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Is there such a thing as implied consent regarding a HIPAA violation?

I am an RN who was doing an out-patient fetal monitoring test on a pregnant patient (47 year old, pregnant with twins). Her friend was sitting next to her in the exam room while the test was being done. I was going over her history in her chart and I brought up her IVF. The next day she called, extremely upset, saying I violated her privacy by disclosing this in front of her friend – who she did not want to know that she had undergone in vitro fertilization. Was I wrong in assuming that because she allowed the friend in the room, this was implied consent?

Asked on May 7, 2011 under Malpractice Law, California

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Your question raises an interesting issue under HIPAA laws and their violation.  There are many states that have "implied consent" laws, some really dealing with DWI and DUI.  In those type cases when you acquire a license from the state along with it comes an implied consent to take sobriety tests if pulled over.  HIPAA laws are very specific in that they require written consent (verbal consent is not good enough).  Now, you have to be deemed a covered entity here to disclose (which you probably are).  And you were not really disclosing or transmitting the information to a third party but discussing the information with the patient.  There was, however, a third party present but present at the request of the patient  So maybe consent can be inferred here. Did you have the patient sign anything as to the test?  Was it noted anywhere - chart or anywhere - that her friend was with her? I wold seek consultation from your attorneys here and do not speak with the patient on the matter again.  Let the attorneys handle it.  Good luck. 


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